DG v Public Guardian
[2008] NSWADTAP 58
•3 September 2008
Appeal Panel - External
CITATION: DG v Public Guardian and ors [2008] NSWADTAP 58 PARTIES: APPELLANT
DGFIRST RESPONDENT
Public GuardianSECOND RESPONDENT
Protective CommissionerTHIRD RESPONDENT
Maris TonkinFOURTH RESPONDENT
DECISION MAKER
HZ
Guardianship TribunalFILE NUMBER: 078016 HEARING DATES: 14 August 2008 SUBMISSIONS CLOSED: 14 August 2008
DATE OF DECISION:
3 September 2008BEFORE: Britton A - Deputy President; Millar J - Judicial Member; Wunsch A - Non Judical Member CATCHWORDS: Guardianship order - review - financial management order - making MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: Review of a Guardianship Order C/37476 FILE NUMBER UNDER APPEAL: 2007/5747 DATE OF DECISION UNDER APPEAL: 09/17/2007 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987CASES CITED: Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
CZ v Public Guardian & ors [2008] NSWADTAP 42
House v The King (1936) 55 CLR 499
IF v IG & Ors [2004] NSWADTAP 3
Ms A v Public Guardian & Ors [2006] NSWADTAP 55
R v Australian Broadcasting Tribunal; Ex p. Hardiman (1980) 144 CLR 13REPRESENTATION: APPELLANT
M Armstrong, barrister instructed by B Ramjam guardian ad litenFIRST RESPONDENT
No appearanceSECOND RESPONDENT
No appearanceTHIRD RESPONDENT
No appearanceFOURTH RESPONDENT
In personDECISION MAKER
COUNSEL ASSISTING
E Cho, legal officer
A Johnson, solicitorORDERS: The decision of the Appeal Panel is that the appeal is allowed. We make the following orders:
1. Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007
2. The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made and (ii) any additional evidence that the Guardianship Tribunal decides to consider.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
1 The appellant, who we will refer to in these reasons by the pseudonym ‘DG’, appeals against the decision of the Guardianship Tribunal to appoint the Public Guardian as her guardian to make decisions about her accommodation, health care, medical and dental treatment. The term of that appointment was 12 months.
2 The Guardianship Tribunal declined to make a financial management order. That order is not the subject of this appeal.
3 DG is frail and is said to suffer from dementia. Prior to the Guardianship Tribunal decision, she had been living with and was cared for by her long-term friend, HZ, the fourth respondent in these proceedings. She is now a permanent resident in a nursing home and requires high-level care.
4 The initiating application, which was the subject of the Tribunal’s decision, was made by hospital social worker, Ms Maris Tonkin who was concerned that DG might not have been receiving the proper level of care. Ms Tonkin believed that critical medical investigations could not be performed as DG was incapable of providing informed consent and no other person was able to so on her behalf.
5 Ms Barbara Ramjam was appointed under section 71(4) of the Administrative Decisions Tribunal Act 1997 to represent DG in these proceedings and in turn, she instructed Mr Anderson of counsel. In addition, the Crown Solicitor was appointed to assist the Appeal Panel in the proceedings. The Guardianship Tribunal participated in a limited capacity consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Tonkin, the Public Guardian and the Protective Commissioner did not participate in these proceedings.
6 HZ, the fourth respondent, supported the appeal. He attended the hearing and made submissions.
7 All references in these reasons to ‘the Tribunal’ are to the NSW Guardianship Tribunal.
Grounds of Appeal
8 In a Further Amended Notice of Appeal filed on 19 February 2008, 14 grounds of appeal were identified. In oral submissions, Counsel for DG relied on four main grounds:
Did Ms Tonkin have standing?
That Ms Tonkin did not have standing to bring the initiating application;
That the Tribunal breached s 3D of the Guardianship Act 1987 by failing to join HZ as a party to the proceedings;
That the Tribunal failed to properly consider and apply sections 4 and 14(2) of the Guardianship Act 1987;
That the Tribunal failed to afford HZ procedural fairness by, among other things, not giving him a copy of all material relied on by the Tribunal.
9 Under the Guardianship Act 1987, an application for a guardianship order in respect of a person may be made to the Tribunal by the subject person, the Public Guardian and ‘any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person’ (section 9(1)(d)).
10 Counsel for DG submitted that the Tribunal failed to address whether Ms Tonkin held the requisite ‘concern’ for her welfare or, if it did, give reasons for its opinion. Ms Tonkin’s ‘concern’, it was argued, was based on the false premise that HZ was ‘not acting in [DG’s] best interests’ (Reasons for Decision, page 3), a view he argued that was not supported by the evidence or borne out by the events that followed the decision.
