J v Guardianship and Administration Board and Anor - [2019] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: J v Guardianship and Administration Board and anor [2019] TASSC 15

PARTIES: J
v

GUARDIANSHIP AND ADMINISTRATION BOARD
TASMANIAN HEALTH SERVICE

FILE NO:  LCA 3390/2018
DELIVERED ON:  16 April 2019
DELIVERED AT:  Hobart
HEARING DATE:  27 March 2019
JUDGMENT OF:  Wood J
CATCHWORDS:

Mental Health – Guardians, committees, administrators, managers and receivers – Appointment – Guardianship and Administration Board (Tas) – Whether criteria for making a guardianship order met – Disability – Incapacity – Need for appointment of guardian – Error of law – Criteria not met.

Guardianship and Administration Act 1995 (Tas), ss 3 and 20(1).
Aust Digest Mental Health [3]

Administrative Law – Administrative tribunals – Statutory appeals from administrative authorities to courts – Appeal from decision of Guardianship and Administration Board – Appeal on question of law.

Guardianship and Administration Act 1995 (Tas), s 76.
Waterford v Commonwealth (1987) 163 CLR 54; Public Trustee v Blackwood (1998) 8 Tas R 256; Ling v Incat Tasmania Pty Ltd [2000] TASSC 87, applied.
Aust Dig Administrative Law [1147].

REPRESENTATION:

Counsel:
Appellant:  D Marcenko and C Street
First Respondent:  No appearance
Second Respondent:  P Turner

Solicitors:
Appellant:  Ogilvie Jennings
First Respondent:  Submitted to the jurisdiction of the Court
Second Respondent:  Office of the Solicitor General

Judgment Number: [2019] TASSC 15
Number of paragraphs: 85

Serial No 15/2019
File No LCA 3390/2018

J v GUARDIANSHIP AND ADMINISTRATION BOARD and
TASMANIAN HEALTH SERVICE

REASONS FOR JUDGMENT WOOD J

16 April 2019

The appellant appeals an order made by the Guardianship and Administration Board that the Public Guardian is appointed as his guardian with powers and duties concerning where he is to live, known as a limited appointment. The order was made on 2 November 2018 with effect for a period of six months.
The appellant is a mature aged man who lived alone aboard his yacht on a mooring until 11 May 2018 when his yacht ran aground in a storm. He visited a pharmacy and sought advice about his foot which was causing him discomfort. His toe was black and he was advised to attend a hospital. He attended the Royal Hobart Hospital the same day, presenting with a gangrenous foot. He was admitted and underwent four surgical procedures culminating on 4 July in an amputation of his right leg above the knee.
The appellant was transferred to the Acute Rehabilitation Unit of the Hospital. He required a wheelchair and was otherwise immobile. He could not use crutches. The appellant intended that he would return home to his yacht which he planned to berth at a marina.
On 15 August 2018, the Rehabilitation Allied Health Team, involving an occupational therapist, physiotherapist and social worker, visited the appellant's yacht to assess whether it could be modified to accommodate his physical requirements and satisfy safety considerations. The occupational therapist and physiotherapist assessed that the yacht could not be modified to become a safe or viable discharge option. The Team met with the appellant on 23 August 2018 and he was advised that returning to the yacht was not recommended due to multiple safety concerns which could not be mitigated.
The appellant would not consider living elsewhere. An assessment was made that the appellant was "lacking the capacity to decide about his accommodation".
An application was made to the Board for the appointment of a guardian. The application was made by a social worker at the Hospital, Ms Alice Fitzpatrick, dated 24 August 2018 and lodged on behalf of the second respondent, the Tasmanian Health Service as the operator of the Royal Hobart Hospital. The appellant's discharge from the Acute Rehabilitation Unit was imminent. The application noted that the appellant had "been assessed as lacking the capacity to decide about his accommodation and as such a Guardian is required to decide about his discharge location".
The application was accompanied by a Healthcare Professional Report by Dr Madeline Black. The Board conducted a hearing on 2 November 2018. The Board received and took into account:
·     the application and Dr Black's report;
·     a report from Mr John Murphy, psychologist, dated 28 August 2018; and
·     a report from Dr Jane Tolman, geriatrician, dated 30 September 2018, prepared at the request of the appellant's lawyers.
Dr Madelbwe, rehabilitation consultant at the Royal Hobart Hospital, gave evidence at the hearing. The appellant was legally represented and submissions were made on his behalf opposing the order and refuting any suggestion of impaired decision-making capacity.
The proceedings were recorded, but the recording was lost and there is no transcript available of the hearing. However, the notes of the Chair, Ms Lindi Wall, and members of the Board, Dr Matthew Fasnacht and Mr Grant Kingston, have been provided to the Court, and also an affidavit of the appellant's lawyer, Mr Street, setting out his recollection of the hearing. In all material respects the records are consistent.
At the conclusion of the hearing the Board gave some brief oral reasons and delivered the determination that it was satisfied that the statutory criteria for the making of an order for the appointment of a guardian were satisfied, and made the order for a limited appointment. A statement of reasons was requested and provided on 28 November 2016. In those reasons, the Board concluded that as a result of the appellant's disability, the appellant lacked capacity to make reasonable decisions about his accommodation. In the penultimate paragraph of those reasons, the Board stated:
"After hearing an Application for Guardianship in respect of [the appellant] (hereinafter called the 'Represented person'), the Board was satisfied that the Represented Person:
·      is a person with a disability;
·      is unable by reason of that disability to make reasonable judgments in respect of certain decisions affecting is person or circumstances; and
·      is in need of a limited Guardian."
The appellant appeals the determination and orders made by the Board on three grounds:
"1That the Board erred in law in making the determination at paragraph 16 of its reasons that the Appellant suffers from a disability for the purposes of Section 20(1)(a) of the Act where no Board properly instructed in the law would have made such a finding.
2That the Board erred in law making the determination at paragraph 27 of its reasons that, as a result of a disability, the Appellant lacked capacity to make reasonable judgements about matters relating to his person and circumstance for the purposes of 20(1)(b) of the Act where no Board properly instructed in the law would have made such a finding.
3That the Board erred in law by failing to take into account, or give sufficient weight to, the principles to be observed in Section 6 of the Act, particularly as they applied to the Appellant's liberties and wishes."
It can be seen that each of the grounds asserts an error of law. An appeal may be brought as of right on a question of law, while on any other question only with the leave of the Court: s 76(2) of the Guardianship and Administration Act 1995. The term "question of law" in the context of an appeal and its application to findings of fact has received much judicial consideration, and its meaning is well settled.

