VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G82670	

Represented person	ICV	
WHERE HELD	Melbourne	
BEFORE	Senior Sessional Member, Judge Jenkins	
HEARING TYPE	Hearing	
DATE OF HEARING	12 April 2019	
DATE OF ORDER	12 April 2019	
date of written reasons	17 April 2019	
citation	ICV (Guardianship) [2019] VCAT 559	

Order
The Tribunal records that:
1	At a directions hearing on 19 February 2019 before Her Honour Justice Richard’s of the Supreme Court, Her Honour made the following notation:
D.	The parties are encouraged to cooperate to obtain a fresh neuropsychological assessment of the first applicant [represented person] to be undertaken by a neuro psychologist or other suitably qualified expert agreed between the parties…
2	To date, VMS and his mother ICV [the represented person] have both refused to consent to such further assessment or cooperate with the Public Advocate for the purpose of arranging such suitable assessment.
3	At the hearing on 27 March 2019, the parties agreed to an extension of the temporary guardianship order to 1 May 2019, subject to the hearing and determination of an application by VMS on behalf of himself and ICV for summary dismissal under s 75 of the Victorian Civil and Administrative Act 1998, of the application dated 18 March 2019 made by Jimmy Layley of the Office of the Public Advocate, which application sought a temporary order of guardianship.
4	On 4 April 2019, the Public Advocate, as temporary guardian, applied under s 19 of the Guardianship and Administration Act 1986 for appointment of the Public Advocate as a limited guardian for ICV essentially on the same terms as the current temporary guardianship order.
5	The hearing scheduled for today, 12 April 2019, was scheduled primarily to consider the application for summary dismissal. However, for reasons outlined during the hearing, the application by the Public Advocate for appointment under s 19 as a limited guardian was also considered and determined.
6	At the hearing on 13 March 2019 before Her Honour Justice Richard’s of the Supreme Court, Her Honour noted:
The Public Advocate foreshadowed making a further application to the Tribunal, for the appointment of a temporary guardian for ICV. It relied on an affidavit of Mr Layley, in which he set out his assessment of ICV’s current care needs and his concerns about her capacity to make reasonable judgments about her living arrangements. Having regard to that material, I stayed my order setting aside the Tribunal’s orders for seven days, until 4.00 pm on 21 March 2019. [103]
7	On 20 March 2019, the Tribunal made a limited temporary guardianship order in favour of the Public Advocate.
The Tribunal orders and directs that:
Application for summary dismissal (s75 VCAT Act 1998)
1.	The application under s 75 of the VCAT Act for summary dismissal of the application by the Public Advocate for an interim guardianship order, is dismissed.
Application for guardianship (s 19 Guardianship and Administration Act 1986)
The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.
2.	The Public Advocate, [Office Of The Public Advocate 1/204 Lygon Street, CARLTON VIC 3053], be appointed limited guardian of the represented person with powers and duties:
	to make decisions concerning accommodation
	to make decisions concerning medical treatment as defined in the Medical Treatment Planning and Decisions Act 2016
	to make decisions concerning access to services
3.	The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
4.	This guardianship order be reassessed no later than 30 June 2019.
5.	The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
6.	This order shall continue to have effect until further order of the Tribunal.
7.	The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.
8.	ICV and VMS give access to their home, at a mutually convenient time, to a representative of the Public Advocate, together with any other relevant health professional approved by the Public Advocate, such as an occupational therapist and aged care assessment service, for the purpose of making an assessment of the suitability of facilities in the home for the proper and safe care of ICV, if she were returned home.
9.	VMS will engage with relevant staff at the Doutta Galla Lynch’s Bridge aged care facility in Kensington, including the physiotherapists and registered nurse who provided reports for the Public Advocate, with a view to obtaining instruction as to the operation of mechanical aids in the home and administration of nursing care to ICV.
10.	The Public Advocate will obtain updated reports from the physiotherapists and registered nurse as to instruction and training given to VMS and as to his skill, knowledge and competence in caring for ICV, should she be returned home.
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.

Judge Jenkins
Senior Sessional Member			

APPEARANCES:		
VMS – Son and professional advocate for ICV
Ben Mason – Legal Representative, Office of the Public Advocate
Jimmy Layley – Guardian, Office of the Public Advocate
Jasmine Betget – Previous administrator, State Trustees
ICV – Represented person
Moreno Giovannioni – Interpreter

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 1986 that identifies or could lead to the identification of a party to the proceeding.

