D v Guardianship and Administration Board
[2010] TASSC 56
•30 November 2010
[2010] TASSC 56
COURT: SUPREME COURT OF TASMANIA
CITATION: D v Guardianship and Administration Board [2010] TASSC 56
PARTIES: D
v
GUARDIANSHIP AND ADMINISTRATION BOARD
FILE NO/S: 937/2010
DELIVERED ON: 30 November 2010
DELIVERED AT: Hobart
HEARING DATE: 22, 26 and 29 November 2010
JUDGMENT OF: Wood J
CATCHWORDS:
Administrative Law – Judicial review – Powers of courts under judicial review legislation – Stay of proceedings and interlocutory relief – Stay of operation of decision – Decision of Guardianship and Administration Board giving consent to medical treatment.
Judicial Review Act 2000 (Tas), ss17(2), 20(g), 21 and 26(2).
Guardianship and Administration Act 1995 (Tas), ss36 and 45.
Aust Dig Administrative Law [1084]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: Notice of submission filed
Attorney-General: P Turner
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Attorney-General: Director of Public Prosecutions
Judgment Number: [2010] TASSC 56
Number of paragraphs: 71
Serial No 56/2010
File No 937/2010
D v GUARDIANSHIP and ADMINISTRATION BOARD
REASONS FOR JUDGMENT WOOD J
30 November 2010
On 9 November 2010, the Guardianship and Administration Board made an order enabling D to receive specified medical treatment without her consent. This is an application by D that the order made by the Board be suspended until an application under the Judicial Review Act 2000 ("the JR Act") has been heard and determined.
D has been an inpatient of the Royal Hobart Hospital since her admission to the Emergency Department on 5 October 2010 by the Crisis Assessment Triage Team and Tasmania Police. D's admission arose from concerns about her mental state. Since D's admission she has been a psychiatric patient at the Royal Hobart Hospital on an involuntary basis. Orders have been made under the Mental Health Act 1996 with respect to D remaining in hospital as an involuntary patient. While an inpatient D has refused medical treatment. This meant that up until the Board's order on 9 November, D was a patient at the Royal Hobart Hospital but not receiving medical treatment.
The application which brought about the Board's order was made by a member of the medical team at the Royal Hobart Hospital, Psychiatrist, Dr Michael Evenhuis. The application was made under the Guardianship and Administration Act 1995 ("the GA Act") for the Board to consent to medical treatment of D involving treatment with one of three alternative anti-psychotic medications. This application for substituted consent was heard by the Board on 5 November 2010.
The Board may only make an order for consent to medical treatment if satisfied of matters that are set out in the GA Act, s45.
Section 45 provides, in part:
"45 Consent of Board
(1) On hearing an application for its consent to the carrying out of medical or dental treatment the Board may consent to the carrying out of the medical or dental treatment if it is satisfied that —
(a)the medical or dental treatment is otherwise lawful; and
(b)that person is incapable of giving consent; and
(c)the medical or dental treatment would be in the best interests of that person.
(2) For the purposes of determining whether any medical or dental treatment would be in the best interests of a person to whom this Part applies, matters to be taken into account by the Board include —
(a)the wishes of that person, so far as they can be ascertained; and
(b)the consequences to that person if the proposed treatment is not carried out; and
(c)any alternative treatment available to that person; and
(d)whether the proposed treatment can be postponed on the ground that better treatment may become available and whether that person is likely to become capable of consenting to the treatment; and
(e)in the case of transplantation of tissue, the relationship between the 2 persons concerned; and
(f)any other matters prescribed by the regulations."
In relation to the requirement that the person be incapable of giving consent, s36 applies:
"36 Application of Part 6
(1) This Part applies to a person with a disability who is incapable of giving consent to the carrying out of medical or dental treatment, whether or not the person is a represented person.
(2) For the purposes of subsection (1), a person is incapable of giving consent to the carrying out of medical or dental treatment if the person —
(a)is incapable of understanding the general nature and effect of the proposed treatment; or
(b)is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the treatment."