11 While not expressly addressed, it is implicit from its Reasons for Decision that the Tribunal accepted that Ms Tonkin held a genuine concern for DG’s welfare. It referred, for example, to Ms Tonkin’s report that service providers were ‘concerned that [DG] was not receiving the necessary standard of care’ and her concern that HZ might ‘take [DG] out of the hospital against medical advice’ (Reasons for Decision, page 3).
12 Even if, Ms Tonkin’s concerns were ill founded, as Counsel for DG contends, it does not follow that they were not genuinely held. There was no evidence or suggestion that Ms Tonkin had initiated the proceedings for vexatious or improper purposes.
13 In a case such as this, where a party’s standing is not challenged or inherently questionable, it does not, in our view, constitute an error if the Tribunal does not expressly address the issue of standing.
Was HZ joined as a party?
14 It was argued that the Tribunal erred by failing to make HZ a party to these proceedings.
15 There can be no argument that HZ was entitled to be party to the proceedings before the Tribunal. Section 3F(2) of the Guardianship Act 1987 lists the persons who are automatically parties to such proceedings and includes ‘the person, if any, who has care of the person to whom the application relates’: section 3F(2)(d). The Guardianship Act 1987 provides that the circumstances in which a person is to be regarded as having ‘the care of another person’ include where that person, otherwise than for remuneration, on a regular basis ‘provides domestic services and support to the other person, or arranges for the other person to be provided with such services and support’: section 3D. It is uncontroversial that HZ provided domestic services and support to DG without remuneration over an extended period and as such ‘had the care of DG’ for the purposes of the Guardianship Act 1987. Accordingly, by the operation of section 3F, he was deemed to be a party to the proceedings.
16 It is not in issue that HZ was notified of and participated in the hearing. The transcript of proceedings indicates that HZ’s views were extensively canvassed and he was given many opportunities to make comments and submissions. There is nothing in the material before us to indicate that in the conduct of the proceedings HZ was afforded any lesser right of participation than any other party.
17 The Tribunal in its Reason for Decision (at page 7) sets out the persons who were the parties and witnesses to the proceedings. HZ was listed as one of the four parties to the proceedings.
18 The contention that the Tribunal failed to make HZ a party as required under section 3F is not made out.
Did the Tribunal misapply sections 4 and 14(2) of the Guardianship Act 1987?
19 Counsel for DG argued that the Tribunal misapplied sections 14(2) and 4 of the Guardianship Act 1987. He argued that the Tribunal failed to have proper regard to the view of DG and HZ. Furthermore, he contended that its error in finding that HZ was not DG’s ‘person responsible’ infected the Tribunal’s ultimate decision.
20 Relevant statutory provisions To properly consider these submissions it is necessary to examine the relevant statutory provisions.
21 The Tribunal’s power to make a guardianship order is contained in section 14 of the Guardianship Act 1987. It provides:
22 The term ‘person in need of a guardian’ is defined by section 3 of the Guardianship Act 1987 to mean ‘a person who, because of a disability, is totally or partially incapable of managing his or her person’.
14 Tribunal may make guardianship orders
(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the person, and
(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person’s existing family relationships,
(c) the importance of preserving the person’s particular cultural and linguistic environments, and
(d) the practicability of services being provided to the person without the need for the making of such an order.
23 In IF v IG & Ors [2004] NSWADTAP 3 at [26] the Appeal Panel (differently constituted) examined section 14 of the Guardianship Act 1987 in detail and concluded that it required the Tribunal to undertake a ‘two-step process’. That approach has consistently been applied by subsequent Appeal Panels of the Administrative Decisions Tribunal (see for example, CZ v Public Guardian & ors [2008] NSWADTAP 42; Carew v Protective Commissioner and Ors [2005] NSWADTAP 13; Ms A v Public Guardian & Ors [2006] NSWADTAP 55). The Panel in IF v IG & Ors, identified the first step as the determination of whether the subject person is a ‘person in need of a guardian’. The second step according to the Panel, requires the exercise of a ‘structured discretion’:
24 Section 4 to which the Panel referred, provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
26 … The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words “shall have regard to” in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact.
…
28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987.
25 A person responsible? The concept of ‘person responsible’ is central to this ground of appeal.
(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.
26 Under the Guardianship Act 1987 where a person is incapable of giving consent to the carrying out of medical or dental treatment the ‘person responsible’ is authorised to give consent. Section 33A(4) of the Guardianship Act 1987 defines ‘person responsible’ by reference to a hierarchy, in descending order:
27 It is uncontroversial DG did not have a guardian, spouse or de facto spouse. Nor is it in issue that HZ, having provided domestic services and support without remuneration over an extended period, ‘had the care of’ DG as defined by section 3D of the Guardianship Act 1987. It follows that by the operation of section 33A(4), when the initiating application to the Tribunal was made, HZ was DG’s ‘person responsible’.
