DL v Public Guardian and Ors

[2008] NSWADTAP 6

Appeal Panel - External

CITATION:

DL v Public Guardian and ors [2008] NSWADTAP 6

PARTIES:

APPELLANT
DL

FIRST RESPONDENT
Public Guardian

SECOND RESPONDENT
Bronwyn Powell

THIRD RESPONDENT
DT

DECISION MAKER
Guardianship Tribunal

FILE NUMBER:

078019

HEARING DATES:

23 January 2008

SUBMISSIONS CLOSED:

23 January 2008

 
DATE OF DECISION: 

11 February 2008

BEFORE:

Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Whaite A - Non Judicial Member

CATCHWORDS:

Guardianship order - review

MATTER FOR DECISION:

Principal matter

DECISION UNDER APPEAL:

Review of a Guardianship Order

FILE NUMBER UNDER APPEAL:

C/37177 Matter Nos: 2007/4896, 2007/4897

DATE OF DECISION UNDER APPEAL:

10/09/2007

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

IF v IG & Ors [2004] NSWADTAP 3
K v K [2000] NSWSC 1052
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

REPRESENTATION:

APPELLANT
In person

FIRST RESPONDENT
No apperance

SECOND RESPONDENT
No appearance

THIRD RESPONDENT
B Obradovic, barrister

DECISION MAKER
E Cho, legal officer

ORDERS:

The guardianship order made by the Guardianship Tribunal in relation to DT on 9 October 2007 is affirmed.

“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

Introduction

1 DT is a woman in her 60’s who has been diagnosed with cognitive impairments consistent with dementia. She also has symptoms of psychosis and some physical ailments including high blood pressure. DL, her partner of 34 years, took her to hospital in July 2007. She was admitted to the psychiatric unit. A social worker applied to the Guardianship Tribunal for a guardianship order in relation to DT, which she and her partner opposed. The Tribunal made a guardianship order on 9 October 2007 appointing the Public Guardian for 12 months. The Public Guardian was given power to make decisions about DT’s accommodation, health care, medical and dental treatment and services. DL has appealed against that decision. The Public Guardian has decided that DT needs to remain in hospital, though not in the psychiatric unit, for the time being. DL is concerned about DT’s welfare and says he wants DT to come home and live with him. An appeal against the Guardianship Tribunal’s orders can be made as of right on a question of law, but the Appeal Panel’s leave is required before hearing an appeal on the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 118B(1).

2 We have decided to refuse leave for the appeal to proceed against the merits of the Tribunal’s decision. We have also decided that the Guardianship Tribunal did not make an error of law in reaching its decision. Consequently we have affirmed the Guardianship Tribunal’s decision to make a guardianship order in relation to DT.

Parties and representation

3 The appellant, DL, was not legally represented. His initial grounds of appeal related to the merits of the Guardianship Tribunal’s decision. He amended those grounds at the hearing to add a question of law. That question was whether the Tribunal had complied with the requirement in section 14(2) of the Guardianship Act 1987 to have regard to certain factors when considering whether or not to make a guardianship order. DT, who was legally represented, supported those submissions and made similar submissions of her own, even though she was a respondent to the appeal. Because neither the Public Guardian nor Ms Powell (a social worker who was the applicant in the Guardianship Tribunal proceedings) appeared before the Appeal Panel, there was no party opposing the appeal. In cases such as this where there is no contradictor, the Appeal Panel generally appoints a person (typically the Crown Solicitor) to assist it: ADT Act, section 67(4). We did not do so in this case, but because our decision is to affirm the Guardianship Tribunal’s decision, no unfairness can be said to have resulted from that failure.

4 The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal’s practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Grounds of appeal on questions of law

5 Section 14(2). The question of law raised by this appeal is whether the Tribunal complied with the requirement in section 14(2) of the Guardianship Act 1987 to “have regard to” certain factors when considering whether or not to make a guardianship order. Section 14 states that:

(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.

6 There was no issue about whether the Guardianship Tribunal correctly applied section 14(1). It was satisfied that DT was "a person in need of a guardian". That expression is defined in section 3 to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". In order to determine whether a person is "a person in need of a guardian" the Guardianship Tribunal must consider two things: (1) whether the person has a disability and (2) whether because of that disability the person is totally or partially incapable of managing his or her person: IF v IG & Ors [2004] NSWADTAP 3 at [24]. The Tribunal had evidence of both those matters and made findings based on that evidence. However, that is only the first step in the process of determining whether or not to make a guardianship order.

7 The second step is for the Guardianship Tribunal to determine whether or not to exercise its discretion to make a guardianship order. In that process, the Tribunal must have regard to each of the factors listed in section 14(2). In IF v IG & Ors [2004] NSWADTAP 3 at [26] the Appeal Panel described what is required:

When undertaking the second step in the process required by section 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in section 14(2) before exercising its discretion. The use of the words "shall have regard to" in section 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.
8 The words “have regard to” in section 14(2) require that the Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. DL and DT submitted that, reading the decision as a whole, the Tribunal did not have regard to the factors in section 14(2). While the Tribunal nominally referred to the two-step process under the headings, “Disability and incapacity” and “Need for an Order”, the Tribunal did not advert to the factors in section 14(2) in the discussion under either of those headings. DL and DT submitted that under the heading “Need for an Order’ the Tribunal merely set out the evidence that related to DT’s capacity. According to them, the only passage which could possibly amount to a consideration of the factors in section 14(2) was a passage at page 6 where the Tribunal said:
The applicant and treating team believe that informal substituted decision-making in the form of [DL] assisting [DT] is not viable or in [DT’s] best interests and contributed to the decision to make a guardianship application for [DT].
9 Under the heading, “The Tribunal’s decision” the Tribunal said at page 8, that:
Having regard to section 14(2) of the Act and considering the views of [DT] and the submissions made on her behalf by [her lawyer], her partner [DL] and the other witnesses the Tribunal was satisfied that [DT] is a person in need of a guardian and decided a guardianship order should be made.
10 According to DL and DT, it is not sufficient for the Tribunal to mention section 14(2). It is required to positively consider the factors listed in the provision. Since it did not do so, it has made an error of law.

