IF v IG

[2004] NSWADTAP 3

Appeal Panel - External

CITATION:	IF v IG & Ors [2004] NSWADTAP 3
PARTIES:	APPELLANT IF FIRST RESPONDENT IG SECOND RESPONDENT IH THIRD RESPONDENT Guardianship Tribunal
FILE NUMBER:	038011
HEARING DATES:	22/01/2004
SUBMISSIONS CLOSED:	01/22/2004
DATE OF DECISION:	02/13/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2001/4708
BEFORE:	Rees N - Judicial Member; Innes G - Judicial Member; Houlahan L - Member
CATCHWORDS:	Guardianship order - review - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/2880
DATE OF DECISION UNDER APPEAL:	08/28/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:
REPRESENTATION:	APPELLANT S Bell, barrister FIRST RESPONDENT S Bell, barrister SECOND RESPONDENT E Golledge, solicitor THIRD RESPONDENT E Cho, legal officer
ORDERS:	1.Set aside the decision and order of the Guardianship Tribunal made on 28 August 2003.; 2.The matter to be remitted to a differently constituted division of the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision and any additional evidence that the Guardianship Tribunal decides to consider.

1 In this case IF has appealed against a decision made by the Guardianship Tribunal on 28 August 2003 that a guardianship order concerning IH should lapse. On that date the Guardianship Tribunal also revoked the few remaining days of a two year guardianship order concerning IH which had been made on 31 August 2001.

2 The appellant, IF, and the first respondent, IG, are married. IG is the first respondent to these proceedings for technical legal reasons only which are explained at paragraph [10]. IG has supported IF in this appeal. Prior to the decision by the Guardianship Tribunal under appeal, IF was IH’s guardian and IG was the alternative guardian. IH is an adult woman who has had a relationship with IF and IG since she was a small child. Whilst IH is not the child of IF and IG, she refers to them as “Dad” and “Mum”.

3 Mr Bell of counsel represented both IF and IG in this appeal. There was no conflict between the interests of these two parties. Ms Golledge, a solicitor employed by the Intellectual Disability Rights Service, was appointed by this Tribunal, pursuant to s 71(4A) of the Administrative Decisions Tribunal Act 1997 (the ADT Act), to represent IH at the hearing of the appeal. The Guardianship Tribunal elected to be a party to the appeal in accordance with the provisions of s 67(2B) of the ADT Act. That Tribunal was represented at the hearing of the appeal by its legal officer, Ms Cho.

Background

4 IH is a 35 year old woman who lives in a group home in suburban Sydney. She has an intellectual disability, visual impairment and spastic quadriplegia. IF has been IH’s guardian for more than a decade and he has also been appointed, under the Guardianship Act 1987, as her financial manager. IG has been the alternative guardian throughout this period.

5 Since 1992 the Guardianship Tribunal has made a number of continuing, limited guardianship orders in relation to IH. Prior to 1992 IH was a State ward. The most recent guardianship order was made on 31 August 2001. On that date the Guardianship Tribunal reviewed its guardianship order made on 27 August 1998 and determined that it should make a further continuing guardianship order for a period of two years. IF was appointed as IH’s guardian and IG was appointed as the alternative guardian. The Tribunal made a limited guardianship order with the authority of the guardian being confined to matters of accommodation and the provision of major services.

6 The Guardianship Tribunal reviewed this two year guardianship order on 28 August 2003. On that date the Guardianship Tribunal determined that its earlier order should lapse and it revoked the few days remaining of the order made on 31 August 2001. IF, who asked the Guardianship Tribunal on 28 August 2003 to renew the guardianship order, has appealed to this Tribunal against the decision to allow the guardianship order to lapse.

Jurisdiction

7 Section 67A of the Guardianship Act 1987 and s 118A of the ADT Act together grant jurisdiction to an Appeal Panel of this Tribunal to hear appeals from some decisions of the Guardianship Tribunal. In this case the Guardianship Tribunal’s decision was made pursuant to s 25C(2) of the Guardianship Act 1987 which deals with reviewing existing guardianship orders that are about to expire. It was also a decision pursuant to s 14 of the Guardianship Act 1987, which sets out the circumstances in which a guardianship order may be made, for the Guardianship Tribunal had to apply that section when determining whether to renew the existing guardianship order.

8 Decisions made under sections 14 and 25C of the Guardianship Act 1987 fall within the list of decisions, set out in s 67A(1) of that Act, from which appeals may be made to this Tribunal. Section 118A of the ADT Act confers jurisdiction on the ADT to hear appeals from other decision-makers if an Act grants a right of appeal. These appeals are referred to in the statute as external appeals.

