HH v HI and Protective Commissioner
[2009] NSWADTAP 41
•30 June 2009
Appeal Panel - External
CITATION: HH v HI and Protective Commissioner [2009] NSWADTAP 41 PARTIES: APPELLANT
RESPONDENT
HH
HIFILE NUMBER: 088009 HEARING DATES: 19 December 2008 SUBMISSIONS CLOSED: 19 December 2008
DATE OF DECISION:
30 June 2009BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member CATCHWORDS: Review of guardianship order, procedural fairness, hearing evidence in absence of applicant, power of Guardianship Tribunal to make guardianship orders in relation to religious observance. DECISION UNDER APPEAL: Review of a Guardianship Order C/35749 FILE NUMBER UNDER APPEAL: 2007/1524 DATE OF DECISION UNDER APPEAL: 03/25/2008 LEGISLATION CITED: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Aged Care Act 1997 (Cth),CASES CITED: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
GM v Guardianship Tribunal [2003] NSWADTAP 59
Kioa v West (1985) 159 CLR 550
Muin v RRT (2002) 76 ALJR 966TP v TR & ors (No 2) [2006] NSWADTAP 12
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22
K v K [2000] NSWSC 1052
MN v AN (1989) 16 NSWLR 525
Public Guardian v The Guardianship Board [1997] 42 NSWLR 201
In A Local Authority v MA [2005] EWHC 2942 (Fam)Re X (a minor) [1975] 1 All ER 697
Re Eve (1986) 31 D.L.R. (4th) 1 (S.C.C.)
FI v Public Guardian [2008] NSWADT 263REPRESENTATION: APPLICANT
In person1st RESPONDENT
D Patch, barrister instructed by Ms B Ramjan2nd RESPONDENT
No appearanceCounsel Assisting
DECISON MAKER
A Johnson, solicitor
E Cho, solicitorORDERS: 1. Leave to appeal against the merits of the Guardianship Tribunal’s decision is refused
2. The matter is remitted to be heard and decided again with the hearing of further evidence.
REASONS FOR DECISION
Introduction
1 HI is an 88 year old woman who lives in a residential aged care facility. She has alcohol related brain damage and is cognitively impaired. She has been a long term adherent of the Jehovah's Witness faith and has a close friend, HH, who is also a Jehovah's Witness. In 2007 the Guardianship Tribunal made a 12 month guardianship order and appointed HH as HI’s guardian to make decisions about accommodation, services, health care and medical and dental consents. In 2008 the Guardianship Tribunal reviewed that order and determined that there was no need for it to continue. HH has appealed against that decision on the grounds that the Guardianship Tribunal breached procedural fairness and that it should have exercised its discretion to appoint her as a guardian to make end of life decisions and decisions about religious observance.
2 An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other grounds: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B. HH appealed both on legal grounds and against the merits of the Tribunal’s decision. We have found that the Tribunal made legal errors which justify the matter being remitted to be heard and determined again. The Guardianship Tribunal is in a better position that this Tribunal to rehear the evidence and make new findings of fact. Consequently we have not given leave for the merits of the Tribunal’s decision to be determined by the Appeal Panel and have not taken into account HH’s detailed analysis of the transcript and the decision in which she points out alleged factual errors. Similarly Ms Ramjan, who was HI’s guardian ad litem, obtained evidence about HI’s views and also obtained her file from the aged care facility in which she lives. While not relevant to these proceedings given that leave to determine the merits of the decision has not been granted, that material may be of relevance to the Guardianship Tribunal’s decision when it rehears this matter.
Parties and representation
3 HI was represented by a guardian ad litem, Ms Ramjan who instructed counsel, Mr Patch. HH appeared in person. Ms Johnson, a solicitor from the Crown Solicitor’s Office, was appointed as counsel assisting the Tribunal given the novelty of some of the issues that arose in these proceedings and the fact that HH was not legally represented. The Public Guardian is the first respondent but she chose not to play any role in the proceedings. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to its practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal and made helpful written submissions in relation to the legal issues which arose in this case. Although those submissions went beyond issues of practice and procedure, we accepted them as they addressed areas of the law which, as far as we are aware, have not previously been raised before the Appeal Panel.