An appeal on a "question of law"

A finding of fact cannot be reviewed on an appeal relying on an error of law unless the finding is vitiated by an error of law; there is no error of law in simply making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77. Illogical reasoning in drawing an inference is not an error of law providing there is some basis for the inference, that is, if the particular inference is reasonably open: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356.
Findings of fact may not be reviewed unless those findings are ones that no tribunal, properly instructed as to the law and acting reasonably, could have made: Underwood J (as he then was) in Ling v Incat Tasmania Pty Ltd [2000] TASSC 87 at [19]; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 per Hope JA at 2-3. In Public Trustee v Blackwood (1998) 8 Tas R 256 involving an appeal under the Guardianship and Administration Act 1995, Underwood J stated at 267:
"It is well established that if a tribunal makes a decision that no tribunal, properly instructed as to the law and acting reasonably, could have made an error of law has occurred."
The relevant test for an appeal in point of law was comprehensively considered by Crawford J (as he then was) in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 at [24]. After referring to Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 at 450 and Hope v Bathurst City Council (1980) 144 CLR 1 at 9, Crawford J stated that a question exclusively of law arises if, on the facts found, only one conclusion is open concerning whether the case does or does not come within a statutory expression. It was noted at [25] that an obvious corollary is the proposition from Mason JA in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 that it is not possible to conclude that the decision appealed from is erroneous in point of law if the question is largely one of degree upon which different minds may take different views. If different conclusions are reasonably possible, the determination of which is the correct conclusion, is a question of fact.
The question is whether the conclusions of the Board that it was satisfied that the criteria in s 20(1) were established was one that no tribunal, properly instructed as to the law and acting reasonably, could have made.
As stated to counsel during submissions, I will treat the grounds of appeal as asserting an error of law of the kind that reflects established principle. It will be seen that the impugned findings of fact relate to each of the necessary criteria for making a guardianship order, set out in s 20(1)(a), (b) and (c) of the Act. Insofar as the grounds seek a review of those factual conclusions, I will treat the grounds as asserting that the Board could not have been satisfied of each of the criteria in question. The appellant can only succeed if the Board’s findings as to the application of the criteria in s 20(1) were not reasonably open.