9 Section 118B of the ADT Act provides that an external appeal may be made, as of right, on any question of law and, with the leave of the Appeal Panel, on any other grounds. Once an Appeal Panel has determined the appeal it may make “such orders as it thinks appropriate in the light of its decision” (s 118C(1) ADT Act). The Appeal Panel may affirm or set aside the original decision (s 118C(2)(a) ADT Act). If the decision is set aside the Appeal Panel may remit the matter to the original-decision maker to be heard and decided again in accordance with directions from the Appeal Panel, or it may determine the matter itself (s 118C(2)(b) and (c) ADT Act).

Parties

10 Section 67(2A) of the ADT Act stipulates who are the parties to an external appeal to an Appeal Panel of this Tribunal. Those parties include the appellant and any person entitled to be a party in accordance with the ADT’s rules. Rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 provides that anyone who was a party to the proceedings before the original-decision maker, in this instance the Guardianship Tribunal, is entitled to be a party to the appeal. By virtue of the provisions of s 3F(3) of the Guardianship Act 1987, IH, as the person under guardianship, and IG, as the alternative guardian, were parties to the original proceedings before the Guardianship Tribunal. Consequently, they are parties to the appeal and have been given the title “respondent” though IG supported the appeal and IH did not oppose it.

11 The Guardianship Tribunal became a party to the appeal in accordance with the provisions of s 67(2B) of the ADT Act which provides that when there is an external appeal to this Tribunal the original decision-maker may elect to be a party to the appeal. In keeping with authority and practice the Guardianship Tribunal was not an active participant in the appeal in the sense of opposing or supporting the appeal, but Ms Cho provided us with much useful background information about this case and she helpfully referred us to authorities from other jurisdictions.

The grounds of the appeal

12 The Notice of Appeal was prepared and signed by counsel for IF. The question of law identified in that Notice was “want of procedural fairness”. In addition IF sought to appeal on other grounds and stated in the Notice of Appeal that “the decision of the tribunal appealed against was not in the best interests of [IH]”.

13 At the hearing of the appeal Mr Bell sought leave to amend the Notice of Appeal to add an additional ground of appeal on a question of law. That ground was that “the Guardianship Tribunal misdirected itself as to the meaning of s 14 of the Guardianship Act 1987”. As the other parties to the appeal were not prejudiced by this late amendment, and because this new appeal ground effectively encapsulated the major substance of Mr Bell’s written submissions which had been served some time prior to the hearing of the appeal, leave was granted to add this new ground of appeal.

14 As a result of our conclusions concerning this new ground of appeal it has been unnecessary to consider the original appeal ground on a question of law which was “want of procedural fairness”. Mr Bell’s written submissions make it clear that IF does not claim that the Guardianship Tribunal did not afford him a fair hearing. What was claimed was that the Guardianship Tribunal pre-judged the issue of whether a guardianship order should have been made for IH on 28 August 2003. This pre-judgment was said to arise from the view which the Guardianship Tribunal took of the meaning of s 14 of the Guardianship Act 1987. The challenge to the Guardianship Tribunal’s interpretation of s 14 of the Guardianship Act 1987 was the appeal ground added at the hearing and it is the proper way to characterise IF’s ground of appeal on a question of law. We propose to regard the “want of procedural fairness” appeal ground as having been effectively abandoned.

The Guardianship Tribunal’s decision

15 The reasons which the Guardianship Tribunal gave for its decision not to renew the guardianship order for IH were brief. After listing the people who had attended the hearing and the documents which it had considered, the Guardianship Tribunal stated under the heading, ‘The Evidence and the Tribunal’s Reasoning’:

[IH] is a 34 year old woman who is reported to suffer from an intellectual disability, visual impairment and spastic quadriplegia. She has lived at the [suburban Sydney] Group Home for more than 15 years now. During most of that time [IH] has been under a guardianship order. Her guardians have been her parents, [IF] and [IG].

The most recent guardianship order was made on 31 August 2001 and provided for the guardians to make decisions on behalf of [IH] in relation to both accommodation and the provision of services.

At the review hearing on 28 August 2003 the Tribunal was told that [IH’s] medical condition has remained stable. [IH] attends day placements during each day from Monday to Friday of each week, and continues to be very active socially. [IH] told the Tribunal that her favourite day placement is at Caringbah.

Significantly [IH’s] accommodation remains unchanged, and there is no current plan or imminent likelihood of any change in relation to accommodation.