(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(c) a person who has the care of the person,
(i) the relationship between the person and the spouse is close and continuing, and
(ii) the spouse is not a person under guardianship,
(d) a close friend or relative of the person.
28 It is common ground that the Tribunal erred in finding that HZ was not DG’s ‘person responsible’ (Reasons for Decision, page 3).
29 Our Conclusions, Counsel for DG contended that the Tribunal failed to consider, or properly consider, as required by section 14(2), the views of DG and HZ and the practicability of services being provided to DG without the need for the making of such a guardianship order (sections 14(2)(a) and (d)). He also contended that the Tribunal ‘made orders which would appear to be contrary to the overriding principles set out in section 4’, namely the primacy of DG’s welfare and interests (section 4(a)). He argued that the ‘failure to consider those basic matters rendered the decision void and beyond power’.
30 The mere fact that a tribunal omits explicit mention of general statutory principles or the objects of a statute does not mean that it has failed to take them into account. Whether a Tribunal will be required explicitly to refer to general principles, operating as guidelines for the exercise of discretionary decisions, will depend on the circumstances. A failure to do so, even when they ought to be mentioned, does not mean that the Tribunal lacks jurisdiction and that its decision(s) are void: it may be an appealable error, such as a failure to give adequate reasons, but the decision is not a nullity.
31 A fair and objective reading of its Reasons makes plain that the Tribunal was attempting, with the information and evidence available to it, to reach a determination that gave primacy to DG’s best interests. For example, in opening, the Presiding Member specifically stated that the ‘focus of today’s hearing’ was DG’s ‘best interests’ (Transcript, 17 September 2007, page 6). This is also borne out by the way the hearing proceeded. For example, the Tribunal took into account DG’s history of living in HZ’s house, her physical circumstances, the deterioration in her health, HZ’s generous and altruistic provision of accommodation and care to DG and so on. It was clear that the Tribunal was sympathetic to the desire expressed by DG and HZ for their situation to continue as it had in the past but it reluctantly came to a view that, for DG’s good and the protection of her welfare, it had to intervene by making a guardianship order.
32 Nor as asserted, in our view, can it be said that the Tribunal failed to take into account the views of DG or HZ.
33 That contention appears to be based in part on argument that because HZ was not fully aware of the medical evidence his views had not properly been taken into account. The transcript of the proceedings, however, shows, first, that HZ was present and was asked his views by the Tribunal. For example, having been given an opportunity to listen to the evidence of Ms Tonkin, who explained to the Tribunal the reasons she had brought the application – that she considered DG was living in an unsafe environment and needed further medical treatment – HZ was asked by the Tribunal for his views. At pages 14-15, the following passage appears:
34 The next 25 pages of transcript are devoted to a dialogue between members of the Tribunal and HZ about the care he had been providing DG, her health and the care he thought he could provide her in the future. In no way can it be said that his views (or, indeed, those of DG) were dismissed from consideration. On the contrary, they were given careful and very full consideration before the Tribunal reached its conclusion that a guardianship order was required.
Presiding Member: [HZ], you’ve heard what Mrs Tonkin has said.
HZ: Mm.
Presiding Member: And about the need for further medical treatment, the need for perhaps more care than you can offer at the moment because of [DG’s] increased care needs.
HZ: Mm.
Presiding Member: What do you think about that?
HZ: I think it’s all baloney, that’s what I think …
35 In our view, the Tribunal did observe the general principles in section 4 as it was required to do.
36 Section 14(2)(d) also required the Tribunal to consider ‘the practicability of services being provided to the person without the need for the making of such an order’.
37 HZ, in particular, but also DG, resisted the making of an order largely on the basis that they thought it unnecessary. The transcript reveals that much of the discussion between members of the Tribunal and both DG and HZ, appeared to be a weighing of that very consideration. Although they had the evidence of Ms Tonkin to the effect that DG needed an order, the Tribunal did not leap to a conclusion but spent a lengthy period of time teasing out the issue in its discussions with DG and HZ. Only after hearing from them and, as is apparent from the reasons for their decision, weighing the evidence, did they make the decision.
38 It is, however, agreed by all parties that the Tribunal erred in finding that HZ was not a ‘person responsible’, as defined in section 33A of the Guardianship Act 1987. This was an error because it meant that the Tribunal proceeded on the basis that HZ was a person who could not give consent, pursuant to section 36 of the Act, for DG to have medical or dental treatment.
39 In considering whether it was practicable for services to be provided to DG without the need to make a guardianship order (section 14(2)(d)) the Tribunal had regard to, among other things, DG’s need for medical treatment and her inability to provide consent. This is not surprising given that the trigger for the initiating application was the belief held by practitioners at the hospital to which DG had been admitted that they could not undertake various urgent tests because there was no one available to provide consent.
