Adams v Guardianship Board - [2008] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ADAMS v GUARDIANSHIP BOARD
[2008] SADC 159
Judgment of His Honour Judge Clayton, Assessor Dr J Gipslis and Assessor Miss L English
24 November 2008
ADMINISTRATIVE LAW
ADMINISTRATIVE AND DISCIPLINARY DIVISION - APPEAL FROM GUARDIANSHIP BOARD
Appeal against Community Treatment Order on grounds that Guardianship Board had failed to provide reasons for decision.
HELD: Ex tempore oral reasons which are recorded in the transcript of proceedings are sufficient to satisfy the obligation in subs 14(13) of the Guardianship and Administration Act 1993. In ascertaining the reasons of the Board it is appropriate to have regard to the transcript of the hearing.
District Court Act 1981 s 42 E; Guardianship and Administration Act 1993 s 14; Mental Health Act 1993 s 20, referred to.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd R 462; R v North ex Parte Oakey (1927) 1 KB 491; Padfield v Minister for Agriculture (1968) AC 997; Laker Airways Ltd v Department of Trade (1977) QB 643 at 707; FAI insurances Ltd v Winneke; Fire and All Risks Insurance Co Ltd v Winneke (1981) 151 CLR 342 HCA, considered.

ADAMS v GUARDIANSHIP BOARD
[2008] SADC 159

On 25 May 2008 the Guardianship Board made a Community Treatment Order in respect of Mrs Adams. The order was for six months which expires on 25 November 2008. At the time the appeal was argued the order had 11 days to run.
A Notice of Appeal was lodged on 4 June 2008. The grounds stated in that notice were:
That I'm supposed to have a psychotic disorder, I honestly know that I am a good worker, work for the community and only had an unusual situation that happened in 2003, which made me look psychotic even though I was not.
Effectively those grounds challenged the finding that Mrs Adams had a mental illness.
An Amended Notice of Appeal was lodged on 13 November 2008. The amended grounds of appeal are:
(1)   That the Board had created a legitimate expectation that reasons for their decision would be provided.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
(2)   The Board therefore has an implied statutory duty to provide reasons.
Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd R 462
(3)   The Board failed to give adequate notice of reasons as per this duty, thereby denying the appellant procedural fairness.
R v North ex Parte Oakey (1927) 1 KB 491
(4)   The Board's failure to give reasons invites this Honourable Court to infer that the Board had no good reason for their decision to make the Order, and as such had therefore acted in abuse of their power.
Padfield v Minister for Agriculture (1968) AC 997
(5)   That as a result of this implied abuse of power in not providing reasons; the appellant has been denied procedural fairness by the Board by way of "Substantive Unfairness".
Laker Airways Ltd v Department of Trade (1977) QB 643 at 707
(6)   THAT as a consequence of (1), (2), (3), (4) and (5), the appellant has been denied natural justice in this instance.
FAI Insurances Ltd v Winneke; Fire and All Risks Insurance Co Ltd v Winneke (1981) 151 CLR 342 HCA
(7)   That as a result of the denial of natural justice the Community Treatment Order of 25^th May 2008 is not valid and should be quashed.
Those grounds challenge the order of the Guardianship Board on the basis that reasons were not provided for the decision of the Board to make a Community Treatment Order.
Subsection 42 E (1) of the District Court Act 1981 provides that the Court must on an appeal examine the decision of the original decision maker on the evidence or material before the original decision maker, but the court may, if it thinks fit, allow further evidence or material to be presented to it.
Subsection 42 E (2) directs that the Court is not bound by the rules of evidence, but may inform itself as it thinks fit, and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Subsection 42 E (3) directs the Court to give due weight to the decision appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The question of whether there is a cogent reason to depart from the decision of the Board must be considered in the light of the fact that the order only had 11 days to run at the time when the appeal was argued and it now has less time to run.
To return to the merits of the appeal we note that the Board received medical evidence and heard submissions from an advocate and from a friend of Mrs Adams.
At the outset Ms Hyde, the Board Member, explained those things that the Board had to be satisfied of before it could make a Community Treatment Order. She explained that the views of Mrs Adams were important and her understanding of what was happening was important and she invited Mrs Adams to ask as many questions as she felt she needed to (P. 4).
Evidence was given by Dr Amit Zutschi. He said that Mrs Adams had a longstanding psychotic illness which dated back to 1974 and since then she has an ongoing illness which is compromised predominantly with having delusions. In recent times her condition had been worsening and she had refused to engage with the psychiatrist she was seeing, Dr Leslie Stephan. Her illness has been diagnosed as schizophrenia. Mrs Adams has voiced various delusions centering around her relationship with the general practitioner and her intention to marry him.
