GN v Public Guardian
[2008] NSWADTAP 71
•11 November 2008
Appeal Panel - External
CITATION: GN & anor v Public Guardian & anor [2008] NSWADTAP 71 PARTIES: FIRST APPELLANT
GNSECOND APPELLANT
GO
FIRST RESPONDENT
SECOND RESPONDENT
Public Guardian
GPFILE NUMBER: 088005 HEARING DATES: 24 October 2008 SUBMISSIONS CLOSED: 24 November 2008
DATE OF DECISION:
11 November 2008BEFORE: Handley R - Deputy President; Millar J - Judicial Member; Field B - Non-Judicial Member CATCHWORDS: Guardianship Tribunal order - review DECISION UNDER APPEAL: Guardianship Tribunal: C/35159 FILE NUMBER UNDER APPEAL: 2007/2118 DATE OF DECISION UNDER APPEAL: 04/04/2008 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987CASES CITED: IF v IG & Ors [2004] NSWADTAP 3
Ms A v Public Guardian & Ors [2006] NSWADTAP 55
Weal v Bathurst City Council (2000) 111 LGERA 181REPRESENTATION: APPELLANT
P Fazio, solicitorFIRST RESPONDENT
SECOND RESPONDENT
No appearance
S Friend, solicitorORDERS: (1) The decision under appeal is affirmed
(2) GP’s solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.
REASONS FOR DECISION
1 The appellants, GN and GO, have appealed against a decision of the Guardianship Tribunal dated 4 April 2008 to allow a guardianship order made in respect of their mother, GP, to lapse.
Background
2 GP is a 73 year old divorced woman of Greek background who lives with her daughter, HA, and HA’s family in a rented house. GP has two other adult children, GN and GO, the appellants in these proceedings. GP has a medical history including carcinoma of the left breast, with mastectomy, and carcinoma of the lung. She has also suffered from atrial fibrillation and decreasing mobility as a result of spastic par peris. The results of neuropsychological testing conducted on 14 January 2008 were consistent with a diagnosis of mild cognitive impairment due to vascular pathology.
3 On 5 February 2007, on an application for the appointment of a guardian and financial manager for GP, the Guardianship Tribunal found GP was not capable of managing her own affairs and appointed a financial manager to manage her affairs. However, because of insufficient time at the hearing, the Tribunal adjourned the hearing of the application for a guardianship order for a period of two months. On 3 April 2007, the Guardianship Tribunal made a limited guardianship order for GP for a period of 12 months, authorising the Public Guardian to make decisions about her accommodation, health care, medical and dental consents, and services, and to determine who should have access to GP and under what terms and conditions such access should take place.
4 On 4 April 2008, the Guardianship Tribunal reviewed the guardianship order made in respect of GP. It decided that GP “continues to have a disability which may prevent her making important life decisions”, and that she was a person for whom the Tribunal could make a guardianship order if it were to be satisfied that there was a current need for an order. However, the Tribunal was satisfied from the evidence that there were no current decisions to be made and that HA, the ‘person responsible’ for GP (pursuant to section 33(4) of the Guardianship Act 1987 (‘the Act’)), could give a valid consent for any major or minor medical or dental treatment she may require. The Tribunal therefore decided that the order should lapse.
5 On 16 May 2008, the appellants appealed against this decision to the Administrative Decisions Tribunal, citing errors of law by the Guardianship Tribunal and seeking orders that the decision of the Tribunal be vacated and the Public Guardian reinstated as the guardian for GP or, alternatively, that the Tribunal’s decision be vacated and the matter remitted to the Tribunal for rehearing with the benefit of a further independent psychological assessment of GP to be undertaken.
6 The appellants were legally represented in the Appeal Panel proceedings, as was GP. The Public Guardian declined to present a case or make submissions. Ms Cho appeared for the Guardianship Tribunal in order to make submissions on the Tribunal’s practices and procedures.
The Relevant Legislation
7 In section 3(1) of the Act, "person in need of a guardian" is defined as meaning “a person who, because of a disability, is totally or partially incapable of managing his or her person”.
8 The applicable general principles are stated in s 4:
4 General principles
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
9 The Guardianship Tribunal’s power to appoint a guardian is set out in s 14:
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.
The Appellants’ Submissions
10 The appellants state that the background to current family acrimony is the family law proceedings between GP and her estranged husband, in which GN was appointed GP’s legal guardian. The family law settlement, resulting in the sale of the family house with one third of the proceeds going to GP’s former husband and the balance to GP, caused significant conflict and tension in the family. GN oversaw the sale of the house, which was completed on or about 13 April 2007. The appellants state that the sale distressed GP “and appears to have provided the basis for her ill-founded beliefs that the Applicants have betrayed her”. GP now lives with HA and her family in a rented house.
