HFT v HQK - [2019] WASC 292

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HFT -v- HQK [2019] WASC 292
CORAM:   TOTTLE J
HEARD:   24 JULY 2019
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   GDA 21 of 2018
BETWEEN:   HFT
Appellant
AND
HQK
First Respondent
YFY
Second Respondent
HKD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MEMBER PETRUCCI
File Number             :   GAA 3201 of 2017; GAA 3073 of 2017

Catchwords:

Application for leave to appeal - Appeal against decision of State Administrative Tribunal - Whether appeal constitutes question of law under s 105 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A
State Administrative Tribunal Act 2004 (WA), s 77, s 105

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	Mr M Nicholls QC
First Respondent	:	In person
Second Respondent	:	No appearance
Third Respondent	:	In person

Solicitors:

Appellant	:	Tan & Tan Lawyers
First Respondent	:	In person
Second Respondent	:	No appearance
Third Respondent	:	In person

Case(s) referred to in decision(s):

Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147

TOTTLE J:

Introduction

The appellant has applied for leave to appeal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) against a decision made by a member of the State Administrative Tribunal (the Tribunal) dismissing an application brought by the appellant under the Guardianship and Administration Act 1990 (WA) (the Act) in respect of her mother, Mrs H.[1]
[1] To ensure compliance with sch 1, pt B, cl 12 of the Guardianship and Administration Act 1990 (WA) I will refer to the parties and related persons in the proceedings by their initials. Transcript excerpts have been modified to follow this course.
The sole issue presently before the court is whether the appeal is brought on a question of law. I have reached the conclusion that it is not and for that reason leave to appeal will not be granted.
By an application filed with the Tribunal on 27 October 2017 the appellant sought the following orders:
(a)an order under s 110N of the Act revoking an enduring power of guardianship made Mrs H by which she appointed the respondents her enduring guardians (the respondents are the appellant's siblings);
(b)an order under s 43 of the Act appointing the Public Advocate as guardian for Mrs H;
(c)an order that enquiries be made and current reports be obtained from Mrs H's treating doctors, including specialists, as to her present condition and needs, including her accommodation needs and the need for her to resume taking Aricept to slow down the process of dementia; and
(d)an order that Mrs H be moved to a nursing home which better caters for her cultural and linguistic needs.
The application was dismissed on 5 November 2018. Comprehensive oral reasons for dismissing the application were given and those reasons have been transcribed.[2]
[2] The uncorrected transcript of 5 November 2018 was sent to the appellant's lawyers by email and attached a cover page which stated 'The transcript consists of the Reasons for Decision delivered by the Tribunal on Monday 5 November 2018 which constitutes the provision of reasons under s 79 of the State Administrative Tribunal Act 2004 (WA).'
A party to a proceeding before the Tribunal may appeal from a decision of the Tribunal but only if the court to which the appeal lies gives leave to appeal.[3] An appeal can only be brought on a question of law.[4] The Tribunal's decision was made by a single member of the Tribunal who was not a judicial member and thus the appeal lies to the General Division of the Supreme Court.[5]
[3] SAT Act s 105(1).
[4] SAT Act s 105 (2).
[5] SAT Act s 105(3)(b).
In the appellant's appeal notice filed on 13 December 2018 the ground of appeal relied upon is as follows:
[The member] made an error of law that if uncorrected would impose a substantial injustice in that she failed to address the evidence relating to the quality of care, services and medical treatment that [Mrs H] had experienced during the respondent's guardianship, including suffering from repeated falls, pressure sores, skin tears and ulcers, and a lack of personal attention, including attention to her diet and nutrition, weight loss and personal hygiene.
At a directions hearing held on 26 June 2019 I raised with senior counsel for the appellant my concern that the appeal was not brought on a question of law as required by s 105(2) of the SAT Act. I referred to the observations of Buss JA (as his Honour then was) in Paridis v Settlement Agents Supervisory Board:[6]
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
[6] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].
Pursuant to leave granted by me on 26 June 2019 the appellant has filed a minute of amended grounds of appeal. Those grounds read as follows:
[The member] erred in law in that she:
(a) failed to decide a material issue raised by the appellant and
(b)failed to resolve the dispute between the parties and
(c)failed to determine the appellant's application for an enquiry into the present condition and needs of Mrs H (the proposed represented person)
thus failing to exercise the jurisdiction conferred upon her by section 13 of [the Act] and failing to meet the objectives of the [Tribunal] set out in section 9(a) of the [SAT Act]
(d)and by reason of her failure to decide a material issue in the proceedings failed to take relevant matters into account and
(e)failed to give her reasons for deciding that the existence of the dispute between the parties was insufficient to conclude that the enduring power of attorney was not operating in the best interests of Mrs H (the proposed represented person)
Particulars
[The member] failed to decide the material issue of whether the quality of care received by Mrs H was or was not adequate, and thereby failed to resolve the dispute between the parties as to what care, services and medical treatment arrangements are best for Mrs H. As a consequence of that failure, [the member] failed to take into account matters relevant to the determination of the issues and nor did she address the appellant's application ... for an enquiry into Mrs H's medical condition and needs.
Those failures amount to a constructive failure to exercise jurisdiction.
[The member's] reasons do not disclose her reasons for reaching the conclusion that 'the existence of conflict is not, in itself, sufficient reason to conclude that the [Enduring Power of Guardianship] is not operating in Mrs H's best interest'.