Issues
4 One issue in the appeal related to the extent to which staff at the aged care facility were respectful of HI’s religious beliefs. HH explained during the course of the hearing that Jehovah's Witnesses do not celebrate activities that are not provided for in the Bible. Jehovah's Witnesses regard Christmas, Easter, Halloween and birthday celebrations as pagan beliefs in which they should not participate. While the drinking of alcohol is not prohibited, HH said that because HI is an alcoholic, it is critical that she not be allowed to drink.
5 According to Ms Thomas who was the Manager of the aged care facility, staff respect HI’s religious beliefs but also take into account her wishes in relation to attendance at Christmas themed activities. In HH’s view the attitude of the staff was not respectful of HI’s beliefs and the Guardianship Tribunal should have appointed a guardian to ensure that decisions were made which accorded with those beliefs. HH said that HI should be able to live out her days with dignity and respect and that involves continuing to adhere to her deeply held religious beliefs.
6 As well as the issues relating to religious observance, the appeal raised two other grounds: whether the Guardianship Tribunal had breached procedural fairness and whether it should have exercised its discretion to appoint a guardian and give that person a function so that ‘end of life’ decisions could be made on HI’s behalf. These issues are summarised below:
1. Did the Tribunal breach procedural fairness by:
2. Did the Guardianship Tribunal err by deciding not to make a guardianship order with a function relating to religious observance?
(i) Failing to provide documents to HH in advance of the hearing and/or failing to communicate the substance of material in the documents to HH?
(iii) failing to give HH a reasonable opportunity to respond to adverse material because of frequent interruptions?(ii) Hearing Ms Thomas’ evidence in the absence of HH and/or failing to communicate the substance of Ms Thomas’ evidence to HH?
3. Did the Guardianship Tribunal err by deciding not to make a guardianship order with a function relating to health care and/or medical and dental consents.
Issue 1: Procedural fairness
7 Principles of procedural fairness. The Appeal Panel has discussed the principles of procedural fairness in the context of proceedings before the Guardianship Tribunal in several decisions including KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; and GM v Guardianship Tribunal [2003] NSWADTAP 59. We adopt the principles set out in those cases. Procedural fairness ordinarily requires that a person whose interests are likely to be affected by an exercise of power be given a reasonable opportunity to respond to adverse information that is credible, relevant and significant to the decision: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J, at 587 per Mason J; Muin v RRT (2002) 76 ALJR 966 at 1005 per Gummow J.
8 The content of the hearing rule of procedural fairness must be “appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 at 585 per Mason J. Those circumstances include the principles set out in s 4 of the Guardianship Act and the fact that hearings are conducted in a relatively informal manner where legal representation is the exception. Nevertheless, the Guardianship Tribunal is obliged 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: TP v TR & ors (No 2) [2006] NSWADTAP 12. As HI’s guardian and personal friend, HH’s interests were affected by the Guardianship Tribunal’s review of its previous order to appoint her as HI’s guardian.
9 Failing to provide copies of documents and/or failing to communicate the substance of the material. Two documents containing adverse information in relation to HH which were before the Guardianship Tribunal but which were not provided to HH, were the Co-Ordination and Investigation Report prepared by Maxine Spencer dated 19 March 2008 and a letter from Ms England, Deputy Manager of the aged care facility dated 25 February 2008. The Report contained the following comments:
Ms England had raised concerns that [HH] had not allowed [HI] to participate in Christian activities at Christmas because she is a Jehovah's Witness nor allow HI to leave the hospital with friends when they visited [HI] at the hostel.
Ms Cara Thomas, manager at the [aged care facility] advised on 17 March 2008 that there were some serious problems with [HH] who is the appointed guardian for [HI] at Christmas 2007.
