In the Matter of AB
[2018] ACAT 18
•28 February 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF AB (Appeal) [2018] ACAT 18
AA 35/2017
Catchwords: APPEAL – guardianship – appeal from decision reviewing and confirming the appointment of the Public Trustee and Guardian as guardian and manager for a protected person– hearing of appeal conducted as a review of all of the original decision – interim application to provide fresh evidence that post-dated the original hearing refused – appointment of Public Trustee and Guardian as guardian and manager for protected person confirmed – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 60, 79, 80, 82
Guardianship and Management of Property Act 1991 ss 4, 5A, 6, 9, 10, 11, 19
Human Rights Act 2004 ss 11, 12, 30
Mental Health Act 2015
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Rules (2009) (No. 2) r 21
Cases cited:B&T Constructions (ACT) Pty Ltd v Construction Occupations
Registrar and the Owners – Units Plan 3324 [2013] ACTSC 219
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Felle & Commissioner for Social Housing in the ACT [2012] ACAT 82Fox v Percy (2003) 214 CLR 118
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
House v R (1936) 55 CLR 499
Hussain v Farhmand [2017] ACAT 107
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Murray v Figge (1974) 4 ALR 612
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Paper cited: “Roles in Protective Management of Person and Property”, Justice Geoff Lindsay, Probate and Protective List Judge, Equity Division of the NSW Supreme Court, 8 December 2017
Tribunal: Presidential Member E Symons
Member Dr R Davies
Date of Orders: 28 February 2018
Date of reasons for decision: 28 February 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 35/2017
IN THE MATTER OF AB
TRIBUNAL:Presidential Member E Symons
Member Dr R Davies
DATE: 28 February 2018
ORDER
The Tribunal orders that:
The order made by the Tribunal on 6 September 2017 in GT 2/2017 confirming the appointment of the Public Trustee and Guardian as guardian and manager for the protected person is confirmed.
The appeal is dismissed.
………………………………..
Presidential Member E Symons
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
This is an appeal (the appeal) from the decision of the Tribunal (GT 2/2017) (the Original Tribunal) made on 6 September 2017[1] after reviewing the orders made by the tribunal (the first Tribunal) on 18 April 2017 appointing the Public Trustee and Guardian (PTG) as guardian and manager for the protected person, AB (AB) pursuant to the Guardianship and Management of Property Act 1991 (the GMP Act). The Original Tribunal confirmed the orders made by the first Tribunal on 18 April 2017.
[1] As set out in reasons for decision dated 6 September 2017
The appeal was lodged by AC (the appellant or AC), the father of AB, on 28 September 2017. AC was a party to the original application. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) AC has standing to bring this appeal.[2] An amended application for appeal was lodged on 17 November 2017.
[2] Section 79(3) ACAT Act - A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law
The tribunal hearing the appeal is referred to in these reasons as the Appeal Tribunal. References to Tribunal or tribunal in these reasons refer to the ACT Civil and Administrative Tribunal generally.
The reasons below explain why the appeal has been dismissed. Overall AC did not establish that the Original Tribunal had made errors of fact or law that were sufficient to set aside its decision on appeal.
The reasons below will proceed as follows. Firstly, the background to the decision of the Original Tribunal is set out in [6] and [7]. Secondly, the background to the appeal is set out in [8] to [14]. Thirdly, the Appeal Tribunal’s consideration of AC’s interim application to provide further evidence is recounted in [15] to [40]. Fourthly, the principles relevant to appeals are set out in [41] and [42]; Fifthly, AC’s grounds of appeal are set out in [43] and [44]. Sixthly, the documents containing the appellant’s submissions are considered in [45] to [61]. Seventhly, the PTG’s submissions are identified in [62] and the documents and submissions that formed the subject matter of the appeal are identified in [63] followed by the Appeal Tribunal’s consideration of the appeal (from [64]).
Background
The background to the Original Tribunal’s decision, which is the subject of this appeal, is set out in the Original Tribunal’s reasons for decision dated 6 September 2017. The Appeal Tribunal sets out, below, from the Original Tribunal’s reasons for decision, the background to the first decision dated 18 April 2017 and the background to the review of that decision:
Background to the guardianship and management order dated 18 April 2017
3. The current order was made in unusual circumstances.
4. AB was born in 1984. At the time of the review hearing he was 32 years old. Since May 2016, he has been receiving treatment at the Adult Mental Health Unit (AMHU) at the Canberra Hospital. In November 2016, the Tribunal made a Psychiatric Treatment Order (PTO) in relation to him for a period of six months.
5. On 4 January 2017, AC lodged with the Tribunal Registry an application for an order under the Guardianship and Management of Property Act 1991 (GMP Act) appointing him as the plenary guardian for AB. He subsequently advised the Tribunal Registry that he was withdrawing that application.
6. On 16 March 2017, AC lodged a new application seeking to be appointed as guardian and manager. Included in that application (and the previous application) was the following statement:
Because [AB] does not have a guardianship,(sic) our involvement in [AB’s] treatment is seen by some treating psychiatrists as illegal, unwelcome and a breach of privacy.
On many occasions, the treating doctors urge us to apply for a guardianship so that they can welcome us as a legal partners in pursuing of helping [AB] finding a lasting cure for his illness. (Errors in original)
7. On 24 March 2017, a social worker at the AMHU lodged an application for appointment of the PTG as guardian and manager for AB. That application included the following statements:
[AB] has a diagnosis of chronic schizophrenia and was assessed and found having impaired decision-making ability in respect of health, welfare and financial matters. He was supported by parents until now in these areas.
...
[AB] has been in AMHU since May 2016, receiving treatment for his diagnosed mental condition. Treating team have organised an expert opinion on his case and would like to plan for discharge. [AB] doesn’t have capacity to make decision on matters related discharge destination, NDIS support, community supports, financial and welfare matters. Treating would like a guardian and financial manager appointed for [AB] to make decisions on these matters, to facilitate discharge planning and subsequently transition him back to community. (Errors in original)
8. On 12 April 2017, one doctor signed a review report prepared by another treating doctor recommending to the Tribunal that an additional PTO be made.
9. At the hearing on 18 April 2017, the original Tribunal had before it the recommendation for an additional PTO and the two applications for the appointment of a guardian and manager in relation to AB: one by AC, and the other by the social worker. AC provided the original Tribunal with a detailed written statement in relation to why (in his submission) AB needs a guardian and manager, and why AC is the most suitable person to be appointed as the guardian and manager. The original Tribunal heard from AC and AB’s mother, AB’s brother, two treating psychiatrists, the social worker, and the Public Advocate. The PTG was not represented at that hearing, which went for more than two hours.
10. On that day, the original Tribunal made two types of orders in relation to AB:
(a)a PTO for six months from that date; and
(b)an order appointing the PTG as guardian and manager for AB to be reviewed not later than 18 April 2020.
Background to the application for review of the orders dated 18 April 2017
11. On 11 May 2017, AC lodged an application for appeal against the guardianship and management order. He asked that the order appointing the PTG be set aside and that either AC or his wife be appointed as guardian and manager, or that they be appointed jointly as guardian and manager. He attached detailed typed documents in support of the application.
12. Following the making of procedural orders on 31 May 2017, a differently constituted Tribunal (the appeal Tribunal[3]) presided at a hearing on 17 July 2017. AC and his wife were present. Their other son participated by telephone. The PTG was represented. The social worker who applied for the appointment of the PTG as guardian and manager was not present. The appeal Tribunal[4] did not proceed because of evidentiary issues and because the original applicant had not been advised of the hearing.
13. After some discussion with the parties, the appeal Tribunal directed that:
(a)the hearing of the appeal be adjourned to a date to be fixed and be subject to any further order of the Tribunal; and
(b)there be a hearing in relation to whether the order appointing the PTG as the guardian and manager should be varied or should be revoked (the review hearing).
As a consequence of this approach, other issues that would otherwise have been dealt with on appeal (e.g. in relation to the original Tribunal’s conduct of the hearing) no longer arise.
14. Having decided that the matters in issue be dealt with by the review process rather than the appeal process, the appeal Tribunal made procedural directions for the review hearing to occur on 7 August 2017.
[3] The 17 July 2017 appeal Tribunal
[4] The 17 July 2017 appeal Tribunal
At the review hearing on 7 August 2017 an officer of the PTG appeared for the PTG. AC and AB’s mother appeared. AB’s brother appeared by telephone. A consultant psychiatrist at AMHU, and a social worker at AMHU also appeared at the hearing. The Original Tribunal’s decision (refer [1] above) was published on 6 September 2017.
Background to AC’s application to appeal orders made on 6 September 2017
On 28 September 2017 AC filed the application for Appeal and a one page summary of the reasons for appealing. In the application AC sought orders:
To set aside the order by the review Tribunal dated 6 September 2017; to appoint (AC) and (AB)’s mother individually or jointly as Manager and Guardian for their son, AB.
On 16 October 2017 the Tribunal made orders providing, inter alia, that:
(a)AC file with the Tribunal a document entitled ‘Amended Grounds of Appeal’ setting out the questions of fact or law to be raised on the appeal, and
(b)AC file an interim or other orders application seeking leave to introduce fresh or further evidence on appeal, attaching a copy of such fresh or further evidence, by 20 November 2017.
On 17 November 2017 AC filed a document, comprising 15 pages, entitled ‘Amended Grounds for Appealing Tribunal Decision’ in which he set out the errors he submitted the Original Tribunal had made and what he was seeking to achieve from the appeal. The errors the appellant alleges the Original Tribunal made are set out in [43] of this decision. The appellant seeks to set aside the orders appointing the PTG guardian and manager for AB and seeks orders appointing AC and/or AB’s mother jointly or individually as guardian and manager for AB.
On 19 November 2017 AC filed an interim or other orders application (the interim application) seeking leave to introduce “additional evidence which have been gathered and documented after the Tribunal order was issued on 06 September 2017.”
At a further directions hearing on 4 December 2017 Presidential Member Daniel set the appeal down for hearing and made orders in relation to the filing of final submissions.
In compliance with the orders dated 4 December 2017 the appellant filed final written submissions comprising 46 pages in support of his appeal in December 2017.
The appeal was heard on 15 January 2018. The appellant attended the hearing and made submissions. He was accompanied by his daughter, AB’s sister. By prior arrangement with the tribunal AB’s brother, who lives interstate, listened to the hearing on the telephone. AB’s mother was present with AB’s brother and also listened to the hearing on the telephone. Two officers from the PTG’s office attended the hearing and made submissions. At the conclusion of the hearing the Appeal Tribunal reserved its decision. This is the Appeal Tribunal’s decision.
The interim application seeking leave to introduce additional evidence
The Appeal Tribunal heard and determined the interim application at the commencement of the hearing on 15 January 2018. At the conclusion of hearing the interim application, and for the reasons that are set out below, the Appeal Tribunal ordered that the interim application be dismissed.
Section 60(1)(b) of the ACT Civil and Administrative Tribunal Act2008 (ACAT Act) permits a party to ask for a statement of reasons within 14 days after the day the order is made. On 16 January 2018 the appellant requested that the Appeal Tribunal provide written reasons for the making of the order. These are the Appeal Tribunal’s written reasons for making the order dismissing the application for interim or other orders.