1	The following brief reasons are provided to supplement the oral reasons given at the hearing.
2	First, in regard to the application under s 75 of the Victorian Civil and Administrative Act 1998 (VCAT Act) as acknowledged during the hearing, VMS based his application principally upon the principles of res judicata, abuse of process; and issue estoppel. VMS submitted to the effect that the decision of Richards J, in setting aside the Tribunal orders of 16 April 2018, had the effect of finally determining the application for a guardianship order by the Public Advocate. Furthermore, the Public Advocate was precluded from relying upon any expert evidence it previously relied upon. As indicated during the hearing, VMS’s understanding of the effect of the Supreme Court judgement is wrong and his reliance upon the above principles, for the purpose of a s 75 application is misconceived. 
3	In my view, the Public Advocate was not precluded from making a further application for a temporary guardianship order, which the application was indeed foreshadowed by the orders of Richards J, as noted above. Furthermore, it was not an abuse of process for such application to be made or the subsequent application made under s 19 of the Guardianship and Administration Act 1986 (GA Act). 
4	Accordingly, in my view there was no basis for an application under s 75 of the VCAT Act and such application is dismissed.
5	Secondly, in regard to the application of the Public Advocate under s 19 of the GA Act, in my view VMS has, perhaps unwittingly, attempted to frustrate the efforts of all health care practitioners involved in the ongoing care of his mother and the performance of the Public Advocate’s role as temporary guardian. In particular, he has obstinately and single-mindedly resisted their efforts to see his mother receive high level care, solely on the basis that it was his mother’s right to refuse care and/or treatment and/or accommodation placement, which she had not sought or approved. In turn, VMS’s insistence upon such rights, which are perfectly reasonable at face value, are predicated upon his belief that his mother, whilst suffering a physical disability, suffers no relevant mental or consequent decision-making incapacity. However, his insistence upon ICV’s right to privacy and self-determination is coupled with an insistence that no-one, other than himself and ICV is competent or entitled to make an assessment as to ICV’s cognitive ability. Where such concerns have been reasonably brought to the attention of the Tribunal, initially in an application made at the instance of Melbourne Health, VMS has been focused upon avoiding and resisting any attempt at an objective medical and neuropsychological assessment of ICV and her care needs.
6	As indicated during the course of the hearing, and repeated at some length in my discussions with ICV, there is no intention on the part of the Public Advocate or the Tribunal to keep ICV out of her home or simply remove the valuable supportive and decision making role which VMS has performed. 
7	In my view, ICV has a disability; and is unable by reason of the disability to make reasonable judgements concerning her accommodation, medical treatment or access to other appropriate services and accordingly is in need of a guardian to be appointed with respect to those limited matters.
8	In my view, Mr VMS is not currently suitable for the purpose of such appointment.
9	In forming my view as to the disability of ICV and her relevant cognitive incapacity, I have had particular regard to:
a	the initial application for appointment of an administrator and/or guardian by Nicole El-Hage, Social Worker dated 15 January 2018;
b	report of her general practitioner Dr Jeffrey Erlich dated 25 January 2018;
c	the medical assessment made by Dr Sarah Straw dated 15 January 2018;
d	the neuropsychological assessment made by Dr Natalie Genardini dated 18 January 2018;
e	statement of Jimmy Layley, as representative of the Public Advocate dated 18 March 2019;
f	report of Michelle Lin, Physiotherapist and Chris Jellis, Senior Physiotherapist of Doutta Galla Lynch’s Bridge aged care facility dated 3 March 2019;
g	report of Komala Manoj Kumar, Registered Nurse of Doutta Galla Lynch’s Bridge aged care facility dated 7 March 2019; and
h	my discussion with ICV, for approximately 20 minutes, with the assistance of an interpreter, prior to the formal commencement of the hearing.
10	I note that Richards J found no error of law established in relation to the Tribunal’s previous reliance on Dr Straw’s evidence. However, in relation to the Tribunal’s previous reliance upon Dr Genardini’s report, Richard’s J expressed the view that the Tribunal had not taken account of VMS’s: 
serious argument to the Tribunal that it would be unfair to ICV for it to receive and rely on because, contrary to the Code, the assessment was done without ICV’s informed consent. In my view, the argument was worthy of consideration.
