Supreme Court New South Wales Medium Neutral Citation: Sarah v The Public Guardian [2018] NSWSC 2005 Hearing dates: 21 December 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Equity - Protective List Before: Kunc J Decision: Plaintiff's notice of motion dismissed with costs Catchwords: CIVIL PROCEDURE — Protective jurisdiction — Procedure — Powers of court — Urgent application to revoke guardianship and financial management orders — No circumstances established to warrant revocation when review and appeal from orders to be heard in April and May 2019 CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Guardianship Act 1978 (NSW) Category: Procedural and other rulings Parties: Sarah (Plaintiff) The Public Guardian (Defendant) Representation: Counsel: J Capsanis (Solicitor — Plaintiff) M Higgins (Defendant) Solicitors: J Capsanis (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2016/229457 Publication restriction: No EX TEMPORE Judgment (Revised) Summary 1. These proceedings concern a 90-year-old woman to whom I shall refer, without disrespect, as "the mother". They are brought by her daughter who for the purposes of this judgment is referred to by the pseudonym "Sarah". 2. Guardianship orders have been made by the New South Wales Civil and Administrative Tribunal ("NCAT") in respect of the mother. By a notice of motion filed shortly before the Court vacation, Sarah seeks a number of orders intended to undo the current guardianship regime in relation to the mother. Sarah asks the Court that she be substituted to have responsibility for the mother's affairs. 3. After an urgent hearing conducted subject to the constraints of the Duty List on the last Friday before Christmas, I have concluded that Sarah's notice of motion should be dismissed. I do so because she has failed to demonstrate that there are any circumstances warranting the urgent intervention of the Court in the current arrangements concerning the mother, especially when those arrangements will be the subject of a full judicial review at a hearing currently fixed for 14 and 15 May 2019 before a judge of this Court. 4. Mr J Capsanis, solicitor, appeared for Sarah. However, I should also record that, from time to time, Sarah asked to address the Court directly and was permitted to do so. The defendant (the "Public Guardian"), in whom certain guardianship functions have been vested, was represented by Mr M Higgins of Counsel. The present application 1. On 14 December 2018, being the last date of the Court's term, Mr Capsanis approached Pembroke J, who was sitting as Duty Judge, and was granted leave to file in court Sarah's notice of motion dated 14 December 2018 ("the notice of motion") with supporting affidavits. 2. Pursuant to Justice Pembroke's orders, the notice of motion was returned before me, sitting as Vacation Judge, on 18 December 2018. On that occasion I indicated to the parties that the Court was most unlikely to consider any of the relief sought in the notice of motion in the absence of any information about the mother's current state of health and wellbeing from an independent source, as opposed to the evidence sought to be relied on by Sarah. The matter was therefore adjourned until today with the intention of giving the Public Guardian an opportunity to obtain evidence from the mother's treating doctors. That was done. 3. I stood the proceedings over to today and Mr Capsanis moved on the notice of motion. The relief sought in the notice of motion included: "1 The order of the New South Wales Civil and Administrative Tribunal Guardianship Division ('NCAT') on 31 May 2016 revoking the appointment of the plaintiff as the enduring guardian of [the mother] be stayed. 2 The order of NCAT on 31 May 2016 reappointing the Public Guardian as [the mother]'s guardian for a period of three years with the functions of accommodation (coercive) and access and any other appointment regarding medical and health be stayed. 3 Alternatively, an order that until the appeal of the Plaintiff from the orders of NCAT made on 31 May 2016 shall have been heard and decided and until further order, the defendant by himself servants and agents be restrained from exercising the functions of accommodation and access, medical and health, and in lieu the plaintiff be appointed guardian with the functions of accommodation, access, medical and health for [the mother]. 4 An order that the order made on 9th April, 2018 appointing the NSW Trustee & Guardian to manage the estate of [the mother] be revoked and in lieu the Plaintiff be appointed financial manager until the appeal of the Plaintiff from the orders of NCAT made on 31 May 2016 shall have been heard. 5 The Public Guardian be required to fund the expenses associated with the Plaintiff arranging the accommodation and for carers of [the mother] pursuant to any orders made by which she has the role of guardian and exercising the function of accommodation for [the mother]." Procedural history 1. On 14 April 2016 NCAT made two sets of orders: "REVOCATION OF ENDURING GUARDIANSHIP APPOINTMENT Guardianship Act 1987 Date of order: 14 April 2016 NCAT orders: 1. The appointment of Ms [Sarah] as [the mother's] enduring guardian is revoked. … RENEWAL AND VARIATION OF GUARDIANSHIP ORDER Guardianship Act 1987 Date of order: 14 April 2016 NCAT orders: 1. The guardianship order for [the mother] made by NCAT on 02 September 2015 is renewed and varied so that the order is now as follows. 2. This is a continuing guardianship order for a period of 3 years from the date of this order. 3. The Public Guardian is appointed as the guardian for [the mother]. 