AC identified the additional evidence which he sought leave to introduce at the appeal hearing in the attachment to the interim application as:
(a)AB has been accommodated with and cared for by his parents since his discharge on 24 August 2017;
(b)AB’s parents facilitated AB’s engagement with the Transition to Recovery (TRec) program;
(c)AB’s parents sought the engagement of the ACT Disability, Aged and Carer Advocacy Service (ADACAS) to support AB in decision making process;
(d)AB’s parents continue to liaise with the PTG; and
(e)AB’s parents continue to liaise with the Phillip Mental Health Team (PMHT).
AC acknowledged that all of the above additional evidence related to events that occurred after the hearing on 7 August 2017 and therefore, was not available to be put to the Original Tribunal at the review hearing on 7 August 2017.
Legislation
The ACAT Act does not set out the powers of the Appeal Tribunal. Part 7 of the ACT Civil and Administrative Tribunal Procedures Rules 2009 (No 2) (the Rules) provides procedural guidance around the conduct of appeals. Rule 21 sets out the general powers of the appeal tribunal. Rule 21 provides:
Appeals to tribunal – general powers
For the appeal to the tribunal, the tribunal –
(a)Has all the powers and duties of the tribunal that made the order appealed from; and
(b)May draw inferences of fact; and
(c)May receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d)May make an order confirming, amending or setting aside the order of the tribunal appealed from; and
(e)May make any other order it considers appropriate.
Consideration of interim application
In an unpublished decision of the tribunal on 31 May 2017, which was subsequently appealed and heard by Presidential Member McCarthy[5], President Neate referred to the tribunal appeals’ process and the rules. In his decision Presidential Member McCarthy set out the following statement by President Neate in the decision on 31 May 2017. This statement is relevant for considering the interim application:
It is not uncommon for an unsuccessful party to proceedings in a court or a tribunal to feel aggrieved, particularly if the reasons for decision suggest or state that their evidence was not believed and the evidence of one or more other persons was believed. That is why judicial and quasi-judicial systems provide an appeals process.
However, the appeals process is not open-ended. It is understandable that rules apply to regulate it otherwise there would be no end to litigation and no certainty in the outcome of any particular case.
[5] Hussain v Farhmand [2017] ACAT 107 at [5]
For a review pursuant to section 82(b) of the ACAT Act[6] the Appeal Tribunal relies on the evidence given to the Original Tribunal, supplemented by any additional evidence which the parties are given leave to adduce. In the High Court decision of Fox v Percy[7] the majority (Gleeson CJ, Gummow and Kirby JJ) said in relation to appeals conducted as a rehearing or review and the admission of fresh evidence:
The rehearing does not involve a completely fresh hearing by the appellate court of all the evidence. The court proceeds on the basis of the record and any fresh evidence that, exceptionally[8], it admits.
[6] Section 82(b) of the ACAT Act – “An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal— (b) as a review of all or part of the original decision on the application by the tribunal.”
[7] (2003) 214 CLR 118
[8] Appeal Tribunal underlining
While rule 21(c) of the Rules gives the Appeal Tribunal power to receive further evidence about questions of fact, the issue for the Appeal Tribunal when conducting a review pursuant to section 82(b) of the ACAT Act is whether leave should be granted to the appellant so that he can provide further evidence about questions of fact which did not exist at the date of the hearing.
In an earlier appeal tribunal decision from ex parte orders, Felle & Commissioner for Social Housing in the ACT[9] (Felle) that tribunal allowed the appellant’s request to bring evidence about questions of fact that existed at the date of the original decision but refused the appellant’s request to bring evidence of new circumstances which rose after the date of the original decision. That tribunal said:
Pursuant to Rule 21(c) of the Rules, the Tribunal permitted the appellant to provide evidence about questions of fact that existed at 10 July 2012 and as at 18 August 2012 for each appeal. The Tribunal did not accede to the appellant’s request to permit the appellant in a review, to bring evidence of new circumstances after the date of the original decision. To do so would make the original hearing pointless and would prevent a proper consideration of whether a question of fact or law arose in the circumstances as they were at the time of the decision appealed from was made.
[9] [2012] ACAT 82 at [27]
The appellant and AB’s brother appeared to genuinely believe that, as the appellant had complied with Direction 4 made on 16 October 2017[10] and filed an application for interim or other orders seeking leave to produce the further evidence, it would be a formality that in considering the interim application the Appeal Tribunal would make the orders the appellant sought. The Appeal Tribunal said at the hearing “the fact that you’re complying with an order is that you’re following the process that President Daniel afforded you but it certainly cannot be read from the transcript of the hearing, or the proceedings before her, that she had said that the evidence would be accepted by the appeal tribunal.”[11] The appellant and AB’s brother did not appear to understand that there was a process which included a hearing and, given the nature of the interim application, that hearing required the Appeal Tribunal to consider whether or not to exercise the discretion in rule 21(c).
[10] “4. The appellant is to file an interim or other orders application seeking leave to introduce fresh or further evidence on appeal, attaching a copy of such fresh or further evidence, by 20 November 2017.”
[11] Transcript of proceedings 15 January 2018 page 27, lines 27-30
The fact is that, as the appellant readily conceded, the interim application stated “additional evidence gathered and documented after the Tribunal order was issued on 06 September 2017” and all of the further evidence he relied on related to events or facts which had occurred after the date of the original hearing and hence could not have been considered by the Original Tribunal or influenced its decision.
Presidential Member Daniel clearly explained to AC the process to be followed in seeking to provide further evidence at the appeal hearing. The Appeal Tribunal took the appellant to the following statements made by Presidential Member Daniel during the directions hearing on 16 October 2017:
… So we won’t necessarily take in, on hearing the appeal, evidence of things that have happened after the hearing. The reason why is because this hearing is about the correctness of what happened in the decision of 6 September 2017 … Stuff that has happened afterwards is not necessarily going to demonstrate whether that decision is right or wrong, whether there’s an error of fact or law in that decision.
So the mechanism for you to ask for fresh information, or fresh evidence, to go before this appeal tribunal will be for you to file an interim orders application, asking for leave for fresh or further evidence to be heard on the appeal, and you must attach to that the evidence you want to rely on.[12]
…… you can anticipate the tribunal will say: why is any of this relevant to showing whether or not the tribunal made a mistake of fact or law in the hearing it did that resulted in the decision on 6 September, you see? Because this is stuff that’s happened after the event. How will any of that logically show that a mistake was made by the original tribunal? That is the question you will be asked, ultimately. I’m telling you what you have to do in terms of the process to ask the tribunal to put in the fresh evidence, but there will be a mini-hearing about that fresh evidence, probably, and you will be asked, “But why should the tribunal open up the gate again and accept more evidence?[13]
[12] Transcript of proceedings 16 October 2017 page 9, lines 16 - 17
[13] Transcript of proceedings 16 October 2017 page 11, lines 17 - 26
Therefore, the Appeal Tribunal is satisfied and finds that there was no representation to AC that in following the process his interim application would be successful. As the Appeal Tribunal said to the appellant at the hearing – all hearings have an element of risk.
The Appeal Tribunal considered the interim application.
AC explained that the reason why he wanted to introduce this evidence (in [17] above) was that, he submitted, paragraph 190 of the reasons for decision summarised the key reasons why AC was found to be unsuitable for appointment as guardian and manager for AB and then, in that paragraph, used words which showed to him that the Original Tribunal was not only basing its decision on what had happened during the period from 18 April 2017 to 7 August 2017 but also basing it on what might happen in the future. He described this as ‘a prediction’. The words AC identified in [190] as evidence of this are highlighted below:
In summary, we find that AC has a difficult and at times dysfunctional relationship with members of the treating team. Some of his actions in relation to the treating team (although presumably well motivated) appear to conflict with, and are likely to conflict with, and hence operate to the detriment of AB’s interests. …
AC submitted to the Appeal Tribunal:
This is prediction. All right so this is the futuristic things. So I am not only judged on past events but they judged on future which I believe is error. You know, you should judge on facts, not on future.[14]
[14] Transcript of proceedings 15 January 2018 p.9, lines 33-36
AC then submitted that he had gathered this evidence after the hearing on 7 August 2017:
… to prove that the claims by the treating team and believed and predicted by the tribunal are invalid. We used the future evidence to invalidate past allegations. We have to wait for the future to invalidate the claims which happened in the past.[15]
[15] Transcript of proceedings 15 January 2018 page 10 lines, 24-28
AC told the Appeal Tribunal that he was disappointed that “the original tribunal only believed the treating team” and “sided with the treating team.”[16] He explained that the fact that a treating doctor had, since the decision, agreed to AB being cared for by his parents (see [17] above) was black and white evidence contradicting evidence by that treating doctor at the hearing on 18 April 2017, that:
… if AB was staying with family, not agreeing with the medication and we can’t have confidence that the medication would be given as per the plan, you know, the recommendations that we would give.[17]
[16] Transcript of proceedings 15 January 2018 page 10, lines 19-21
[17] Transcript of proceedings 18 April 2017 page 13, lines 19-21 and referred to by AC in appendix 1A, page 7 of attachment (1) to application for interim orders
This evidence is not relevant as the Appeal Tribunal is not reviewing the decision of 18 April 2017; it is reviewing the decision dated 6 September 2017. In any event this evidence relates to an event which occurred after the hearing on 7 August 2017.
While acknowledging that these events postdated the hearing AC submitted that his and his wife’s engagement of TRec and ADACAS for AB (refer [17] above) also challenged the claims of the treating team in their report dated 22 June 2017 and referred to in [37(b)] of the reasons for decision that
The family have been “fixated on medication, disregarding other bio psychosocial aspects of care that could promote and hasten AB’s recovery”.[18]
[18] Appendix 1D, page 7 of Attachment (1) to Application for interim Orders.
In relation to providing additional evidence concerning the PTG’s appointment as Guardian and Manager AC contended that the evidence would show the PTG had been ineffective as their performance in liaising with AB’s family had not so far contributed in adding value for the support and care for AB. He relied on the following examples of the PTG’s ineffectiveness: (i) delay in the submission of the NDIS application; (ii) lack of response when seeking consent for AB to join TRec; (iii) not attending the PTO hearing on 12 October 2017; (iv) inadequate financial management, and (v) lack of care and support.
The Appeal Tribunal notes that AC agitated (i) and (v) of these claims in the previous paragraph before the Original Tribunal on 7 August 2017 and they were considered by that tribunal. The appellant now seeks leave to produce evidence updating those issues by providing evidence of events that have occurred after 7 August 2017. The other matters and AB’s parents’ liaison with the Philip Mental Health Team clearly occurred after that hearing.
Conclusion - interim application
As the tribunal stated in Felle (above) to permit the appellant to provide this new evidence in an appeal hearing being conducted as a review pursuant to section 82(b) of the ACAT Act would make the original hearing pointless. This evidence was not and could not have been before the Original Tribunal. AC did not make an application after the decision was reserved and before it was published seeking to re-open the hearing and to provide so much of this new evidence as then existed.[19]
[19] Murray v Figge (1974) 4 ALR 612, 613 – There is no doubt that a court has power to re-open a case after a hearing has concluded but before judgment is delivered so that new or additional evidence can be admitted
The Appeal Tribunal determined that this evidence would not assist it in considering whether there was a question of fact or law in the reasons for decision that was handed down by the Original Tribunal on 6 September 2017.