The Board's decision
The application for substituted consent was heard by the President of the Board, Ms Smith. On 9 November 2010 the President delivered her decision that the requirements of the Act had been met, and giving the Board's consent to the proposed medical treatment. The order made with regard to treatment is in the following terms:
"the board consents to medical treatment for the patient comprising the prescription by a qualified medical practitioner and administration by a qualified health care professional of the following medications:
(i) Olanzapine depot, up to 405mg fortnightly with oral Valproate up to 2g per day, titrated by blood level, or
(ii) Risperidone depot, 25-50mg fortnightly, with oral Valproate as per clause (i) above, or
(iii) Zuclopenthixol depot, 50-200mg fortnightly, with oral Valproate as per clause (i) above"
Ordinarily, a decision of the Board under s45 has no effect until the appeal period under the GA Act, s76, has expired (s45(3)). An exception exists if the Board considers the treatment is urgent. The Board may then give its consent for the treatment to be carried out immediately (s45(4)). In the Board's assessment in this case the treatment was regarded as urgent and the Board ordered that treatment may commence immediately.
It was ordered that the Board's consent for the specified treatment was valid until 8 November 2011. There was a condition regarding a further medical report to be provided by 9 May 2011 which does not need to be detailed. Written reasons for the Board's decision were provided.
At the hearing the evidence was given by Dr Evenhuis, and some very brief evidence from Ms Mollenhagen RN, part of the medical team at the Royal Hobart Hospital. The Board took into account the application and supporting documents. The application is a detailed document setting out relevant matters such as the reasons for the application, the nature of the disability, current medical condition, how the disability affects the patient's ability to give consent to, or refuse, the proposed treatment, prognosis, patient's background and medical history, proposed treatment, effect of proposed treatment on the disability and current condition, side effects of the treatment, and consequences if treatment was not carried out. The supporting documents included a report by Dr Mandy Evans dated 4 May 2010, and a letter to Margaret Colville from Dr Jane Casey dated 26 March 2010.
The evidence from Dr Evenhuis accepted by the Board included the following. Dr Evenhuis gave evidence that Olazapine, Risperidone and Zuclopenthixol are all anti-psychotic medications and Valproate is a mood stabilising drug. All drugs have been approved by the Australian Therapeutic Goods Administration and are accepted treatments for psychotic illnesses. The evidence given by Dr Evenhuis is that D has schizoaffective disorder. The essence of his evidence was that the illness causes her distress, puts her at risk of loss of reputation, and that acting upon her delusions puts her at direct risk of harm, possibly from electrocution. It may be noted that at the time of her admission to hospital there were concerns that D was tampering with electrical wiring at her home. As noted in the Board's reasons, Dr Evenhuis made his diagnosis based upon his observations of D and medical records available to him. Dr Evenhuis gave evidence of recent behaviours he had observed while D was an inpatient at the Royal Hobart Hospital, relevant to his diagnosis.
The Board noted key considerations in that diagnosis were the presence of D's persecutory delusions for over five years and periods of elevated mood (par[5] of reasons). The Board also noted that Dr Evenhuis expressed the view that some of D's presentation might be consistent with bi polar affective disorder, however evidence of a functional decline indicated to him that the illness is schizoaffective disorder.
During the hearing D made it clear that she denied that she had any form of mental illness. She also disputed any suggestion of a functional decline. She acknowledged that she had experienced post-traumatic stress disorder and that this had been resolved with a kind of hypnotherapy.
The Board's reasons stated that Dr Evenhuis' evidence that D has schizoaffective disorder was accepted. The Board found that the delusional symptoms of D' schizoaffective disorder prevent her from comprehending medical advice and prevent her from weighing up the decision whether to be treated or not. The Board accepted that D lacks the requisite capacity to give consent to or refuse the proposed treatment. The Board assessed whether the proposed treatment was in D's best interests having regard to the considerations in the GA Act, s45(2). The Board had regard to:
· The prospect of hospitalisation for some months if treatment could not be administered.
· That treatment may resolve some of D's delusional beliefs and therefore promote her personal safety.
· That D's wishes are that she not be treated. She also wishes to be released from hospital.
· The risk of death by electrocution if the proposed treatment is not carried out and therefore remaining on the Continuing Care Order until an abatement of current symptoms. Remaining on the Continuing Care Order is contrary to D's wishes.
· The prospect that without treatment Dr Evenhuis' prediction is that D will experience ongoing deterioration in her condition.
· The side effects and the risks associated with the proposed treatment.
The Board concluded that the treatments sought in the application were in D's best interests.
The application for suspension
D has applied to this Court for the review of the Board's decision under the JR Act. That application has not yet been listed. Pending the resolution of that application, D has filed an interlocutory application seeking an order pursuant to the JR Act, s26(2)(a), which empowers the Court or a judge to "suspend the operation of the decision".
