He v Murarotta

[2009] NSWADTAP 37

Appeal Panel - External

CITATION:

HE v Murarotta [2009] NSWADTAP 37

PARTIES:

APPELLANT
HE

FIRST RESPONDENT
Christen Murarotto

SECOND RESPONDENT
HF

THIRD RESPONDENT
Public Guardian

FOURTH RESPONDENT
Protective Commissioner

FILE NUMBER:

088008

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

19 May 2009

EXTEMPORE DECISION DATE:

16 June 2009

 
DATE OF DECISION: 

18 June 2009

BEFORE:

Handley R - Deputy President; Leal S - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS:

Guardianship and Financial Management Orders – review – procedural fairness

DECISION UNDER APPEAL:

Guardianship Tribunal

FILE NUMBER UNDER APPEAL:

C/38676; matter nos 2008/1136 and 2006/1137

DATE OF DECISION UNDER APPEAL:

03/06/2008

LEGISLATION CITED:

Guardianship Act 1987
Protected Estates Act 1983
Administrative Decisions Tribunal Act 1997

CASES CITED:

TP v TR and ors (No 2) [2006] NSWADTAP 12
WH v Public Guardian [2007] NSWADTAP 8G
S v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52
LA v Protective Commissioner & ors [2004] NSWADTAP 39

REPRESENTATION:

APPLICANT
D Patch, barrister

FIRST and SECOND RESPONDENT
No appearances

THIRD RESPONDENT
E Cho, legal officer

FOURTH RESPONDENT
G Shirm, solicitor

ORDERS:

The orders of the Guardianship Tribunal dated 6 March 2008 are set aside and the matter is remitted to the Tribunal for reconsideration in accordance with these Reasons.

1 The appellant, HE, has appealed against a decision of the Guardianship Tribunal dated 6 March 2008 appointing the Public Guardian as HE’s guardian for a period of 12 months and appointing the Protective Commissioner as the financial manager of HE’s estate. He contends that he was denied procedural fairness.

Background

2 HE is a 58 year old man who has been diagnosed as suffering from Lewy body dementia, a form of atypical Parkinson's disease. In a report dated 22 January 2009, HE’s Treating Neurologist, Dr Raymond Schwartz said:

“Whilst [HE] has a probably [sic] Lewy body dementia, and a background or probable premorbid personality disorder, he still retains reasonable cognition, is able to give a good account of his history and discuss issues in a sensible manner. He scored 26/30 on a Felstein minimental state examination today mindful that this does not address issues of frontal lobe function etc.”

3 HE was a high school teacher for many years and was diagnosed as suffering from Parkinson’s disease at the age of 42. He retired at the age of 48. Until recently, HE, who owns his own home, was cared for by his brother (the Second Respondent, HF), with assistance from their mother who is now in her 80s. According to reports before the Guardianship Tribunal (for example, a report of Christen Murarotta, Social Worker (the First Respondent), dated 26 February 2008, and of Megan Forbes, Clinical Psychologist, dated November 2007), HE has in recent years sometimes suffered from delusions and has become aggressive towards his family and difficult to manage, resulting in a number of hospital admissions.

4 On 22 February 2008, Ms Murarotta applied to the Guardianship Tribunal for the appointment of a guardian and financial manager. On 6 March 2008, the Tribunal conducted a hearing at Sutherland Hospital where HE was then an inpatient. At the conclusion of the hearing, the Tribunal made the following orders: (1) a Limited Guardianship Order appointing the Public Guardian as HE’s guardian for a period of 12 months, with functions including in relation to HE’s accommodation, health care, medial and dental consent and major services, and (2) a Financial Management Order ordering that HE’s estate be subject to management by the Protective Commissioner under the provisions of the Protected Estates Act 1983. Such a Financial Management Order is not time limited. On 17 March 2008, the Tribunal issued a Statement of Reasons for its decision.

5 On 30 June 2008, HE appealed against this decision to the Administrative Decisions Tribunal (‘ADT’). HE is presently a resident at Garrawarra Aged Care Facility (‘Garrawarra’) at Waterfall. On 13 August 2008, Deputy President Handley conducted a Directions Hearing in this matter by telephone, during the course of which it became apparent that HE had great difficulty in expressing his concerns and preferred outcome. The Deputy President therefore appointed Barbara Ramjan to represent HE and she in turn appointed David Patch, counsel, to represent HE in these proceedings. Deputy President Handley subsequently appointed Gretchen Shirm, solicitor, as counsel assisting the Appeal Panel, there being no other party wishing to make submissions in these proceedings except Esther Cho, legal officer, on behalf of the Guardianship Tribunal, in relation to the relevant legislation and practices of the Tribunal.