The statutory criteria

The statutory criteria for the making of guardianship orders are to be found in s 20(1) which provides:
"20 Guardianship order
(1)If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
(a)is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c)is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary."
"Disability" is defined in s 3(1) of the Act:
"'disability' means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner."
Ground 1 concerns the finding made under s 20(1)(a), ground 2 concerns sub-par (b), and ground 3 relates to the finding reached in relation to sub-par (c).

Disability

The appellant's submission is that it was not open to the Board to make a finding that the appellant has a disability. The submission relied upon the common law presumption of capacity, and contends there is a lack of cogent evidence in support of a finding. The appellant pointed to the gravity of the consequences of the application and argued that the Board was bound by Briginshaw v Briginshaw (1938) 60 CLR 336 to take those consequences into account. His freedom of choice as to his home and also his lifestyle was at stake: PJB v Melbourne Health & Anor (Patrick's case) [2011] VSC 327 per Bell J. It was argued that the evidence before the Board with regard to the appellant's alleged disability was equivocal and not capable of supporting the finding of disability. The imprudence of the appellant's decision to return to live aboard his boat ought not to have been given any significant weight in assessing his cognitive capacity.
It is submitted for the second respondent that there was evidence of disability and there can be no error of law in the Board making a finding of fact which is supported by evidence.
I begin a consideration of this ground by having regard to the evidence before the Board. There is evidence of disability in the health care professional report (HCPR) of Dr Madeline Black. She ticked a box, "yes", to whether the appellant had a disability. The report described the appellant's disability as "cognitive impairments presumed secondary to cerebral small vessel ischaemia in the setting of poorly controlled type 2 diabetes, peripheral vascular disease, hypertension and hypercholesteroiaemia." The report went on to note that the appellant had refused a comprehensive cognitive assessment.
Under the heading "circumstances" Dr Black's report noted:
"These concerns have been expressed to [the appellant] who remains adamant that he will be able to manage safely on his boat on discharge. He cannot fully appreciate the safety concerns of the team and demonstrates poor insight, reasoning and problem solving skills related to his level of disability and the functional implications for this."
Under the heading "effect of disability on the person's circumstances" and a sub-heading "Does the person experience deficits in particular areas by reason of a disability", Dr Black ticked a box for "impulse control" and "planning and reasoning skills". Under the heading "how does the disability affect the person's ability to make a reasonable decision about the circumstances you have outlined?" Dr Black stated:
"[The appellant's] poor insight, reasoning, judgment and decision making skills put him at high risk in the community. He does not appreciate the many safety concerns associated with living onboard a boat. He cannot clearly and accurately identify the reasons leading to his admission to hospital and subsequent surgery. He has very poor understanding of is diagnosis of type 2 diabetes and how his poor diabetic control has contributed to his health problems.
Despite multiple conversations from the many members of his multidisciplinary team, [the appellant] does not accurately identify the potential safety risks associated with discharging to his boat. He lacks insight into how his amputation affects his function. He is impulsive which puts him at further risk of injury. [the appellant] has poor safety awareness.
[The appellant] is unable to problem solve good alternatives for accommodation on discharge. [the appellant's] cognitive impairment has a profound impact on his decision making and puts him at potential risk.
He requires support to make informed decisions regarding his accommodation."
Mr John Murphy, psychologist at the Royal Hobart Hospital, provided a report described as a "cognitive assessment report". In the report it was noted that the appellant refused to participate in any form of objective cognitive assessment. It was noted that the appellant's "speech was often rambling and tangential but he was able to loosely tie his thoughts together when questioned. He expressed some thoughts that were odd and bordering on paranoia but not clearly delusional." During assessment he was dismissive of any functional impairment due to the amputation. He was unable to identify any potential difficulties in returning to live on the boat, stating he could bring his wheelchair on board and sit on a seat and "watch any bad weather". By way of summary Mr Murphy noted:
"While his medical team have concerns about his ability to manage independently on the boat he is fixated on returning to the boat and dismissive of the medical rational against it. While he is able to state and recall the facts and decisions that need to be made [the appellant] does not appear to be able weigh up the consequences and implications of his actions. His responses show a lack of understanding about the events that led to his current situation, as well as the effects of his medical condition. He also shows limited insight into the functional implications of his amputation. This puts him at risk of deteriorating further, and creates significant risk of injury if he returns to unsupported living on his boat. Due to his refusal of objective assessment his current cognitive state is unable to be assessed; however his tangential thought and poor decision making processes indicate there is likely some cognitive impairment. In my clinical opinion he does not have capacity to make decisions about his future accommodation and adjusting to his new limitations."
Dr Jane Tolman provided a report on behalf of the appellant. In preparing her report she had had regard to the application for guardianship, Dr Black's report and Mr Murphy's report. After a two hour assessment, her findings were as follows. She found the appellant scored well on all cognition tests he undertook, including the mini mental state examination known as MMSE, clock face, list generation, abstract thinking and showed no dyspraxia and an excellent memory for complex events. Dr Tolman saw no evidence of "cognitive impairments" and no evidence of "poor safety awareness". The appellant was able to mobilise around the room safely. He demonstrated insight into the difficulties of his amputation, the nature of his stump wound, and his plans for the future, including a prosthesis, modifications to his yacht, the need for a personal alarm and how to obtain one, and his ready acceptance of a second opinion from a private occupational therapist for the purpose of helping him regain control of his life. Dr Tolman found him to have above average problem-solving skills and to be very focussed about how to achieve his goals, and gave various examples. Dr Tolman made observations about his personality including:
"aHe has not led a conventional life and has gathered few friends or even close acquaintances.
bHe has made some poor decisions.
cHe thinks and talks quickly, sometimes without listening carefully.
dHe is sometimes quick to take a contrary view, and sometimes does not listen carefully to others.
eHe has a strong need to be heard and listened to.
fHe can be long winded and feels it is important that he is heard.
gHe can be impatient and dismissive of the opinions of other."
While not professing to have expertise in psychiatry, she noted the appellant is guarded but not suspicious, paranoid or delusional, and while his speech is fast she saw no tangential speech. In concluding, Dr Tolman expressed the opinion that the appellant was not cognitively impaired.
Dr Madelbwe did not provide a report but gave evidence at the hearing. The hearing notes taken by the Board members of her evidence include the following: "peripheral vascular disease, vascular disease presumed to be in the brain"; "Treating doctors indicate there is cognitive impairment – based on clinical assessment over long period … - cerebral ischaemia? … Formal cognitive assessment not done …". The Board's reasons for decision provide a summary of the evidence given by Dr Madelbwe:
"13 Dr Madelbwe gave evidence at the hearing. Dr Tolman's opinion did not change her view that the presumption of cerebral ischaemia in a setting of peripheral vascular disease and poorly controlled diabetes was justified and that cognitive impairment is a reasonable assumption secondary to small vessel ischaemia. She did not agree that Dr Tolman's testing ruled out cognitive impairment. She said that MMSE testing is a screen specifically only for dementia of the Alzheimer's type, it is not diagnostic, and it is not sufficient to exclude cognitive impairment. Dr Tolman did not test for impulsivity, executive functioning, problem solving and matters of insight which may be caused by damage to the brain. Dr Madelbwe said that this would be assessed in more depth through full neuropsychological testing which the RHH had intended and which [the appellant] had declined. She noted that CT imaging of the brain would not be of assistance in diagnosis."