Mr Turner, counsel for the Attorney-General, has opposed the application for the Board's order to be suspended. Mr Turner indicated that the Board submits to the decision of the Court.
The application for suspension is to be considered in light of the nature of the challenge to the Board's decision that is pending. The scope of the Court's review under the JR Act is limited to the grounds in s17(2) of that Act. D has filed many documents pertaining to these grounds. The Court does not have a single document from D setting out in a clear manner and definitive terms the grounds for judicial review. D is unrepresented and has prepared documents for these proceedings while in hospital, with limited resources available to her. The documents she has prepared are handwritten and, no doubt despite her best endeavours, not always easy to follow. To make matters more complicated she has on foot more than one application for judicial review. There is a pending application for judicial review of a decision of the Mental Health Tribunal for a Continuing Care Order. Some of the documents relate to this decision and indeed, decisions made by other individuals and entities. I wish to acknowledge that the difficulties for D in preparing for this litigation have been alleviated by Mr Turner's assistance in obtaining documents as requested by the Court and D, and by providing D with copies of relevant cases.
The documents filed
I mention now the various documents that have been filed by D that bear upon her application for suspension. By an application dated 10 November 2010 D sought judicial review of the Board's decision on 9 November and various other decisions, including a decision of the Public Trustee and the Mental Health Tribunal. By an interlocutory application dated 16 November 2010, D sought a suspension of the Board's decision and other decisions such as the Mental Health Tribunal. As noted, D also seeks judicial review of a decision of the Mental Health Tribunal.
Documents filed in support of the interlocutory application involve an affidavit of D dated 16 November 2010 and five other documents filed on the same date, described as "grounds of originating application", "conduct in making decision", "orders sought", "objection to application to stay proceedings", "response to Dr Evenhuis' letter dated 29/10/10".
On the date the interlocutory application was listed for hearing before this Court, 22 November 2010, a further affidavit was filed. Annexed to the affidavit were documents (22 pages) relied on for the purpose of the hearing, including letters to the Magistrates Court and Centrelink relating to other proceedings, but relied upon as relevant. Also attached is a document with the heading "issues in relation to grounds". This is the main document relied upon by D in these proceedings as setting out her challenge to the Board's decision. In presenting her submissions at the hearing of the application she relied upon this document, referring to it extensively. However, the other documents I have mentioned are also relied upon by D and I treat them as supplementing the matters she refers to in that main document.
Mr Turner filed an affidavit of Ms Jane Bliss, dated 19 November, annexing part of the Board's file and a transcript of proceedings before the Board. At a late stage of these proceedings D indicated that she did not accept the transcript was accurate and asserted that the copy of part of the file was incomplete. This stance had implications regarding one of her challenges to the Board's decision (a complaint of failure to take into account documents and files brought to the attention of the Board). The matter was resolved by the verification of the copy file and transcript. I proceed on the basis that for all intents and purposes relating to this application, the Board's file and transcript are accurate and complete.
D's documents filed on 16 November and 22 November contain a mix of factual material and argument advanced by her in relation to this and other proceedings. Mr Turner drew my attention to that fact, but took no objection to the documents.
In one of the documents "grounds of originating application", all of the subparagraphs in the JR Act, s17(2), are referred to with reference to a number of decisions, including the Board's decision. Factual matters are set out under headings relating to subparagraphs of s17(2). In her main document "issues in relation to grounds", there are several categories of challenge described as the Hearing Rule, Bias Rule and No Evidence. Having regard to the documents as a whole, D raises many factual and legal matters that she relies upon in supporting her application for judicial review.
Mr Turner submits that these many matters that have been raised by D can be distilled as follows:
· The Board failed to take into account some considerations, and in this sense was biased, s17(2)(a).
· There was no evidence to justify the Board's decision, s17(2)(h).
· The decision of the Board was unreasonable, s17(2)(e).
I have considered the various factual and legal matters raised by D. I am satisfied that the characterisation suggested by Mr Turner is fair and captures properly all the matters which could fall within the grounds for judicial review in the JR Act, s17(2).