6 A timetable was set for the filing of evidence and submissions, and the parties requested that the matter be dealt with on ‘the papers’ on receipt of all submissions.

The Relevant Legislation and Issues

7 Jurisdiction is conferred on the ADT to hear and determine external appeals against decisions of the Guardianship Tribunal pursuant to s 118A of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and s 67A of the Guardianship Act 1987. Section 118B of the ADT Act provides relevantly:

(1) An external appeal may be made:

(a) as of right, on any question of law, or

(b) by leave of the Appeal Panel hearing the appeal, on any other grounds.

(2) An external appeal must be made:

(a) within 28 days after the decision-maker provides, in accordance with the Act under which the external appeal is made, the party with written reasons for the appealable decision, or

(b) within such further time as the Appeal Panel may allow.

8 HE has applied for leave to appeal out of time and contends that the Guardianship Tribunal made an error of law by denying him procedural fairness.

9 On 22 May 2009, HE signed an Enduring Power of Attorney, appointing his brother HF to be his attorney, a copy of which has been provided to the ADT. In submissions to the ADT dated 21 May 2009, Mr Patch noted that the Public Guardian has informed the Guardianship Tribunal of his opinion that the Guardianship Order should be discontinued. In these circumstances, Mr Patch requested that the Appeal Panel set aside the orders of the Guardianship Tribunal and make no other orders. He did not ask the Appeal Panel to conduct a re-hearing of the matter and substitute a new decision for that of the Tribunal.

10 The Appeal Panel notes that the Guardianship Order made on 6 March 2008 was for a period of 12 months. On 2 March 2009, the Guardianship Tribunal notified HE that that a review of his Guardianship Order would be heard on 27 May 2009. Pursuant to s 25(6) of the Guardianship Act, the effect of commencing such a review before the expiration of the existing order is that the existing order is taken to be extended until the completion of the review. Ms Cho has informed the Appeal Panel that if the appeal is not determined before 27 May 2009, “the Tribunal may decide to adjourn the review to a future date”. The Guardianship Tribunal’s view is that “it is not appropriate to conduct a review of a Guardianship Order where that Order is the subject of an appeal”. In submissions dated 25 May 2009, Mr Patch said he understood that the hearing listed for 27 May had been vacated and that the review was ‘on hold’ pending the determination of the appeal.

11 Since final written submissions were not received by the ADT until 25 May 2009, and a copy of the Enduring Power of Attorney was not received until 28 May 2009, it has not been possible to finalise the appeal before the end of May 2009.

Leave to Appeal Out of Time

12 As stated above, HE has applied for leave to appeal out of time. Mr Patch states that HE received the Statement of Reasons for the Tribunal’s decision on 31 March 2008. Although the ADT first received a Notice of Appeal form from HE on 10 June 2008, the form was not properly completed. It was this form that was subsequently re-filed with the required information on 30 June 2008.

13 Mr Patch notes that HE contacted the Guardianship Tribunal, apparently by phone, about his treatment on 10 April 2008, and, on 20 May 2008, wrote to the Tribunal requesting information about the process of appealing against the order of 6 March 2008 (although he mistakenly referred to this order as having been made on 6 April 2008). The Tribunal responded to HE by letter dated 20 June 2008, noting that it had only received HE’s letter dated 20 May 2008 on 18 June 2008.

14 Mr Patch said the above sequence of events, together with the disability from which he suffers, explains the delay in HE’s filing of his appeal. Mr Patch said it should also be remembered that Garrawarra is a closed facility, which HE was unable to leave and where he had no access to a phone. His ability to obtain advice was therefore limited. Mr Patch said there is “substantial merit” in HE’s appeal and it is readily apparent that there are a “number of ways in which [HE] was comprehensively denied procedural fairness”. For all the above reasons, Mr Patch submitted that the Appeal Panel should extend the time for the filing of HE’s appeal.

15 Having considered HE’s application for leave to appeal out of time, the Appeal Panel is satisfied that for the reasons identified by Mr Patch, set out above, it should exercise its discretion pursuant to s 188B(2)(b) of the ADT Act to extend the time for the filing of HE’s Notice of Appeal up to and including 30 June 2008.

Submissions

16 HE claims the Guardianship Tribunal made an error of law by denying him procedural fairness. Mr Patch said the Tribunal breached the hearing rule by failing to provide HE with a proper opportunity to be heard before making the two orders.