The Tribunal's decision

The member began the delivery of her reasons by giving some brief details about Mrs H and explaining the relationship between the parties. Mrs H was described as an 89‑year‑old widow living in a care facility in one of Perth's southern suburbs. She had been a resident of that facility since 21 July 2016. The member referred to Mrs H's five children: the appellant, who is a medical practitioner living in Singapore, GLF who lives in New South Wales, YFY who also lives in New South Wales, HKD who lives in Canberra and HQK who lives in Perth. The member noted that the Public Advocate was represented at the hearing by Mr D, a senior investigator advocate from the Public Advocate's office.
The member referred to the fact that on 18 April 2016 Mrs H appointed her three youngest children, YFY, HKD and HQK as enduring guardians under an enduring power of guardianship (the EPG). The member recorded that the enduring guardians had been operating under the EPG since 2016. The member noted that the appellant had made an application to the Tribunal in 2016 to be appointed guardian for her mother. That application was dismissed by the Tribunal (differently constituted) by order dated 16 November 2016.
The member described the applications that she was required to determine and recited the terms of the orders sought by the appellant.
The member outlined the way in which the hearing had progressed over a number of hearing days beginning on 5 January and ending on 12 October 2018.[7] The member recorded that at the hearing held on 10 July 2018 the appellant's counsel informed the Tribunal that the appellant, having heard evidence from Mrs H's general practitioner, Dr B, HQK and YFY, was of the view that the argument in favour of Mrs H remaining at their care facility outweighed arguments for a move. The member recorded the appellant's position in the following terms:
It was expressed that in view of what the applicant, [HFT], had seen for herself recently, her observations over the last few months that had been confirmed by Dr B in his evidence on 10 July 2018, the applicant could not see that Mrs H's health was compromised to the point where should she be moved she would have all the disadvantages of new people having to get to know her in circumstances where she rarely was not able to communicate with anyone effectively. And she would lose the benefit of a good GP who knows her well and has her best interests at heart.
[7] 5 January, 20 March, 10 and 12 July, 25 September and 12 October 2018.
The member moved on to outline the issues. The member recorded that the parties agreed that Mrs H is a person for whom a guardianship order may be made under s 43(1) of the Act. The member observed that the only issue before the Tribunal - as agreed by the parties - was whether the needs of Mrs H were being met by the EPG, or whether, in the best interests of Mrs H, the EPG should be revoked and the Public Advocate appointed as Mrs H's limited guardian under a guardianship order.
The member referred to relevant provisions of the Act. First, the member referred to the principles stated in s 4 of the Act noting that the primary concern of the Tribunal was the best interests of the represented person. The member noted that a guardianship order should not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action. Second, the member referred to s 110N of the Act which confers power on the Tribunal to make an order revoking an enduring power of guardianship or revoking the appointment of one or more of the persons who are joint enduring guardians under an enduring power of guardianship. Third, the member referred to s 44 of the Act and to the persons who may be appointed as a guardian. The member listed the factors to be taken into account by the Tribunal pursuant to s 44(2) of the Act in determining who is suitable to act as the guardian. The member noted that the Tribunal should not appoint the Public Advocate as a guardian unless there was no other person who is suitable and willing to act. The member also noted that the Tribunal must, as far as possible, seek to ascertain the views and wishes of the person who is the subject of the application.
The member then summarised the appellant's case as follows:[8]
[8] ts 9.
Counsel for the applicant asserted the applicant made her application to the tribunal out of concern that decisions had been made which had not been in the best interests of Mrs H; in particular, regarding the quality of her care, services and medical treatment. The applicant's position may be summarised as follows:
While the applicant accepts that the care plan for Mrs H has a detailed list of things to do and not to do, she is of the view that most have been ignored or are not being done; for example, in regards to personal hygiene. The applicant's concerns regarding Mrs H include (a) the enduring guardians have no plan of rehab, physio or plans for the acute and chronic care for Mrs H. In particular, the applicant is concerned that (1) the physiotherapist at the care facility told her, as early as August 2016, that Mrs H was unable to participate in physiotherapy due to her poor mobility.
(b) Mrs H has deteriorated since November 2016, as she has poor mobility of her legs and arms and her joints are very stiff. (3) by February 2017, Mrs H has required two helpers to move her or position her from her bed to wheelchair and vice versa. By April 2017, the nursing facility had been using a hoist to move Mrs H to and from her bed and that she has become fully dependent on the nursing staff to provide for her daily needs, feeding, etcetera. (c) Mrs H's deterioration of mobility is not compatible with someone who has had a mild stroke and dementia.
Secondly, [HQK] sent a text to one of Mrs H's treating doctors to reinforce instructions not to administer any medication to Mrs H, including medication for dementia. With reference to point two of Tan & Tan's letter of 26 October 2017. Thirdly, Mrs H should recommence her medication for dementia, the Aricept. This is because the arguments regarding the side effects experienced by Mrs H are not well established and she should not be deprived of medication that can indeed accelerate her decline. And, finally, due to Mrs H's language barrier, she is often not able to effectively express her needs and wishes to the carers.