For these reasons the Appeal Tribunal exercised its discretion in rule 21(c) of the Rules and dismissed the appellant’s application for interim or other orders.
However, given the nature of the further evidence AC had sought leave to produce at the hearing of the appeal, the Appeal Tribunal said to the appellant that this new evidence may assist him in seeking a review pursuant to section 19 of the Guardianship and Management of Property Act 1991 (GMP Act) of the current orders appointing the PTG guardian and manager for AB. The Appeal Tribunal asked the appellant if he wanted to seek such a review and in that review rely on the further evidence. The appellant informed the Appeal Tribunal that he wished to proceed with the appeal.
The appeal
Principles relevant to appeals
The principles relevant to appeals in the tribunal have been set out in a number of appeal decisions by differently constituted tribunals. In the most recent appeal decision of Excel Intelligent Pty Ltd v Thomson[20] dated 15 January 2018 that tribunal set out the role of an Appeal Tribunal conducting a review of the decision of an Original Tribunal and the relevant legal principles. It stated (omitting citations):
[20][2018] ACAT 4
The role of an appeal Tribunal
46. … it is appropriate to set out the role of an Appeal Tribunal in relation to the review of the decision of the Original Tribunal, and the legal principles that guide this Appeal Tribunal.47. First, section 79(3) of the ACAT Act provides that a party to an original application may, by application, appeal the decision to the Tribunal “on a question of fact or law.” Although the distinction between a question of fact and a question of law is significant, a satisfactory test of universal application has not been formulated.
48. As differently constituted Tribunals have observed in previous cases, an appellant does not have standing to appeal as of right and is required to identify question of fact or law. The appellant cannot merely request the re-exercise of a discretion. The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that were so there would be no point in the original hearing.
49. The reasons for the present appeal are set out in the application for appeal and are quoted at [12][21]. It appears from the way they are worded, those reasons identify what are most accurately described as questions of fact.
[21] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
50. Second, in Giusida Pty Limited v Commissioner for ACT Revenue (Giusida), Refshauge ACJ considered the principles on which the Tribunal on appeal should act. His Honour repeated his observations in an earlier judgement that an appeal under section 82(a) of the ACAT Act is what is usually called a “hearing de novo” and an appeal under section 82(b) is what is usually called a “rehearing”. In the earlier judgment, his Honour also observed that the Tribunal had held that, on a review under section 82(b), the Appeal Tribunal may receive additional evidence. Although there is no express power to that effect in the ACAT Act, Rule 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) does so provide.
51. In the subsequent case of B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324, Burns J heard an appeal which was dealt with as a review of the original decision of the Tribunal. His Honour described the nature of the appeal based on the fact that all relevant evidence was received by the Tribunal, and no question of the credibility of the witnesses called in the Tribunal arose. The appeal before him largely concerned issues of statutory interpretation, and the parties approached the appeal as a rehearing rather than a hearing de novo.
52. Burns J noted that the nature of a rehearing is well known. He quoted the following passage from the judgment of the majority of the High Court in Fox v Percy:
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. ...
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgement which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derived from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (Citations omitted)
53. Burns J cited and quoted from other judgments about the nature of a rehearing. The following propositions can be drawn from those judgments:
(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below(or an original tribunal).
(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d) The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).
(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.
54. In Giusida, Refshauge J appeared to draw no distinction between the two types of appeal when he observed, in relation to the role of an appeal Tribunal, that: the very structure of the ACAT would suggest that what is required is a proper review of the decision at first instance before the cost to the parties of having to take the proceedings to this [Supreme] Court is required to be incurred.
55. He continued:
... careful thought and a consideration of the purpose and meaning of an internal appeal strengthens my view that a wider and general power is intended and not one which restricts the original decisions from proper scrutiny.
Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. ...A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.
Appeals from a discretionary decision
The Original Tribunal’s decision on 6 September 2017 to confirm the appointment of the PTG as guardian and manager for AB was a discretionary decision. It is well settled that discretionary decisions and judgments based on value judgments can be set aside on strictly limited grounds. The Appeal Tribunal sets out what the majority (Dixon, Evatt and McTiernan JJ) of the High Court in House v R[22] said when it identified those grounds in the following terms:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The grounds of the appeal
[22] [1936] HCA 40; (1936) 55 CLR 499
In the amended grounds for appeal the appellant identified four errors made by the Original Tribunal:
(a) Inadequate consideration and lack of evidences (sic) by the Review Tribunal in assessing the suitability of the appellant against the statutory requirements/conditions for appointment of manager.
(b) Inconclusive evidences (sic) by the Review Tribunal (Original Tribunal in this decision) in proving the appellant as not otherwise suitable for appointment as guardian and manager.
(c) Failing to test the accuracy of the evidences (sic) provided in the treating team’s reports as well as in the PTG’s report; and instead, the Review Tribunal focused on testing the evidences (sic) by the appellant.
(d) Assessing the effectiveness of the PTG as guardian and manager for AB.
The appellant did not identify whether these grounds raised questions of fact or law as required by section 79(3)[23] of the ACAT Act. The Tribunal will return to this later in these reasons for decision (in [67] to [73]).
Appellant’s submissions
[23] section 79(3) “A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.”
The appellant lodged a number of submissions in support of his appeal. In the first submission dated 28 September 2017 he listed his reasons for appealing as including, but not limited to:
(a)The Original Tribunal unfairly placed more weight on the evidence sourced from the treating team’s reports and the PTG’s report than on the evidence in the appellant’s submissions.
(b)The Original Tribunal used the appellant’s daily observations of AB, which the appellant had provided to the hearing, to assess the appellant’s suitability to be appointed as guardian and manager against the statutory criteria. In doing so it took phrases out of context, it selected negative words about the appellant and its findings were not supported by compelling reasons.
(c)The Original Tribunal accepted the evidence from the treating team irrespective of the longevity of the unpleasant side effects AB experienced and rejected the appellant’s and his family’s documented observations of these unpleasant side effects.
(d)The PTG’s liaison with AB’s family has been ineffective and not in AB’s best interest.
The appellant then lodged amended grounds of appeal in November 2017 and a 15 page submission. In this document he identified the four errors set out in [43] above.
The appellant lodged final written submissions, comprising 46 pages, in compliance with the Tribunal’s order dated 4 December 2017. He identified the same four errors as in the amended grounds of appeal.
The appellant’s final written submission focused on three areas:
(a)The identification of the statutory requirements[24] used by the Original Tribunal to assess his suitability for appointment as AB’s guardian and manager.
(b)The sources of the evidence selected by the Original Tribunal to assess his suitability for appointment as guardian against the identified statutory requirements.
(c)The errors made by the Original Tribunal in the reasons for decision dated 6 September 2017 as set out in the four grounds of appeal in [43] above.
[24] The appellant identified four statutory requirements, (1) sections 9 and 10 of the GMP Act; (2) section 5A of the GMP Act; sections 11, 12 and 30 of the HR Act and (4) section 4 of the GMP Act
It was clear to the Appeal Tribunal that the appellant strongly objected to the appointments of the PTG as AB’s Guardian and AB’s Manager. At the heart of this appeal is the appellant’s sense of injustice and unfairness that he or a family member was not appointed to these positions and an understandable desire to right what he sees as a wrong.
The appellant told the Appeal Tribunal at the hearing:
…we presented enough evidence on 7 August explaining why should we reclaim the appointment of guardian and management (sic) but all the evidence we put has been set aside.[25]
[25] Transcript of proceedings 15 January 2018 page 17, lines 12-14
There are some preliminary matters arising from the appellant’s written submissions which the Appeal Tribunal will address first.
In relation to the ground in [43] (i) above - the appellant identified sections 9 and 10 of the GMP Act as the first statutory requirement. He referred to [33] of the reasons for decision in his submission which he said stated:
At the heart of the review is a dispute as to who is the most appropriate person to be the guardian and manager of AB. To answer this question requires close consideration of the statutory provisions governing who may be appointed (as set out in sections 9 and 10 of the GMP Act), and the evidence before the review Tribunal at the date of the review hearing …
In his written submission the appellant only set out that part of [33] which is underlined above. It is important to state here that the Original Tribunal stated in [33] that its ‘close consideration’ also included “the evidence before the review Tribunal at the date of the review hearing” and set out in full sections 9 and 10 of the GMP Act. It did not only consider sections 9 and 10 of the GMP Act here as represented by the appellant.
The appellant then identified section 5A of the GMP Act as the second statutory requirement. He submitted section 5A was referenced in [138] of the reasons for decision and then stated:
‘which reads
Whether, if he were appointed as guardian and manager, AC’s interests are likely to conflict with AB’s interests to the detriment of AB’s interests.’[26]
[26] This statement is made in the reasons for decision in [65](b) under ‘Consideration of statutory criteria for guardian and manager’. Part of this statement is referred to in [79]
However, [138] is not as set out in the preceding paragraph. It commences with:
To understand the scope of that criterion, we have to consider the definition of
‘interests’ in section 5A of the GMP Act.5A What are a person’s interests?
Section 5A is then set out in full in this paragraph of the reasons for decision.
The Appeal Tribunal notes that the statutory requirements identified by the appellant in the first ground are sections 4, 5A, 9, 10 of the GMP Act and sections 11, 12 and 30 of the HR Act. It will consider them below when considering the evidence and the ‘errors’ identified by and relied upon by the appellant.
In relation to the second ground in [43](ii) above the appellant alleged that the Original Tribunal used ‘selected evidence’ to assess his suitability against the identified statutory requirements for appointment as a guardian for AB. He identified the sources of the ‘selected evidence’ as:
(a)his submission dated 19 June 2017;
(b)PTG’s submission dated 30 June 2017 including the treating teams’ report dated 22 June 2017;
(c)his response to the PTG’s submission dated 7 July 2017;
(d)his new material dated 26 July 2017;
(e)transcript of hearing dated 8 April 2017; and
(f)transcript of hearing dated 7 August 2017.
In summary, in relation to the second ground in [43](ii) above the appellant submitted:
(a)the Original Tribunal did not have evidence to support the decision that, against the statutory requirements, the appellant was not otherwise suitable to be appointed as AB’s guardian and/or manager; and/or
(b)the evidence the Original Tribunal assessed was inconclusive; and/or
(c)the Original Tribunal gave inadequate consideration to assessing the appellant’s suitability to be appointed AB’s manager.
The appellant frequently asserted at the hearing that the Original Tribunal had considered the same criteria for both the appointment for AB’s guardian and the appointment for AB’s manager and found him not otherwise suitable. He submitted that the Original Tribunal had not given adequate or proper consideration to the fact that he was AB’s father and the interests and duties of AB’s father are not likely to conflict with AB’s interests to the detriment of those interests. The Appeal Tribunal has considered this at [75] to [91] below.
The appellant submitted in relation to the third ground in [43](iii) above that the reasons for decision showed that the Original Tribunal did not test the evidence in the treating team’s reports and the PTG’s report. The reasons for decision, he submitted, showed that the Original Tribunal focussed on testing the appellant’s evidence, from the documents he had provided, by selecting and choosing words and phrases out of context.