10 The letter from Ms England contains the following comment:
[HI] is content in her current living arrangements, however my only concerns are that when visitors come to take [HI] out she expresses aggression on returning to the facility and increased anxiety. Episodes of this nature start to occur when out with visitors prior to coming home, then when [HI] comes home, the anxiety is also displayed in herself and the visitor as well.
11 These documents contain adverse material relating to HH. Staff at the aged care facility were “concerned” about her refusal to allow HI to attend Christmas activities and her alleged refusal to allow HI to leave the hospital with friends. Ms Thomas spoke of “serious problems” in relation to HH. Ms Cho's submission was that it was sufficient if the gravamen or substance of a matter was put to the person. There was no need, she said, for a person to be given every document prior to the hearing. The practice of the Guardianship Tribunal is to make an assessment on a case-by-case basis as to whether documentary material should be provided to the parties in advance. Mr Patch, representing HI, relied on the Appeal Panel’s decision in HJ v HK & ors [2008] NSWADTAP 75 as authority for the proposition that documents containing adverse material should always be provided in advance to the parties.
12 We agree with Ms Cho that procedural fairness does not always require disclosure of the documents themselves – it may be sufficient, depending on the circumstances, for the substance of the information that is relied on to be brought to the person’s attention: Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] Ch 388; Ansell v Wells (1982) 43 ALR 41. To the extent that the decision in HJ v HK suggests otherwise, we respectfully disagree. In KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 at [27], the Appeal Panel stated that while procedural fairness requires that at least the substance of credible, relevant or significant document be disclosed to a party whose interests are affected, there will be times when a party will need to respond to a document, for example a medical report, and cannot realistically do so unless they have access to a copy of the whole document.
13 Given the relatively general nature of the assertions in the documents, it was open to the Tribunal in the circumstances of this case to convey the substance of what was alleged to HH rather than giving her a copy of the documents. However, having reviewed the transcript we are not persuaded that the Guardianship Tribunal did convey to HH the substance of the comments in these documents. Its failure to do so constitutes a breach of procedural fairness.
14 Hearing Ms Thomas’ evidence in secret. In its reasons for decision, the Guardianship Tribunal made the following comment:
Ms Cara Thomas was telephoned by the Tribunal prior to obtaining the views of [HH], and in her absence. This was at the request of Ms Cara Thomas. The Tribunal telephoned Ms Thomas before taking the views of HH, but indicated to Ms Thomas that her views would be conveyed to HH, to ensure HH was afforded procedural fairness.
15 The transcript confirms that Ms Thomas’ evidence was taken in secret at her request. The following exchange occurred at p 2 of the transcript:
Member Sheehan: At this stage we don’t have HH with us at the moment
Karen Thomas: Okay
Member Sheehan: Because you asked for her not to be present when we phoned you.
Karen Thomas: Yes, I have to be careful with my answers if she’s present.
Member Sheehan: The dilemma we have though of course is that whatever concerns that you may have in relation to her role as a guardian, in a sense we have to convey them on natural justice principles to that person so that they can respond. So we’ve got a bit of a dilemma but if you could perhaps provide us with what your organisation’s concerns are about her role as manager and then we could perhaps put them in some form that we could put them to HH.
16 In relation to evidence in secret Ms Cho said that it is the practice of the Guardianship Tribunal to take evidence in secret if one party feels intimidated by giving evidence in front of the other party.
17 In our view, the law requires that parties be present when adverse evidence is given unless there is a compelling need for confidentiality, secrecy or speed in the making of a decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [191] per Kirby J. None of those circumstances was present in this case. The fact Ms Thomas, as the Manager of an aged care facility, felt that she had to be careful with her answers if HH was listening is an insufficient reason for allowing her evidence to be taken in secret. Regardless of whether the Guardianship Tribunal subsequently conveyed the substance of that evidence to HH, the taking of secret evidence constitutes a breach of procedural fairness in the circumstances of this case. The error which we consider that the Guardianship Tribunal made was to consider that evidence could be taken in secret as long as the substance of that evidence was subsequently disclosed to the person concerned.