She had been treated with Respiridone Consta 37.5 mg as an injection. That was without an order in place.
On 22 March 2008 Eastern ACIS received a letter from Mrs Adams’ daughter complaining that Mrs Adams was out of control and not taking her medication. She referred to a particular incident and advised that Mrs Adams was expressing the delusional ideas, she was making inappropriate requests for money for petrol and was not taking good self care (P. 6). She had been driving rashly.
Mrs Adams was admitted on 28 March 2008 after she was observed driving erratically and abusing other motorists.
Dr Zutschi said that because of her belief and erotomanic delusions she put her reputation and the reputation of the treating doctor, her GP, at risk (P. 7). His treatment plan was to restart Mrs Adams on depot medication.
Mrs Adams informed the Board that she did not agree with the diagnosis of schizophrenia.
Dr Zutschi outlined the treatment plan to the Board. He referred to the likelihood that Mrs Adams would not comply with the treatment that had been authorised for her because she did not believe that she needed treatment. He said she forgets to take the medication when she becomes unwell.
Mr Vernon gave evidence (P. 11) that he had been appointed as key worker and would be involved in monitoring medication and mental state, the side-effects of medication, and checking that Mrs Adams was progressing satisfactorily.
The Board heard submissions on behalf of Mr Adams from Mr Robert Harper, an advocate, and Mr John Melville, a friend.
Mr Melville put in a "plug", to use his term, for non-drug interventions as opposed to injections that make her violently ill. However, he conceded that he was not a medical expert. Mr Douglas Adams, Mrs Adams’ spouse for over 10 years, said she had been doing well. He did not support medication with the needle but did support oral medication.
The Board member had a discussion with Mrs Adams who spoke of her work as an entertainer.
When asked to comment Dr Zutschi said (P. 21) that after going through the case notes Mrs Adams did present "really nicely most of the times but there are these peaks when she is unwell, really unwell, that she becomes - her judgement becomes impaired - and it is at that time which she puts herself at risk and others at risk. He said (P. 21) "there are these tiny small parts of her life when she becomes really unwell. That's a danger to self and others and that's what bothers us as doctors, the team".
Dr Zutschi said that it was not a foregone conclusion that she would automatically be put on to the depot medication, but the doctor would take a decision based on her compliance and improvement (P. 22).
Initially a 12 month order was sought but Dr Zutschi indicated that six months would be sufficient as a trial (P. 23).
The Board member made an order for six months because she thought that in that time Mrs Adams would be able to demonstrate whether she would continue to take oral medication with supervision and feedback, or whether there would be a need for the health team to take a more definitive action. The Board member said that she would rather do that than set up a situation that would be hard to change.
The sealed order of the Guardianship Board recited that the Board was satisfied that Mrs Adams:
·    has a mental illness which is amenable to treatment; and
·    has had a medical practitioner authorise treatment for the illness (excluding ECT and Psycho surgery); and
·    has refused or failed, or is likely to refuse or fail, to undergo treatment; and
·    should be given treatment for the illness in the interests of their own health and safety or for the protection of other persons; and
· should in all the circumstances have an order made under section 20 of the Act.
The treatment described in the formal order was "such treatment for (Mrs Adams’s) mental illness (excluding prescribed psychiatric treatment) as is authorised by the Consultant Psychiatrist for the time being having the care of the person".
The oral reasons of the Board member for her decision are set out on page 26 of the transcript. Those reasons occupy about one page of the transcript. They refer to the balancing exercise which the Board must undertake and the rationale behind Community Treatment Orders.
The Board member said that on the evidence before the Board she was satisfied that Mrs Adams suffered from a mental illness and was satisfied with the evidence that has been supported over the years. She said she was satisfied that treatment exists for it, that Mrs Adams had done an extremely good job of managing without orders to that point and was a valuable member of the community (P.26). The Board member said she would like to see Mrs Adams continuing to do that (be a valuable member of the community), but was concerned that if she did not get treatment and required longer periods of time in hospital that the opportunity to do that would diminish.
The reasons of the Board member are set out fully in the transcript.
The Board member noted that the order could be reviewed in six months time.