Finally the appellant submitted in relation to the fourth ground in [43](iv) above that the Original Tribunal failed to assess the ineffectiveness of the PTG as AB’s appointed guardian and manager.
PTG’s submissions
The PTG opposed the appellant’s application for appeal and submitted that the current orders appointing it as guardian and manager for AB should remain.
Consideration
In deciding this appeal, the Appeal Tribunal has had regard to the reasons for decision of the Original Tribunal, the transcript, the evidence on which that Tribunal relied, and on the written and oral submissions of the parties at the appeal hearing.
In Steed v Minister for Immigration and Ethnic Affairs[27] their Honours Fox J, McGregor J and Morling J of the Federal Court of Australia considered an appeal from the Administrative Appeals Tribunal and said:
It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.
[27] (1981) 37 ALR 620, 621
The reasons for decision of the Original Tribunal must, therefore, deal with the substantial issues but it is not necessary for every submission or consideration to be referred to in the decision.
The Original Tribunal’s reasons for decision are set out under the following headings. The Appeal Tribunal has included the paragraphs in the reasons for decision where each subject matter has been considered by the Original Tribunal:
(a)Introduction [1] to [2];
(b)Background to the guardianship and management order dated 18 April 2017 [3] to [10];
(c)Background to the application for review of the orders dated 18 April 2017 [11] to [14];
(d)Issues [15] (a), (b), (c);
(e)Should the order dated 18 April 2017 be revoked? [16] (a), (b), (c), (d);
(f)Statutory Requirements [17];
(g)The parties’ submissions [18];
(h)Consideration and Conclusion [19] to [21];
(i)What powers should be conferred on the guardian and/or manager? [22] to [24];
(j)The current order [25] to [26];
(k)The parties’ submissions [27] o [31];
(l)Consideration and conclusion [32];
(m)If an order is appropriate, who should be the guardian and/or financial manager for AB? [33] to [34];
(n)Evidence and submissions of treating team [35] to [38];
(o)Evidence and submissions of Public Trustee and Guardian [39] to [42];
(p)Evidence and submissions of AC [43] to [64];
(q)Consideration of statutory criteria for guardian and manager [65] to [79];
(r)Relationship with carers [80] to [86];
(s)Critique by family of medical treatment provided [87] to [114];
(t)Accommodation before and after discharge from AMHU [115] to [129];
(u)Proposed application for NDIS support [130] to [136];
(v)Implications of AC’s opinions and actions for AB [137] to [146];
(w)Human rights considerations [147] to [158];
(x)Decision-making principles [159] to [173];
(y)Other observations [174] to [190]]; and
(z)Conclusions and orders [191] to [202].
Before turning to the application for appeal and the submissions it is necessary to determine whether the errors alleged by the appellant in [43] are errors of fact or errors of law or combined errors of fact and law.
Error of fact or error of law
In Kostas v HIA Insurance Services Pty Ltd[28] the High Court held that the Consumer, Trader and Tenancy Tribunal of New South Wales made a finding of fact in the absence of supporting evidence and this raised a question “with respect to a matter of law”. Further, it held that whether there was no evidence to support a factual finding itself was a question “with respect to a matter of law” (per Hayne, Heydon, Crennan and Kiefel JJ).
[28] (2010) 241 CLR 390
As stated in [42] above the principles in considering appeals against a discretionary decision are set out in House v R. For the appellant to satisfy these principles he must point to where the Original Tribunal:
(a)acted on a wrong principle;
(b)allowed extraneous or irrelevant matters to guide the decision;
(c)mistook the facts;
(d)did not take into account some material consideration; or
(e)if it is not apparent how it reached its decision, the decision on the facts was unreasonable or plainly unjust, and the Original Tribunal failed to properly exercise the discretion.
It appeared from the appellant’s identified errors and his written and oral submissions that he was claiming that the Original Tribunal’s reasons did not take into account a material consideration, namely his evidence in the form of his numerous emails, and this raised a question of law as the finding that he was otherwise unsuitable for the appointments as AB’s guardian and manager was unsafe and invalid. He also claimed that the Original Tribunal failed to consider his suitability against the statutory criteria for appointment as manager and this was an error of law.
It also appeared that the appellant was claiming that the Original Tribunal interpreted the facts incorrectly, which raises a question of fact.
It was clear from the appellant’s three written submissions and his oral submissions that he seeks to have the original decision revoked and for he and AB’s mother to be appointed individually or jointly guardian and manager for AB.
The Appeal Tribunal has considered, therefore, as the appeal is from a discretionary decision whether the Original Tribunal has made an error of law and/or an error fact as alleged in any of the appellant’s four grounds.
The First Ground - Inadequate consideration and lack of evidence by the Review Tribunal (Original Tribunal in this decision) in assessing the suitability of the appellant against the statutory requirements/conditions for appointment of manager.
The appellant submitted that the Original Tribunal’s assessment of the appellant’s suitability for guardian and manager largely focused on how the appellant would meet the statutory requirements from a guardianship point of view and not from a management point of view as it focused on the nature of the relationship between the appellant and the treating team describing it as dysfunctional.
The appellant alleged there was little or no assessment by the Original Tribunal of his suitability to be appointed manager for AB. He referred the Appeal Tribunal to [146] and [190] of the reasons for decision as examples of the Original Tribunal focusing on guardianship and the relationship between the appellant and the treating team while not mentioning financial management. [146] states:
However, there is evidence that AC’s repeated interventions with the treating team impede and interfere with a treatment program designed to reduce AB’s symptoms of chronic schizophrenia and to promote his overall health and well-being. Consequently, we are satisfied for the purposes of section 10(4)(g) of the GMP Act that AC’s actions (although presumably well motivated) appear to conflict with, and are likely to conflict with, and operate to the detriment of, AB’s interests.
[190] states:
In summary, we find that AC has a difficult and at times dysfunctional relationship with members of the treating team. Some of his actions in relation to the treating team (although presumably well motivated) appear to conflict with, and are likely to conflict with, and hence operate to the detriment of, AB’s interests. We are not satisfied that, if he were appointed as AB’s guardian, AC would follow fully the decision-making principles set out in the GMP Act so far as they involve consultation with the treatment team as AB’s carer. Accordingly, we have concluded that, although he satisfies most of the statutory conditions for appointment as guardian and manager for AB, AC is not at this time “otherwise suitable” for that appointment.
Consideration
An appointment as a guardian and as a manager owes its existence and authority to legislation, in this case, the GMP Act. Part 2 of the GMP Act refers specifically to guardians and managers. Division 2.1 sets out the appointments and powers for both guardians and managers. This Division includes section 7 ‘Appointment and powers of guardians’, section 8 ‘Appointment and powers of managers’, section 9 ‘Who may be appointed’ in which subsections (2), (3) and (5) specifically refer to appointment as a manager, section 10 ‘Considerations appointing Guardian and Manager’ and section 11 ‘Powers given to a guardian and manager are to be least restrictive’.
The Original Tribunal identified in [33] of the reasons for decision that the heart of the review was a dispute as to who is the most appropriate person to be AB’s guardian and manager. It said:
to answer this question requires close consideration of the statutory provisions governing who may be appointed (as set out in sections 9 and 10 of the GMP Act) and the evidence before the review Tribunal.
The Original Tribunal then set out in the reasons for decision the statutory provisions governing who may be appointed guardian and manager for AB in sections 9 and 10 of the GMP Act and the decision-making principles in section 4 of the GMP Act in [34] of the reasons for decision. It is clear from reading [34] that the Original Tribunal was cognisant of AC’s claims and desire to be appointed AB’s guardian and manager when it stated:
Section 10(3) states that someone other than the PTG may be appointed as guardian and manager only if the Tribunal is satisfied that the person will follow the “decision-making principles” and is otherwise suitable for appointment. The decision-making principles are set out in detail in section 4 of the GMP Act. That section is quoted later in these reasons for decision in the discussion about whether AC is, as he stated, capable of following and adhering to the decision-making principles (see [159] to [173]).
The Original Tribunal set out in some detail the evidence and submissions of the treating team in [35] to [38], of the PTG in [39] to [42] and of AC in [43] to [62] and stated at [83(b)] that AC sought to refute all imputations against him. It also set out AC’s submissions as to why he considered the appointment of the PTG as guardian and manager unnecessary in [63] and [64].
At [65](a) of the reasons for decision the Original Tribunal identified that it needed to consider in some detail the statutory criteria. [65](a) stated:
65. In order to deal comprehensively with the submissions of AC, the treating team and the PTG, it is appropriate to consider in some detail:
(a) the statutory criteria for the appointment of a guardian and manager (quoted at [33]) including the statutory prohibition on the appointment of the PTG where an individual who is “otherwise suitable for appointment” has consented to be appointed (section 9(4), (5));
(b) whether, if he were appointed as guardian or manager, AC’s interests are likely to conflict with AB’s interests to the detriment of AB’s interests;
(c) human rights considerations;
(d) the operation of the decision-making principles in the circumstances of this case.
The Original Tribunal considered section 10(2) of the GMP Act and stated at [66] of the reasons for decision “There is no issue that AB’s father satisfies those criteria.” It then stated in relation to sections 10(3) and 10(4) of the GMP Act:
69. Section 10(3) provides that someone (other than the PTG) “may” be appointed as a guardian or manager “only if” the Tribunal is satisfied that:
(a)the person will follow the decision-making principles (set out in section 4 of the GMP Act); and
(b) is “otherwise suitable for appointment” (section 10(3)).
70. The key criterion in relation to an individual is that they are “otherwise suitable” for appointment (section 9(4), (5), section 10(3)). When deciding whether a person is “otherwise suitable”, the Tribunal must take into account the factors listed in section 10(4).
71. Although the Tribunal “must take into account” those listed matters, they can affect, but need not determine, whether a particular person is suitable for appointment as a guardian or manager.
72. In many instances it will be obvious that an individual will follow the decision-making principles and is “otherwise suitable” for appointment.
73. The Tribunal must consider closely the matters listed in the GMP Act and may consider other matters, if the suitability for appointment of an individual is contested. The present proceeding is such a case.
74. As noted earlier, the review Tribunal accepts that AC:
(a) has consented in writing to be appointed as AB’s guardian and manager (section 9(4), (5));
(b) is an adult (section 10(2));
(c) has informed the Tribunal on oath that he:
(i) has not been convicted or found guilty of an offence involving violence, fraud or dishonesty;
(ii) has not been removed from office as a guardian manager; or
(iii) is not bankrupt or personally insolvent (section 10(2));
75. We are also satisfied that AC:
(a) is compatible with AB (section 10(4)(c));
(b) lives in the ACT (section 10(4)(d));
(c) will be available and accessible to AB (section 10(4)(e)); and
(d) is competent to exercise the functions of a guardian and manager (section 10(4)(f)).
76. The review Tribunal also notes the evidence of a close and continuing relationship between AB and his parents, and takes into account the desirability of preserving the existing relationship with AB’s family (section 10(4)(b)).
77. The review Tribunal is not aware of the views and wishes of AB in relation to the appointment of a guardian or manager, or who should be appointed as a guardian or manager (section 10(4)(a)). As noted earlier, he has had little or no verbal communication with others in recent months. The Tribunal was advised that AB was told about the review hearing. However, he did not attend. At the review hearing AC and his wife, a treating doctor and the PTG’s officer were unable to say what his views and wishes are.