11 Mr Fazio, for the appellants, submits that the Guardianship Tribunal failed to give ‘proper, genuine and realistic consideration’ to the matters and evidence before it at the hearing on 4 April 2008. The appellants, while acknowledging GP’s feelings of hurt and betrayal, submit that HA unduly influenced GP in fostering those unsubstantiated beliefs, and actively prevented access to GP, thereby obstructing any possibility of reconciliation or normalisation of family relations. This included refusing to release any contact details for GP to the appellants. In its submissions, the Public Guardian also referred to the difficulties its Office and the Canterbury Aged Care Assessment Team (‘ACAT’) had experienced in obtaining access to GP.
12 The appellants submit the Guardianship Tribunal misdirected itself by asking the wrong question in relation to section 14(2)(b) of the Act, with regard to “the importance of preserving the person’s existing family relationships”. While adverting to section 14(2)(b), the Tribunal failed to give this proper consideration and, in particular, whether the Public Guardian can act as a point of contact for the appellants in relation to information about GP’s health and welfare. The appellants submit that the Tribunal made an error of law by failing to accept that one of the Public Guardian’s functions is to act as a point of contact between the parties, thereby ensuring the principles of the Act are applied in preserving family relationships. The appellants do not seek coercive orders. They hope that, over time, the Public Guardian would be in a position to encourage a reduction in present strained relationships. The appellants’ objective is the restoration of family relationships, which, they contend, is in GP’s best interests.
13 The appellants submit that the transcript of the Tribunal hearing is evidence that the Tribunal failed to give proper consideration to the appellants’ submissions or to alternative orders. It failed to consider whether the Public Guardian could continue to perform a liaison function and whether, without a formally appointed guardian, information could be obtained about GP. The Tribunal thereby made an error of law.
14 The appellants also submit that the Tribunal failed to have regard to the general principles of the Act in s 4. The Tribunal should have considered whether GP’s vulnerability, given her mental and physical health, required the protection of the community and the appointment of an independent guardian to make decisions concerning her needs. Mr Fazio said the level of GP’s mental functioning is limited. Her thinking is flawed: for example, the Tribunal noted that she denied any knowledge of current health problems apart from pain in her lower back.
15 The appellants submit that, in the circumstances, there is a need for the Public Guardian to be a substitute decision-maker who, acting independently and in GP’s best interests, would be in a position to monitor GP’s health, monitor the provision of services, and obtain information from HA and GP’s doctors for release to the appellants. This would facilitate input from all three children on health-related decisions for GP. While the Public Guardian’s role is not to facilitate the resolution of family disputes, it should monitor and assist in her health management. Mr Fazio noted that GP’s treating doctor has recently informed GN that GP has stated that she no longer wants her medical information to be disclosed to the appellants.
16 The appellants submit, further, that the Tribunal failed to consider whether HA was exercising undue influence over GP and whether GP’s interests were “best considered” by HA.
GP’s Submissions
17 Mr Friend, for GP, submits that the transcript for the hearing and the Tribunal’s statement of reasons for its decision show that the Tribunal did have regard to all the evidence and submissions, including that of the appellants, when considering the importance of preserving the person’s existing family relationships. The Tribunal also took into account GP’s clearly stated wish not to have contact with the appellants, nor to have information provided to them. There was no evidence of undue influence on GP. The Tribunal came to the view that GP made her own decisions as to who should have access to her. If, in the future, there is evidence of undue influence, it is always open to the appellants to make a fresh application to the Tribunal. GP submits the Tribunal carefully balanced the matters that it was required to consider pursuant to section 14(2), including giving proper weight to the importance of preserving family relationships.
18 Mr Friend said there is sound evidence that GP is well cared for and is accessing all the required services, and that HA is aware of other services and how to access them when needed. The Tribunal clearly took the view that there was no utility in making a guardianship order in circumstances where GP wants no contact with her children other than HA, who was an appropriate ‘person responsible’ for GP under the Act, capable of making necessary decisions in the management of GP’s health and welfare.
19 As the Tribunal’s Presiding Member indicated, the Public Guardian is not appointed to pass information – there is no such function under the Act. The Tribunal came to the view that medical information could be obtained from GP’s treating doctor. Furthermore, the Public Guardian does not have the function of restoring family relationships. At the time of the decision, there was no relationship GP wanted restored. The Tribunal was not required to consider the reasons for family animosity.