I should add that I am conscious that there are some other matters raised by D not falling into these three categories, but I am satisfied that, as presently articulated, these matters could not attract the application of the JR Act, s17(2). For example, a matter contained in the document filed on 22 November 2010 is a lengthy discussion of the law covering unlawful forms of physical interference, such as assault, stalking, grievous bodily harm, and a discussion about consent. This material is relied upon to support a contention that there was an error of law by the Board. However, this complaint really rests on the other grounds of review as to whether there was any evidence that could justify the decision, or whether the decision was unreasonable. It is uncontentious that if the Board was not satisfied of the necessary preconditions for the making of an order for substituted consent, then the treatment would not be lawful and D's consent would be required for the treatment to be administered. There is no suggestion that the Board did not correctly identify the legal requirements for making an order for substituted consent. In reality, D's position is not that the Board made a mistake about the applicable law. As stated, I am satisfied that Mr Turner's characterisation of the grounds of review raised by this application is fair.
The discretion to suspend
Whether an order under the JR Act, s26(2), should be made suspending the operation of a decision is a matter of broad unfettered discretion and will depend on the circumstances of the case. The essence of the discretion is whether circumstances exist which make it just that the court should make the order. In Perkins v Cuthill (1981) 52 FLR 238, Keely J considered the discretion under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s15, couched in broad terms, and rejected a test of whether the circumstances were "special" or "exceptional". The approach that was preferred by Keely J was whether it was "just in all the circumstances" to make the order (at p238, see also, Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119, per French J at 131).
In exercising the discretion to suspend the decision under review, the Court will focus on whether the application for review has prospects of success. The strength of the applicant's case is an important consideration: Toulmin v Tasmanian Racing Appeal Board [2009] TASSC 115, Blow J at par[38]. In Faingold v Zammit (1984) 1 FCR 87 at 92, the Full Court of the Federal Court gave consideration to a test involving dual considerations of whether there is a serious question to be tried and the matter of the balance of convenience. It was observed by the Court that in practical terms that approach is not very different to the test of what was "just in all the circumstances".
In Faingold v Zammit the court said:
"In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour."
In Snow v DCT (above), French J observed that in many cases it will be a necessary condition of the exercise of discretion that there is such a "point of substance". Having made that observation French J went on to note that there may be other cases where a short-term "holding" order is warranted. It was also noted that there may be cases where a "serious question" or "point of substance" and a balance of convenience favouring the applicant can be shown, but are not sufficient to warrant the making of an order. An example of such a situation noted by French J is where the decision to be reviewed and the policy of its governing legislation may give rise to other considerations (at 131). It was stated by French J that the broad terminology used in Perkins v Cuthill best expresses the broad scope of the discretion.
Mr Turner submitted that in the context of this application the legislative scheme is a relevant consideration in the exercise of the discretion. Mr Turner noted the purpose of the GA Act, the protective function of the Board, and matters such as the inquisitorial nature of the Board's proceedings. I accept that the legislative scheme is a relevant consideration. Another closely related consideration in determining whether to suspend an order is the consequences to the individual. As stated by Underwood CJ in Irwin v Meander Valley Council [2007] TASSC 12 at par[7]:
"Further, the applicant must show that the balance of justice in all the circumstances of the case requires interlocutory intervention. Principally, this requires a weighing of the consequences if the applicant ultimately succeeds but there is no interlocutory intervention, and the consequences to the respondent if the applicant ultimately fails but an interlocutory order is made. See Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216."
I observe that in this case both the legislative scheme and the consequences of an interlocutory order being made require a cautious approach by the Court in determining whether to grant a suspension. As for the consequences of an order under the JR Act, s26, in a case about medical treatment, the consequences of ceasing treatment that has commenced and interrupting a course of treatment, may be relevant. If there are any such concerns it would seem prudent for them to be addressed in affidavits by the treating practitioners. However, such issues need not arise unless the Court considers that D's application for judicial review has a reasonable prospect of success. I turn to consider that issue.
The Board failed to take into account some considerations (s17(2)(a))
It is asserted that the ground of review in the JR Act, s17(2)(a), applies. Section 17(2)(a) provides:
"(a) that a breach of the rules of natural justice happened relating to the making of the decision;".
Matters raised by D in connection with this ground are as follows:
· D's evidence has not been taken into consideration. The Board failed to take into account evidence of:
oEnduring guardianship.
oEvidence of her high level of functioning.
oD's previous responses to the reports of Dr Jane Casey and Dr Mandy Evans.
oThe written responses of D provided in relation to the Mental Health Tribunal hearing held on 16 March 2010 on file.