The Board's reasons went on to set out the arguments on behalf of the appellant, referring to Dr Tolman's report. The Board then set out the reasons for the finding of disability as follows:
"15 The Board preferred the evidence provided by the applicant and the treating team to that of Dr Tolman. The evidence of Dr Madelbwe regarding the limitations of dementia screening tests in diagnosing impairments to executive functioning was accepted. The diagnosis of peripheral vascular disease, the clinical observations of the treating team over time, the explanation as to why it was reasonable to draw from these the conclusion of cognitive impairment were persuasive. There was no evidence to support the allegation that the application by the RHH was made for any improper motive.
16 The Board found, for all the above reasons, that [the appellant] suffers from a disability; namely a cognitive impairment secondary to vascular ischaemia and presumed ischaemia of the brain. [The appellant's] poor decision making, and in particular his decision to live on his boat on discharge informed this diagnosis."
The question for this Court is whether there was sufficient evidence that could satisfy a tribunal acting reasonably and according to law that the appellant had a disability within the meaning of the Act. It is convenient to refer again to the definition in the Act which is central to this question:
"'disability' means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner."
A number of aspects of the definition may be highlighted. The first is it requires a restriction or lack of ability to perform an activity in a normal manner. The focus of the definition is on a person's ability to perform an activity, rather than their actual performance. The second is that ability is tied to performance of an activity in a normal manner, capturing a range or spectrum falling below optimal carrying out of an activity. The third is that the inability must result from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function. A cause and effect can be seen and the cause must be an absence, loss or abnormality as described. Finally, personality traits which may individually or in combination impact on a person's capacity to carry out an activity would not qualify as "absence, loss or abnormality of mental, psychological or anatomical structure or function." Traits such as obstinacy, arrogance, impulsivity or a determined mind-set would not be sufficient, although of course they could be present in the case of someone who has a disability, just as they might be present in someone who does not have a disability.
In this case the disability is identified as cognitive impairment. The underlying cause is "presumed cerebral ischaemia". It is self-evident that this is not a definitive diagnosis of an underlying cause. It is a presumed cause, an assumption. The hearing notes and the affidavit reveal that during the evidence the opinion of the medical practitioners did not alter beyond a presumption. As valid as the opinions of presumed cerebral ischaemia may have been, they did not amount to a confirmed diagnosis.
At [16] the Board reached beyond the opinions and found a disability: "cognitive impairment secondary to vascular ischaemia and presumed ischaemia of the brain" [my emphasis]. While there was evidence of a diagnosis of peripheral vascular disease, it was not opined that cognitive impairment was secondary to vascular ischaemia, as opposed to a presumed link. Cognitive impairment as a secondary to one of the appellant's medical conditions had not been established on the evidence.
Any suggestion that as an expert tribunal the Board members reached, or could in this case legitimately reach, their own opinion on this point must be rejected. The members of the Board were in no better position than the medical practitioners, Dr Black and Dr Madelbwe, and the psychologist, Mr Murphy, to reach a diagnosis. The second respondent raised, but did not press, a suggestion that such a course was taken. Of course, if such a course was taken, then the Board, as a matter of procedural fairness, would have been obliged to inform the appellant of that diagnosis which went beyond the diagnosis of his treating team and beyond the materials before the Board.
This description of the disability is an error. In its context it is not a particularly significant error given that the Board's characterisation of the disability acknowledged that ischaemia of the brain was presumed. However, another error was made at [18] when the Board was considering the criterion of capacity. The Board stated: "in the HCPR Dr Black reported that the cerebral damage impaired [the appellant's] impulse control and planning and reasoning skills". It can be seen from the HCPR report that this account of Dr Black's evidence in the report was incorrect. Furthermore, the evidence before the Board was incapable of supporting a positive finding of satisfaction of cerebral ischaemia or brain damage.
It is argued for the second respondent that cognitive impairments, without more, may satisfy the definition of disability. Providing that the evidence is capable of establishing that the cognitive impairments result from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function, even if the specific cause is unknown, then the condition may amount to a disability. I accept that argument that cognitive impairments without a diagnosis of an underlying condition may, depending on the case, satisfy the definition of disability.
I return to a consideration of the Board's reasons regarding the criterion of disability. At [13] and [15] of the reasons, set out above, the Board referred to Dr Madelbwe's evidence and her opinion that Dr Tolman's testing was not helpful. The Board stated that the opinion of the treating team was preferred to the opinion of Dr Tolman. It was open to the Board to take this approach, although it is a matter upon which minds may differ.
Of course, a finding of disability cannot be reached merely by rejection of medical opinion that a person does not have a cognitive impairment. It is necessary to consider the evidence that was before the Board of cognitive impairments.