20 With regard to the general principles of the Act stated in section 4, Mr Friend said the Tribunal had regard to GP’s best interests and welfare, and satisfied itself that GP was safe and well cared for in the home she occupies with HA. There was no evidence to support the appellants’ submission that GP’s interests were being advanced by the involvement of the Public Guardian.
21 In conclusion, Mr Friend submitted that the appellants had failed to make out any appealable error of law, and the appeal should be dismissed, with costs awarded to GP.
The Guardianship Tribunal’s Submissions
22 Ms Cho said the Guardianship Tribunal is bound by the general principles stated in s 4 of the Act, and must act in the best interests of the person with the disability and not in the interests of others. The appointment of the Public Guardian should be seen as a last resort after all other avenues have been explored. Ms Cho said the section 4 principles do not require disclosure of information about the subject person to others involved in the person’s life, and the Public Guardian is not appointed with a communication/access function.
Discussion
23 There is no dispute about the Guardianship Tribunal’s finding in relation to section 14(1) of the Act that GP is a person for whom it could make a further guardianship order were it to be satisfied that there was a current need for such an order. Rather, the appellants’ case focuses on the Tribunal’s consideration of the factors to which it must have regard in determining whether to exercise its discretion to appoint a guardian pursuant to section 14(2); in particular, whether appropriate weight was given to “the importance of preserving the person’s existing family relationships” (section 14(2)(b)), and whether proper consideration was given to the appellants’ submissions on this issue. The Appeal Panel commends the quality of the appellants’ submissions.
24 The Appeal Panel stated in IF v IG & Ors [2004] NSWADTAP 3, at paragraph 26, that the factors in section 14(2) are mandatory considerations and all must be considered in making its determination, there being no hierarchy or weighting. In Ms A v Public Guardian & Ors [2006] NSWADTAP 55, at paragraph 14, the Appeal Panel noted, following the approach adopted by Giles JA in Weal v Bathurst City Council (2000) 111 LGERA 181, at 201, that the words “shall have regard to” in section 14(2) mean that there must be a process of evaluation, requiring more than simply adverting to the factors, before it can be said that the Tribunal has fulfilled its statutory obligation. However, in any particular case, there will be varying amounts of evidence about the different factors in section 14(2) and, in some cases, as the Appeal Panel in IF v IG & Ors recognised, there may be no evidence about one or more of them. The Tribunal will need to undertake a balancing exercise when considering the section 14(2) factors along with any other factors relevant in the particular case.
25 In the present case, the Appeal Panel has reviewed the Guardianship Tribunal’s statement of reasons for its decision, with particular regard to its discussion of the importance of preserving GP’s family relationships (section 14(2)(b)). The Tribunal stated, at pages 3 to 4:
“The Public Guardian recommended that the access function be allowed to lapse. It is of the view that it is not in [GP’s] interests to implement the access function in a way which would compel her to have contact with her daughter and son. The Public Guardian gave evidence of concerted efforts to persuade [GP] to reinstate contact with her children. It was evident to the Tribunal that her children sincerely desire to renew contact, and have their mother’s best interests at heart. Despite this, [GP] was adamant that she no longer wishes to have any contact with her children, apart from [HA]. Although this is clearly very painful for her children, it was not considered to be [GP’s] best interest to compel her to make contact.”
26 While in the Appeal Panel’s view, this is an overly brief statement of the relevant evidence and of the Tribunal’s reasoning, without, for example, specific reference to s 14(2)(b) of the Act, nevertheless, it is clear that the Tribunal did consider evidence in relation to GP’s family relationships, including that concerning access to GP. In its statement of reasons, the Tribunal is not obliged to refer to all the evidence provided by the parties in the proceedings nor to all their submissions. The Tribunal also briefly described its reasoning and its conclusion that it was not in GP’s best interests to compel her to have contact with the appellants. Having reviewed the Tribunal’s statement of reasons, the Appeal Panel is satisfied that the Tribunal undertook a process of evaluation, which included a proper consideration of the evidence and submissions in relation to section 14(2)(b). Thus, the Tribunal made no error of law in this regard.
27 The appellants also submit that the Tribunal made errors of law by failing to accept that one of the Public Guardian’s functions is to act as a point of contact between the parties, and by failing to have regard to the general principles of the Act, including the importance of preserving family relationships. The Appeal Panel notes that the Public Guardian must have regard to the general principles set out in s 4 of the Act, and, in particular, pursuant to paragraph (a), the welfare and interests of persons with disabilities must be given paramount consideration. Ms Cho noted that the Public Guardian is not required to act in the interests of others. Paragraph (e) requires the Public Guardian to have regard to the importance of preserving family relationships. However, Ms Cho stated that the Public Guardian’s functions do not include a communication or access function.