She is isolated from the other residents at the care facility. There are no effective avenues for her to either interact with others on a regular basis, or receive mental stimulation from television or other forms of media in the Chinese language. Mrs H suffers from severe cultural and social isolation. On 26 September 2018, the applicant, in giving evidence, reiterated her concerns. The applicant stated that as dementia becomes more advanced, it becomes more important for there to be cultural input for the person. In this regard, the applicant explained, and I quote from the transcript 24 on 25 September 18:
My knowledge about dementia is all gained from reading publications. People have done studies to find that the people who are advancing in dementia, even if severe, states what they tend to lose until the very, very end stage, what they tend to retain and not to lose most is their self-identification or their self. Therefore, for instance for my mother, [Mrs H], she will identify herself as a Chinese wife, mother, because she has not worked in the outside world. She has not held a career; she has always been a housewife. So she will be comfortable in an environment where she is recognised as a Chinese lady.
Given her Chinese food and being - and being and hold conversations with people who can talk about say, China, Singapore, environment that she has lived in before. That helps to reinforce her identity for herself. Because this thing does not get vocalised she can't tell us, so we have to anticipate that and we enforce for it.
End of quote. The applicant stated that Mrs H, at the care facility, was in a totally alien environment:
Alien culture, alien kind of diet and alien kind of social interaction for her.
I interpolate that among the concerns held by the appellant about the quality of care received by Mrs H at the facility were concerns that Mrs H's personal hygiene was not being attended to by her carers, and that the appellant suffered from pressure sores and skin infections.
Turning to the position of the enduring guardians the member summarised their position as follows:[9]
(a) They consented to the recommendations made by Mrs H's treating team. They have authorised Dr B and the care facility staff to discuss relevant information with any family member who asks for it. They are concerned that the appellant approached a specialist geriatrician without their knowledge or consent.
(b) The enduring guardians pointed to the previous legal proceedings in the New South Wales Civil and Administrative Tribunal and to the previous application made by the appellant to be appointed as guardian.
(c) The enduring guardians deny that Mrs H suffers from severe lack of social and cultural interaction and say that family, friends and relatives visit her regularly and that Mrs H enjoys a variety of foods, including Chinese food.
(d) The enduring guardians say that the care facility is close to Mrs H's church and that the pastors of the church visit Mrs H at the care facility.
(e) The care facility contacts the enduring guardians whenever there is a change in Mrs H's condition to inform them of the cause, the diagnosis, the prescribed treatment and/or medication and any preventative measures necessary and the progress of the recovery.
(f) The enduring guardians say that they have not been provided with the details of the further physiotherapy sessions that the appellant proposed.
(g) The enduring guardians say that the dementia medication had been ceased on the advice of a geriatrician, Dr K.
[9] ts 10.
The member noted that the Public Advocate had been ordered to investigate:
(a) whether the EPG dated 18 April 2016 was a less restrictive alternative to the making of a guardianship order;
(b) what are the views and wishes of Mrs H regarding the issues raised by the application;
(c) all other matters considered relevant by the Public Advocate.
The member referred to a 'detailed report' provided by Mr D to the Tribunal dated 18 December 2017. In the report Mr D concluded that there had been insufficient need established to change the status quo, which he considered served as a least restrictive alternative to a guardianship order being made. The member noted that this was because, in Mr D's view, the concerns raised by the appellant regarding the care of Mrs H appeared to be out of the control of the enduring guardians and levelled at the care facility.
The member then referred to the evidence of Dr B. She summarised Dr B's evidence as follows:
Dr B has been Mrs H's GP since she was admitted to the care facility in July 2016. Dr B said that Mrs H's decline is age-related, and due to dementia. He explained Mrs H's (indistinct) mobility has declined because of the loss of coordination of muscle strength, and due to her aging. Further, Dr B said that Mrs H's difficulty with eating is also due to the progression of her dementia, as she loses the ability to coordinate the muscles in her mouth to help her swallow.
Dr B stated that Mrs H is prone to skin infections, and was previously referred to a skin specialist. In regards for medication for dementia, Dr B said he is of the view that in Mrs H's case it would be of no benefit because the dementia has advanced to a level that the medication would not improve her dementia or memory. In regards to physiotherapy and occupational therapy, Dr B stated Mrs H would benefit from having therapy no more than about twice per week, in order to allow Mrs H's muscles to recover.
Dr B said there have not been any problems which prevented him speaking with all of Mrs H's children about Mrs H's health issues and care. He noted that when the applicant has visited the care facility and requested to speak to him, he has spoken with them about Mrs H's care and medication. Dr B, in giving evidence, confirmed there have not been any occasions while he has been Mrs H's GP, but the enduring guardians have not consented to recommendations for medical and care treatment.
Further, Dr B stated he meets and discusses matters or concerns about Mrs H on an an-and-as-needed basis. Dr B confirmed that the applicant has not tried to influence him regarding Mrs H's medication, treatment or care. Dr B concluded that Mrs H has advanced dementia, and in his view there was no benefit in referring her to a geriatrician. The tribunal found Dr B to be a credible witness who knows his patient very well. The tribunal notes that the applicant also acknowledged that Dr B knows his patient, Mrs H, very well. Transcript 88 to 89, 10 July 2018.