Appeal Panel’s reasoning and conclusion

11 The first factor to which the Tribunal must have regard is the views of DT and her partner. The Tribunal recorded at page 4 of its decision that both DT and DL opposed the making of a guardianship order. DT’s views are recorded in more detail at page 6 and page 7 of the decision. The Guardianship Tribunal specifically mentioned that it had taken account of DT’s views in its conclusion at page 8. By recording the views of DT and DL and specifically adverting to the views of DT in its conclusion, we are satisfied that the Tribunal had regard to those views when it exercised its discretion.

The second factor listed in section 14(2) is “the importance of preserving the person’s existing family relationships”. That principle is also listed in section 4(e) as one of the principles, which those exercising any function under the Guardianship Act 1987 must observe. The Tribunal adverted to DT’s family relationships at page 3 under the heading “Overview”. The Tribunal acknowledged the length of the relationship between DL and DT when determining whether DL was an appropriate person to be appointed as DT’s guardian. The Tribunal also said at page 9 that one of the reasons for appointing the Public Guardian was so that conflict between DT and a guardian who was a family member could be avoided. When making a guardianship order, the Tribunal also needs to determine who to appoint as the guardian. The factors in section 14(2) are relevant to that issue. Depending on the circumstances, the importance of preserving the person’s existing family relationships may be more relevant to the question of who to appoint as guardian than to the question of whether or not to make an order at all.
12 When deciding who to appoint, the Tribunal referred to the principle of preserving family relationships in section 4(e) of the Guardianship Act 1987, rather than section 14(2)(d), but the effect is the same. The fact that the Tribunal did not advert to the importance of preserving family relationships until it considered the question of who to appoint as guardian does not amount to an error. The question of who to appoint is part of the decision as to whether or not to make an order. Consequently, we are satisfied that the Tribunal had regard to the importance of preserving family relationships when it exercised its discretion.

13 The third factor is “the importance or preserving the person’s particular cultural and linguistic environments”. There was no documentary evidence before the Tribunal that was relevant to this principle. We did not have access to the transcript of the Tribunal hearings, but DL did not suggest that there was oral evidence before the Tribunal that preservation of DT’s cultural or linguistic environment was an issue. DL told us that he and DT speak English together and that he is of Croatian and she is of Russian background. Since there was no evidence relevant to this principle, the Tribunal did not make an error in failing to have regard to it. Although it may have been prudent for the Tribunal to have recorded that there was no evidence of this factor, its failure to do so does not amount to an error of law.

14 The final factor in section 14(2) is “the practicability of services being provided to the person without the need for the making of such an order”. DT was in the psychiatric unit of a hospital as an involuntary patient when the order was made. A relevant consideration when exercising its discretion to make, or not to make, a guardianship order was whether DL (or some other person) was willing and able to organise for DT to receive the kinds of services that she needed. The Tribunal adverted to the fact that DL disputed that DT had any psychotic symptoms or dementia. The Tribunal also said that DL regarded DT’s behaviour as being as a result of her failure to take medication for blood pressure. While not making a specific finding about whether it was practical for services to be provided without a guardianship order, the inference from the evidence that the Tribunal recorded was that it was not practicable for the necessary services to be provided in the absence of an order. We are satisfied on that basis that this was a matter to which the Tribunal had regard. Again, it may have been prudent for the Tribunal to elaborate further on this matter in the reasons for their decision.

Leave to extend the appeal to the merits of the Tribunal’s decision?

15 DL’s grounds of appeal on the merits of the Tribunal’s decision were essentially that both the social worker, who applied for the guardianship order and the psychiatry registrar at the hospital, misrepresented what he had said to them and to the doctors. He denies that he told them that doctors had been poisoning DT or that they had put a transmitter in her brain. He also denies that he accused one of the doctors of having an affair with DT. DL said that he took DT to the doctor when she had a breakdown and that he cannot be expected to diagnose her medical condition when he is not a doctor. DL also saw the appointment of the Public Guardian as a gross interference with his long-term personal relationship with DT. He believes that DT wishes to return home and live with him. That is also his wish.

16 The ADT Act 1997 does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the case of K v K [2000] NSWSC 1052. That case interpreted section 67 of the Guardianship Act 1987, which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under section 67’, but went on to make a number of observations on this point: see paragraph [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that section 67 of the Guardianship Act 1987 operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
17 DL did not point to any broad questions of administration or policy or to defects in the way the Tribunal went about its fact-finding process. Although DL denies that he said certain things, he was given an adequate opportunity to respond to those allegations. He did not submit that he had been denied procedural fairness. While it is understandable that DL wants DT to return home and live with him, his views were taken into account by the Tribunal and the fact that they were not accommodated does not provide a sufficient justification to extend the appeal to the merits of the Tribunal’s decision. In those circumstances we refuse leave for
this appeal to be extended to the merits of the Guardianship Tribunal’s decision. The decision of the Guardianship Tribunal in relation to DT made on 9 October 2007 is affirmed.