4. This is a limited guardianship order giving the guardian custody of [the mother] to the extent necessary to carry out the functions referred to below. FUNCTIONS 5. The guardian has the following functions: a) Access To decide what access [the mother] has to others and conditions of access. b) Accommodation To decide where [the mother] may reside. The guardian may authorise others including the NSW Police Force and the Ambulance Service of NSW to: i) take [the mother] to a place approved by the guardian; ii) keep her at that place; and iii) return her to that place should she leave it. CONDITIONS 6. The conditions of this order are: a) In exercising this role the guardian shall take all reasonable steps to bring [the mother] to an understanding of the issues and to obtain and consider her views before making significant decisions." 1. In order to understand some of the issues that were ventilated today, it is necessary to note that under the second set of orders made by NCAT: 1. The period of the continuing guardianship order was for three years, therefore expiring in April 2019; and 2. The appointment of the Public Guardian as guardian for the mother was limited to the functions specified in the order, which were referred to in the course of argument as being for "access and accommodation". 1. No order was made by NCAT in relation to matters concerning the mother's health. That was because NCAT was satisfied that those issues would be adequately looked after by the mother's two sons. Both of her sons are medical doctors and one of them, to whom I shall refer without disrespect as "the brother", gave evidence before me in the Public Guardian's case. 2. Nor did NCAT in its decision of April 2016 deal with issues concerning the financial management of the mother's affairs. It is sufficient for present purposes for me to record that the NSW Trustee and Guardian has been appointed the financial manager for the mother. That appointment, as I shall explain in more detail below, is also the subject of what I have referred to in general terms as the judicial review to take place in May next year. 3. On 29 July 2016, Sarah filed a summons in this Court appealing from the decision of NCAT. Appeals to this Court from NCAT are governed by Clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act 2013 (NSW): "14 Appeals to Supreme Court under this Part (1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision: (a) in the case of an interlocutory decision of NCAT—with the leave of the Court, or (b) in the case of any other kind of decision—as of right on any question of law, or with the leave of the Court, on any other grounds. (2) An appeal under this Part is to be instituted: (a) in the case of an ancillary or interlocutory decision of NCAT—within the period ending 28 days after the relevant decision has been made, or (b) in any other case—within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or (c) within such further time as the Supreme Court may, in any case, allow. (3) The Supreme Court in an appeal under this Part may: (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by NCAT at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (4) In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by NCAT at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court. (5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal." 1. Sarah's appeal is now constituted by a further amended summons filed on 18 April 2017. 2. The appeal process has been managed by Lindsay J in his capacity as the Protective List Judge. On 29 August 2016, his Honour made an order pursuant to Clause 14(5) of the Civil and Administrative Tribunal Act 2013 to the effect that the filing of the appeal did not stay the orders of NCAT. His Honour has also been case managing a separate set of proceedings whereby Sarah challenges the financial management orders. Those two sets of proceedings will come together for determination on 14 and 15 May 2019. Sarah's evidence 1. Sarah's evidence consisted of affidavits sworn by her and an affidavit of Sarah's support person. It is not necessary, particularly in the urgent circumstances in which I have heard these proceedings and am delivering these reasons, to set out in detail the evidence adduced on behalf of Sarah. It is sufficient to summarise it as being an extended account of complaints and concerns which Sarah has about the mother's treatment in the nursing home which has been selected for her by the Public Guardian. 2. Sarah has been particularly exercised by concerns which she has had about skin lesions which the mother apparently began to suffer several months ago and which, according to Sarah, have not been the subject of proper or adequate medical attention. According to Sarah's evidence, her mother has lost weight, has become less responsive, is very unhappy, speaks about wanting to die, is not eating properly and is suffering as a result of her skin condition including what Sarah describes in her evidence as "deep wounds with pus and large patches of inflammation". 3. Sarah also gave evidence in reply in the witness box to evidence that was adduced by the Public Guardian from the brother. In essence, Sarah disagreed (it is no exaggeration to say vehemently) with the account given by the brother of the mother's current circumstances. The Public Guardian's evidence 1. The Public Guardian's evidence consisted, on the key issues, of medical reports from the mother's general practitioner, dermatologist and the mother's medical progress notes from the nursing home for the period May 2018 to 15 December 2018. As I have said, the brother also gave oral evidence (and was cross-examined by Mr Capsanis) pursuant to a subpoena which I issued at short notice. I did so because I was told by the Public Guardian that the brother was prepared to give evidence, but only if he was subpoenaed. That fact in itself I infer is a regrettable consequence of the complete breakdown of the relationship between Sarah and the brother to which I will refer further below. 