Next the member referred to the evidence of Mr C, who is the manager of the care facility. It is convenient to quote the member's account of Mr C's evidence:[10]
Mr C advised that Mrs H is involved in the activities and the culture of the care facility which she thoroughly enjoys. Mr C stated that Mrs H attends multicultural sessions, she gets physio input from allied health, and enrichment at least four times per week. One or two of them is including massage, and the others are basic therapies and activities, and some of them are culturally significant to Mrs H.
Mr C suggested more extensive physiotherapy could end up causing Mrs H more harm than good. Mrs H is settled, according to Mr C which, for someone with dementia, Mr C said is extremely important to have consistency and have stability. Mr C said that Mrs H communicates as well as she can with her quality declining. Mr C said he had not heard from the applicant about any concerns she had for her mother, even when she visited the care facility.
Mr C described HQK as a very engaging guardian, and was very approachable. In terms of recommendations for Mrs H, Mr C said that apart from a special manicure, noting that Mrs H has her nails attended to regularly which can be organised, there were no other recommendations he could make for Mrs H. Mr C concluded that Mrs H is receiving optimal care at present with a very established guardians, and a very reputable GP, Dr B. The tribunal found Mr C to be credible, who also knew Mrs H very well.
[10] ts 16.
The member began her analysis of the issues to be resolved by referring once again to the principles that governed the application to which she had referred earlier in her reasons. The member referred, in particular, to the principle that the primary concern of the Tribunal was to determine what was in Mrs H's best interests. Having referred to the principles the member described 'the crux of the matter' as follows:
... whether the existing EPG made in 2016 is working in the best interests of Mrs H. In essence, this requires the Tribunal to determine if the enduring guardians are suitable guardians, and if they are not, the Tribunal must determine who is to be appointed in place as Mrs H's decision-maker.
The member's approach to the analysis of whether the enduring guardians were suitable guardians was to consider their suitability by reference to each of the factors listed in s 44(2) of the Act.
The member first considered 'the desirability of preserving existing relationships'. The member referred to what she described as the 'significant discord between the enduring guardians and the applicant'. The member found that despite that significant discord 'the current arrangement' was working and that all of Mrs H's children have access to her and the enduring guardians have not prevented the appellant from seeing Mrs H or from speaking directly with Dr B or others involved in the treatment or care of Mrs H.
Next, the member considered 'compatibility with the administrators'. The member noted that HKD and HQK had been appointed joint attorneys by Mrs H under an enduring power of attorney made on 18 April 2016 and that, as they were also two of the enduring guardians, there was unlikely to be any issue between the guardians and the administrators.
Next the member considered 'Mrs H's wishes in respect of guardianship'. The member recorded that it was not possible for the Tribunal to ascertain directly what Mrs H's views on who should be her guardians. The member referred to some apparently conflicting statements made by Mrs H to Mr D when he had interviewed her in October 2016. The member concluded:[11]
In light of the conflict between the applicant and the enduring guardians, the Tribunal is concerned that if, given the opportunity to make medical decisions for Mrs H, the applicant would ignore, would not work with or advise the administrators, being two of her siblings, and the enduring guardians, and vice versa, which would not be in the best interests of Mrs H.
This conflict, in the tribunal's view, is not a reason to revoke the EPG. The current situation, although not ideal, where the applicant has liberty to speak with a medical team and care facility staff to express her concerns regarding Mrs H, works, as the relevant people are made aware of the applicant's concerns, and the treating team and care facility staff can relay those concerns to the enduring guardians for consideration and deciding what action to take.
[11] ts 19.
The member then posed the question: are the enduring guardians capable of performing the functions vested in them as guardians? The member addressed this question by reviewing different aspects of the way in which the EPG operated and recording her findings on the operation of the EPG. The member's analysis led her to conclude that that there was no need for the Tribunal to intervene in the operation of the EPG, thus implicitly finding that the enduring guardians were capable of performing the functions vested in them as guardians.
As a preface to this aspect of her analysis the member referred once again to the appellant's concerns and summarised them as follows:[12]
The applicant is concerned about their mother's current arrangement at the care facility. In particular, the applicant raised the following issues which negatively impact on the well-being of Mrs H. Firstly, a severe lack of social and cultural isolation, as the Asian population is minimal amongst both residents and carers. Secondly, dietary needs, being a lack of Chinese and Asian style meals. Thirdly, the quality of care, as evidenced by unexplained injuries, for example falls, pressure sores, and is a lack of personal attention. Fourth, lack of physiotherapy and medication not prescribed for dementia.