78. The question for the review Tribunal is whether, despite the findings that AC meets those statutory criteria, he is “otherwise suitable” for appointment as the guardian and manager for AB. To answer that question it is necessary to consider AC’s relationship with the treating team.
79. Later in these reasons we consider whether the interests and duties of AC are or are not likely to conflict with the interests of AB to the detriment of AB’s interests (section 10(4)(g), (5)).
The appellant submitted that the Original Tribunal erred in finding AC not “otherwise suitable”, pursuant to section 10(3) of the GMP Act when assessing the evidence against section 10(4) of the GMP Act and, in particular, erred in its consideration of the criteria in sections 10(4)(a), (b) and (g).
Sections 10(3), 10(4)(a), (b) and (g) of the GMP Act provide:
10. (3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(4) For subsection (3), the matters the ACAT must take into account include—
(a) the views and wishes of the person (the protected person ) for whom a guardian or manager is to be appointed; and
(b) the desirability of preserving existing relationships with family and any other carers; and
…
(g) whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person's interests to the detriment of the protected person's interests.
The Original Tribunal initially referred to section 10(3) of the GMP Act in [69] to [73] before considering the evidence and submissions from [85] to [136] and in [163]. The Appeal Tribunal will consider the appellant’s submissions that the Original Tribunal erred in finding that he was not ‘otherwise suitable’ for appointment as guardian and manager later in this decision when considering the second ground of appeal.
The Original Tribunal set out its consideration of AB’s views and wishes as required by section 10(4)(a) in [77] of the reasons for decision.
The appellant submitted that the Original Tribunal erred in relying only on what had been said during the hearing on 7 August 2017 regarding AB’s views and wishes and by not taking into consideration the other evidence of AB’s views and wishes which was before the Original Tribunal. The appellant said this other evidence was in the report from two treating doctors dated 22 June 2017 which stated “on the very few occasions AB had expressed any view, he had deferred to his father” and in the evidence which the appellant had provided to the Original Tribunal[29] on 19 June 2017 which contained the statement of what AB had said on 4 January 2017 in front of the team leader at AMHU:
AB expressed verbally his refusal when asked, in the presence of (named) team leader, if he wanted to attend the program. AB added that, when the time comes for my discharge from the AMHU, I have my family to look after me if needed. My family has been the best supporter and carer for me for many years including the last seven months in the hospital.
[29] In section 3L of appendix (B) of the appellant’s submissions to the Tribunal dated 19 June 2017
The appellant submitted that these statements were direct evidence of AB’s wishes. The fact that he had clearly stated in January 2017 that his family had been his best supporter and carer and would look after him on discharge and further, that the treating team had stated in its report of 22 June 2017 that AB had deferred to AC, meant that AB expressed his wishes to AC and it was not correct to find, as the Original Tribunal did in [77], “At the review hearing AC and his wife, a treating doctor and the PTG’s officer were unable to say what his [AB’s] views and wishes are.”
AC submitted that the Original Tribunal erred in making this finding without giving any or any proper consideration to the documents before it and to the documents he had provided.
AB’s views and wishes were canvassed at the hearing. The transcript shows that the President asked AC “Do you have any idea at all what AB thinks about this matter?” and AC replied “Yes. That’s a very good question, Mr President. AB, when he was – and as I told you, Mr President for three months, AB did not even talk to us.”[30]
[30] Transcript 7 August 2017 page 11 lines 24-28
The following exchange then took place:
President: all I’m really trying to find out is whether anybody who’s been able to in recent times get any sense of AB’s views and wishes about whether a guardian or manager should be appointed.
AC: … even when we talk to AB, you know, we told AB ‘Look because you’re not talking to us about this, look, now there’s somebody else looking after your affair. Why can’t you talk? I mean we are your parents. You know? We look after you.’ And what he does, he put his head down like this. …[31]
…
President: …Well, whatever might be behind that, it seems clear to me from what the doctor said and what you said that ---
AC:Yes.
President: …neither of you have any clear understanding of AB’s wishes, and in fairness, I should ask the PTG’s representative if you have anything to add on that point
PTG:No. We have been unable to have any communication with AB.[32]
[31] Transcript of proceedings 7 August 2017 page 12, lines 9 – 11, lines 17-21
[32] Transcript of proceedings 7 August 2017 page 12, lines 30-40
The Appeal Tribunal is satisfied that [77][33] of the reasons for decision accurately reflects the evidence before the Original Tribunal at the hearing on 7 August 2017. AC was present at that hearing; he participated in the above exchange and would have heard the President’s statement, as set out above, “neither of you [AC and the member of the treating team at the hearing] have any clear understanding of AB’s wishes.” AC had the opportunity to bring the evidence in the treating doctor’s report and the statement set out in [86] above to the President’s attention. The Appeal Tribunal asked the appellant at the hearing if he had taken the President to the contents of that particular email which he had provided to the tribunal on 19 June 2017.[34] The appellant replied “It’s up to them whether they read it or not”.[35] The appellant should have brought this information to the Original Tribunal’s attention at the hearing if he believed that it should have been given the weight he now alleged should have been given to it. He did not do so and cannot now complain that insufficient weight was attached to that evidence.
[33] [77] – “The review Tribunal is not aware of the views and wishes of AB in relation to the appointment of a guardian and manager, or who should be appointed as a guardian or manager (section 10(4)(a)). As noted earlier, he has had little or no verbal communication with others in recent months. The Tribunal was advised that AB was told about the review hearing. However, he did not attend. At the review hearing AC and his wife, a treating doctor and the PTG’s officer were unable to say what his views and wishes are.”
[34] Transcript of proceedings15 January 2018 page 48 lines 33-34
[35] Transcript of proceedings 15 January 2018 page 49, line 28
The Appeal Tribunal is satisfied that the Original Tribunal’s consideration of section 10(4)(a) of the GMP Act in relation to the appointment of manager was proper. The most current evidence of AB’s views and wishes was, appropriately, sought at the hearing before the Original Tribunal. Its finding as to AB’s views and wishes in [77] was clearly available to it on the evidence.
In relation to section 10(4)(b) the Original Tribunal stated that it was required to take into account both the desirability of preserving existing relationships with AB’s family (in [76]) and existing relationships with any other carers (in [78] of the reasons for decision).
The appellant acknowledged that the Original Tribunal had noted in [76] “… the evidence of a close and continuing relationship between AB and his parents, and takes into account the desirability of preserving the existing relationship with AB’s family (section 10(4)(b)).”
In [80] of the reasons for decision the Original Tribunal set out section 6 of the GMP Act which provided the ‘meaning of carer’. The Original Tribunal correctly identified in [78] of the reasons for decision that when considering the statutory criteria in section 10(4)(b) of the GMP Act it was necessary to consider the appellant’s relationship with the treating team who had been caring for AB, otherwise than because of a commercial arrangement, since 20 May 2016 at AMHU [36] and for the foreseeable future, at least to some degree, will be providing ongoing care and assistance to AB.[37]
[36] In [81] of the reasons for decision
[37] In [82] of the reasons for decision
The Original Tribunal considered sections 10(4)(g) and 5A GMP Act in [137] to [146] of the reasons for decision. The Appeal Tribunal will return to this later in these reasons for decision (refer [122] to [133].)
The Original Tribunal then considered sections 11, 12 and 30 of the HR Act and the Mental Health Act2015 which was relevant as AB was the subject of a PTO in [147] to [158] of the reasons for decision. The Original Tribunal considered the decision–making principles in section 4 of the GMP Act.
For these reasons the Appeal Tribunal is satisfied that the Original Tribunal’s process of reasoning set out in the reasons for decision demonstrated that it carefully considered the relevant statutory criteria in determining whether the appellant or the PTG, should be appointed not only as AB’s Guardian but also as AB’s Manager. The Original Tribunal’s decision was properly tied to the terms of the legislation, the GMP.
For these reasons, the Appeal Tribunal is not satisfied that the Original Tribunal erred in assessing the suitability of the appellant against the statutory requirements for appointment of a guardian and/or a manager. The first ground of appeal is not successful.
The Second Ground – Inconclusive evidences (sic) by the Review Tribunal (Original Tribunal in this decision) in proving the appellant as not otherwise suitable for appointment as guardian and manager.
The appellant submitted in relation to the second ground:
(a)the Original Tribunal’s order was the result of the summarised conclusion in [190] of the reasons for decision, namely:
In summary, we find that AC has a difficult and at times dysfunctional relationship with members of the treating team. Some of his actions in relation to the treating team (although presumably well motivated) appear to conflict with, and are likely to conflict with, and hence operate to the detriment of, AB’s interests. We are not satisfied that, if he were appointed as AB’s guardian, AC would follow fully the decision-making principles set out in the GMP Act so far as they involve consultation with the treatment team as AB’s carer. Accordingly, we have concluded that, although he satisfies most of the statutory conditions for appointment as guardian and manager for AB, AC is not at this time “otherwise suitable” for that appointment.
and
(b)as a result, the Original Tribunal’s assessment that he was ‘not otherwise suitable’ to be appointed both guardian and manager for AB was invalid. He alleged that that assessment was invalid “because the interests and duties of AB’s father are not likely to conflict with AB’s interests to the detriment of AB’s interests”[38] and because there was no evidence before the Original Tribunal to dispute that the appellant’s interests and duties were likely to conflict with AB’s interests.
[38] Page 4 appellant’s response
The appellant submitted that the Original Tribunal erred in finding in [190] of the reasons for decision that “AC has a difficult and at times dysfunctional relationship with members of the treating team.” He expressed this ground as follows (including his emphasis):
To conclude that the relationship is dysfunctional between the appellant and members of the treating team, is considered by AB’s family, and in particular, the appellant as invalid.