· The decision was biased. The Board displayed bias by considering medical reports and opinions other than reports and opinions of D, and by not considering the evidence of D.
· Irrelevant considerations have been taken into account by the Board, namely:
oActing on hearsay evidence.
oUse of medical records/files as evidence.
oPersonal judgements and values, personal interpretations and perceptions of events and conversations and also, assumptions of fact.
A further matter raised by D is that the Board took into account an irrelevant consideration by making its own medical assessment of D's mental state and treating her conduct during the hearing as evidence of mental illness rather than severe fatigue. D submits that the Board was unqualified to make a medical assessment. Another matter raised by D is the failure of the Board to arrange for someone to speak to her about her wishes, and that an investigator did not speak to her before the hearing. Further, a second medical opinion ought to have been provided to the Board and that did not occur.
In relation to the contention that the Board failed to take into account D's evidence, this is not apparent from the reasons for decision. By "evidence" I assume that D is referring to all that she said during the hearing before the Board and in her correspondence to the Board before the hearing. The President noted in her reasons the written materials the Board had received from D. The President's reasons disclose that all the written materials from D, and her evidence, had been taken into account.
One of the matters listed above and expanded upon in D's submissions to this Court is that D had asked the Board to look at other files and her enduring guardianship. D submitted that it is clear from the reasons for decision that the President did not have regard to those documents. In particular, D raised matters concerning a Supreme Court file relating to a hearing conducted by the Mental Health Tribunal on 16 March 2010. The effect of her submission was that the Board should have referred to that file as well. D noted that the Board, in its reasons for decision, did not acknowledge documents she had prepared for that Supreme Court case involving responses to medical reports of Dr Jane Casey and Dr Mandy Evans.
During the hearing of the application for suspension, D referred me to a Supreme Court file relating to an application she had brought for judicial review (398/2010) involving a decision of the Mental Health Tribunal on 12 May 2010. The file contains affidavits that D submitted she had referred the Board to and that the Board should have taken into account.
A consideration of the file reveals affidavits sworn by D dated 12 July 2010, 13 July 2010 and 10 August 2010. They are typed documents and address various issues set out under clearly marked headings. Some of the issues are relevant here. These issues include whether D has a mental illness and her capacity to consent in reference to her enduring guardianship. Another matter covered in the affidavits is D's recent achievements in relation to a Masters in Public Health relevant to whether there has been a functional decline. Further, her response to matters such as her presentation to hospital as an involuntary patient, assessment of her current mental state, assessment of risk to self or others and mental capacity. Another affidavit provided a response to the reports of Dr Mandy Evans and Dr Casey. It is a very detailed and comprehensive affidavit answering the matters in those medical reports.
I conclude that from D's point of view the affidavits clearly and effectively conveyed her position in relation to some matters having relevance to the application for substituted consent.
It does not appear from the Board's reasons that these particular affidavits were taken into account. D submitted that these affidavits should have been taken into account. I accept that they should have been taken into account if D requested the Board to consider them. However, it is clear from a consideration of the transcript of the hearing that D did not make a specific request for the Board to consider the affidavits or other documents of that kind, or indeed any other files. That is not the end of the matter and given what transpired at the hearing there are matters relating to documents and D's belief in relation to documents that require some consideration. It is necessary to consider what transpired at the hearing in more detail.
The application of Dr Evenhuis and supporting documents were provided to D before the hearing. In correspondence to the Board she raised the fact that she could not read the application and that she did not have her reading glasses with her in hospital. At the time of the hearing of the application on 5 November, and when Dr Evenhuis gave evidence, D still had not been able to read the application. Towards the end of the hearing D informed the Board that she needed glasses to read the application. There was a discussion between the President and D about providing D with the opportunity to prepare a written submission. At the end of the hearing and shortly before the hearing adjourned, D was lent a pair of reading glasses by Mr Perry (Compliance Officer with the Board). She indicated the glasses were helpful in enabling her to read.
It should be made clear that there has been no suggestion by D during the proceedings before me of any procedural unfairness arising from her difficulty with reading the application. I note that parts of the application of Dr Evenhuis are difficult to read due to the very small print. This was raised with D during her submissions to this Court but she did not rely on this matter or her lack of reading glasses as a factor in relation to her grounds for review.