[12] ts 20.
The member recorded:[13]
The enduring guardians strongly dispute the applicant's views about Mrs H's care, service arrangements, and medical treatment at the care facility.
[13] ts 20.
The member then recorded the first of the specific findings that led her to conclude that the EPG was operating in Mrs H's best interests. In a passage on which the appellant has focussed the member said:
The existence of conflict is not, in itself, sufficient reasons to conclude that the EPG is not operating in Mrs H's best interests. I refer to the case LK and EB [2013] WASAT 70 at 76.
The second finding made by the member in relation to the capacity of the enduring guardians was the conclusion that the enduring guardians had addressed the appellant's concern that she should be able to access information from Mrs H's treating health professionals by allowing any family member to speak directly with the treating team and care facility staff. The member referred to Dr B's evidence that the appellant had contacted him to discuss Mrs H's care and medication regime. The member concluded that there was no need for the Tribunal to intervene by directing the enduring guardians to authorise the release of information or documents from the treating care facility to the applicant.
The third finding was that the member was not satisfied that the conflict between the appellant and the enduring guardians was such that there was a need to intervene by directing the enduring guardians to communicate significant changes concerning Mrs H's health to the appellant.
The member then turned to the appellant's concerns in relation to accommodation and made the following observation about the changes in the appellant's position that had occurred in the course of the hearing:
In regards to accommodation needs, the applicant, at the hearing on 10 July 2018, made it known, after hearing Dr B's evidence, that insofar as she sought the appointment of an independent guardian to make the accommodation decision, there was no longer a need for that decision to be made. That view reverted to her original position by the end of the proceedings, where counsel for the applicant, in closing submissions, stated that Mrs H suffers from severe lack of social and cultural interaction at the care facility.
After which the member made a finding expressed in the following terms:
The tribunal, however, is not satisfied there is a need for an independent guardian to decide matters regarding Mrs H's accommodation. As Mr D stated, there is nothing to suggest that the issues raised by the applicant will be alleviated by moving accommodation, but rather a new facility without a detailed history could end up being detrimental for Mrs H. Further, and in any event back in 2016 Mrs H told Mr D that, and I quote, 'she was very happy where she was, and it worked for her.'
The enduring guardians here are supported by the Public Advocate's representative, Mr D, where he stated that the care concerns raised appear to be out of the guardian's control and levelled at the care facility. Mr D stated in his report, of December 2017, and confirmed the hearing of 12 October 2018, that there is nothing [suggesting] that the guardians are not consenting to the necessary decisions put to them, including consenting to medical reviews where necessary. [emphasis added]
The member then summed up the effect of the findings made by her in answer to the question of whether the enduring guardians are capable of performing the functions vested in them as guardians as follows:
The Tribunal concludes that the needs of Mrs H are being met by means less restrictive than a guardianship order. That is, the Tribunal is satisfied that even though there is conflict between the enduring guardians and the applicant, the EPG is working to meet the needs of Mrs H.
The member concluded her reasons as follows:
In conclusion, the tribunal could not find anything in the evidence of the guardians, HQK, HKD and YFY, or the evidence of Dr B and Mr C to suggest that the enduring guardians are not making decisions that are in the best interest of Mrs H. The decisions made may be different to those the applicant may have made in the same circumstances, but that doesn't mean that the decisions were not made by the enduring guardians in the best interests of Mrs H.
The tribunal is satisfied that the enduring guardians are not in a position where their respective interests conflict or may conflict with those of Mrs H. The tribunal is satisfied that the role of guardian can be best performed by the three youngest children, which accords to the wishes of Mrs H as set out in her EPG. This means the tribunal finds that HQK, YFY and HKD to be suitable to continue to act as Mrs H's enduring guardians, as they have acted in Mrs H's best interests and they are not in a position where their respective interests conflict or may conflict with those of Mrs H.
In light of the above, the tribunal concludes that the EPG made in 2016 reflects Mrs H's wishes for her three youngest children to be her guardians. There is no persuasive evidence that the EPG is not working in Mrs H's best interests. The tribunal concludes there is no need to revoke the EPG and to appoint a guardian.