This invalidity is due to the fact that the Review Tribunal (Original Tribunal in the appeal decision) relied on evidences that are inconclusive, as they are either incomplete, non-contextual, negatively presented and/or nonfactual as proved below … [39]
[39] Page 23 appellant’s submissions filed in December 2017
The appellant submitted that this finding was wrong because [190] of the reasons for decision singled out the appellant as the cause of having a difficult and dysfunctional relationship with the treating team without adequate consideration of the following evidence which showed that the treating team’s actions largely contributed to the difficulty in the relationship with AB’s family and AC:
1. The written evidences provided by the appellant in his submission dated 19 June 2017. In his written submission, the appellant refuted the treating team’s claims as causing stalemate between AB’s family and the treating team;
2. The treating teams unacceptable behaviour to AB’s family and in particular towards the appellant as the case when they introduced new rule in December 2016 preventing AB’s family from visiting AB in his room while AB was immobile for 23 days;
3. The treating teams refusal to take into consideration the daily observations of AB provided by the appellant, which resulted in AB being assaulted and injected several times in AMHU and in Sydney; such unpleasant events could have been easily avoided if daily observations have been seriously considered by the treating team; and
4. The statement in the PTO, dated 7 November 2016, to limit and restrict communication between AB and the family – which was never justified, and the Review Tribunal never considered the impact this had on the relationship between all parties concerned.[40]
[40] Appellants submissions filed December 2017 pages 8-9
The appellant further submitted that the Original Tribunal did not:
5. Take into account a very successful and viable relationship with the first treating team (from May 2016 to October 2016);
6. Recognize that the guardianship/manager responsibility is separate to the PTO and that roles of guardianship/manager will endure beyond the relationship that exists between the treating team and the appellant – whether it is dysfunctional or not, particularly after AB’s discharge from AMHU;
7. (Consider) the fact that a functional relationship between the appellant and the treating team is desired but not mandatory for appointing the appellant as guardian and manager. That is not to say that the appellant caused the dysfunctional relationship to the treating team claimed. On the contrary, sufficient evidences have been submitted to prove that the cause of the ‘dysfunctional’ relationship is due to the treating team and not the appellant.[41]
[41] Appellants submissions filed December 2017 page 9
The appellant then set out eighteen paragraphs of the original decision[42] in which the Original Tribunal considered the appellant’s emails which were in evidence before it. He submitted the Original Tribunal has presented these emails in a negative way as evidenced by the selection of negative words chosen without contextualizing the circumstances surrounding each email and without stating the facts and reasons which triggered the writing of each email.[43]
[42] [88], [89], [90], [91], [93], [95], [96], [97], [98], [99], [101], [102], [103], [106], [109], [110], [111] and [113]
[43] Pages 24 – 36 and 37-39 appellants submissions filed in December 2017
The Appeal Tribunal has considered the emails and the context of these emails as provided by the appellant in his written submissions. In doing so it has considered, appropriately, the whole of the Original’s Tribunal’s reasoning and not simply focused on [190] of the reasons for decision.
The Original Tribunal stated at [83]:
83.As noted earlier:
(a) the treating team contended that, for various reasons, members of the AB’s family are not in a position to act in AB’s best interests, and the team does not support the appointment of AC as guardian and manager (see [38]); and
(b) AC sought to refute all imputations against him (see [46]-[61]).
84.It is appropriate, indeed necessary, to look at examples of the correspondence between AC and the treating team and other medical professionals, including the Chief Psychiatrist of the ACT, to test his refutations, particularly in relation to:
(a) the treatment provided to AB at the AMHU;
(b) where AB might live before he is discharged from the AMHU (including overnight visits) and after his discharge; and
(c) applications for support for AB as part of the NDIS.
At [85] the Original Tribunal stated:
…we are concerned to assess:
(a)The accuracy of some of AC’s responses to what he perceived as allegations made against AB’s family (and him in particular); and
(b)The relationship between the treatment team and AB’s family (particularly AC)
as factors relevant to deciding whether, by reference to the criteria set out in the GMP Act, AC is “otherwise suitable” for appointment as the guardian and manager of AB in place of the PTG.
The Appeal Tribunal is satisfied that the Original Tribunal considered the appellant’s emails under the heading ‘Critique by family of the medical treatment provided’ in [87] to [114] and under ‘Accommodation before and after discharge from the AMHU’ in [117] to [129] and under ‘Proposed application for NDIS support’ in [131] to [133].
As the Appeal Tribunal observed at the hearing, the appellant selected parts of paragraphs in the reasons for decision and isolated other paragraphs from the body of the reasons for decision to support his submissions to the Appeal Tribunal that the Original Tribunal had erred. One example of this is that the appellant referred only to the last two sentences of [88] (underlined below) as evidence that the Original Tribunal erred in assessing the appellant’s suitability for the appointment as AB’s guardian and manager. The Original Tribunal referred to the appellant’s email of 19 December 2016 and said in [88]:
On 19 December 2016, AC provided a brief background to AB’s mental illness since the age of 16, including periods of hospitalisation and the administration of antipsychotic medications. He referred to his “tens and tens of emails” sent to a previous doctor (but apparently never acknowledged by him) “seeking to work together as a team to help [AB] recover painlessly and quickly.” He noted that, in May 2016, AB had been diagnosed with a Catatonia condition (which caused him to suffer immobility, mutism and loss of appetite) on top of his bipolar/schizophrenia. AB was admitted to the AMHU on 20 May 2016 and experienced a “productive” relationship with the treating team of that time which was characterised as involving a “cooperative approach rather than confrontationist” and was respectful, inclusive, motivational, inspiring, accommodating, tolerating and compassionate. That relationship continued until 21 October 2016. The relationship with the second set of members of the treating team was described as “unproductive” and the approach was described as “confrontationist rather than cooperative,” and characterised by “disengagement” with the family when it came to formulating or adjusting the treatment plan, a “devaluing” of the family’s written daily observations of AB, and a “reward and punishment approach” to try to change AB’s behaviour. Among other things, AC sought the replacement of the consultant treating psychiatrist because she was “pursuing a confrontationist approach when dealing with [AB] and his family.” He stated that the new psychiatry consultant “must pursue” similar approaches to that used initially.
The Appeal Tribunal finds that [88] is a considered and accurate summary of this email which was included with a number of emails and other documents which the appellant provided to the tribunal on 19 June 2017. The Original Tribunal’s summary referred to the history and, thus, the context which led to the appellant writing this email. It referred to the ‘productive’ relationship with the first treating team using words such as “cooperative approach”, and “respectful, inclusive, motivational, inspiring, accommodating, tolerating and compassionate.” It also fairly set out the appellant’s description of the second treating team and the changes the appellant sought including the replacement of the consultant treating psychiatrist and the appellant’s demand that the new consultant treating psychiatrist pursue similar approaches to that used initially.
The Appeal Tribunal rejects the appellant’s assertion that the Original Tribunal did not consider the circumstances surrounding this email. The reasons for the appellant writing this email are readily discernable from the summary in [88].
The Original Tribunal described in [89] another email, this time dated 19 January 2017, from the appellant which referred to incidents at the hospital on previous days. This information was elicited from the email. The appellant submitted to the Appeal Tribunal:
So you can see that he is picking up on the negative aspect of my email or its like my frustration and he highlighted to say “Look, [AC] is the cause of all the problems. [AC] is confrontational in his approach. He is this. He is that, but I mean for a reasonable person, I mean why am I saying this? Why? I mean its not fun with your son being tortured and being in pain for so many weeks and months and months and we know from observation. I’d really like to underline observation. They’re not listening. They are not listening. He’s been tortured in Sydney. He’s been tortured here in Canberra, forcibly injected.[44]
[44] Transcript of proceedings 15 January 2018 page 56, lines 11-18
The Appeal Tribunal does not agree with the appellant that the Original Tribunal did not consider the context in which this email dated 19 January 2017 was sent or consider that the information in the email justified him sending the email. It was clear from reading [87] of the reasons for decision that the Original Tribunal found that the appellant’s correspondence between 19 December 2016 and 24 July 2017 illustrated “in detail the nature of the disagreement of AB’s family and the treatment team concerning the medication being administered from time to time by the treatment team and, less frequently, other aspects of the treatment program.” The Appeal Tribunal also does not accept the appellant’s submission that the Original Tribunal should have found that the content of the email was justified. The Original Tribunal was stating the nature of the appellant’s concerns which the appellant had, himself, summarised in the last two paragraphs of his email.
The Original Tribunal described in [90] a series of strong criticisms by the appellant of the treatment team and of the treatment administered to AB in the appellant’s email dated 31 January 2017. The Appeal Tribunal’s summary fairly described the appellant’s criticisms in that email. The appellant had variously stated in this email that:
·AB was forcibly taken to HDU and unjustifiably injected;
·A named treating doctor succeeded in placing a PTO order on AB;
·From the day two named treating doctors took over, they declared war on us and described our influence over AB as poisonous;
·AB unjustifiably injected twice; and
·Named treating doctor stopped (medication) when it was working without convincing medical ground.
The Appeal Tribunal is satisfied that the Original Tribunal considered the whole of this email. It rejects the appellant’s submission that the Original Tribunal erred in not contextualizing the circumstances leading to the appellant sending this email.
The appellant again submitted that the Original Tribunal had erred in only considering aspects of his email dated 6 February 2017 to the Chief Psychiatrist and others in [91] and [92] of the reasons for decision. The Appeal Tribunal has considered the appellants submission[45] in which he stated that he was setting out “the facts and reasons which triggered the writing of that email.” This part of the email included the following statements:
It is clear that (Named doctor) was malicious in her administration of medication and failed to neither read AB’s medical history nor heed that pleads(sic) of AB’s family (verbally and in writing) to avoid inducing a known (symptom). This is medical negligence at best. In hindsight, it is clear that (doctor) was more interested in finding legal ways to exclude AB’s family from consultation, whom she unjustifiably and contemptuously described as ‘toxic to AB’. (Named doctor) tried many tricks, including punishing AB severely, and abruptly withdrawing permission for AB to take leave at short notice, sometimes minutes before AB’s family arrived to hospital to take him in leave in our own lunch breaks. Cancellation of leave was never communicated to AB’s family, and never justified.
[45] Page 26 appellant’s submissions filed in December 2017
The Appeal Tribunal is satisfied that the Original Tribunal fairly summarised the salient and relevant components of this email in [91] and [92]. The appellant’s submission does not assist him to establish that the Original Tribunal erred in not contextualising the circumstances which led to him sending that email.
The Appeal Tribunal does not propose to detail each of the appellant’s submissions in relation to all eighteen emails. The Appeal Tribunal has considered all of the emails and the submissions. The appellant conceded at the hearing of the appeal that his submissions in relation to these emails continued to allege that the words in the reasons for decision selected from his emails ‘are negative words, designed to present him in a negative way, taken out of context and ignore the facts and reasons which prompted AC to send the emails’. The reality is that the appellant was the author of the words used by the Original Tribunal about which he complains. These words came from his emails. They were confrontational words. The emails provided compelling evidence for the Original Tribunal making its findings in [187], [189] and [190] of the reasons for decision.
At the hearing the appellant continued to refer to AB being tortured[46] by the treating team. He rejected being described as ‘confrontational’ in continuing to use these words at the hearing. He told the Appeal Tribunal he had written these emails as a reasonable person with feeling and the Original Tribunal should have considered why he was writing these emails. He conceded the emails reflected his frustration[47] and he and his family were emotional[48] because people were not listening to them and their observations and because the treating team never put anything in writing.[49]
[46] Transcript of proceedings 15 January 2018, page 56 lines 15, 17-18
[47] Transcript of proceedings 15 January 2018 page 61, line 8
[48] Transcript of proceedings 15 January 2018 page 62, lines 32-34
[49] Transcript of proceedings 15 January 2018 page 63 lines17-19
The appellant appeared, to the Appeal Tribunal, to genuinely believe that his comments and statements in his emails were justified when the situation which triggered his writing these emails was considered. He said this was why he included the triggering incidents in his emails. He also said, as AB’s parent he was frustrated by the fact that the treating team was not listening to his observations of AB. He rejected out of hand that the content of his emails justified the Original Tribunal finding that his relationship with AB’s carers was dysfunctional.