During the hearing before the Board D questioned Dr Evenhuis. It was plain that D was opposed to the order and that she disputed Dr Evenhuis' opinions, as well as the basis for his opinions. The hearing proceeded with Dr Evenhuis giving oral evidence of his opinions in relation to specific issues raised by the President. Essentially these issues were the statutory criteria to be applied by the Board in considering the application. After Dr Evenhuis addressed each issue, D was given an opportunity to respond. After D had responded, Dr Evenhuis proceeded to give evidence on the next issue.
At the conclusion of Dr Evenhuis' evidence, and after some very brief evidence from Nurse Mollenhagen, there was an exchange between the President and D. The President indicated that she would hear from D and that it was her opportunity to tell the President her view about the application. At this stage there was the discussion about the reading glasses and D was given the opportunity to prepare a written submission as a response to the application. A summary of the exchange leading to the proceedings being adjourned is as follows.
D was informed by the President that she had an opportunity to tell the Board her view about the application and the evidence she wanted to present in relation to the application. D responded referring to the fact that there were a lot of things that the President needed to look up before the President made her decision. At this stage D referred the President to the court case in the Supreme Court and people the President would need to speak to, such as the Attorney-General and the civil DPP. When asked for specific details, D did not pursue her request and said that she would like the President to speak to her about her wishes. The President explained to her that the hearing was the opportunity for D to express her wishes and that she would not be interviewed as requested. D asked the President if she had her Guardianship and Administration Board file and whether she had read it. The President stated that she was familiar with the file. D indicated that she would like to respond to Dr Evenhuis' evidence once she had his notes and once she had read what he had written. D stated that she did not have reading glasses. The President proposed a course of action involving assistance being provided to D in terms of her reading glasses so that she could read the application and that an opportunity would be given to D to write a submission relating to the information in the application. It was emphasised that the written submission provided an opportunity for D to tell the President all her wishes, how she felt about the application and the orders sought. Arrangements were made for D's written submission to be collected at 4:30pm on Monday 8 November.
A document was collected from D as arranged. The President in her reasons stated that this document was taken into account by the Board in reaching its decision. A perusal of the Board's file (provided as attachment to the affidavit of Ms Jane Bliss verified by reference to the original file) reveals that the document collected from D was not in fact a submission to the Board. It was instead a letter written to Mr Maloney, addressed as the CEO of the Public Trustee. The contents of the letter have no relevance to the hearing.
D has not, as yet, expressed a grievance that the letter to Mr Maloney was accepted as a submission. During her submissions to this Court, D indicated that her position was that she had said all she needed to say to the Board. This submission seems to be based on the understanding that the affidavits that have been mentioned, filed on other proceedings, were before the Board.
In proceedings before this Court, D maintained that in her correspondence with the Board she had asked for regard to be given to previous files and the Mental Health Tribunal Hearings. She indicated that the Board had access to these other files. Having considered the Board's file I cannot see any such request. Further, having considered the transcript of the hearing before the Board D was vague about the files that she wanted the Board to take into account. There is a reference to the Guardianship and Administration file and an oblique reference to other files. That reference could not qualify as a request to take into account those other files. Further, D did not make a request for her affidavits on the Supreme Court file (398/2010) regarding the judicial review application to be considered by the Board. It is to be noted that the President made clear her preparedness to take into account any matters that D wished to refer her to.
In summary, the information before me reveals the following. D did not make a request to the Board to consider her affidavits on the Supreme Court file (398/2010). Evidently, D has assumed that she referred the Board to her affidavits on the Supreme Court file, that the Board had access to such material, and would have regard to it and other files of relevance. It is apparent that D did not appreciate when making submissions before me that the affidavits and other files were not part of the materials before the Board. Whether there was reason for the Board after receiving the two page document (which was not a submission but a letter to Mr Maloney) to clarify with D her position in relation to other documents and matters she wished to place before the Board may be arguable given the following:
· D had not been able to read the application and supporting documents before and during the hearing.
· D did not have legal representation.
· D wanted her wishes taken into account and asked that someone speak to her for that purpose.
· D referred the Board to other material and other files in generalised terms, and that material was not before the Board.
· D strongly opposed the application before the Board and had not provided the response to the application that she stated she wished to provide.
· The hearing was adjourned to enable D to present a written submission and that was not provided.