The appellant's submissions

The appellant accepts that she must demonstrate that her appeal is brought on a question of law and that a question of law is essentially an error of law: Suleski v Pilbara Iron Company (Services) Pty Ltd.[14] She submits, however, that there is no easy dividing line between questions involving law and questions involving fact. However an appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'.[15]
[14] Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [10].
[15] Paridis [53].
The appellant relies upon three overlapping lines of argument.
First, the appellant argues that there was a dispute between the parties about what care, services and medical treatment arrangements were best for Mrs H and this was a material issue that the member was required to determine and that by failing to do so there was a constructive failure to exercise the jurisdiction of the Tribunal. That is, the appellant contends that the Tribunal purported to resolve the parties' dispute but did not in fact do so: Resource Pacific Pty Ltd v Wilkinson.[16] The appellant also contends that the member failed to address the appellant's application for an enquiry and in that respect failed to exercise the jurisdiction of the Tribunal.
[16] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 [9].
Second, as a consequence of failing to determine whether the care, services and medical treatment arrangements were best for Mrs H the member failed to take into account relevant matters. In support of this submission the appellant relied upon the examples of questions that constitute questions of law given by Newnes & Murphy JJA in Medical Board of Australia v Woollard.[17]
[17] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [154].
Third, the appellant argues that the member failed to give adequate reasons for determining that the existence of a dispute between the parties (about the care services and medical treatment arrangements for Mrs H) was insufficient to conclude that the enduring power of attorney was not operating in the best interest of Mrs H.
In the course of oral submissions senior counsel for the appellant also put the appellant's case in this way.[18] The existence of the conflict between the appellant and the enduring guardians diverted the member away from the 'core question' of whether their guardianship was delivering adequate quality of care for Mrs H's needs. Rather than focussing on the core question the member focussed on the question of whether the enduring guardians were fit people to be guardians. Senior counsel drew attention to evidence that had been given by the appellant that she had observed examples of poor and neglectful care by accommodation staff when visiting her mother. Senior counsel submitted that the appellant's evidence was unchallenged and to say that the appellant's observations amounted to criticisms of the care facility that was out of the control of the enduring guardians was 'extraordinarily worrying'.
[18] ts 20 - 21.

Disposition

A constructive failure to exercise jurisdiction[19] and a failure to take into account a relevant consideration (that is, a consideration a decision-maker was bound to take into account,[20] in contrast to a failure to take into account a particular piece of evidence[21]) are errors of law.[22] Further, the Tribunal is under a statutory obligation to provide reasons for a final decision that include 'the Tribunal's findings on material questions of fact referring to the evidence or other material on which those findings are based.'[23] A failure to provide reasons that comply with the requirements of the Act will amount to an error of law.
[19] Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 [93].
[20] Paridis [57]; Woollard [154]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).
[21] Paridis [57].
[22] Woollard [154].
[23] SAT Act s 77.
In my view, the Tribunal's reasons are not, however, infected by any errors of the nature alleged by the appellant and the grounds of appeal are, in substance, a pathway to a merits review of the Tribunal's decision. It is not this court's role to undertake a merits review - an appeal to this court is strictly confined by s 105 of the SAT Act to the determination of a question of law. It was open to the appellant to request the President of the Tribunal to arrange for a Full Tribunal to review the decision but she did not do so.[24]
[24] Guardianship and Administration Act 1990 (WA), s 17A.