He said to the Appeal Tribunal:
If it is your son and you are seeing no improvement on medication that, through our observation in seeing deterioration and going through injection and attack in hospital here in Canberra and in Sydney, would you write a love poem? You would not write a love poem. You would give observation with feeling. You know, we don’t want to see our son going through hell because we know, through observation, this kind of medication, especially when they go beyond his tolerable limit, it makes him worse and it did.[50]
[50] Transcript of proceedings 15 January 2018 page 53, lines 42-44; page 54, lines 1-6
The Appeal Tribunal is not satisfied that the Original Tribunal erred in the way it assessed the appellant’s emails or in the way it considered the statutory requirements in section 10(4)(b) of the GMP Act, particularly the desirability of preserving existing relationships with ‘any other carers’. The Original Tribunal’s findings of fact in [190] of the reasons for decision, including the finding that “AC has a difficult and at times dysfunctional relationship with members of the treating team”, were open to it on the evidence.
The Appeal Tribunal will now consider the appellant’s submissions in relation to section 10(4)(g) of the GMP Act.
The appellant raised the same submissions, namely inadequate consideration of the appellant’s evidence by the Original Tribunal in assessing AC’s suitability for the appointment as manager when considering section 10(4)(g). He referred to [146] in the reasons for decision and submitted that the finding that he does not meet this criteria is a clear and unequivocal focus by the Original Tribunal on assessing the relationship between the appellant and the treating team regarding the treatment program and not on assessing him regarding a financial management program. [146] states:
However, there is evidence that AC’s repeated interventions with the treating team impede and interfere with a treatment program designed to reduce AB’s symptoms of chronic schizophrenia and to promote his overall health and well-being. Consequently, we are satisfied for the purposes of section 10(4)(g) of the GMP Act that AC’s actions (although presumably well motivated) appear to conflict with, and are likely to conflict with, and operate to the detriment of, AB’s interests.
The appellant submitted that to draw the conclusion in [146] is (with the appellant’s emphasis):
Considered by AB’s family and in particular the appellant as an invalid assessment of the appellant’s suitability to gain appointment as a guardian and manager.[51]
[51] Appellant’s submissions filed December 2017 page 41
He submitted that it was an invalid assessment because the fact is that the interests and duties of AC, as AB’s father, are not likely to conflict with AB’s interests, to the detriment of AB’s interests.
The Appeal Tribunal has carefully considered the evidence that was before the Original Tribunal, the reasons for decision and the appellant’s submissions.
The Appeal Tribunal is satisfied that the Original Tribunal carefully and methodically set out and considered the evidence and submissions of the treating team, and of the PTG and of AC. At [44] of the reasons for decision it set out in summary AC’s submissions which emphasised that he meets the statutory criteria and the appointment of the PTG as guardian and manager is unnecessary. It considered AC’s detailed written statement setting out the degree to which he, his wife and AB’s two siblings have provided “unwavering daily support and care” for AB since he was diagnosed with a mental illness in 2000 and it also set out, in summary, AC’s written responses to the treating team’s claims. It also considered another document provided by AC outlining his submissions in reply to the PTG’s submissions which he received on 3 July 2017.
The Appeal Tribunal is not persuaded by the appellant that he has established that the Original Tribunal erred in fact or in law when considering section 10(4)(g) of the GMP Act and the evidence. The findings of fact in [146] were clearly open to the Original Tribunal on the evidence before it. The Original Tribunal had gone into considerable detail, earlier in the decision, in setting out the material facts and both sides’ contentions. It was clear that the Original Tribunal weighed up the competing evidence, which included the appellant’s emails, and set out its findings of fact. Its decision showed its consistent reasoning in resolving these issues. The Appeal Tribunal rejects the appellant’s submission that the Original Tribunal’s overall conclusion in [146] was “highly subjective favouring of the treating team and neither conclusive nor definitive.”[52]
[52] Transcript of proceedings 15 January 2018 page 81, lines 33-34
The Appeal Tribunal will now consider the appellant’s submission that the original Tribunal erred in assessing him as not otherwise suitable against section 5A of the GMP Act. He said that the Original Tribunal did not properly consider his ‘indisputable evidence’ in his submission to the tribunal dated 19 June 2017 that AB’s interests in section 5A(a) through to and including section 5A(d) of the GMP Act would not only be protected but be enhanced if he was appointed AB’s guardian and manager as it would not conflict with the appellant’s interests and duties.
In a recent paper entitled “Roles in Protective Management of Person and Property”[53] presented by Justice Geoff Lindsay, Probate and Protective List Judge, Equity Division of the NSW Supreme Court he wrote in relation to ‘Approaches to selection of a guardian or financial manager’:
60. As the seminal judgment of the Court of Appeal in Holt v Protective Commissioner (1993) 31 NSWLR 227 illustrates (and as has been explored in a succession of recent judgments, including M v M [2013] NSWSC 1495 and Re LSC and GC [2016] 1896) the selection of a person suitable for appointment as a financial manager or guardian needs to be sensitive to the particular, subjective circumstances of the person in need of protection.
61. That said, the process of selection must also be informed by a hard headed appreciation of (a) the primacy of duty and (b) risks associated with competing personal interests.
[53] Dated 8 December 2017, presented to NSW Civil & Administrative Tribunal (NCAT) Guardianship Division
The Original Tribunal set out the critique by AB’s family of the medical treatment in [87] to [114] of the reasons for decision after stating in [86] that it had drawn the observations and quotes from AC’s email correspondence. In [137] to [145] of the reasons for decision it detailed the competing evidence. In doing so it demonstrated the hard headed appreciation referred to by Justice Geoff Lindsay in the previous paragraph.
The Original Tribunal continued to refer to the appellant’s emails when considering the issue of accommodation before and after AB’s discharge from the AMHU and the proposed NDIS application. There was no need for the Original Tribunal to again refer to the issues already set out in [86] through to [136] of the reasons for decision when considering section 5A of the GMP Act.
For the reasons set out above the Appeal Tribunal is also not persuaded by the appellant that he has established that the Original Tribunal erred in fact or in law when considering section 5A of the GMP Act and the evidence before it. The Original Tribunal’s findings were open to it on the evidence.
The Appeal Tribunal has considered the appellant’s submissions in relation to the HR Act and is also satisfied that the Original Tribunal in [158] of the reasons for decision has correctly interpreted sections 11 and 12(a) of the HR Act, and the GMP Act, and in doing so complied with section 30 of the HR Act. The Original Tribunal set out in [147] to [151] and [154] of the reasons for decision the different contentions from the parties. It also considered the operation of the Mental Health Act 2015 with the HR Act. The Original Tribunal weighed up the competing evidence and showed consistent reasoning in reaching its finding in [158]. For these reasons the Appeal Tribunal rejects the appellant’s submissions that the findings were inconclusive as the evidence was incomplete, non-contextual and non-factual.
The final statutory requirement identified by the appellant was section 4 of the GMP Act – Principles to be followed by decision-makers. The appellant submitted that the conclusion at [173] of the reasons for decision was invalid because, firstly, the assumption in [164] is neither accurate nor specific. [173] stated:
Despite some recent changes in the interactions between AB’s family and the treating team, we reiterate that we are satisfied that AC might have difficulty following all the decision-making principles.
[164] stated:
The material referred to earlier in this decision demonstrates that, even if AB’s family and the treating team share an objective for AB’s recovery, there is considerable difference between them in how to work toward that goal. If AC were to be appointed as guardian and manager, he would be obliged to consult with the treatment team as AB’s carers (see [80] to [82]). However, he might consider that obligation suspended if, in his opinion, the consultation with them might adversely affect AB’s interests (see [137] to [146].
The Original Tribunal carefully identified in [164] the earlier paragraphs in the reasons for decision where it had considered ‘AB’s relationship with carers’ and ‘the implications of AC’s opinions and actions for AB’. Not only did the Original Tribunal have the discretion to make the decision it did, it also had the opportunity to see and hear from the appellant. The Original Tribunal’s conclusion was clearly available to it on the evidence. The Appeal Tribunal rejects the appellant’s submission in relation to [164].
The second reason the appellant submitted the conclusion at [173] of the reasons for decision was invalid was:
Despite the fact that the claims by the treating teams in [167], [168], [169] and [170] have been refuted by AC and his son (AB’s brother) they were not seriously considered by the original Tribunal in arriving at their conclusion in [173.][54]
[54] Appellant’s document D1 at page 45
The Original Tribunal acknowledged that the appellant refuted the treating team’s claims. In the reasons for decision the Original Tribunal said:
· in [46] he [the appellant] described the claims as ‘simply unfounded and one sided allegations’ which were neither true nor backed up by explicit evidence’”;
· in [83](b) “AC sought to refute all imputations against him (see [46] – [61]”;
· and in [84] “It is appropriate, indeed necessary, to look at examples of the correspondence between AC and the treating team and other medical professional, including the Chief Psychiatrist of the ACT, to test his [the appellant’s[ refutations …”;
· and in [85] “… Rather, we are concerned to assess: (a) the accuracy of some of AC’s responses to what he perceived as allegations made against the AB’s family (and him in particular); and (b) the relationship between the treating team and AB’s family (particularly AC), as factors relevant to deciding whether, by reference to the criteria set out in the GMP Act, AC is “otherwise suitable” for appointment as the guardian and manager of AB in place of the PTG.”
The Original Tribunal then set out in [86] that its following observations and quotes (which it set out in [87] to [136] of the reasons for decision) were drawn from the email correspondence that AC provided to the review Tribunal (Original Tribunal in this decision) and stated: “… the numerous items of correspondence help the review Tribunal gain a picture of AC’s views and the views of family members recorded by him”.
The preceding paragraphs are good examples of the serious and detailed consideration by the Original Tribunal of AC’s refutations. The Appeal Tribunal finds that the appellant’s submissions in [135] and [137] above are without merit. The Original Tribunal’s finding in [173] (refer [135] above) was available to it on the evidence.
For these reasons the Appeal Tribunal is not satisfied that the Original Tribunal made a finding of fact that was clearly wrong or exercised a discretion on a wrong principle or in a way that was clearly wrong. The appellant has not established the second ground of appeal.
The Third Ground – Failing to test the accuracy of the evidences (sic) provided in the treating team’s reports as well as in the PTG’s report; instead, the Review Tribunal focused on testing the evidences (sic) by the appellant.
The appellant submitted that a reading of parts of [85], [86], [113] and [189] of the reasons for decision supports this ground. The Appeal Tribunal sets out those parts:
85. Consequently, we express no views about the adequacy of the treatment that was provided or is being provided by the treatment team. Rather we are concerned to assess:
(a) the accuracy of some of AC’s responses to what he perceived as allegations made against the AB’s family (and him in particulars); and
(b) the relationship between the treatment team and AB’s family (particularly AC) …
86. The following observations and quotes are drawn from sets of email correspondence that AC provided to the review Tribunal. We do not know whether those documents comprise a complete record of what passed between AC and the treating team and other recipients of his emails. The absence of emails or letters in reply might indicate that the recipients did not respond in writing. We do not know whether, or how, they responded. Nonetheless, the numerous items of correspondence help the review Tribunal gain a picture of AC’s views and the views of family members recorded by him.
113. Again, the purpose of recording those passages is to illustrate the nature of the relationship between AB’s family and the members of the treating team from time to time. We are not endorsing those criticisms of the treating team or their treatment of AB. This review Tribunal did not receive evidence about the treating team’s responses to those criticisms. Nor do we need that evidence for the purpose of these proceedings. However, we note again that repeated allegations of “brutal and barbaric” treatment of AB at the NPI and criticisms of how he was transported to Canberra do not seem to have been supported (and some of them are refuted) by a review dated 19 May 2017, the report on which was provided to the review Tribunal by AC.