It is relevant to mention that a letter dated 13 November 2008 from Dr Leslie Stephan, a consultant psychiatrist responsible for Mrs Adams treatment was tendered on the hearing of the appeal. The letter set out in some detail the history leading up to the making of the Community Treatment Order and continued:
On 23 July 2008 she made a suicide attempt by swallowing a poisonous substance and was detained at Modbury Hospital for a period of nineteen (19) days. On 18 August 2008 she presented herself, distressed by the experience of auditory hallucinations and was again detained at Modbury Hospital. On review in the Outpatient Clinic on 1 October 2008 by the then psychiatrist in lieu of me, she was thought to be possibly depressed and there may have been a need for antidepressant treatment. On 6 November 2008 she made the statement that she was "very opposed to depot" medication and the following day, on 7 November, she contacted Felixstow Community Mental Health Service stating she wished to kill herself but fortunately presented to the Modbury Hospital Emergency Department.
Ms Adams has had a long-standing history of unequivocal mental illness and a sustained lack of insight into this and the need for treatment. Follow-up has, at times, been erratic and certainly, in the absence of a Community Treatment Order, she has refused treatment. In recent history there has been concern about suicidal ideation, ongoing opposition to treatment and absence of insight. There is evidence, over the last few years, that use of oral medication has been unsuccessful and this is documented to have been at least partly due to episodes of non- adherence. I consider her, when unwell, to be a danger to herself and to others and, as such, I have applied for a renewal of the Community Treatment Order from the Guardianship Board.
As we have mentioned subs 42 E (1) enables the Court to allow further evidence to be presented on the hearing of an appeal.
In our opinion the fact that the Community Treatment Order only had 11 days to run at the time that the appeal was argued by itself negated any argument that there was cogent reason to disturb the decision of the Board. The letter from Dr Stephen also provides compelling reason for the order made on 28 May 2008 to continue so that an application could be made for the renewal of the Community Treatment Order.
It is unfortunate that the appeal was not argued sooner. On 24 September 2008 the appeal clerk at the Guardianship Board advised the District Court that the presiding member was on leave for at least 12 months and would not be able to produce a statement of reasons. That advice caused everyone to lose sight of the fact that there were in fact oral reasons for the decision recorded in the transcript. From time to time preliminary conferences were held before various judges and the matter was adjourned because it was assumed by everyone that the Board had not provided reasons. That assumption was incorrect.
In our opinion the reasons given by the Board member orally at the time that the order was made were sufficient. We return to this topic later.
To consider an appeal against a six-month Community Treatment Order when the order only had 11 days to run was from a practical point of view a pointless exercise. However, from the point of view of Mrs Adams it may be important to establish that the order should never have been made. For that reason we have considered the merit of the appeal.
The Notice of Appeal filed 13 November does not raise the merits of the Community Treatment Order, but complains about the failure of the Board to provide reasons.
There is no doubt that the Board is required to provide reasons for its decisions. Apart from the obligation at common law and the obligation to comply with the rules of natural justice subs 14(13) of the Guardianship and Administration Act 1993 provides:
(13) The Registrar must, on the request of the person who has a right of appeal against a decision of the Board, or who satisfies the Registrar that he or she has a proper interest in the matter, furnish the person with a written statement of the Board's reasons for that decision, but only if the request is made within three months of the date of the decision.
In our opinion an oral statement of reasons which has been transcribed and is included in the record of proceedings of the Board is sufficient to satisfy the requirement of "a written statement of the Board’s reasons for that decision". Accordingly we regard the provision of the transcript of proceedings to the appellant as sufficient compliance with subs 14(13) of the Guardianship and Administration Act 1993.
We turn to grounds one and two of the appellant’s Amended Grounds of Appeal, that is that there was an obligation on the Board to give reasons.
During the hearing of the appeal there was no contest as to the obligation of the Board to provide reasons. The focus was on the sufficiency of the oral reasons.
We do not think that the Guardianship Board can be criticised for giving oral reasons extempore rather than providing separate written reasons after the hearing. In fact the provision of contemporaneous reasons should be encouraged. The statutory obligation is to provide the appellant with a written statement of the reasons. The fact that the reasons were given extempore rather than after consideration is inconsequential.
In this case the question is whether the oral reasons were sufficient. It is significant that Mrs Adams was present at the hearing and overheard the dialogue between the Board member and the other persons present, whether the discussion was evidence or by way of submissions. Mrs Adams should have known what matters the Board member was taking into account.
During the course of the hearing the Board member did discuss the relevant matters. For example there was a discussion about the driving of Mrs Adams. Doctor Zutschi passed on information that Mrs Adams had speeding fines. He referred to the fact that she had been driving in an impaired state and abused other motorists who responded to the abuse.
Mrs Adams participated in the conversation to the extent that she commented that there were no restrictions on her ability to drive; but she did not deny the allegations of bad driving. Mr Harper volunteered some assertions about the driving in which the existence of the incidents of bad driving was acknowledged (P. 12).