17 Ms Schirm referred to the Appeal Panel decision in TP v TR and ors (No 2) [2006] NSWADTAP 12, where, at [23], the Appeal Panel said:

23 The content of the hearing rule must be “appropriate and adapted to the circumstances of the particular case.” ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) The Guardianship Tribunal’s jurisdiction is a protective one. That means that one of its primary aims is to protect vulnerable people from neglect, abuse and exploitation. (See s 4(g) of the Guardianship Act .) But that is not its only obligation. The Guardianship Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. Hearings are conducted in an informal, investigatory style. However, while the nature of the jurisdiction is relevant to the content of the hearing rule, the Guardianship Tribunal is nevertheless obliged to comply with the minimum content of that rule which is essentially to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond. (For a fuller discussion of this issue, see KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.)

18 Ms Schirm submitted that in deciding whether the hearing rule has been breached, the Appeal Panel should note HE’s relevant interest, as the party affected by the decision, and that material supporting the making of the two orders should be considered ‘adverse’ to HE, given the effect that the two orders would have on his freedom of decision-making. Ms Schirm said that procedural fairness does not require that all documents or reports be provided to the parties as long as their substance or gravamen is disclosed. She submitted that there were no exceptional circumstances in this case justifying not applying the usual rules of procedural fairness.

19 Mr Patch identified six breaches of procedural fairness. First, he said the Tribunal failed to provide HE with relevant documents. The only document he was given was the Notice of Hearing. He was not given other documents found in the Tribunal’s file. Mr Patch noted that four of these documents were taken into account by the Tribunal, including, in particular, a report of Dr Rebecca Kelly, Neurology Intern, undated but received on 26 February 2008, a report of Christen Murarotta, Social Worker, dated 26 February 2008, and a report of Megan Forbes, Clinical Psychologist, undated, on an assessment dated 28 November 2007. Ms Schirm commented that while Ms Murarotta was present at the hearing and outlined the substance of her report, neither Dr Kelly nor Ms Forbes were present. Both Mr Patch and Ms Schirm agree the failure to provide HE, at the very least, with Dr Kelly’s and Ms Forbes’ reports, resulted in HE being denied the opportunity to respond to adverse evidence, a failure that was a breach of procedural fairness.

20 The second breach of procedural fairness identified by Mr Patch is that HE was not informed that the hearing was to take place until two days beforehand, on 4 March 2008, when Ms Murarotta gave him the Notice of Hearing. Ms Schirm referred to s 10 of the Guardianship Act:

10 Service of applications

(1) The applicant for a guardianship order in respect of a person must, as soon as practicable after the application has been made, cause a copy of the application to be served on each party (other than the applicant) to the proceedings before the Tribunal in respect of the application.

(1A) The copy of the application so served must be endorsed with a notice specifying the time, date and place set down for hearing the application.

(2) Failure to serve a copy of an application in accordance with this section does not vitiate the decision of the Tribunal on the application.

21 Similar requirements are specified in respect of applications for financial management orders in s 25I of the Act. Ms Schirm noted the application was filed on 22 February 2008. She commented that “there is no evidence before the Appeal Panel of any urgency or of any reason why the application could not have been served on the Applicant on or close to 22 February 2008”, and that “it seems unlikely that less than two days’ notice was sufficient notice of the hearing”.

22 The third breach of procedural fairness identified by Mr Patch is that HE had no opportunity to prepare or present material in support of his position. Mr Patch said that if HE had had a proper opportunity to participate in the hearing, he would have ensured that an up-to-date report from his Treating Neurologist, Dr Schwartz would have been provided to the Tribunal. It was HE’s position that he should return home and be cared for there. Apart from a report from Dr Schwartz, he had no opportunity to obtain a report such as the ‘Living Needs Assessment’ from Wise Consulting, dated 5 February 2009, that Mr Patch attached to his submissions.

23 Ms Schirm submitted that the lack of opportunity to prepare or present material in support of his position was not a separate ground upon which the Tribunal’s decision may be vitiated. Rather, it arises from the fact that (a) HE was given insufficient notice of the application, (b) HE was not provided with all the material adverse to his interests relied upon by the Tribunal, and (c) the Tribunal did not adjust its ordinary procedure to accommodate the difficulties encountered by HE as a result of his medical condition, referred to below.