When the Tribunal's reasons are read as a whole, and contrary to the appellant's submissions, it is plain that the Tribunal did decide that the quality of care and medical treatment received by Mrs H was adequate. That the Tribunal addressed and decided this issue is plain from a fair reading of the reasons. There are, however, three features of the reasons that, taken together, put the issue beyond doubt.
First, the member summarised the appellant's concerns about the medical treatment and care at the facility at an early stage of her reasons. It may be inferred that those concerns were at the forefront of the member's mind. Second, the member referred to the report of Mr D who characterised the appellant's concerns as being 'out of the control of the enduring guardians and levelled at the care facility'. Third, the member referred to and summarised the evidence of Dr B and Mr C that was directed to the appellant's concerns. It is clear from the positive terms in which the member referred to each of Dr B and Mr C as witnesses that she accepted the evidence of each of them. The member's acceptance of Dr B's evidence is reinforced by the fact that she recorded that after hearing the evidence of Dr B, the appellant accepted, in effect, that it was not in Mrs H's best interests to be moved from the care facility.
It is implicit in her reasons that the member considered the appellant's concerns and her evidence in relation to them but, having regard to all of the evidence, in particular the report of Mr D and the evidence of Dr B and Mr C, considered that it was in Mrs H's best interests that the enduring guardianship continue.
The conclusion that the member addressed and satisfied herself about the adequacy of Mrs H's accommodation arrangements, in particular, is reinforced by the express finding that it was not necessary to appoint an independent guardian to decide on matters regarding Mrs H's accommodation. This finding was based in part on Mr D's view that the issues raised by the appellant would not be alleviated by moving accommodation and, in part, because Mrs H had told Mr D in 2016 that she was very happy where she was.
It follows from the view I have just expressed that I do not accept that the member did not take the appellant's evidence of poor or neglectful care of Mrs H into consideration, but even if I were wrong in reaching that view and the member had not taken that evidence into account, that would not amount to an error of law. A failure to take into account a particular piece of evidence is not an error of law.[25]
[25] Paridis [57].
The appellant has fastened on the observation made by the member that the existence of conflict between the appellant and the enduring guardians is not, of itself, sufficient reason to conclude that the EPG is not operating in Mrs H's best interests. That observation must be read in the context in which it was made - that is, in the course of answering the question posed by the member as to whether the enduring guardians were capable of performing the functions vested in them as guardians. Assessed in context the observation provides no support for the argument that the Tribunal failed to consider and determine whether the standard of medical care and the care arrangements at the care facility were adequate. Read fairly and in context, the observation was intended to convey no more than the fact that the subjective views held by children of a represented person may differ to the extent to which there is discord between them is not, of itself, reason to conclude that an enduring power of guardianship is not operating effectively. In my view it is hard to argue against this general proposition though, as always, issues as to what is in the best interests of a person are heavily fact dependent. With respect to the appellant, the error in the appellant's approach to the Tribunal's reasons is to look at them through the prism of the observation made by the member about the dispute between the appellant and the enduring guardians and not to consider the substance of the reasons.
Turning now to the complaint that the Tribunal failed to determine the application for an order that:
an order that enquiries are to be made and current reports are to be obtained from Mrs H's treating doctors, including specialists as to her present condition and needs, including her accommodation needs and the need for her to resume taking Aricept to slow down the process of dementia.
I note the member referred to the application for the order for the enquiry in the early stages of the reasons. Thus, it cannot be suggested that she overlooked it.