18 Conveying Ms Thomas’ evidence to HH. In case we are wrong on this point, we will go on to consider whether or not the substance of Ms Thomas’ evidence that evidence was conveyed to HH during the hearing.
19 Ms Thomas gave the following evidence:
The aged care facility has “a lot of Christmas themed activities” and [HI] “wanted to attend every Christmas-themed activity that took place” and that while [HI] is aware that she is a Jehovah’s Witness and does not celebrate Christmas she said that that does not mean she can’t “enjoy” herself and “participate”
We were told in no uncertain terms by [HH] that we could not allow her to participate in any Christmas-themed activities and if that meant she was by herself in the cottage whilst every other resident went to an activity. . that’s what had to happen.
And we did have certainly disagreement about that because [HI] herself, even with her dementia really wanted to attend these recreational activities but we were forbidden to allow her to attend. [transcript p 6]
. . .
. . .she does have dementia but she’s not – she still has insight into her religious beliefs and . . .what she actually said to me was, “Yes, I believe in Jehovah and I don’t celebrate Christmas but my God is a loving God and I think he’d want me to be happy and if going to listen to the children sing makes me happy, he would want that for me.” Now I think that’s a reasonable statement but [HH] did not agree with that and we did have words over this.
20 Ms Thomas maintained that the aged care facility was “. . . very respectful of [HI’s] religion.” She said, “We don’t take her to our services and we have many different religious services here catering to many different residents.” (transcript p 9) Ms Thomas went on to tell the Guardianship Tribunal that HH’s lawyer had telephoned the aged care facility about these incidents and that she had a “somewhat heated discussion” with him [transcript p 8]. Ms Thomas concluded by saying that, “It is impossible to avoid Christmas-themed activities so should she be punished because of that?” (transcript p 10)
21 According to HH, none of Ms Thomas’ concerns or views was raised with her during the hearing. HH volunteered to the Guardianship Tribunal that she had had some conflict with Ms Thomas in relation to her religious beliefs. She said that Ms Thomas had told her that it was HI’s decision as to whether she wanted to attend Christmas themed activities. HH said that her response to that was that HI also wants to drink alcohol, but she is not permitted to do so. The Tribunal did convey the following information to HH about Ms Thomas’ evidence:
Member Sheehan: Ms Thomas has said that she understands perfectly what the religion is and what’s involved with all of those sort of things. By the same token they also have to take into account what is in the person’s best interests and we understand from Ms Thomas that she’s talked to [HI] and said, “[HI] where do you stand with this? Where do you stand with this?’ [HI] said, ‘I’m a Jehovah’s Witness and I don’t observe Christmas and I don’t observe some of the other things on the Christian calendar and that’s it. But I like the sound of carols and I enjoy carols and so I would like . . (transcript p 28)
22 At that point, HH interrupted, saying, “You see that’s not what Ms Thomas told me. She told me that she said she enjoys children singing. . .” Member Stone then clarified Ms Thomas’ evidence by saying that Ms Thomas had actually said that HI told her that her God was a loving god and if that activity made her happy . . .” HH said that she could not agree with that attitude because it is contrary to her religious beliefs. Further discussion took place about religious observance but it was never squarely put to HH that Ms Thomas regarded her views as contrary to HI’s views and, impliedly, her best interests.
23 The Guardianship Tribunal’s focus was on HH’s power, as a guardian, to make decisions about religious observance rather than on conveying the allegations and concerns Ms Thomas had expressed. The Guardianship Tribunal did not mention that the aged care facility was seriously concerned about HH’s attitude or that Ms Thomas regarded exclusion from Christmas themed activities as a punishment. Nor did the Guardianship Tribunal convey to HH Ms Thomas’ view that the aged care facility is very respectful of [HI’s] religion. In its reasons for decision the Tribunal accepted Ms Thomas’ evidence and made the following finding:
There is however no evidence that there is any impediment to [HI’s] practice of her faith, and indeed the evidence is that the facility respects the practice of different faiths.