24 The fourth breach of procedural fairness identified by Mr Patch is that HE was unable to speak properly at the hearing and could not, therefore, put his case because he was not given his Parkinson’s medication until midday on 6 March 2008, after the hearing had concluded. Mr Patch said it is obvious from the tape of the Tribunal proceedings that HE was unable to articulate his position properly. The tape indicates that HE tried to intervene unsuccessfully on several occasions during the hearing. Mr Patch noted that Ms Forbes’ neuropsychological report stated that HE’s ability to walk and talk improved as his medication took hold.

25 Ms Schirm also commented that it is clear from the recording that HE had difficulty communicating during the hearing. She noted that while the Tribunal had evidence before it that medication improved HE’s ability to speak, it might not have been aware that HE had not taken his medication. However, given that HE’s welfare and interests should have been given paramount importance by the Tribunal (Guardianship Act, s 4(a)), and that the Tribunal was required to take HE’s views into consideration in deciding whether or not to make a guardianship order (s 14(2)(a)(i)), the Tribunal should have adjusted its ordinary procedures to accommodate the difficulties experienced by HE because of his illness. For example, the Tribunal could have asked him whether he required anything to assist him in participating in the hearing.

26 The fifth breach of procedural fairness identified by Mr Patch is that the Tribunal heard evidence from experts, who had not provided reports, without HE having been given notice that this was to occur or of the nature of the evidence that would be given. Thus, HE had no real chance to respond.

27 Ms Schirm noted that HE was present while those experts gave oral evidence. However, in view of there being no written reports from them, and HE not being informed in advance that those persons would give evidence, given the nature of the evidence and HE’s cognitive difficulties, the Tribunal should have afforded him more time to consider that evidence: WH v Public Guardian [2007] NSWADTAP 8, at [21]. Ms Schirm noted that while the ‘Application to the Guardianship Tribunal’, signed by Lee Dargan on 4 March 2008, does list the persons who would be present at the hearing, this document appears not to have been served upon HE.

28 The sixth breach of procedural fairness identified by Mr Patch is that the Tribunal did not inform HE that the purpose of the hearing was to determine whether a guardian and financial manager should be appointed to make important decisions about his life, with powers to do so against his will. Mr Patch said it is clear from the tape of the hearing that the Presiding Member spoke to HE in much the way that an adult would to a child and without properly explaining what was to be determined. Mr Patch submitted that the Presiding Member thereby misinformed HE “in a very significant and material way, about the purpose of the hearing”. Even if HE had been able to participate in the hearing in a meaningful way, his participation would have been directed to the wrong issues.

29 On the basis of the extracts from the recording of the hearing cited by Mr Patch, Ms Schirm agreed that HE had not been advised of the nature of the proceedings. While the orders sought were outlined in the Application, that document does not appear to have been provided to HE. While the exact orders the Tribunal is empowered to make need not be spelled out, a person who is adversely affected by a decision should be made aware of what was being considered so that the person has an opportunity to respond. Ms Schirm commented that the tape indicates that HE appeared to be under the impression that his brother, HF, or alternatively his friend could be appointed as a financial manager. She concluded: “In the circumstances, the failure to advise the Appellant of the orders it considered making left the Appellant with little opportunity to respond to those orders.”

Consideration

30 With regard to the first breach of procedural fairness identified by Mr Patch in his submissions, the Appeal Panel agrees with the submissions that HE should have been given a copy of relevant documents prior to the hearing to enable him to consider those documents and respond to the matters raised at the hearing, especially where those documents contained material that might be considered adverse to his interests.

31 Secondly, while acknowledging that, pursuant to s 10(2) of the Guardianship Act, not serving a copy of the application on the person in respect of whom it is made in accordance with the section, does not vitiate the Tribunal’s decision on the application, the Appeal Panel considers that giving HE only two days notice was, nevertheless, in the circumstances, a breach of procedural fairness. The application was dated 22 February 2008 and there is no evidence as to why a copy of the application could not have been served on HE shortly thereafter. HE was, at the time, moreover, an inpatient at Sutherland Hospital. The giving of only two days notice of the hearing made it almost impossible for a person in his condition, who opposed the orders sought, to adequately prepare for the hearing and properly prepare his case, especially in relation to the obtaining of other evidence, such as in HE’s case, that of his Treating Neurologist, Dr Schwartz. We note that in a report dated 26 March 2009, provided by Mr Patch, Dr Schartz commented:

“It is my impression that [HE] is able to be accommodated outside a locked unit. It is my impression that his brother, [HF], who I have always found to be very supportive of [HE], is capable of making decisions for him.