The Board's reasons refer to evidence of the appellant's "poor decision making, and in particular his decision to live on his boat on discharge informed this diagnosis". This evidence was seen by the Board as supporting a conclusion of disability. It was argued that the Board adopted an unduly paternalistic approach to assessing the appellant' desire to maintain his particular lifestyle. A person is free to make foolish decisions and while the Board paid lip service to this in the reasons, it was not properly given effect to. It was argued for the appellant that a deep-seated desire to continue a particular lifestyle should not have been treated as a factor in favour of the application, or have been given significant weight, and that there was error in the approach taken by the Board.
As context for these submissions, s 6 of the Act sets out three core principles which are to guide the performance of functions, powers conferred or duties imposed under the Act:
"6 Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect."
I note these principles were referred to by the Board. As stated by Bell J in Patrick's case (above) at [18] when considering like principles in s 4 of the Victorian guardianship legislation:
"Personal autonomy is inherent in the least restrictive means and the wishes of the person principles. The purpose of requiring the adoption of the least restrictive means is to leave the person with as much personal autonomy as possible over their personal and financial affairs. The same value is inherent in the requirement to give effect to the person's wishes, where ascertainable and wherever possible."
Giving full effect to the principles in s 6, I reject the submission that poor decisions cannot be taken into account, or must necessarily be given limited weight in determining whether someone has a disability and the extent of their decision-making capacity. Each case will turn on its own facts. Restriction of an individual's cognitive ability may, depending on the case, be revealed by the types of decisions that they have made. However, it is important to bear in mind that ultimately the issue is ability and capacity to make reasonable judgements, rather than the judgements themselves. The evidence of the appellant's poor decision-making about where he would live could legitimately be taken into account by the Board.
Before leaving this aspect of the evidence, I observe that it can be seen from the Board's reasons that the appellant's determination to live on his boat, and his "poor decision" in this regard, featured prominently in the Board's reasoning. It was referred to again at [17] in the context of the issue regarding capacity to make reasonable decisions:
"The appellant's HCPR and other medical evidence supported the view that as a result of his cognitive impairment, [the appellant] was not capable of making reasonable decisions and that this was demonstrated by the decisions he was making, and in particular his decision to live on his boat."
There is a need for caution about a "boot straps" approach to guardianship orders in the case of a person declining to accept medical advice that is in their interests, by treating that poor decision as demonstrating lack of insight and poor reasoning, and as supporting an inference of a cognitive impairment and ultimately, a finding of a disability. In reality, the evidence may amount to no more than a fixed decision that is contrary to medical advice, a decision that should be the beginning of the enquiry as to disability and capacity.
The medical reports of the treating team also reveal this heavy reliance on the appellant's fixed poor decision to continue living on his boat. It can be seen that there was a degree of working back from "poor decisions" to opine poor reasoning. That is not to criticise the legitimacy of taking into account poor decisions, but rather to note the need for caution because, as I have said, poor decisions are not to be equated with poor decision-making ability.
It is necessary to bear in mind that in this appeal I am not concerned with whether there was due or undue weight given to this consideration. The Court has a limited function, and the question is whether, by reference to the evidence before the Board, the Board could have been satisfied of the criteria for the making of an order. This question requires a consideration of all the evidence that was before the Board and whether it could sustain the conclusions reached. The first question is whether the evidence could satisfy the Board that the appellant had a disability.
Evidence relied upon by the medical practitioners as supporting an opinion of cognitive impairment was detailed by the Board in the reasons (appearing in the context of the Board's consideration of capacity and the requirement in s 20(1)(b)):
·     The appellant’s lack of insight as to how his amputation affects his function.
·     Failure to identify and respond to his health needs, including diabetes management.
·     Demonstrated unrealistic expectations of support services available to him on discharge.
·     Poor insight into factors leading to his hospitalisation and adjustments now required.
·     Unable to weigh up consequences and implications of his actions.
·     Observations of tangential thinking, rambling responses and disinhibition.
·     Impulsivity, examples: completely focussing on living on his boat while refusing to acknowledge any implications of this; attempting to stand when he was unable to do so; and purchasing crutches when told not to ambulate.
In addition to these observations, the Board also referred to the appellant's answers at the hearing about his decision to live on the boat which the Board found to be rambling and tangential. The Board found that these answers supported the fact that he was focussing completely on a return to his boat without any realistic consideration of impediments. Most of these observations of cognitive impairments centred around the appellant's determination to live on his boat, difficulties in accommodating, or poor insights regarding, the implications of his amputation or difficulties connected with management of his medical conditions, such as his diabetes.