2. The general practitioner's report was: "[The mother]" was admitted to this Aged Care Facility in July 2015. I began looking after her on 26/2/16. Her care in the Facility all the time I consider excellent and I attend four other Aged Care Facilities so am experienced. She has had problems — 19/2/16 fracture left hip, intermittent respiratory infections and mild cardiac failure during the period of my care. These have all been attended to promptly by staff and myself and transferred to hospital when required. Her current problem is an itchy rash which is colonised by a resistant bacteria probably contracted in hospital. She has been seen by a dermatologist Dr XXXX and investigations performed which were unremarkable. She has had treatment with creams and antibiotics and dressing and it is definitely improving. Photos have been sent to Dr XXXX and he has nil to add. In conclusion, I see her often twice or once weekly or fortnightly and she is happy and alert." 1. The dermatologist's report was: "I have only seen this lady once at XXXX nursing home. That was on 11 August 2018. She had numerous excoriations on her skin. She was very drowsy and the staff were having trouble arousing her. There was no obvious cause for the itch that I could find. I wondered about metabolic issues or drug reaction. There was no evidence of scabies. I ordered some screening blood tests which showed evidence of decreased renal function and mild liver function abnormality. Her blood sugar was raided [sic]. These appear to be long standing issues compared to previous tests. Some minor changes in treatment were suggested. I also understand that she had subsequently been admitted to St Vincent's Hospital. I'm not sure of the reason for this admission. I am not aware that they found any cause for her itchiness. I can't comment on the standard of care that she has received at XXXX nursing home or her current treatment as I have not seen her for over 4 months. If her pruritus is related to decreased renal function then the prognosis for recovery is poor." 1. I have also read all nine pages of the mother's medical progress notes which record specific medical incidents and observations over the last few months. These refer to the mother's skin issues and include numerous entries which report that her skin tears and lesions are getting better. They also record a setback in about October in relation to the mother's rash, but record further treatment being given. Her skin condition is referred to in a note dated 10 December 2018 which says "rash much better - x 1 small blister on left [side]. Still some raw areas. Right side almost healed." 2. I should also record, because it was the subject of some concern on Sarah's part, that there is an entry in the medical progress notes for 15 December 2018 that the mother rolled out of bed, as a result of which she has suffered bruising and swelling on the right side of her face and on her shoulder. That same entry records "rash improved". I do not regard this latest incident as establishing any lack of care or attention on the part of the nursing home in which the mother currently resides. 3. I turn next to the evidence given by the brother. The brother was for many years a general practitioner before obtaining further qualifications which resulted in him specialising in forensic psychiatry. Nevertheless, he gave evidence that, in the course of his 20 years as a general practitioner, he had treated many elderly patients. His evidence was that the mother suffered from a number of medical conditions, including hypertension, chronic renal failure, severe dementia, osteoporosis, diabetes, cardio-vascular disease and chronic bronchitis. Nevertheless he expressed the view based on his most recent observations of the mother that her medical condition was currently stable and that there was no reason to be concerned about the possibility of any imminent decline. 4. His evidence was that he saw the mother weekly, usually on a Sunday, and that he was otherwise in contact with the nursing home two or three times a week speaking to the Director of Nursing. He would be available more frequently if events with his mother required, including with his brother who lives interstate. His evidence was that, to his observation, the mother was well cared for in the nursing home and that the nursing home, notwithstanding being in an old building, was able to provide what he described as an excellent standard of nursing care. Sarah's submissions 1. Mr Capsanis' submissions, when reduced to their essentials, were that the evidence disclosed that the mother was a victim of elder abuse. He based his submissions around s 4 of the Guardianship Act 1978 (NSW) (the "Act"), which provides: "4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles." 1. He submitted that the Public Guardian had failed to meet the standards required by s 4 of the Act both in its choice of accommodation for the mother and in the access arrangements which it permitted and otherwise. He contended that the evidence disclosed poor health care, a lack of attention to the mother's religious needs as an observant Jew, an unreasonable attitude to keeping other relatives, including Sarah, informed about the mother's condition, the failure to attend properly to the mother's skin condition (including only arranging for one visit from the dermatologist after the advocacy of Sarah), a period of some weeks when the mother was without dentures (it being acknowledged that she had now been provided with new dentures), and that it was clear that the accommodation was not of an appropriate standard for the mother. 