28 Notwithstanding this, the evidence before the Tribunal was that both the Public Guardian and the Canterbury ACAT attempted to persuade GP to consider seeing the appellants, but without success: “The Public Guardian’s View”, report for the Guardianship Tribunal hearing on 4 April 2008, p 3. The Public Guardian expressed its view that “it is not in [GP’s] interests to proceed to implement an access function, that her views need to be given weight and that the distress it would cause her would outweigh the benefits” (report, p 2).
29 The Public Guardian noted that while HA had never refused its Office access to GP, it had proved “extremely difficult to make arrangements”, involving a long process of negotiation. Other than this comment, the Public Guardian noted that Canterbury ACAT had stated on a number of occasions that GP was well cared for (report p 4). The Public Guardian said GP “appears very content and comfortable” (report p 4) and its view was that GP “should remain at home with [HA] and her family” (report p 5). It was appropriate that HA should act as the ‘person responsible’ (report p 6). There appears to have been no specific evidence before the Tribunal of HA exerting undue influence over GP as alleged by the appellants.
30 The Appeal Panel is not satisfied that the Tribunal made an error of law in relation to the Public Guardian’s functions. The Panel notes Ms Cho’s advice on this issue and does not accept that the Public Guardian’s functions include a specific communication/access function, notwithstanding that in this instance it attempted to facilitate access for the appellants, albeit without success. The Appeal Panel is also not satisfied that the Tribunal failed to have proper regard to the general principles on the Act stated in section 4. The Tribunal clearly focused on PG’s welfare and interests as the paramount consideration, but also had regard to the preservation of GP’s family relationships.
31 With regard to the appellants’ submission that the Tribunal failed to give proper consideration to alternative orders, the Appeal Panel notes the Tribunal stated, at p 4 of its statement of reasons, under the heading “Are there decisions which need to be made by a guardian?”:
“On the basis of the evidence, the Tribunal is satisfied that there are no current decisions to be made. Any [sic] event that decisions are required, the Tribunal has formed the view that [HA] would be available as a substitute decision maker. There is no evidence that decisions could not be made on an informal basis.
The Tribunal was satisfied that [HA] is the “person responsible” for [GP] under the Act and may give a valid consent for any major or minor medical or dental treatment that she may require.”
32 The Tribunal appears to have formed the view that there was no utility in the making of a guardianship order and the appointment of the Public Guardian. This is a view shared by the Appeal Panel having conducted its review. There was no evidence before the Tribunal of HA making inappropriate decisions in relation to GP’s care, and the financial management order made on 5 February 2007 vesting the management of GP’s property and affairs in the Protective Commissioner remains in place. Given that the Public Guardian’s role does not include a communication/access function and, in any event, the Public Guardian took the view that any further intervention in this regard would not be in GP’s best interests, the Appeal Panel is not satisfied that the Tribunal made any error in terms of the orders made. The alternative of the appointment of the Public Guardian would be unlikely to result in any change in the current situation or any advancement of GP’s best interests.
33 The Appeal Panel notes that HA bears a significant responsibility as the ‘person responsible’ under section 33A of the Act for making appropriate decisions in relation to GP’s care. HA will need to facilitate regular ongoing access to GP by ACAT for assessment purposes. In the Appeal Panel’s view, HA may wish to consider, at the very least, keeping the appellants informed of the state of GP’s health, and, to consider consulting them where, in the future, important medical/welfare decisions need to be made. It will, of course, always be open to the appellants to make a fresh application to the Guardianship Tribunal.
34 The Appeal Panel notes Mr Friend’s application that if the appeal is dismissed, GP should be awarded costs. The Administrative Decisions Tribunal has a discretion to award costs in accordance with section 88 of the Administrative Decisions Tribunal Act 1997. The Tribunal’s normal expectation is that parties in Tribunal proceedings should bear their own costs. The Tribunal does not follow the usual approach in adversarial proceedings whereby the successful party can expect an order for costs. The Tribunal’s discretion to award costs can only be exercised where there are “special circumstances”. Examples of special circumstances that may justify a costs order are provided in the Tribunal’s Practice Note Number 12.
35 Neither party has made submissions on the issue of costs and the Appeal Panel will only make an order for costs having afforded the parties an opportunity to do so. The Appeal Panel will, therefore, allow Mr Friend two weeks from the date of this decision to confirm that GP wishes to pursue an order for costs, in which case the Panel will make directions for the filing and service of submissions.
Conclusion
36 The Appeal Panel is not satisfied that the Guardianship Tribunal made any error of law in its decision which must, therefore, be affirmed. GP’s solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.
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