24 HH does not agree with that conclusion but had no opportunity to address it directly. In our view, in order to comply with the rules of procedural fairness the Guardianship Tribunal needed to ensure that HH was present when Ms Thomas gave her evidence. Even if we are wrong and that was not required, the Tribunal failed to adequately convey the substance of Ms Thomas’ evidence to HH in such a way that she understood the significance of the issue for the aged care facility. Its failure to do so constituted a breach of procedural fairness.
25 In addition, Mr Patch submitted that the Tribunal had interrupted HH on numerous occasions and that by doing so it had failed to give her a reasonable opportunity to respond to the adverse material. We are not satisfied on the basis of our reading of the transcript that all the examples to which Mr Patch referred constitute an occasion on which the Guardianship Tribunal cut off HH's evidence or submissions in a way which prevented her from responding. Mr Patch’s final submission was that HH was not given an opportunity to explain in sufficient detail the depth of HI’s religious conviction and the implications of that conviction. Again, we are not persuaded that the Tribunal made such an error. If HH had wished to present evidence in chief of that kind it was her obligation to do so either in writing or orally. The Guardianship Tribunal is not obliged to invite such evidence.
Issue 2: decisions about religious observance
26 In relation to the question of whether a guardian needed to be appointed to make substitute decisions about religious observance, the Tribunal concluded that:
Section 4 of the Guardianship Act 1987 states that in making its own decision in relation to persons with a disability, the Tribunal must ensure that, “the freedom of decision and freedom of action of such persons should be restricted as little as possible”. In these circumstances, the evidence is clear that whilst [HI] is generally unable to give consents, she is aware of her religious faith and her approach to it.
Further, section 4 indicates that “such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs.”
Specifically, the Tribunal is of the view that the freedom of the person with a disability to choose how they should practice their faith should be paramount. In those circumstances, the Tribunal does not consider that it is appropriate to impose a guardianship order which could possibly result in restrictions in relation to her practice of her faith, clearly a matter involving [HI’s] own personal affairs.
In making this decision the Tribunal is also mindful of the requirement in section 4 and also section 14 of the Guardianship Act, of “preserving the person’s particular cultural and linguistic environments.”
There is however no evidence that there is any impediment to HI’s practice of her faith, and indeed the evidence is that the facility respects the practice of different faiths.
. . .
Further, it may well be that it is not in the best interests of persons with a disability, that another person determine how their faith is to be practised. . . .
Finally, the Tribunal noted at the hearing that there are particular guidelines in relation to nursing homes, which require the facility to ensure that religious beliefs are respected, and, if in the future, members of HI’s faith believe that the facility is not respecting those beliefs, there is a complaints process under those guidelines.
27 It is not clear from these passages whether the Guardianship Tribunal took the view that it had no power to make a guardianship order in relation to religious observance or whether it took the view that such a power should not be given in the circumstances of this case. We have interpreted the decision to be based on the specific circumstances of this case, rather than on a view that the Guardianship Tribunal does not have the power to make an order relating to religious observance. However, Ms Cho’s submission expressed the view that the Guardianship Tribunal has no power to make a guardianship order in relation to matters of religious observance. Consequently, in case we have misinterpreted the Guardianship Tribunal’s decision, we will address that issue.
28 Legislative framework. Section 14 of the Guardianship Act 1987 empowers the Guardianship Tribunal to make a guardianship order in respect of a person, if it is satisfied that the person is a “person in need of a guardian”. That expression is defined in s 7 of the Act to mean “a person who has a disability and who, by virtue of that fact, is totally or partially incapable of managing his or her person”. There was no dispute in this case that HI came within that definition. However, as the Guardianship Tribunal correctly pointed out, even if a person is a person “in need of guardian” the Tribunal must then exercise a broad discretionary power before making an order. Relevant factors to be taken into account before making such an order include the matters listed in s 14(2):
(a) the views (if any) of:
(b) the importance of preserving the person’s existing family relationships,
(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,
(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.