Had I been consulted at the time of the Guardianship tribunal last year, I would have communicated my belief that [HE] is able to be accommodated outside a locked unit.

[HE] has a clear understanding of his medication and if there was any problem obtaining his medication at the right time (which is often a problem in hospitals, nursing homes/hostels etc) then this would undermine his capacity to give evidence and present himself.

When I reviewed [HE] on 22nd January this year, I expressed my surprise that he was in the high dependency dementia unit at Garrawarra Hospital which I feel is an inappropriate place for him to be accommodated and will significantly undermine his wellbeing. ...

I feel that [HE]’s appeal is testimony to his cognition and I unreservedly support his application to improve his circumstances.

I am mindful that [HE]’s personality can be challenging at times but incarceration in his current environment is not a solution to the problem and will only serve to undermine his wellbeing further.”

32 With regard to the third and fourth breaches of procedural fairness identified by Mr Patch in his submissions, the Appeal Panel agrees with Ms Schirm that the lack of opportunity to prepare or present material in support of HE’s position is part of the overall situation in which HE was given insufficient notice of the application, was not provided with all the material adverse to his interests relied upon by the Tribunal, and where the Tribunal did not accommodate the difficulties being encountered by HE as a result of his medical condition in articulating his position. In our view, the Tribunal should have been alive to the potential difficulties for a person suffering from a form of Parkinson’s disease, especially given the comment in the Neuropsychological Report prepared by the Clinical Psychologist, Ms Forbes, that “[i]nitially he appeared quite hampered by his condition having difficulty talking and walking but as his medication took hold this improved”.

33 As Ms Schirm noted, given that HE’s welfare and interests should have been given paramount importance by the Tribunal (Guardianship Act, s 4(a)), and that the Tribunal was required to take HE’s views into consideration in deciding whether or not to make a guardianship order (s 14(2)(a)(i)), the Tribunal should have been more accommodating of the difficulties obviously being experienced by HE because of his illness in articulating his views at the hearing.

34 The Appeal Panel also takes the view that the fifth and sixth breaches identified by Mr Patch in his submissions are part of the overall picture of inadequate notice and consequent lack of any proper opportunity to respond. The Appeal Panel agrees that the Tribunal heard evidence from experts, who had not provided reports, without HE having been given notice that this was to occur or of the nature of the evidence that would be given. Then in the hearing, the Tribunal failed to properly inform HE of the nature of the proceedings and HE may have been mislead as to what the outcome might be, in terms of the involvement of his brother HF or HE’s friend.

35 The Appeal Panel adopts what was said by another Appeal Panel in TP v TR and ors (No 2) [2006] NSWADTAP 12, at [23], cited above. The Appeal Panel has, however, discussed the content of the procedural fairness rule in relation to Guardianship Tribunal proceedings in many other decisions: for example, GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52, at [24]ff; LA v Protective Commissioner & ors [2004] NSWADTAP 39, at [17] ff. In our view, in HE’s case, there was a clear breach of the rules of procedural fairness by failing to give HE proper notice of the hearing or information about the nature of the hearing, failing to provide him with copies of relevant documents, not affording him a proper opportunity to prepare his case, and not affording him a proper opportunity to be heard and to respond to evidence adverse to his interests presented at the hearing.

36 The Appeal Panel therefore concludes that the Guardianship Tribunal made an error of law in the way it conducted the hearing. Pursuant to s 118C of the ADT Act, a range of orders is open to the Appeal Panel in determining an external appeal. As stated above, in the particular circumstances of this case, where the Guardianship Tribunal is awaiting the outcome of these proceedings before undertaking a review of the Guardianship Order made on 6 March 2008, Mr Patch requested that the Appeal Panel set aside the orders of the Tribunal and make no other orders. The Appeal Panel notes that a review of the Guardianship Order does not of itself affect the Financial Management Order, also made on 6 March 2008, which is of unlimited duration. In our view, given that the Tribunal’s error of law affected both the Guardianship and Financial Management Orders, both orders should be set aside and the matter remitted to the Tribunal for reconsideration in accordance with these Reasons.

37 The Tribunal notes that HE requires a long term management plan with provision of care during acute episodes of illness. It is essential that advice from and ongoing review by medical consultants in neurology and psychiatry experienced in the care of organic brain disease is available to HE and his carers.

Decision

38 The orders of the Guardianship Tribunal dated 6 March 2008 are set aside and the matter is remitted to the Tribunal for reconsideration in accordance with these Reasons.