The spouse has allegedly bullied and harassed the staff at a care facility
The Supreme Court of the Northern Territory has granted an interim injunction permitting the wife of a dementia patient to visit her husband, who is a resident at a care facility.
In Mauger v Southern Cross Care (SA, NT & Vic) Inc [2023] NTSC 73, Fathma Mauger applied for an interim injunction that would allow her to visit her husband, Graham Mauger, in his room and the upstairs living area at the Pearl Support Care Facility.
Graham, aged 77, has been suffering from Posterior Cortical Atrophy, a form of dementia, and resides at the care facility. His wife, Fathma, acting as his decision-maker under an Advance Care Plan, has been embroiled in a dispute with the facility's management. Pearl management alleged that Fathma had bullied and harassed staff. As a result, she was prohibited from visiting her husband in his upstairs room, a restriction she vehemently contested.
Pearl management has offered other facilities where Fathma can visit Graham, including the chapel, a hairdressing salon, and a downstairs area which Graham sometimes attends. However, Fathma said these alternative facilities were inappropriate for various reasons, and this view was supported to some extent by Graham's doctors.
Fathma has commenced a proceeding in court on behalf of Graham, seeking to be appointed as his litigation guarding and seeking a declaration that the restriction imposed by Pearl management is unlawful. Fathma alleged that the restriction breached the Residential Care Service Agreement, containing provisions that allegedly impliedly conferred on Graham the right to have visitors and to choose to have his wife visit him in his own private rooms.
While Fathma conceded that the defendant may impose reasonable restrictions, Fathma contended that the restriction was unreasonable. The court, however, noted that this will depend on whether it can be established that Fathma did bully and harass staff and, if so, whether the restriction and maintenance until trial is reasonably necessary in the circumstances to alleviate the risk of bullying and harassment.
The NT Supreme Court noted that its power to grant an interlocutory injunction is limited to making such an order to protect some legal or equitable right that the court might enforce by final judgment. Furthermore, if there is no serious question to be tried because it appeared that the facts alleged by the respondent could not sustain such a right, then there is no subject matter to be preserved. The court emphasized that if there is no serious question to be tried because, upon examination, it appears that the facts alleged by the respondent cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved.
In this case, the court found a serious question to be tried regarding the restriction and whether it breached the Residential Care Service Agreement between Graham and Pearl. The agreement impliedly conferred on Graham the right to have visitors, subject to reasonable restrictions, but the court needed to determine whether the restriction was indeed unreasonable.
Notably, the court considered Graham's advanced stage of dementia, which made moving him downstairs highly distressing. Medical professionals supported this perspective. Furthermore, the court weighed the psychological needs of Graham, emphasizing the importance of his relationship with his family, particularly his wife, during this challenging phase of his life.
While Pearl's management expressed concerns about potential disruptions from Fathma's visits, she offered several undertakings to alleviate these concerns, including advance notice, limited communication with staff, and restricted visitation hours. These undertakings swayed the court's decision in her favour.
In granting the interim injunction, the court considered the balance of convenience between Graham's emotional needs and the facility's concerns. The court ultimately ruled that the balance of convenience overwhelmingly favours granting an interim injunction.