189. The correspondence from AC referred to above leads inevitably to the conclusion that his expressed desire or aspiration to work with health professionals will only be satisfied if the treating team is guided by, and largely complies with, his advice or instructions. The history of their interactions to date shows that, to some extent, the treating team has not provided all of the treatment that they considered appropriate because of the interventions of AC and other members of his family. As a consequence, AB has not received treatment to the full extent that he would have but for the involvement of his family. The result might be, as the Sydney doctors suggest, that his under treatment has impeded and hence delayed his recovery.
The Appeal Tribunal noted that the appellant has, again, in this ground, relied on selective paragraphs of the reasons for decision as opposed to considering these paragraphs in the context of the matters set out in paragraphs preceding or following them or where they are in the reasons for decision. In particular, in relying on [189] he has overlooked or failed to refer the Appeal Tribunal to the two relevant paragraphs preceding [189].
In [187] the Original Tribunal stated:
there can be no doubt that there is longstanding and debilitating conflict between AC (and other members of AB’s family) and current members of the treating team….His applications stated that in the absence of status as guardians, ‘our involvement is seen by some treating psychiatrists as illegal, unwelcome and a breach of privacy.’
In [188] the Original Tribunal said:
Despite their assertions to the contrary, it is clear from the documents provided to the review Tribunal by AC that the family’s involvement to date with the treating team extended well beyond:
(a) observing AB’s reaction to changes to his medication;
(b) reporting their observations to the treating team; and
(c) informing the treating team of AB’s history of medication and which medications did or did not work for him.
The Original Tribunal was reviewing the appointments of the PTG as guardian and manager made on 18 April 2017. AC was seeking to be appointed AB’s guardian and manager. The Original Tribunal stated in [85] of the reasons for decision that the “proceedings are confined to questions about the possible variation or revocation of the guardianship and management order made on 18 April 2017.”
It stated in [65] of the reasons for decision under ‘Consideration of statutory criteria for guardian and manager’ that “to deal comprehensively with the submissions of AC, the treating team and the PTG it was appropriate to consider in some detail the statutory criteria for the appointment of guardian and manager including the statutory prohibition on the appointment of the PTG where an individual who is ‘otherwise suitable for appointment’ has consented to be appointed”; if AC was appointed guardian and manager would AC’s interests likely to conflict with AB’s interests to the detriment of AB’s interests; human rights considerations and the operation of the decision-making principles in the circumstances of this case.
In [85] the Original Tribunal reiterated that it was not reviewing the PTO or the nature of the treatment being provided under that order. This was the appropriate finding for the Original Tribunal. It was not part of its review function under the GMP Act to review the nature of the treatment being provided under the PTO. Given the content of AC’s email correspondence to the treating team and other medical professionals, including the Chief Psychiatrist of the ACT between 19 December 2016 and 24 July 2017 it was appropriate and, and as the Original Tribunal said in [84] ‘indeed necessary’ that the Original Tribunal consider the correspondence to test AC’s refutations.
As the Appeal Tribunal has stated above in [80] the Original Tribunal considered the evidence and submissions of the treating team in [35] to [38] of the reasons for decision and the evidence and submissions of the PTG in [39] to [42]. It was the appellant who contested the appointment of the PTG as AB’s guardian and manager. It was, therefore, appropriate and necessary that the Original Tribunal assessed the accuracy of AC’s responses to the treating team’s statements.
For these reasons, the Appeal Tribunal is not satisfied that the Original Tribunal erred in the way in which it comprehensively considered the submissions of AC, the treating team and the PTG. The appellant has not established this ground of appeal.
The Fourth Ground – The Original Tribunal failed to assess the effectiveness of the PTG as guardian and manager for AB.
In his written submissions lodged in December 2017 the appellant described this ground as “the Original Tribunal erred in not assessing the bias and ineffectiveness of the PTG as guardian and manager for AB from 18 April 2017 to 7 August 2017.”
The appellant submitted, in his written submissions, that the PTG is required to make informed decisions in AB’s best interest and “echoing what the treating team is telling them is just one side of the story.” The appellant submitted that the PTG had taken the treating team’s words as gospel and never sought to know his and AB’s family’s words; it had not informed them whether or not an NDIS application had been submitted for AB; it had not played any role in AB’s rehabilitation or recovery and had failed to hold a single conversation with AB. The appellant told the Appeal Tribunal all of this supports his claim that the PTG was biased and ineffective. He further submitted for the Original Tribunal to not conduct any enquiry into his claim and to confirm the PTG’s appointment as guardian and manager has allowed the PTG’s bias to go unchecked.
At the hearing the appellant submitted, in relation to this ground, that the Original Tribunal erred in wrongly concluding that the appointment of the PTG has been and will continue to be more appropriate as AB’s guardian and manager. He submitted that the Original Tribunal erred in:
(a)reaching this decision without any justification;[55]
(b)neither considering nor assessing the bias and (in)effectiveness of the PTG during the period 18 April 2017 and 7 August 2017;[56]
(c)adopting the statements from the PTG report and from the treating team without considering how AC had refuted this evidence in his submission dated 19 June 2017;[57]
[55] Transcript of proceedings 15 January 2018 page 84, line 31
[56] Transcript of proceedings 15 January 2018 page 84, lines 322-34
[57] Transcript of proceedings 15 January 2018 page 84, lines 36-39
The appellant also submitted:
(a)if AC’s submission dated 19 June 2017 had been considered or valued by the Original Tribunal it would have proved that AC facilitated and continued to facilitate AB’s access to the best available treatment, care and support relating to his individual needs;[58] and
(b)the Original Tribunal’s assessment of AC is inconclusive as the evidence used was incomplete, non-contextual, non-factual and, therefore, invalidated the Original Tribunal conclusion that AC, as guardian, would not meet the objectives of the GMA Act.[59]
[58] Transcript of proceedings 15 January 2018 page 84 lines 42-44
[59] Transcript of proceedings 15 January 2018 page 85 lines 8-10
As stated above, the Original Tribunal considered the evidence and submissions of the PTG in [39] to [42] of the reasons for decision. It considered the appellant’s submissions about why the appointment of the PTG as guardian and manager was unnecessary in [63] and stated in [64] that AC had reiterated those submissions at the hearing and added that there was little liaison between the PTG and AB’s family about his treatment, care and support, as well as other matters. In [176] the Original Tribunal referred to the evidence from the PTG officer that she had said to AC that she would discuss an NDIS application with him. The Original Tribunal considered the NDIS issue in a number of paragraphs, [181] (a) to (d), in [182] and in [186].
The Appeal Tribunal is satisfied that the Original Tribunal considered the evidence and submissions from AC in relation to his concerns about the ineffectiveness and bias of the PTG. In [175] of the reasons for decision the Original Tribunal also referred to the appellant’s misunderstanding of the role of the PTG as guardian and manager. It stated:
175. … his (the appellant’s) reasoning about why the PTG should not be guardian and manager seems to proceed on the basis that a guardian and manager should provide a high level of care and support to the protected person. That misunderstands the role of the guardian and manager. A person is appointed to make decisions on behalf of the protected person in relation to the matters specified in the order. In that capacity, a guardian and manager is not required or expected to provide care or support, although in a personal capacity they often do. Nonetheless, as AC observes, the PTG is not in the same position as he is in relation to understanding AB’s personal history, needs and wishes. That concern is addressed by the current order requiring the PTG “to liaise with the protected person’s family regarding the protected person’s treatment, care and support.”
The Appeal Tribunal is satisfied that the Original Tribunal’s decision to confirm the appointment of the PTG as AB’s guardian and manager was open to it on the evidence. It did not err in the way in which it assessed the effectiveness, or as the appellant claimed, the ineffectiveness of the PTG as guardian and manager. The Original Tribunal considered all of the appellant’s refutations as set out above. The Original Tribunal considered the appellant’s written statement detailing the degree to which AB’s family have provided “unwavering daily support and care” in [45] of the reasons for decision. The Original Tribunal summarised the appellant’s written responses to the claims presented to it by the treating team in [46] through to [61] and [62]. It also considered in [62] the appellant’s submissions in reply to the PTG’s submissions and in [63], [64] and [175] considered the appellant’s written and oral submissions which related to why he considered the appointment of the PTG as AB’s guardian and manager unnecessary.
The Original Tribunal’s assessment of AC by considering the available evidence was detailed and thorough. The Tribunal rejects the appellant’s submission that it was inconclusive as the evidence used was incomplete, non-contextual and non-factual.
The Original Tribunal’s findings in [190] that “the appellant has a difficult and at times dysfunctional relationship with members of the treating team”; “some of his actions in relation to the treating team appear to conflict with, and hence operate to the detriment of AB’s interests”; “AC would (not) fully follow the decision-making principles in the GMP Act in so far as they involve consultation with the treatment team as AB’s carer” and “although (AC) satisfies most of the statutory conditions for appointment as guardian and manager for AB, AC is not at this time ‘otherwise suitable’ for that appointment” were clearly open to it on the evidence.
The appellant has not established this ground of appeal.
Conclusion
The Appeal Tribunal has considered the reasons for decision, all of the submissions and the evidentiary material. The material filed by the appellant was extensive and the Appeal Tribunal has considered all of the essential issues relevant to determining whether the Original Tribunal erred.
The Appeal Tribunal is satisfied that the Original Tribunal gave careful consideration to the evidence and the submissions before it. Its reasons for decision are reasoned and consistent. Having considered the evidence and the submissions of the appellant and the PTG, the Appeal Tribunal is not satisfied that the Original Tribunal made a finding of fact that was clearly wrong, or that it erred in law, or that it exercised a discretion on a wrong principle or in a way that was clearly wrong or that it attached too little weight to the appellant’s evidence or too much weight to the evidence from the PTG and the treating team.
The Appeal Tribunal was acutely aware of the appellant’s wish to be AB’s guardian and manager himself or jointly with his wife, or for his wife to be appointed to these roles and of his personal affront at being found to be ‘not otherwise suitable’ for these appointments. He has filed an appeal in the hope that his wish might be realised.
However, as stated by the majority of the High Court in House v R (see [42] above) the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. For the reasons set out above the Appeal Tribunal is not satisfied that the Original Tribunal made an error in exercising the discretion or that it acted upon a wrong principle or allowed extraneous or irrelevant matters to guide or affect it or that it mistook or that it did not take into account some material consideration. In our opinion the discretionary decision set out in the reasons for decision does not demonstrate specific error or a plainly unjust or unreasonable result such as to justify intervention by the Appeal Tribunal.
It follows from those conclusions that the appeal must be dismissed and, consequently, the orders made by the Original Tribunal must stand.
Orders
For the reasons given above, the Appeal Tribunal orders that:
1.The order made by the Tribunal on 6 September 2017 in GT 2 of 2017 confirming the appointment of the Public Trustee and Guardian as guardian and manager for the protected person is confirmed.
2.The appeal is dismissed.
………………………………..
Presidential Member E Symons
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AA 35/2017 |
PARTIES, APPLICANT: | AC |
PARTIES, RESPONDENT: | Public Trustee and Guardian |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Presidential Member E. Symons |
DATES OF HEARING: | 15 January 2018 |
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