29 A guardianship order may be plenary or limited: Guardianship Act, s 16. A plenary order gives the guardian “custody” of the person and all the functions that a guardian has at law or in equity: Guardianship Act, s 21(1). Courts have found that the Guardianship Tribunal has similar powers to the Supreme Court when exercising its protective jurisdiction: K v K [2000] NSWSC 1052 per Young J at [23]. A guardian may make decisions, take action and give consent on behalf of the person but the areas in which such decisions, action and consent can be given have never been exhaustively defined: Guardianship Act, s 21C; MN v AN (1989) 16 NSWLR 525. We understand that the Guardianship Tribunal’s general practice is to make limited orders specifying the functions the guardian shall have in respect of the person under guardianship. The functions that the Guardianship Tribunal typically gives relate to accommodation (for example, where the person will live), health care, medical and dental consent and the services the person will receive. There is also an “access’ function which, if given, enables the guardian to make decisions about the people that are able to have access to the person under guardianship.
30 Guardianship Tribunal’s submissions. Ms Cho, representing the Guardianship Tribunal, submitted that there are some fundamentally personal areas of a person’s life for which a guardian cannot be appointed. Those areas include voting in an election and deciding whether a person should marry, enter into a sexual relationship or make a will. According to Ms Cho, decisions about choice of and engagement in religious activities is one of those areas. While the Guardianship Tribunal conceded that the potential functions of a guardian at common law and equity are far-ranging, they submitted that the historical sources indicate that the focus is on the physical, health and care needs of a person with a disability, not on their spiritual, cultural or personal needs. Furthermore, Ms Cho said that it was contrary to the intention and purpose of the Guardianship Act for such an order to be made. According to Ms Cho, if the parliament had intended that the Tribunal should have such a power it would have been clear on the face of the legislation. She said that was particularly the case where the common law and equity is inconclusive on the issue of whether a guardian could be appointed with such an authority.
31 One of the decisions on which Ms Cho relied was Public Guardian v The Guardianship Board [1997] 42 NSWLR 201. In that case the Supreme Court decided that no one other than the accused person could make an election under s 11A of the Mental Health (Criminal Procedure) Act 1990 to have the question of their fitness to be tried for an offence determined by a judge rather than a jury. Hodgson J held that the extent of the functions of a guardian are unclear but even if the Guardianship Act, considered on its own, could authorise the conferring of a such a function, the later and more specific provisions of s 11A of the Mental Health (Criminal Procedure) Act 1990 would prevail. The decision did not determine the question of whether the Guardianship Act could authorise a guardian to make such a decision.
32 Nature and extent of guardian’s powers. Courts have stressed that a plenary guardianship power is very broad. The Guardianship Tribunal may make any order that it considers necessary in all the circumstances to be for the benefit of the protected person: K v K [2000] NSWSC 1052; MN v AN (1989) 16 NSWLR 525. In K v K Young J said at [23] to [24]:
[24] This construction is reinforced when one sees that the prime thrust of the Guardianship Act, as indicated both by its title and otherwise, is guardianship. "Guardianship" is a wide word. The present s21(1) of the Act indicates that plenary guardianship connotes custody of the person to the exclusion of any other person, and all the functions that that guardian has at law or in equity.[23] I now turn to the major matter in this appeal, and that is the extent of power of the Tribunal. As I said earlier in summary, and I am not trying to use these words in an offensive fashion, the Tribunal is the poor man's protective court. The purpose of the Guardianship Act is to allow most of what could be done by the Supreme Court in its inherent power or otherwise in its protective jurisdiction to be done more cheaply by the Tribunal. This of itself indicates that the Tribunal must have wide powers as the Court has wide powers.