In the circumstances the Tribunal determined that the current guardianship order should be allowed to lapse. At the same time the Tribunal recognises the important role that both [IF] and [IG] have played, and will continue to play in [IH’s] life as her parents, advocates and “persons responsible”. Of course [IF] remains as [IH’s] formally appointed private financial manager.

In the event that there is some future dispute or change of circumstances which requires the appointment of a formal guardian, an appropriate application can be made to the Tribunal by any person concerned with [IH’s] welfare.

16 This was the full extent of the Guardianship Tribunal’s reasons for its decision to allow the guardianship order to lapse. Those reasons contain no references to relevant provisions in the Guardianship Act 1987 and nor do they disclose which statutory criteria the Guardianship Tribunal took into account when determining whether to renew the guardianship order or to permit it to lapse. As we explain in more detail below at paragraph [20], s 14 of the Guardianship Act 1987 governed the decision which the Guardianship Tribunal was required to make in this case.

17 Whilst the Guardianship Tribunal did not make specific reference to s 14 of the Guardianship Act1987, it is apparent from reading the transcript of the hearing that this was the statutory provision which the Guardianship Tribunal was purporting to apply. On at least two occasions during the hearing the Presiding Member of the Guardianship Tribunal explained his understanding of the relevant provisions in the Guardianship Act 1987. The Presiding Member directed the following comments to IF, the appellant:

Under our legislation, what we look at on a review, or even an initial application, is the whole question of need and if there is no current need we can’t really make an order about a possible future need, and even if something does come up – and that’s what we need to explore – would there be any difficulty in exercising that substitute decision-maker role as a parent or as a guardian without having the formal imprimatur of an order. [Transcript p 6]

18 Later, in response to a question from IF concerning the circumstances in which a guardianship order may be made, the Presiding Member stated:

Because our Act says that we can only make a guardianship order where there is a clear current need…[Transcript p 11]

19 In this case the Guardianship Tribunal was obliged by s 25(2)(b) of the Guardianship Act 1987 to review the guardianship order concerning IH because the order made on 31 August 2001 was about to expire. Section 25C(2) of the Guardianship Act 1987 sets out the powers of the Guardianship Tribunal when undertaking such a review. It states:

On reviewing a guardianship order under section 25(2)(b) the Tribunal may:

(a) renew, or renew and vary the order, or

(b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect).

20 There is no provision in the Guardianship Act 1987 which expressly stipulates the matters which the Guardianship Tribunal is to take into account when performing its review function under s 25(2)(b), and when determining which of its powers in s 25C(2) should be exercised. By implication the matters which must be considered are those set out in s 14. That section describes the circumstances in which the Guardianship Tribunal may make a guardianship order. Section 14 states:

(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.

(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:

(a) the views (if any) of:

(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has the care of the person

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.

21 Section 14 is the first section in Division 3 of Part 3 of the Guardianship Act 1987 which deals with the making of guardianship orders. Later sections in Division 3 deal with matters such as the sort of guardianship orders which may be made (s 16), the identity of people who may be appointed as guardians (s 17), the duration of guardianship orders (s 18) and the authority of guardians (s 21). None of those later sections are directly relevant to the matters to be determined in this appeal.

22 The expression a “person in need of a guardian”, which is used in s 14(1), is defined in s 3 of the Guardianship Act 1987 to mean “a person who, because of a disability, is totally or partially incapable of managing his or her person”. In s 3(2) of that Act , a “person who has a disability” is defined in the following terms:

In this Act, a reference to a person who has a disability is a reference to a person:

(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

23 We were informed by Ms Cho that to the best of her knowledge s 14 of the Guardianship Act 1987 has not been the subject of judicial interpretation. Whilst Ms Cho referred us to decisions from Victoria and South Australia concerning similar provisions in guardianship legislation in those States, they were of limited assistance because of the different language used in those Acts.

24 The Guardianship Tribunal must undertake a two-step process when exercising its powers under s 14 of the Guardianship Act 1987 to make, or to decline to make, a guardianship order. First, the Guardianship Tribunal must satisfy itself whether the person in respect of whom an application is made, or whose guardianship order is being reviewed, is a “person in need of a guardian”. As we have already noted, that expression is defined in s 3 of the Guardianship Act 1987. In order to determine whether a person is a “person in need of a guardian” the Guardianship Tribunal must consider two things: (1) whether the person has a disability and (2) whether because of that disability the person is totally or partially incapable of managing his or her person. The determination of whether a person has a disability is governed by s 3(2) of the Guardianship Act 1987. The person must satisfy one or more of paragraphs (a) to (d) of s 3(2) and, by virtue of that fact (e.g. being a person who is intellectually disabled), be restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

25 If the Guardianship Tribunal is satisfied that a person meets the statutory definition of “a person in need of a guardian” it must undertake the second step in the process of determining whether to appoint a guardian. If the Guardianship Tribunal is not satisfied that a person meets the statutory definition of a “person in need of a guardian” there is no point in undertaking the second step in the process for the Tribunal cannot make a guardianship order in those circumstances. Thus, a finding by the Guardianship Tribunal that a person is a “person in need of a guardian” is a pre-condition to engaging in the second step in the process.