40 The Tribunal noted (Reasons for Decision, page 3):
41 The Tribunal went on to write (Reasons for Decision, page 4):
[DG] requires high level care. She also requires a CT scan but [DG] is not able to understand the tests or provide informed consent. The medical staff explained the procedure to [HZ] but he declined to give permission. [HZ] is not [DG’s] person responsible …
42 In the preceding paragraph, the Tribunal noted that DG’s ‘sister resides overseas and is unable to make decisions on [DG’s] behalf’.
The medical evidence indicates that [DG’s] complex medical conditions require investigation and careful management. She now requires high level care. In these circumstances the Tribunal was satisfied that she needed a guardian to make decisions for her.
43 It appears implicit, although not specifically mentioned, in the Tribunal’s reasons that it came to a view not only that HZ did not fully comprehend the degree of care DG needed but that, because he was not a ‘person responsible’, he was unable to consent to any necessary treatment even if he had the necessary desire and knowledge. Whether the Tribunal would have reached a different decision had it found that he was a ‘person responsible’ is a matter of speculation. However, it was relevant to determining whether it was practicable for DG to be cared for by HZ without an order and this, in turn, was relevant to the ultimate question of whether or not to make a guardianship order.
44 It is trite law that an exercise of power which is based on an irrelevant consideration or which fails to take into account a relevant consideration may be wrong at law: see, for example, R v Australian Broadcasting Tribunal; Ex p. Hardiman (1980) 144 CLR 13; House v The King (1936) 55 CLR 499 at 504-505. The appeal succeeds on this ground.
45 Given this finding it is unnecessary to consider the remaining grounds of appeal.
Form of Orders
46 Counsel for DG urged the Panel to make final orders and set aside the Tribunal’s decision. If we were to do so DG would be without a guardian and HZ as ‘person responsible’ would be empowered to consent to any medical or dental treatment that DG might require.
47 Having determined the appeal, the Appeal Panel may make ‘such orders as it thinks appropriate in the light of its decision’ (section 118C(1) of the Administrative Decisions Tribunal Act 1997. The orders available to the Appeal Panel include, but are not limited to, any of the following:
48 Before considering the appropriate form of orders, it is necessary to sketch in the events that have occurred since the decision under appeal was made.
(a) an order affirming or setting aside the decision the subject of the external appeal,
(b) an order remitting the matter to be heard and decided again by the person or body that made the decision, either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for the decision the subject of the external appeal.
49 DG now resides in a nursing home on a permanent basis. Her health has deteriorated. A few months ago she fractured her hip. HZ who visits DG on a daily basis, believes her health to be precarious.
50 The guardianship order, which is the subject of the appeal, will expire in about a month. By the operation of section 25(2) of the Guardianship Act 1987, a review of that order must be undertaken before the expiry of the period for which it has effect. On review, the Tribunal may renew, renew and vary the order, or determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect) (section 25C). The Tribunal has provisionally listed the review for 19 September 2008, subject to any orders made by this Panel.
51 The Public Guardian has formally notified the Guardianship Tribunal that it supports the discharge of the guardianship order. The guardian ad litem, Ms Ramjam, advised the Panel that the Public Guardian’s delegate with case work responsibility for DG, Ms Joanne Butler, said she had no concerns with HZ’s ability to properly care for DG and believed in the circumstances a guardianship order to be otiose. It is common ground that Ms Butler is well placed to comment on whether the Tribunal’s concerns about HZ were somewhat misguided.
52 Given the passage of time and the events that have occurred in the period since the decision under appeal was made, the option proposed by Counsel for DG, namely that the Panel make final dispositive orders has much to recommend it. That option would have the benefit of allowing the matter to be finalised and relieve HZ from the need to attend a further hearing.
53 Had DG elected to have the appeal extended to the merits, which she was invited to in the course of these proceedings, in our view there would have been little utility in further delaying the matter and this would have been an appropriate case for the Panel to determine the substantive application.
54 As section 118C of the Tribunal Act makes clear, the orders available to the Panel are broad in scope. There is no warrant for reading that provision as restricting the Panel to either remitting the decision, or deciding the matter itself. It would be within the Panel’s power to dispose of this matter by simply setting aside the decision under appeal. However the practical effect of that course would be to leave the underlying application for a guardianship order in limbo.
55 Despite out concerns about further delay, we have decided that final dispositive orders should not be made by the Appeal Panel because in our view it is necessary for the underlying application to be determined. We have therefore decided to remit the matter to the Guardianship Tribunal. In determining whether or not to make a guardianship order the Tribunal shall have regard to any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made.
Orders
The decision of the Appeal Panel is that the appeal is allowed. We make the following orders:
1. Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007
2. The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made and (ii) any additional evidence that the Guardianship Tribunal decides to consider.
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