In holding a hearing the Board was bound by the rules of natural justice (the GA Act, s11(2)(b)) and owed a duty of procedural fairness to D. An aspect of procedural fairness is a reasonable opportunity to respond to an application. Given all that had transpired and the particular circumstances as I have noted, it may be argued that once it became apparent that D had not provided a written submission as anticipated, an inquiry ought to have been made of D regarding any materials or matters she wished the President to take into account. An inquiry might have exposed misunderstandings by D regarding the documents before the Board. A counter argument is that what might have happened if an inquiry had been made is in the realms of speculation. D and the Board may have remained at cross purposes with D believing the Board would have regard to her affidavits and files in other proceedings, and the Board assuming that D had responded fully to the application and did not wish to add anything further.
In cases such as this it may be argued that there was an obligation to make an inquiry of D as a component of the rules of natural justice or an aspect of the requirement of reasonableness (Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 559 - 560 and Comcare v Fiedler (2010) 115 FCR 328 at 338). The weight of authority suggests that such a duty arises in very limited circumstances. Mr Turner submitted that even if an inquiry had been made by the Board, it would not have affected the outcome of the proceedings. However, where the denial of natural justice affects the entitlement of a party to make submissions on an issue or issues of fact, it is not readily concluded that compliance with the rules of natural justice could have made no difference (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, per Ipp JA pars[69] – [71]).
At this preliminary stage, it appears that an arguable ground of review may be that an inquiry should have been made by the Board with regard to the written submission. Forecasting the prospects of success of such a ground is difficult. Submissions on this point have been limited. As noted, D has assumed in making her submissions before me, that the Board had her affidavits and other files of relevance. Mr Turner submitted that the situation was not clear in that regard. It is not known what course D would have taken in the proceedings before the Board if she had known that the affidavits and files were not part of the materials before the Board. Now that it is evident that the Board had not been referred to the affidavits and files D may amend her grounds of review. At this stage D may have an arguable ground of review. That is all that has been revealed at this stage. Noting the exceptional nature of the duty to make an inquiry, the assessment I make, at this stage, is that such a ground does not have a reasonable prospect of success. I turn now to consider other matters relied on as amounting to procedural unfairness.
A matter raised by D is the failure of the Board to arrange for someone such as an investigator to speak to her about her wishes before the hearing. D also complains that there was no second medical opinion provided to the Board. D has not pointed to a legal requirement for the Board to arrange for either course of action in connection with an application for substituted consent. An error of law or failure in terms of procedural fairness has not been revealed in this regard.
D makes an assertion of bias by the Board. The assertion of bias presupposes that the Board ought to have rejected the medical opinions supporting Dr Evenhuis' application. However, it was entirely open for the Board to accept the opinions in support of the application and to do so does not reveal any bias. Other related points made by D involve a critique of Dr Evenhuis' opinions as involving assumptions, false interpretations and personal judgments about D. In essence, these points amount to a criticism that the Board made the wrong findings of fact by accepting the opinions of Dr Evenhuis. These points are about the merits of the Board's decision and such a challenge to the Board's decision falls outside the grounds of review in s17(2) of the JR Act.
There is complaint that the basis for Dr Evenhuis' report (being the application to the Board) was hearsay evidence and unverified material relating to the observations made by others. It can be seen that Dr Evenhuis' opinions were based in part on the observations of others, such as nursing staff and the observations of the CATT team and the content of medical files. I add that his opinions were also based on his own observations.
In the reasons for decision, the Board was clearly mindful that part of the basis of Dr Evenhuis' evidence was hearsay accounts of D's behaviour. The President noted that information about D's admission to hospital relied on reports of others and was hearsay (par[7]). It can be seen from the Board's reasons that the Board treated those reports of D's behaviour leading to her hospitalisation as unproven and helpful only as context and background.
In any event, the Board is not bound by the rules of evidence (the GA Act, s11(4)) and is entitled to have regard to hearsay evidence in making its determination. The Board was entitled to have regard to these matters and there was no error of law in accepting Dr Evenhuis' opinions.
D submitted that the reasons for decision disclose that the Board made its own medical assessment of D during the hearing, when it was not qualified to do so. The relevant passages appear at pars[27] and [28]. In part, the reasons provide:
"Dr [D] does not countenance the possibility of a mental illness. However Dr Evenhuis' evidence was compelling and consistent with the Board's own observations during the hearing and the historical medical reports."
