FHJ v Public Guardian

[2022] NSWCATAD 168

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FHJ v Public Guardian [2022] NSWCATAD 168

Hearing dates:

On the papers

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

1. An oral hearing on the summary dismissal application is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013.

2. The summary dismissal application is granted.

3. The substantive application is dismissed.

4. The publication of the names of the parties to the proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW - review of decision of Public Guardian– summary dismissal – no decision - no internal review

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Community Services (Complaints, Reviews and Monitoring) Act 1993

Guardianship Act 1987

Guardianship Regulation 2016

Cases Cited:

Spicer v Owners Corporation SP 64558 [2016] NSWCATAP

Category:

Principal judgment

Parties:

FHF and FHK (Applicants)
Public Guardian (First Respondent)

Representation:

Solicitors:
FHU – self-represented
FHK – self represented
Public Guardian (Respondent)

File Number(s):

2022/88697

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings is prohibited.

Reasons for Decision

1. The applicants are the father of the protected person and the father’s wife.

2. By order under the Guardianship Act 1987 (Guardianship Act), a continuing guardianship order was made on 17 March 2022, appointing the Public Guardian as the guardian of the protected person. The Public Guardian has been given functions related to access, accommodation, healthcare, medical and dental consent, services and restrictive practices. The Public Guardian may therefore make decisions on behalf of the protected person (see s 21C of the Guardianship Act).

3. In an application made to the Tribunal on 28 March 2022 the applicants are seeking orders as follows:

1. That a new psychiatrist be appointed

2. Medical treatment and interventions be sought

3. The medical function be taken away from the public guardian and given to the biological father and stepmother to protect his health.

4. On 12 April 2022 the matter came before the Tribunal and orders were made allowing leave for the Public Guardian to make an application for summary dismissal of the proceedings and for the exchange of documents in relation to the summary dismissal application. It was also noted that the parties consented to the summary dismissal being determined on the papers and parties were encouraged to attempt to resolve the issue by way of mediation.

5. On 26 April 2022 the Public Guardian filed an application seeking summary dismissal of the matter pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. The applicants did however raise in correspondence submissions alleging that the respondent had failed to engage in mediation. The respondent denies those allegations, but for the purposes of deciding the summary dismissal application, it is not necessary to make findings in relation to mediation. The orders made by the Tribunal on 12 April 2022 simply noted that the parties were encouraged to resolve the dispute by way of mediation.

6. At the direction’s hearing before me on 3 May 2022, the applicants were granted an extension of time to provide documents in relation to the summary dismissal application. Despite that extension of time being granted, no submissions have been received from the applicants in relation to the summary dismissal application. I am satisfied that the parties have been provided with adequate opportunity to provide submissions in relation to the summary dismissal application and that the application can be adequately determined in the absence of an oral hearing and a hearing can be dispensed with.

Non-publication of Names

7. Pursuant to s 65 of the NCAT Act, there is a prohibition against publishing the names of certain persons to whom proceedings relate. If the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993, the prohibition includes a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings – see s 65(2) of the NCAT ACT.

8. The term "community welfare legislation" includes the Guardianship Act 1987 (NSW) (see Community Services (Complaints, Reviews and Monitoring) Act 1993, s 4). These proceedings are for a decision for the purposes of the Guardianship Act 1987.

9. I am satisfied that an order should be made prohibiting the publication of the name of the parties, so as to preserve the anonymity of the protected person.

10. To protect the anonymity of the person under guardianship, I have also referred to the parties by reference to their relationships to each other.

Summary Dismissal

11. In the directions that I made on 3 May 2022 I noted:

The applicants must identify the decision which they seek reviewed, including the details of the reviewable decision made and the date of any reviewable decision made.

12. The applicants were also directed to identify any application that was made for internal review and if no internal review had been finalised, the basis on which the application could proceed.

13. No submissions have been received from the applicants in that regard and the applicants have failed to identify a decision or finalisation of an internal review.