11	In regard to ICV, she was brought into the hearing room in a specialized wheel chair with her legs somewhat elevated. She appeared to be quite comfortable, easily talkative but required the assistance of the interpreter. ICV has not returned home since being admitted to hospital with a dislocated shoulder in December 2017. She has now been resident in the nursing home for approximately six months. There are no other Italian patients but she is very private person and does not care to gossip. Her son, who is her only child, visits her every day and she does not appear to have any other visitors. She clearly pines for her home, where she feels she can be more independent and do things she cannot do in the nursing home, for instance she loves to cook. 
12	ICV confirmed that she had not allowed the Public Advocate to attend her home. She does not want anyone to come to her home and says she has everything there that she needs. She says that she is a very private person and does not want to get involved with the Public Advocate. Her son looks after her and she has a button to press if she needs assistance. She is not afraid of falling over at home. She would not consider that any improvement could be made to her home to assist her. ‘My son looks after everything’. She would not consider or accept that further information from the hospital staff concerning her physical care or the circumstances of her home was for the purpose of assisting her and assessing whether she could be safely returned home. She simply will not permit anyone to ‘boss her around’.  
13	In my view, this very feisty 85-year-old charming lady has little to no insight into her current very high level of care needs, as documented in all the reports. I do not give any weight to the report of her General Practitioner, who states that he last saw her in September 2017. She clearly considers that she can assess whether her current care needs can be met at home. However, equally, she is quite obstinate and irrational in her resistance to allowing any assessment of her home or any further assessment of her in hospital. Regretfully, her son reinforces her position.
14	In regard to Dr Natalie Genardini’s report and the concerns raised by VMS, after hearing further from VMS and having read his statements in support of his applications to the Supreme Court and the Tribunal, I am satisfied that:
a	Dr Genardini satisfied herself that ICV consented to speak to her;
b	VMS was well aware in advance that his mother was being assessed and the purpose of such assessment; and
c	VMS’s objection to Dr Genardini’s assessment was based upon his desire to avoid any assessment which could be unfavourable to his mother returning home or indeed any assessment which might be inconsistent with his own perception as to his mother’s mental capacity.
15	In view of the above, in my view it is in the interests of the safety and welfare of ICV for the report of Dr Genardini to be admitted and considered. I otherwise concur with the views expressed by the Tribunal Member in the original hearing which considered Dr Genardini’s report.
16	In regard to the more current reports of health professionals at the Doutta Galla Lynch’s Bridge aged care facility in Kensington, the physiotherapists and registered nurse have summarised in some detail the high-level health care needs of ICV and particular aspects of specialized care delivery, which are intensive and in the context of the nursing home often require two staff to deliver. VMS indicated during the hearing that he has already benefited from instruction from relevant staff and is agreeable to seek further instruction. He also indicated that he has already obtained or is in the process of obtaining certain recommended equipment in the home, including: a sling hoist, fitted with a bariatric setting, a bariatric shower, toilet commode, air mattress, TUB chair, a bariatric tilt-in space wheelchair, and also attending to any need for a ramp. 
17	Mr Hayley advised that he had made enquiries prior to ICV’s placement at Doutta Galla Lynch’s Bridge as to other more suitable facilities from a cultural and language perspective but of those identified, either they could not provide the high-level care required or there were no vacancies.
18	VMS also indicated that he will liaise with the representative of the Public Advocate as to the following: 
a	advising a list of acceptable alternative nursing homes which might better serve ICV’s preferences, having regard to her cultural background and Italian as a first language; 
b	to make an assessment within the home, including the taking of photographs, with the attendance of an occupational therapist and such other appropriate health professionals recommended by the Public Advocate; and
c	to engage in discussions with relevant staff at the nursing home to obtain relevant instruction and training for VMS to safely operate mechanical aids and administer nursing care.
19	After discussing with the parties about a suitable timeframe to achieve the above, it was agreed that a limited guardianship order would be made, to be reassessed no later than 30 June 2019, with liberty to apply.

20	Finally, it was indicated to VMS that if he wishes in future to apply on behalf of ICV for a revocation of the guardianship order then the Public Advocate and the Tribunal would be assisted by an updated medical and neuropsychological assessment of ICV. 

Judge Jenkins
Senior Sessional Member