It does not appear from the reasons that the Board formed an opinion about matters requiring medical qualifications or specialised knowledge. Rather, it appears that the President was simply noting that her observations of D during the hearing were consistent with the evidence of Dr Evenhuis and the content of medical reports. These observations were merely supportive of Dr Evenhuis' observations and the observations of others mentioned in the medical reports. It may also be noted that the President found that the evidence of Dr Evenhuis was compelling. There is no merit in this point.
Another matter raised by D is that the opinions of Dr Evenhuis are based on notes and written observations that D has no knowledge of and did not have the chance to defend. In relation to notes referred to by Dr Evenhuis during his evidence, the transcript shows that D requested them during the hearing but when asked by the President whether she wanted them for these or other proceedings, D indicated that her purpose was for other court proceedings. The President explained that a request for the notes was not a relevant issue for the Board unless they related to the proceedings before the Board. The request to see the notes was effectively abandoned by D. There is no merit in any assertion of procedural unfairness with regard to notes.
There was no evidence to justify the Board's decision (s17(2)(h))
It is maintained that there was no evidence in relation to mental illness and the other requirements under the GA Act. In this context D makes the point that the medical opinions before the Board are based on hearsay and false assumptions. D also submitted that the evidence accepted by the Board involved an irrational explanation of drug side effects and the relationship with symptoms and physical and psychological experiences.
Section 17(2)(h) provides:
"17 Application for review of decision
(1) ....
(2) The application may be made on any one or more of the following grounds:
…
(h)that there was no evidence or other material to justify the making of the decision."
The application of s17(2)(h) is confined by s21 which provides:
"21 Decisions without justification – establishing ground
The ground mentioned in section 17(2)(h) and section 18(2)(h) is taken not to be made out —
(a) unless —
(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless —
(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii)the fact did not or does not exist."
In Irwin v Meander Valley Council (above), Underwood CJ considered the question of whether there is any evidence to support a decision for the purpose of the JR Act and stated as follows at par[26]:
"It is trite law that this Court will not engage in a merits based review of the respondent's decision. It is confined to determining if legal error attended the making of the decision. If there is any evidence to support the decision, then it cannot be said that error occurred in making a decision without evidence. As Mason J (as he then was) pointed out in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, a question of whether there is any evidence to support a decision is a question of law. His Honour went on to say at 356:
'But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth (1987) 163 CLR 54; per Brennan J at p 77. Similarly, Menzies J observed in Reg v The District Court; Ex parte White (1966) 116 CLR 644, at p 654: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law".
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place'."
In this case there was evidence from Dr Evenhuis to justify the decision made by the Board. There was evidence before the Board upon which it could reasonably have been satisfied of the statutory requirements under the GA Act. I have already considered the fact that Dr Evenhuis' opinion was based in part on hearsay and I have noted that the Board is not bound by the rules of evidence. The weight to be allocated to his opinion was a matter for the Board. Dr Evenhuis' opinions are evidence that the Board was entitled to accept.
The decision of the Board was unreasonable (s17(2)(e) and 20(g))
Other matters raised by D invoke the JR Act, ss17(2)(e) and 20(g). Section 17(2)(e) provides:
"17 Application for review of decision
(1) ....
(2) The application may be made on any one or more of the following grounds:
(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made."
Section 20(g) is in the following terms:
"20 Meaning of 'improper exercise of power'
In section 17(2)(e) and section 18(2)(e), a reference to an improper exercise of a power is taken to include —
(g) an exercise of a power that is so unreasonable that no reasonable person could so exercise the power."
D maintained that there was no evidence from which the Board could reasonably be satisfied that a mental illness was established. D submitted that by contrast she had given accurate information and evidence to the Board during the hearing.
This ground of review succeeds in only exceptional circumstances. It encapsulates the common law concept of unreasonableness derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. An applicant needs to demonstrate that the impugned decision is one that no one acting reasonably, could have come to. I assess this ground of review as having no prospect of success. There was evidence which a Board, acting reasonably, could have accepted and which supported the decision made.
Conclusion
I consider that based on the materials before me at this stage the application for review does not have a reasonable prospect of success such as would warrant an order suspending the Board's decision. I have mentioned other considerations that would weigh against the granting of the order, such as the legislative scheme of the GA Act and the consequences to D of granting the order, as well as the consequences of not granting the order. Given my assessment that the application for review does not have any reasonable prospect of success, I do not reach the stage of needing to apply these other considerations.
For the reasons I have given the interlocutory application is dismissed.
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