14. I have considered carefully the application for administrative review which was filed with the Tribunal. Under the heading “Grounds for Application’ the applicant state:

we the applicants have no other choice but to have the Tribunal review our concerns, we have submitted many proposals for medical attention which the public guardian have either ignored or not given the right protocol to our proposals and concerns, which have failed a proper review and reasons for their decisions, they have failed time and time again to protect our son from neglect and abuse medically and they also fail continuously abusing their power by not adhering too the model litigant policy, therefore we as the tribunal to have this matter and urgently as our sons health is at risk.

15. Attached to the summary dismissal application, the respondent has provided a bundle of documents which includes submissions and a series of emails and correspondence relating to proposals by the applicants.

16. On 2 November 2021, the Public Guardian wrote to the protected persons General Practitioner.

… in regard to an earlier request made by [the protected person’s father] to his guardian seeking a review the psychotropic medications prescribed by Dr … to manage [the protected person’s] challenging behaviours by a private psychiatrist ….

The Public Guardian was not persuaded that the alternate private psychiatrist proposed by the father was sufficiently expert in …. as Dr … and instead I supported the option of a review with the local health district's specialist ID mental health service for one off consultation and advice.

I am therefore seeking your view in regard to whether you supported this referral or had another view about this in relation to [the protected person’s ongoing medical management in the community."

17. On 5 November 2021, the General Practitioner responded:

In response to your email.

[the protected person] has the right for a 2^nd opinion.

The Public Guardian has a responsibility to ensure [the protected person’s] funds are not wasted inappropriately.

I support your efforts to have him reviewed by the local health district's specialist intellectual disability services for one off consultation and advice."

18. On 2 November 2021, the Public Guardian also wrote to another doctor as follows:

The Public Guardian has been asked to consent to you undertaking a review of the major medications prescribed by his current psychiatrist […] as they are unhappy with the medications in place and state you have experience in this area of specialist psychiatry to offer a second opinion to his treating doctor and this office.

Neither Dr […] or the GP have sought a second opinion due to any concerns for their patient's health

I would appreciate any relevant advise [sic] you may like to provide to inform my office of your experience with people who have an intellectual disability, ASD and developmental delay with complex and challenging behaviours.

My client is unable to verbalise his needs independently and has been under guardianship for many years so there is a clear responsibility for my office to consider all the relevant information before making any decision in his interests.

I understand you are preparing to set up private rooms and leaving the specialist rooms at Brisbane Waters private hospital soon.

If possible you may like to include any advise [sic] on the consultation charges for a new patient assessment.

Thank you for your time in giving consideration of this request for advice."

19. On 8 November 2021, the doctor replied to the Public Guardian's email, as follows:

"I recall corresponding with a lady who introduced herself as the stepmother of your client. In our correspondence, I indicated that I could see your client for at least an initial assessment. However, in terms of experience and expertise in seeing patients with intellectual disability, ASD, and developmental delay with complex and challenging behaviours, I am by no means qualified to review the clinical opinion of Dr […].

As I indicated to your client's stepmother, I do work with a colleague who has particular experience and expertise in that field of psychiatry. Dr […]. However, he is also in the process of relocating rooms, and I do not know whether he is in a position to review your client..."

20. The Public Guardian submits that there was no utility in making a referral to a specialist who has stated that he is "by no means qualified to review".

21. On 8 November 2021, the Public Guardian wrote to the applicants as follows:

[The GP] requested …. provide data on missed medications and medication refusal routinely to his GP to assist in any review of the behaviours and whether any medication adjustments are needed.

[The GP] has referred [the protected person] back to see the Neurologist … and he will need to see the same updated data on medication refusal.

[The GP] supports the Public Guardian's request to consider a review by the Specialist Intellectual Disability service on [the protected person’s] medications and the referral to SIDMHOS is being progressed

here is the link for your information

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The Public Guardian submits that they are currently considering a referral for a second opinion to the Statewide Intellectual; Disability Mental Health Outreach Service (SIDMHOS). On 12 April 2022, a Clinical Nurse Consultant Coordinator at SIDMHOS, wrote in an email to the Public Guardian:

... thank you for considering our service

We have not received a referral for this person yet, however before you contact the GP to follow up, please do contact me so I can clarify whether we are the most appropriate service to refer to - or whether I can suggest an alternative.

