ALW v NSW Trustee and Guardian

[2012] NSWADTAP 51

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ALW v NSW Trustee and Guardian [2012] NSWADTAP 51

Hearing dates:

23 November 2012

Decision date:

04 December 2012

Jurisdiction:

Appeal Panel - External

Before:

Magistrate N Hennessy, Deputy President
C Huntsman, Judicial Member
A Wunsch, Judicial Member

Decision:

1. The appeals on a question of law are dismissed.

2. Leave is refused for the appeals to extend to the merits of the Guardianship Tribunal's decisions.

3. The Guardianship Tribunal's orders in relation to ALW are affirmed.

Catchwords:

External appeal - decision of Guardianship Tribunal - review of guardianship and financial management orders - no question of law - new medical evidence tendered - not admitted - consideration of whether to grant leave to extend appeal to the merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

Category:

Principal judgment

Parties:

ALW (Appellant)
NSW Trustee and Guardian (Respondent)
ALX (Respondent)
Guardianship Tribunal (Respondent)

Representation:

ALW (In person)
NSW Trustee and Guardian (No appearance)
ALX (In person)
Guardianship Tribunal (Ms Sprouster)

File Number(s):

128012

Publication restriction:

S126 of the Administrative Decisions Tribunal applies

 Decision under appeal 

Citation:

C/43985

Date of Decision:

2012-02-28 00:00:00

File Number(s):

Matter No 2011/10034, 2011/10033

REASON FOR DECISION

Introduction

1. ALW is a 59 year old man who spends some of his time emailing women he has met on the internet. He transferred $70,000 to women whom he later found out were frauds. He says that he realises it was a mistake to send the money and has now learned a great deal about internet scams. He would not send any money overseas unless the person had very good evidence that they genuinely needed the money.

1. ALW's brother, ALX, was concerned that ALW had been the victim of scammers and that he was at risk of losing more money. In February 2010 he applied to the Guardianship Tribunal for orders designed to protect ALW from exploitation. The Guardianship Tribunal found that ALW had a disability which prevented him from making decisions about whether or not he should travel overseas. The Tribunal appointed ALW's brother to make those decisions on his behalf. The Guardianship Tribunal also found that ALW was incapable of managing his financial affairs and appointed the brother to be his financial manager.

1. In December 2011, ALW applied for a review of those orders. The Guardianship Tribunal dismissed those applications and affirmed the previous orders. ALW has appealed to the Administrative Decisions Tribunal against those decisions. He maintains that the Guardianship Tribunal did not take into account the principles in s 4 of the Guardianship Act 1987, especially the principle that he should be encouraged to be self-reliant. But his main point was that the medical reports relied on by the Guardianship Tribunal are wrong and that he has new evidence which proves that he does not have a disability.

Appeal on a question of law

1. ALW has a right to appeal on "a question of law": Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1). The only question of law he identified was that the Guardianship Tribunal did not take into account the principles in s 4 of the Guardianship Act 1987. That provision states that:

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. ALW's point was that he should be self-reliant and live a normal life in the community, not be subject to guardianship and financial management orders. With respect to ALW, that is a misunderstanding of the meaning of s 4.

1. First, s 4 sets the general principles which the Guardianship Tribunal should observe when exercising its discretionary powers with respect to a person who has a disability. The relevance and applicability of those principles will depend on the circumstances of the case.

1. Secondly, the principles in s 4 are not absolute. A person must be encouraged to be self-reliant and encouraged to live a normal life in the community. The principles do not state that every person shall be self-reliant or shall live a normal life in the community.

1. Thirdly, the principles in s 4 are not all consistent with one another. For example, in order to be protected from neglect, abuse and exploitation, a person's self-reliance may need to be restricted to some extent.

1. Taking into account these matters, the Guardianship Tribunal did not fail to observe the principles in s 4 when it made the guardianship order and the financial management order. There is no error of law on that basis and ALW's appeal on a question of law is dismissed.

Appeal on the merits

1. The Tribunal may give ALW permission to appeal on grounds other than a question of law: ADT Act, s 118B(1)(b). ALW has applied for leave to appeal against the merits of the Guardianship Tribunal's finding that he has a disability. He said he has recent medical evidence which contradicts the Guardianship Tribunal's finding on that point. In addition, he said that the Guardianship Tribunal did not correctly interpret a medical report from Dr Schofields.

1. The up to date medical evidence was a report from Dr Hinds, a consultant psychiatrist who reviewed ALW on 23 October 2012. Dr Hinds had previously seen ALW on 22 May 2012 at the request of his general practitioner. In her report following that consultation, Dr Hinds explained that she had not assessed his cognition because he had already had extensive neuropsychological testing. She concluded that ". . . his history certainly suggested a recurrent major depressive disorder" but she could not offer any other diagnosis.

1. When reviewing ALW on 23 May 2012, after the Guardianship Tribunal hearing, Dr Hinds assessed his cognitive function using an assessment called ACE-R. She did not explain what that test involved but noted that he scored 92/100 and that that is a normal score. Dr Hinds went on to say that:

He did extremely well on a test of semantic fluency naming 24 animals in a minute but on tests of phonemic fluency he did more poorly scoring 10, 12 and 9 on the FAS test which is probably still a normal score. His general knowledge was good; he had no problems with the memory items or with the construction tasks.