33 Parliament has not specified any particular functions or subject areas in the Guardianship Act so the fact that religious observance is not mentioned is inconsequential. In its decision the Tribunal mentioned the existence of guidelines to ensure that aged care facilities respect a person’s religious beliefs. We understand this to be a reference to the fact that, pursuant to the Aged Care Act 1997 (Cth), all residential aged care homes must be accredited in order to receive funding from the Australian Government. Accreditation is designed to ensure that residential aged care homes provide quality care and services for residents. Under the Accreditation Standards, nursing homes are obliged to comply with 44 expected outcomes. Outcome 3.8, Cultural and Spiritual Life, provides that “individual interests, customs, beliefs and cultural and ethnic backgrounds are valued and fostered”. While these outcomes help to ensure that a person’s religious beliefs are respected, their existence does not mean that those beliefs cannot be protected by other means such as the appointment of a guardian.
34 As far as we are aware, there are no Australian decisions dealing directly with the question of whether an order may be made for an adult guardian to make substitute decisions, take action or give consent in relation to the manner or extent to which a person is to observe their religious belief. Ms Johnson, counsel assisting the Tribunal, uncovered English and Canadian authorities that offer some guidance on that question. In England and Wales the High Court has inherent jurisdiction in relation to incompetent adults which is indistinguishable from the parens patriae (or wardship) jurisdiction in relation to children. In a 2005 decision exploring the limits of its inherent jurisdiction, the England and Wales High Court provided the following non-exhaustive list of the areas in which the adult guardianship power may be exercised:
a) surgical, medical and nursing treatment,
b) where a person should live, who he or she should see and the circumstances of such contact;
c) to restrain the publication of matter damaging to a vulnerable adult; and
d) consent to marriage, including forced marriages: In A Local Authority v MA [2005] EWHC 2942 (Fam) per Munby J at [44].
35 In the MA case Munby J ordered that an adult who was deaf and had a mild intellectual disability was only to travel outside the United Kingdom and/or enter into an arranged marriage if the relevant arrangements were first interpreted to her in British Sign Language and she gave her consent. Munby J also expressed the view that the court could restrain those responsible for an adult lacking capacity from entering into a contract of marriage if required to do so to protect that person’s best interests. Munby J went on to say at [45] (footnotes deleted) that:
This is far from being an exhaustive description of the potential reach of the jurisdiction. New problems will generate new demands and produce new remedies. . . . [T]he jurisdiction must evolve in accordance with social needs and social values. As has been said, the court can regulate everything that conduces to the incompetent adult’s welfare and happiness, including companionship and his domestic and social environment.
36 This view was also expressed in relation to the wardship jurisdiction involving children by Latey J in Re X (a minor) [1975] 1 All ER 697 at 699. Latey J made an order preventing the publication of a book revealing details about the private life of the father of a 14 year old girl. The girl was a ward of the court who had psychological problems. It was submitted that her psychological health would be adversely affected if she were to read the book. Latey J held that the fact that the wardship jurisdiction had never been involved in any case resembling this situation, was not determinative. His Honour said, “I can find nothing in the authorities . . .to suggest that there is any limitation on the theoretical scope of this jurisdiction; or, to put it another way, that the jurisdiction can only be invoked in the categories of cases in which it has hitherto been invoked, such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations. That list is not exhaustive. On the contrary the powers of the court in this particular jurisdiction have always been described as being of the widest nature.”
37 While the Court of Appeal reversed Latey J’s order because he had failed to consider the public interest in publication of the book, the general statement of principle was not disturbed. In Canada, La Forest J, delivering the judgment of the Supreme Court of Canada in Re Eve (1986) 31 D.L.R. (4th) 1 (S.C.C.) at [74], adopted Latey J’s comments in relation to the parens patriae jurisdiction:
The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. . .In other words the categories under which the jurisdiction can be exercised are never closed.