26 When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words “shall have regard to” in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact.

27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision.

28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987.

29 As we have already observed, the second step in the process of applying s 14 involves the Guardianship Tribunal exercising a discretionary power whether to make a guardianship order. It does not have to make a guardianship order even though it is satisfied that a person is a “person in need of a guardian”. The use of that expression to describe a person for whom a guardianship order may be made, or a person who is eligible for a guardianship order is unfortunate for the use of the word “need” conveys the impression that a guardianship order should and will be made. But that is not the intention of the statute. Clearly, many people will satisfy the first step in the process by being found to be a person who falls within the definition of a “person in need of a guardian”, but they will not have a guardian appointed because the Guardianship Tribunal, after considering all of the matters set out in s 14(2) (and any other relevant considerations), quite properly determines in the exercise of its discretion not to make a guardianship order.

30 The difficulty occasioned by the drafter’s choice of the expression a “person in need of a guardian” to mean a person for whom a guardianship order may be made is compounded by the language used in s 14(2)(d). That paragraph, which refers to a matter which the Guardianship Tribunal must consider before exercising its discretion, also refers to need. It directs the Guardianship Tribunal to consider “the practicability of services being provided to the person without the need for the making of such an order”. In other words, one of the matters which the Guardianship Tribunal is required to consider after having found a person to be a “person in need of a guardian”, but before exercising its discretion, is whether the person actually needs a guardian because that person may be able to receive all necessary services without a guardian.

31 The language used in s 14 appears to have made the Guardianship Tribunal’s complex task more difficult than it need be. That language may generate confusion amongst people who are parties to hearings for in many cases there will be no debate that the person in respect of whom the hearing is being held is a “person in need of a guardian”. In such circumstances relatives and friends of the person who is a “person in need of a guardian” may expect that a guardianship order should and will be made. But, as the foregoing analysis of s 14 demonstrates, that it not what the statute says. Having found a person to be a “person in need of a guardian” the Guardianship Tribunal must then exercise a broad discretionary power before a guardianship order may be made.

32 In its reasons for decision in this case, reproduced at paragraph [15] above, the Guardianship Tribunal did not say anything about the manner in which it had interpreted and applied s 14 of the Guardianship Act 1987. In the absence of such statements in the reasons for decisions, it is reasonable to regard the comments made by the Presiding Member during the hearing, which have been quoted at paragraphs [17] and [18] above, as indications of how the Guardianship Tribunal interpreted that part of the Guardianship Act 1987 that it was required to consider when reviewing IH’s guardianship order.

33 In both of the quoted statements the Presiding Member said that the Guardianship Tribunal could not make a guardianship order unless it was satisfied that there was a “current need”. It is not entirely clear whether the Presiding Member was referring to what we have described as the first step in the process – determining whether IH was a “person in need of a guardian” – or whether he was referring to the second step and, in particular, to one of the considerations which the Guardianship Tribunal was required to take into account when exercising its discretion whether to renew the guardianship order. The obvious discretionary consideration is the direction to the Guardianship Tribunal in s 14(2)(d) of the Guardianship Act 1987 to consider whether IH could receive appropriate services without the need for a guardianship order. When the two statements are read in context we believe that the Presiding Member was referring to s 14(2)(d).

34 There are two reasons why the Presiding Member’s statements were wrong. First, the practicability of the relevant person receiving appropriate services without a guardian, thereby obviating the need for a guardianship order, is simply one of a number of matters for the Guardianship Tribunal to take into account when exercising its discretion. There is nothing in s 14, or in the Act as a whole, which gives this matter controlling force. As we have observed, there is no hierarchy or weighting of the discretionary considerations set out in s 14(2). The practicability of IH receiving the services she required without a guardian was one of a number of matters which the Guardianship Tribunal was required to consider when exercising its discretionary power. Ultimately, this matter, when balanced with all of the other relevant considerations, may have led the Guardianship Tribunal to conclude that the guardianship order should not be renewed, but the Guardianship Tribunal was not permitted to proceed on the basis that if there was no current need it was precluded from making a guardianship order.