2. Mr Capsanis' submission continued that Sarah was plainly the best person to look after the mother. This was evidenced by the fact that at a time when the mother enjoyed mental capacity, she had appointed Sarah as her enduring guardian (that position being revoked by one of NCAT's orders in April 2016 — see paragraph [8] above). It was his ultimate submission that at least until the hearing in May 2019 the orders of NCAT should be revoked and the mother returned to Sarah's care in all respects, including accommodation, health and financial matters. The Public Guardian's submissions 1. With no disrespect to the careful and concise way in which Mr Higgins put his client's submissions, it is sufficient if I summarise them into three points. 2. First, Mr Higgins drew attention to a number of technical difficulties with the relief that was sought in the notice of motion. The primary relief sought in the notice of motion was, he submitted, to reverse the order made by Justice Lindsay to which I have referred in paragraph [14] above. Even accepting that Lindsay J's order was interlocutory, the usual principles concerning circumstances in which an order of that kind would be varied (other than by way of appeal) applied in the present case. He submitted that Sarah had failed to demonstrate any change in circumstances since Lindsay J made that order (which had the effect of continuing NCAT's orders pending the determination of the appeal to this Court) that would justify any change to the status quo. 3. It is not necessary for me to consider those principles in detail. As will become apparent from my consideration of the issues below, the views to which I have come do not depend on the niceties of the legal issues which Mr Higgins properly raised in relation to what was being sought to be done in the light of Lindsay's J's earlier orders. It is also fair to observe that the arguments on both sides were clearly directed to the merits rather than to what in other cases would necessarily be more technical questions the Court would be required to resolve in revisiting interlocutory orders. 4. Second, Mr Higgins submitted that the evidence was clear that the mother's health needs were being properly met by the current arrangements. His client did not dispute the genuineness of Sarah's concern for the mother, but he submitted it was also clear that Sarah was unable to demonstrate any basis in fact for her concerns. Mr Higgins accepted that it was not in dispute that the mother suffered from various medical conditions, including the most recent dermatological one, but the evidence demonstrated that these were all being appropriately treated. 5. Third, insofar as there was a lack of communication about the mother's condition between the brother and Sarah, that was because neither wanted to speak to the other. Having read Sarah's evidence, seen her give evidence and also observed her behaviour in the courtroom (about which I will say more below) I can understand why the brother has come to the view that it is futile for him to attempt to communicate with Sarah. Sarah, for her part and for her own reasons, has reached a similar conclusion in relation to the brother. Their mutual dislike is evident, but is not determinative of the outcome of the present application and I need say no more about it. Consideration 1. The beginning and end of the Court's consideration of an application of this kind is what is in the best interests of the mother. So much is required by s 4 of the Act and would, in any event, inform the exercise of the Court's discretion whether under that legislation or pursuant to the parens patriae jurisdiction. In determining the notice of motion I have sought to keep the mother's best interests at the forefront of my concerns. 2. As I have already indicated, it is unnecessary for me to take any time over the issues raised by Mr Higgins concerning the interlocutory nature of Lindsay J's order and I will proceed immediately to the merits of the matter. 3. Where, as here, the principal witnesses — Sarah and the brother — are diametrically opposed in their evidence about the mother's circumstances, the Court places particular emphasis on independent evidence. In this case that independent evidence is provided by the general practitioner, the clinical notes and, to a lesser extent because it is less current, the dermatologist. All of that evidence points to the conclusion that, while the mother has had various health issues, most notably for present purposes her dermatological condition, they have been appropriately treated. Importantly, the evidence of both the general practitioner and the clinical notes is that the skin lesions and related condition are improving. 4. To the extent there is a clear contest between the evidence of Sarah and the brother, I prefer the evidence of the brother. The brother presented as a careful and truthful witness who obviously had the mother's best interests at heart, and was able to bring his professional experience to bear in relation to her care. I accept his evidence, which supports the independent evidence to which I have already referred. 5. I have no doubt that Sarah is deeply concerned for the mother's wellbeing. However, it is apparent both from her evidence, her demeanour and her behaviour in the Court that she is no longer able to approach the question of the mother's care in a rational way. Two examples will suffice. 