38 These authorities are consistent with the views expressed by judges in Australia: K v K [2000] NSWSC 1052 per Young J; MN v AN (1989) 16 NSWLR 525. While we were unable to find an instance of a court or tribunal giving a guardian power to make substitute decisions for an adult in relation to matters of religious observance, we are loathe to conclude that this is a category of decision making which could never be the subject of such decisions. There may be instances where it is necessary for the benefit or welfare of the person that such decisions are made on their behalf. It follows that, in our view, the Guardianship Tribunal has jurisdiction to make a guardianship order which would allow a guardian to make decisions, take action and give consent in relation to matters involving religious observance as long as that was considered necessary for the welfare or benefit of the person. Whether such an order should be made in this case can only be determined once the Guardianship Tribunal has re-heard the evidence and made new findings of fact. When exercising its discretion the Guardianship Tribunal must take into account the matters listed in s 14 and have regard to the principles in s 4 as well as any other matters it considers relevant.
Issue 3: decisions about blood transfusions
39 Submissions. Mr Patch, representing HI, submitted that the Guardianship Tribunal fell into error by failing to take into account the question of whether end of life issues warranted the appointment of a guardian. While he conceded that it is not always necessary to appoint a guardian to make such decisions he said that it was necessary in this case because HI is a Jehovah’s Witness with a very clearly established religious objection to blood transfusions.
40 Tribunal’s decision. In relation to the need for a guardian to make decisions about HI’s health care, the Tribunal concluded that:
In accordance with s 33A of the Guardianship Act 1987, in the absence of a formal guardian or a spouse of [HI], [HH] clearly comes within the category of “close friend” who can provide medical and dental consents. . .
Should in the future there be a need for consent to any major medications, the facility is clearly able to apply on a one-off basis to the Tribunal.
In these circumstances, there is not a continuing need for a guardianship order to be in place, for health care or medical decisions in relation to [HI]. In the best interests of [HI], the Tribunal should therefore consider the least restrictive option, as the extracts from section 4 of the Guardianship Act 1987, below, require.
41 Part 5 of the Guardianship Act relates to medical and dental treatment and applies to adults who are incapable of giving consent to the carrying out of such treatment. Depending on the circumstances, a “person responsible” or the Guardianship Tribunal may consent to medical treatment including palliative care: Guardianship Act, s 33. The objects of Part 5 are:
(b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.
(a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and
42 Consent to most kinds of medical and dental treatment can be given by the “person responsible”: s 36. If there is no guardian appointed, the person responsible is the spouse, the carer or a close friend or relative of the person, in that order: s 33A(4). All “persons responsible” whether or not they are a guardian, have the same role. Before making a decision as to whether to consent to medical treatment, the person would have to consider the views of the patient: Guardianship Act, s 40(3)(a). In the absence of an appointed guardian or a spouse or carer, HH would meet the definition of being a person responsible because she is a close friend. The “person responsible” is able to make “end of life” decisions on behalf of a patient: FI v Public Guardian [2008] NSWADT 263 at [40]-[41]. It follows that a guardianship order is not necessary for one person to consent to the withdrawal of life-sustaining treatment for another person.
43 We note that it is the Guardianship Tribunal’s experience that the vast majority of people with a decision making disability who are in an end of life situation do not have appointed guardians. The current and accepted practice is for decision making at the end of life to be carried out in a consultative fashion among medical professionals, family and friends. If there is a dispute then an application can be made to the Guardianship Tribunal for consent to the proposed treatment or for a guardian to be appointed to make those decisions.
44 We can detect no error in the Guardianship Tribunal’s reasoning or conclusion on this point. There is no need for HH to be appointed as a guardian to make decisions about medical and dental treatment in circumstances where she is, in any case, the ‘person responsible’. As the Tribunal pointed out, if there is a need for any decisions to be made that cannot be made by HH as the person responsible, then an urgent application may be made to the Guardianship Tribunal.
Orders
45 The Appeal Panel is to make “such orders as it thinks appropriate in the light of its decision” ADT Act, s 118C(1). A non-exhaustive list of the orders that the Appeal Panel may make is set out in s 118C(2). In this case, given that we have found that the Guardianship Tribunal breached procedural fairness, we make the following order:
The matter is remitted to be heard and decided again with the hearing of further evidence.
14
3