23. The emails above demonstrate that the Public Guardian is continuing to make requests about the applicants’ proposals and at this point the applicants' application does not disclose an administratively reviewable decision. No final or operative decision has been made by the Public Guardian at this stage in relation to the secondary psychiatric assessment which would enliven the Tribunal's administrative review jurisdiction.

24. In an email sent to the Tribunal on 12 April 2022 and marked "Att member Montgomery”, the applicants asserted that:

"... after our hearing today, Tuesday the 12^th at 12pm, we scrutinized mintues [sic] that were taken by our sons coordinator at a stakeholder meeting that we the applicants did not attend.

In these minutes, we established that the public guardian gave her decision to all stakeholders except us on dr […] treatment at this meeting."

25. Page 5 of the minutes of the NDIS Stakeholder Meeting held on 6 April 2022, annexed to applicants' email read:

"Public Guardian has not agreed to Dr [T…] advising on dietary matters."

26. The applicants' proposal as set out in the application filed with the Tribunal for administrative review is for their son to undergo a secondary psychiatric assessment.

27. Dr [T…], however, is a general practitioner, described on The Health Lodge: Integrated Medical Centre's website, as a "physician and Integrative Doctor".

28. On 18 March 2022, the applicants sent an email to the Public Guardian (and others) as follows:

Both J… and I attended a consultation with dr [T…] today, you can have J… vouch that she is on board with the treatment offered to [the protected person] by dr [T…].

We will send a proposal to the office of public guardian for authorisation I will be sending you the invoice from dr [T…] to forward to the appropriate person the invoice was paid by my self so any Medicare rebate should be forwandered to my self in a way of cheque thankyou ..."

29. The Public Guardian notes that she has not received any formal proposal for assessment by Dr [T]… following that email. The notation in the stakeholder minutes is not a decision relating to a proposal.

30. As was explained to the applicant who appeared at the directions hearing before me on 3 May 2022, the Tribunal in this division does not have a general supervisory role of the Public Guardian.

31. Section 80A of the Guardianship Act allows for an application to be made to the Tribunal for an administrative review of the decision of the Public Guardian under the Administrative Decisions Review Act 1997 (ADR Act) as follows:

(1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that-

(a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

32. Despite the directions requiring the applicants to identify the decision which they seek reviewed, the applicants have failed to identify a reviewable decision.

33. In any case, s 53 of the ADR Act gives a right of internal review in relation to a decision made by the Public Guardian. Even if there is an identifiable reviewable decision s 55 of the ADR Act requires that:

(3)  If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

34. Section 55(4) of the ADR Act sets out two exceptions to the requirement for a finalisation of an internal review before making an application:

(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

35. The applicants have failed to identify any finalised internal review or any of the exceptions under s55(4) of the ADR ACT. There is nothing to suggest that the applicants have ever made an application for internal review or that it is necessary to deal with the application in order to protect the applicants’ interests. In those circumstances the applicants are prevented by s 55 of the ADR Act from making the substantive application.

36. Section 55 of the NCAT Act, relevantly, provides:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances-

…

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

37. In Spicer v Owners Corporation SP 64558 [2016] NSWCATAP the considered the meaning of “misconceived” saying at [154] – [155]:

154. … It seems to us that misconception relates to the nature of the proceedings either by reference to them being in a form that is not permitted or seeking relief that could not be granted.

155. In the present case the nature of the claims made by the respondent were not a misconception of any legal requirement for the making of a claim, they did not seek impermissible orders and they were brought in conformance with the legislative provisions as we have determined apply in connection with providing a certificate from a qualified valuer.

Orders

38. I find that the substantive application by the applicants is misconceived because the relief sought can not be granted. On that basis I make the following orders:

1. An oral hearing of the summary dismissal application is dispensed with under s 50 (2) of the Civil and Administrative TribunalAct 2013.

2. The summary dismissal application is granted.

3. The substantive application is dismissed

4. The publication of the names of the parties to the proceedings is prohibited.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

16 June 2022 - Order 2 amended from 'dismissed' to 'granted'.

Decision last updated: 16 June 2022