It may be acknowledged that the member did not refer to the application for this order when addressing her reasons for dismissing the other orders sought by the appellant. That said, this aspect of the appellant's challenge to the Tribunal's decision overlooks the extensive nature of the enquiry that was undertaken by the Tribunal.
It must be remembered that the Tribunal had directed that the Public Advocate prepare a report and, in response to that direction, a detailed report had been prepared. Relevant documentary evidence was gathered.
It is clear from the reasons that the member was focussed on the central issue of what was in Mrs H's best interests and that in determining that issue she had regard to all of the appellant's concerns.
The Tribunal conducted a hearing that took place over six days between January and October 2018. The appellant was represented by a legal practitioner. Each of the enduring guardians gave evidence and was cross-examined by the appellant's counsel. Dr B, who is responsible for Mrs H's primary medical care, was called to give evidence and was cross-examined. He explained why it was not appropriate for Mrs H to resume taking Aricept (the issue of the administration of Aricept was specifically mentioned in the order sought by the appellant). Mr C, who is the manager of the care facility, was called to give evidence about Mrs H's accommodation needs and was cross-examined.
When the member reserved her decision she had 'two large files' of documentary evidence and 380 pages of transcript. It is difficult to understand what further utility there could have been in commissioning further reports about Mrs H's present condition and needs. In the course of hearing the present application I asked the appellant's senior counsel what further enquiry the appellant wanted to see undertaken and the answer was that the appellant wanted her mother to be reviewed by an independent consultant geriatrician. In my view, the member's acceptance of Dr B's evidence and the significant weight she evidently attached to it implicitly involved a rejection of the appellant's contention Mrs H's needs included a need for review by an independent consultant geriatrician.
Although the member did not expressly refer to the application for further enquiries when explaining her reasons for dismissing the application, in the light of the reasons when read as a whole the Tribunal may be taken to have concluded that no further reports or enquiries were necessary and that the application in this respect should be dismissed. I do not accept there was a constructive failure to exercise jurisdiction in respect of the application for an order for further enquiries.
As stated earlier leave to appeal will be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle
16 AUGUST 2019