1. ALW relies on this report to challenge the Guardianship Tribunal's finding that he is a "person in need of a guardian": Guardianship Act s 14. That phrase is defined in s 4 to mean, "a person who, because of a disability, is totally or partially incapable of managing his person." The Guardianship Tribunal found that ALW has a disability, namely executive deficits in his cognitive functioning, and that that disability partially prevents him from making important life decisions.

1. In 2010 ALW underwent extensive neuropsychological testing by Ms McRae, a clinical neuropsychologist. The testing on that occasion accorded with Dr Hinds' view that ALW's cognition in relation to orientation, attention and working memory, information processing, visuospatial and language skills were intact. But Ms McRae found that ALW demonstrated "significant specific executive deficits with an impaired ability to flexibly adapt to feedback in problem solving and a reduced awareness of emotional factors and others' reactions in social scenarios."

1. When reviewing ALW in May 2011, Ms McRae gave him further tasks relating to social cognition. She concluded that overall his performance was in the "low average level" but his performance on a task of facial memory was "quite reduced". Ms McRae concluded that:

Overall there was evidence of reduced social cognition abilities on formal assessment. This included low average affect labelling and impaired face discrimination and recognition, along with reduced fact-name association abilities.

1. In her recent report, Dr Hinds made no findings about ALW's social cognition abilities. Even if we extended this appeal to the merits of the Guardianship Tribunal's decision and had regard to Dr Hinds' recent report, it does not establish that her opinion is that ALW's cognitive functioning is normal. The report expresses a view that ALW's cognitive functioning is normal in certain areas but those areas do not include ALW's social cognition abilities. Therefore, her conclusion, based on the ACE-R assessment, is not inconsistent with Ms McRae's assessment. For that reason, we decline to take into account Dr Hinds' recent report or extend the appeal to the merits of the Guardianship Tribunal's decision.

1. The second basis on which ALW applied for permission to extend the appeal to the merits of the Guardianship Tribunal's decision was that the Tribunal misinterpreted a report of Dr Schofield dated 9 December 2011. Dr Schofield, who is the Director of Neuropsychiatry Service at Hunter New England Local Health District, wrote to ALW on 9 December 2011 in reply to a letter from ALW asking whether he had dementia. Dr Schofield wrote:

I can confirm that we do not have evidence to suggest that you have dementia. That diagnosis implies cognitive impairment of (sic) across a range of cognitive domains sufficient to interfere with social or occupational functioning.

1. According to ALW, the Guardianship Tribunal failed to take into account the second sentence in the passage quoted above. ALW says that that sentence means that because he does not have dementia, he does not have any cognitive impairment. With respect, that conclusion is not logical because cognitive impairments can be caused by conditions other than dementia. In the second sentence, Dr Schofield is merely describing the symptoms and level of impairment associated with dementia. The Guardianship Tribunal interpreted Dr Schofield's report correctly. For that reason, we decline to extend the appeal to the merits of the Guardianship Tribunal's decision in order to reconsider that report.

1. ALW listed several other concerns about to the Guardianship Tribunal's decision. Those concerns can be summarised as follows:

(1)   not being advised by the Guardianship Tribunal of his appeal rights;

(2)   the fact that his brother took his passport without permission prior to the first Guardianship Tribunal hearing;

(3)   he is not in a nursing home and is quite capable of leading a normal life without interference;

(4)   his second daughter is misinformed in her views of his behaviour;

(5)   he has received financial counselling; and

(6)   there is no science based testing or evidence for the Guardianship Tribunal's conclusion that he lacks capacity to make his own decisions.

1. We will address these concerns in order.

1. ALW lodged his appeal out of time, but it was accepted: ADT Act, s 118B(2). He has not been prejudiced by any lack of notice of his appeal rights in relation to the decision under appeal.

1. It is not the role of the Guardianship Tribunal, or this Tribunal, to determine the legality of any action relating to the removal of ALW's passport prior to the Guardianship Tribunal hearing.

1. A person does not have to be physically incapacitated in order to be regarded as a "person in need of a guardian" as that term is defined in s 4. A person may have a psychological disability: Guardianship Act, s 3.

1. Whether or not ALW's daughter's views were misinformed does not affect the validity or correctness of the Guardianship Tribunal's decision. That decision was based on evidence from many individuals.

1. In the reasons for decision, the Guardianship Tribunal stated that, "Consultation with a financial counsellor may be of benefit to [ALW]".

1. ALW said that he attended a counsellor in 2011 and later he did a "CAP" money management course through his church. He said that the Guardianship Tribunal's comments were not well researched or up to date. The Guardianship Tribunal's comment was merely a recommendation. It was not a matter which influenced it to decide any of the issues in dispute in a particular way.

1. In relation to the last matter on the list, there was evidence before the Guardianship Tribunal based on Ms McRae's cognitive assessment, which satisfied the Tribunal that ALW has a disability.

1. None of the concerns raised by ALW, either alone or in combination, persuades us that we should extend the appeal to the merits of the Guardianship Tribunal's decision.

Orders

(1)   The appeals on a question of law are dismissed.

(2)   Leave is refused for the appeals to extend to the merits of the Guardianship Tribunal's decisions.

(3)   The Guardianship Tribunal's orders in relation to ALW are affirmed.

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Decision last updated: 04 December 2012