When the transcript is considered as a whole it is clear that Mrs Adams’s driving is one of the matters that was taken into account. It is also clear that Mrs Adams was aware that the driving was a matter that would be taken into account.
Statements made during the course of the hearing indicate that the duration of the order, six months was arrived at by the Board member by way of compromise.
The reasons of the Board member do not set out extensively all the issues and do not contain findings as to all of the issues that had been raised. However, they do indicate the principal findings upon which the order was based. Those findings are set out above. They provide a basis for understanding the order and would provide a sufficient basis for an appeal to be brought.
In our opinion it is appropriate to have regard to the discussion during the course of the hearing for the purpose of understanding the reasons of the Board.
In our opinion there is no merit in ground 3 of the Amended Notice of Appeal, that is the complaint that "the Board failed to give adequate notice of reasons".
Similarly there is no merit in ground 4. First, that ground is based on the incorrect premise that the Board had not given reasons. Secondly, it cannot be inferred that the Board had no good reason for the decision. The grounds which were stated by the Board member, brief as they were, did provide "good reason for the decision to make the Order".
We find there is no merit in ground 5, that is the allegation that Mrs Adams has been denied procedural fairness. Nor is there merit in ground 6, that is that Mrs Adams has been denied natural justice.
In considering the sufficiency of the extempore reasons of the Board member it is relevant to bear in mind the nature of the tribunal and the nature of the proceedings. In Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd R 462 Fitzgerald P. said at 476:
The nature and extent of the obligation to give reasons varies according to the circumstances; the obligation is, after all, an aspect of the duty to act fairly in the particular circumstances. The broad principle deducible from the cases is that the decision maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made…
In the same case McPherson and Davies JJA said, at 482, that whether or not reasons given for decision can be characterised as adequate or otherwise involves a variety of different considerations and what is adequate depends on the circumstances of the case. Their Honours said, at 483, that the extent of the duty to give reasons is affected by the function that is served by the giving of reasons. They also distinguished between a court presided over by members of the judiciary and a tribunal saying:
The calibre, legal training and experience of members of the judiciary raise expectations the reasons they give for their decisions will attain a high level of sophistication. The same would not always be true of decisions of persons whose primary qualification for decision making consists of specialist knowledge or experience rather than the ability to produce reasons conforming to accepted judicial tradition. Reasons that would not be considered adequate if given by a judge may nevertheless suffice for some other decision-makers not chosen for the task not because of their resemblance to the judiciary. In the end, the question whether reasons are "adequate" fall to be considered in the context afforded by the nature of the question which has to be decided and other factors, including the functions, talents and attributes of the tribunal members or the individual in whom the duty of deciding questions of that kind has been vested. Considerations of the cost to litigants and the general public in requiring reasons to be given is another factor which must be weighed.

Their Honours decided at 485 that while the Retail Shop Lease Tribunal had some judicial attributes, it was not intended to simply mimic a court of law, or to conduct its proceedings in the manner of the court, or even to decide disputed questions in precisely the same way as a court. They said that the "adequacy" or otherwise of its reasons must be viewed in the light of those considerations.
In our opinion, when considering the reasons of the Guardianship Board, it is important to have regard to the nature and purpose of the hearing and the relative informality with which the proceedings are conducted, both as a matter of common sense and of necessity.
Ms Lieschke, who appeared for the respondent, prepared a useful outline of argument for which we are grateful. We accept the submissions in the outline. We accept that the ex-tempore reasons of the Board, while brief, were adequate.
We also accept that the requirements of subs 20(1) of the Mental Health Act 1993 were established by the evidence before the Board by reason of the findings that:
·    Mrs Adams suffered from the mental illness that is amenable to treatment,
·    a medical practitioner had authorised treatment for the illness but Mrs Adams had refused or failed to undergo the treatment,
·    that Mrs Adams should be given the treatment in the interests of her own health and safety or for the protection of other persons, and in all the circumstances the order should have made.
The appellant has not persuaded us that any of those findings was contrary to the evidence or incorrect.
In our opinion the reasons provided by the Board member ex tempore, when considered in the light of the discussion which had taken place during the course of the hearing, provided a sufficient explanation of the matters that were taken into account and the reasons why the Community Treatment Order was made.
In our opinion the appeal should be dismissed. First, because the Community Treatment Order has almost run its six-month course, secondly, because of the matters set out in Dr Stephan's letter dated 13 November 2000 and thirdly, because none of the grounds in the Amended Notice of Appeal give rise to a reason for allowing the appeal.