35 Secondly, the assertion that a person’s need for a guardian must be current was incorrect. The Presiding Member stated that “if there is no current need we can’t really make an order about a possible future need”. This statement appears to suggest that the Guardianship Tribunal is precluded from making a guardianship order if there is no evidence of a need for a guardian at the time of the hearing. That is not what s 14(2)(d) of the Guardianship Act 1987 says. That paragraph refers to the practicability of the person concerned receiving the services he/she requires without a guardian. The immediacy of difficulties or challenges associated with the person concerned receiving required services without a guardian is clearly of relevance when the Guardianship Tribunal is considering evidence which touches upon s 14(2)(d). The more current or immediate the likelihood of the person concerned not receiving the required services without a guardian, the more likely it is that the Guardianship Tribunal will attach little weight to s 14(2)(d).

36 If, however, the evidence suggests that the person concerned can receive the services he/she requires currently, and in the foreseeable future, without a guardian the Guardianship Tribunal is entitled to attribute great weight to s 14(2)(d) of the Guardianship Act 1987. In a particular case such evidence may cause the Guardianship Tribunal to decline to make a guardianship order even though evidence which is of relevance to other statutory considerations, such as s 14(2)(a) which deals the views of the person concerned and those of his/her family members and carers, supports the making of a guardianship order. If the Guardianship Tribunal has undertaken a balancing exercise in such circumstances then it will have acted in compliance with its statutory obligations.

37 For the reasons given we are satisfied that the Guardianship Tribunal misdirected itself as to the meaning of s 14 of the Guardianship Act 1987. Its decision not to renew IH’s guardianship order, and its order that the few remaining days of the guardianship order made on 31 August 2001 be revoked, must be set aside.

38 Mr Bell urged the Appeal Panel to grant leave to appeal on the merits of the case and determine whether IH’s guardianship order should renewed. We declined to do so and now state our reasons for this decision.

39 We believe that this matter should be remitted to the Guardianship Tribunal to be heard and determined again in accordance with these reasons for decision. Whilst it would have been quicker and productive of less expense for the Appeal Panel to have determined whether IH’s guardianship order should be renewed, we believe that these important considerations are outweighed by those which support remitting the matter to the Guardianship Tribunal.

40 We were informed by both Mr Bell and Ms Golledge that further evidence may be required because of some planned changes to the administration of the group home where IH resides. That evidence was not available to the Appeal Panel and, as it appears to require expert evaluation, it is best considered by the Guardianship Tribunal. This evidence may have some bearing on the difficult balancing exercise which needs to be undertaken in this case.

41 It appears that there was no debate between all of the parties to the appeal that IH satisfies the statutory definition of a “person in need of a guardian”. Thus, the Guardianship Tribunal may exercise its discretionary power to renew the guardianship order after considering the matters in s 14(2) of the Guardianship Act 1987 and any other relevant considerations. There is evidence of relevance to s 14(2)(a) of the Guardianship Act 1987, for both IF and IG want the guardianship order to be renewed. At the very least, IH does not oppose the renewal of the guardianship order. This evidence may be of relevance to s 14(2)(b) also, for whilst IF and IG are not IH’s biological parents, she calls them “Dad” and “Mum”. It appears that IF and IG are of the opinion that the status of guardian gives them an enhanced capacity to advocate effectively for IH because they are not her biological parents. This matter appears to merit investigation by the Guardianship Tribunal.

42 Finally, there is evidence of relevance to s 14(2)(d). At the time of the Guardianship Tribunal hearing it appeared that IH was receiving her required services without the need for a guardian. Further evidence will be necessary to determine whether that is still likely to be the case. Once all of these matters are canvassed it will then be necessary to undertake a balancing exercise and determine whether IH’s guardianship order should be renewed. That exercise is best undertaken, in this case, by the Guardianship Tribunal.

43 We believe that the matter should be heard afresh by a differently constituted panel of the Guardianship Tribunal. In making this order we intend no criticism of the members who comprised the Guardianship Tribunal on 28 August 2003. As we have concluded that the Guardianship Tribunal did not properly exercise its discretion whether to renew IH’s guardianship order because the Tribunal misdirected itself as to the meaning of s 14 of the Guardianship Act 1987, we believe that confidence in the fairness of the process will be enhanced if a differently constituted panel of the Guardianship Tribunal re-hears this case.

Decision and orders

44 The decision of the Appeal Panel is that the appeal is allowed. We make the following orders:

1. Set aside the decision and order of the Guardianship Tribunal made on 28 August 2003.

2. The matter to be remitted to a differently constituted panel of the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision and any additional evidence that the Guardianship Tribunal decides to consider.