6. First, throughout the course of the hearing Sarah would interrupt and shout out her disagreement and dissatisfaction with anything a witness, counsel (including her own solicitor) or I might say. Her behaviour became sufficiently disruptive such that at one point it was necessary for me to exclude her from the Court. It gives the Court no pleasure to have to record these observations, but her behaviour and the manner in which she gave her evidence support the conclusion that she is not a reliable or rational witness when it comes to giving an accurate description about the mother's circumstances. 7. Second, during the course of her cross-examination she was invited to agree whether she would accept, for example, the accuracy of the clinical notes. She was unable to do so and made it clear that she was not prepared to accept the truth of the nursing home's records. She was unable to offer a rational basis for that lack of acceptance and I regarded it as yet another example of a state of mind which is unable to accept objective facts which do not accord with her views about the mother's situation. 8. On the basis of the Public Guardian's evidence to which I have referred, the Court finds that there is no imminent danger to the mother's health. Her medical condition is stable and the skin problems which have particularly concerned Sarah are improving. The Court is satisfied that the mother is receiving appropriate medical and other care in the nursing home in which she currently resides. The Court is not satisfied that the current nursing home is in any way inadequate or inappropriate. 9. In the light of those findings, there is no reason for the Court to exercise its discretion, whether the source of that discretion is under the Act or the parens patriae jurisdiction, to interfere with the current guardianship and other arrangements concerning the mother. This is especially the case when all of the issues will be ventilated in a much more orderly and fulsome way than has been possible in the urgent circumstances of the current hearing when NCAT's orders come up for review in April 2019 and the hearing in this Court takes place on 14 and 15 May 2019. Mr Higgins did inform me that there are some discussions under way with the registry as to the timing of the hearing in this Court given the review that will have to take place of NCAT's orders in April of next year, but that is not a matter which I need to trouble about at the moment. On any view, there will be a full review of the mother's circumstances in four or five months' time. Suppression and non-publication orders 1. These proceedings began in closed court. Sarah objected to that and made an application that the Court should be open. In response the Public Guardian sought orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) which I indicated that I would make. Those orders will limit the publication of information identifying the mother, her circumstances as well as any as anyone else involved in these proceedings. To that end I will also make orders in relation to pseudonyms for the purposes of publication of these reasons. 2. I am satisfied that it is appropriate for suppression and non-publication orders to be made because whether there should be publication of the details which will be suppressed should, in my view, be determined in the context of the proceedings that are to be heard in May, including the extent to which those proceedings will themselves be subject to any publication or other restrictions. It is for that reason that I will limit the suppression and non-publication orders up to and including judgment in those proceedings so that the degree to which information concerning the mother and her circumstances is to remain suppressed can be considered globally at that time. The public interest in the present orders being made outweighs the public interest in open justice, given that the substantive determination of the issues in relation to care of the mother will occur in May (assuming that date does not change having regard to the review in April). 3. I will also make the order which I foreshadowed earlier concerning pseudonyms. For the purposes of publication of these reasons, the plaintiff is to be identified as Sarah and the proceedings described as Sarah v The Public Guardian. There will be an order that the plaintiff's notice of motion dated 14 November 2018 is dismissed. Costs 1. Mr Higgins has applied for Sarah to pay the Public Guardian's costs of the notice of motion. Mr Capsanis submitted that the Court should take into account the highly emotional circumstances attending the application and that his client was not driven by any commercial or similar motivation, but rather out of an obvious concern for the mother's wellbeing. 2. The usual order is that costs should follow the event. Sarah has had competent legal representation. This is not a case, as sometimes occurs in this jurisdiction, where an unrepresented but well intentioned family member makes an application and the Court comes to the view that the justice of the case means that the usual situation as to costs should not apply. 3. However genuine, even if misguided, Sarah's concerns may be, the fact remains that a full hearing on the basis of considered evidence (including cross-examination and additional oral evidence in chief) was conducted in urgent circumstances on Sarah's application, and she lost. Nothing which has been put on her behalf by Mr Capsanis persuades me that the Court should depart from the usual rule that costs should follow the event. Sarah will be ordered to pay the Public Guardian's costs of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2018