It is worth bearing in mind that a person's fixed and resolute determination to live in their home does not necessarily suggest rigid and fixated thinking generally and an inability to make reasonable judgements. A person's attachment to their home is understandable and does not necessarily reveal cognitive difficulties. In the appellant's case, his yacht is not just a place to stay, it is his home, his chosen lifestyle. The application noted that the appellant has the "firm opinion that he should return to his yacht, as he states 'this is his home'." It was also a financial investment, the application noted that the appellant "reports he has invested a substantial amount of money in the yacht."
In Patrick's case, Bell J at [285] spoke about this in terms that are factually applicable:
"There are many reasons why people make genuine and legitimate choices of this kind, [retaining his home] even though (equally genuinely) their friends, family, carers or doctors may think the choice is not in their best interests and has seriously inconvenient consequences for them. So important to the individual is their property and home that this personal freedom of choice is respected in the law, particularly in the fundamental common law rights and freedoms and basic human rights which are engaged in such a case. Those rights and freedoms are equally possessed (although needed more) by people with a mental illness.
The irreversible and extreme step of severing a person's connection with their home and denying them freedom of choice about where to live is a drastic interference with their fundamental common law rights and freedoms and their basic human rights."
These remarks about the potential importance of "home" to an individual and their autonomy resonate here, even though Patrick’s case was a case concerning the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the legal recognition of human rights provided by the Charter does not have application in Tasmania.
An aspect of the evidence listed above said to demonstrate the appellant's cognitive impairment was that the appellant had difficulties coming to terms with the amputation and making the necessary adjustments. The appellant's arguments acknowledged that his state of mind may have seemed abnormal as a result of a number of factors, including medication and shock at the loss of a limb. As a general common sense observation, it may be noted that an individual may have difficulties coming to terms with the amputation of a limb, especially when it is unexpected. Understandably, some individuals with no cognitive impairment may struggle to face facts and may cling to their previous lifestyle. Some may find it difficult to learn to make adjustments by listening to advice, but rather they may learn from experiencing their limitations.
There is a degree of subjectivity about the clinical observations of the appellant's reasoning difficulties and cognitive limitations. Professional minds may differ on whether what was observed was evidence of a cognitive impairment. This subjectivity can be seen in the divergence in the opinions of the treating team compared with the opinion of Dr Tolman. Examples of this divergence are that fixated thought and poor insight and may be regarded as the product of a determined personality; tangential thought could be seen as someone who is long-winded and wanting to be heard.
In terms of the evidence supporting a conclusion of disability, it is significant that impairment of cognitive ability was observed and not objectively assessed by neuropsychological testing. The treating team readily acknowledge the significance of objective testing in making an assessment. Mr Murphy stated in his report:
"Due to his refusal of objective assessment his current cognitive state is unable to be assessed; however his tangential thought and poor decision making processes indicate there is likely some cognitive impairment."
Dr Madelbwe noted that the Royal Hobart Hospital had intended a full neuropsychological testing which would have assessed impulsivity, executive functioning, problem solving and matters of insight, but the appellant had declined that. Clearly, in the ordinary course the appellant's cognitive functioning would have been objectively tested, and if he had cognitive difficulties of the kind suggested by his treating team in terms of executive functioning then neuropsychological testing would have detected those difficulties and provided objective information about the extent of them.
As noted, the opinions of cognitive impairment were based on observations made in a clinical setting by his treating team over a course of some months, and in the case of Mr Murphy during the course of three appointments. The evidence reveals that in this setting the appellant was reluctant to contribute information to his treating team in case it may have been used to support the guardianship application. Indeed, in the application prepared in August it was noted:
"[The appellant] commented that he does not wish to contribute any information which would be used to support this guardianship application or which could be used against his civil liberties. [The appellant] would like the GAB to be aware that he has purchased 2 mobility scooters. He would also like the GAB to know he is a naturally shy person and not a good orator. [The appellant] also commented that the Rehabilitation Doctors were against him residing on the yacht, even before they had seen a picture of the boat or a home visit had been undertaken. [The appellant] feels this is an inadequate approach to deciding about his discharge location."
The Board's reasons note matters bearing on the clinical setting and the appellant's view of his relationships with the treating team. The appellant had been critical of a comment made to him by social work staff which suggested that the application for an appointment of a guardian was being used as a "risk management strategy". He complained to the Board that the presumption of cerebral ischaemia was not discussed with him, cognitive assessment was carried out without his knowledge and without specific testing. During the appellant's account at the hearing (referred to in the affidavit of Mr Street) the appellant stated:
"a)His feeling that the treating medical team and Dr Madebwe had viewed his desire to return to his yacht as untenable from the outset and that any assessment of his returning to the yacht was conducted to try and close off this option; and
b)That he wanted for the Board to take into account all of the good things he had done since entering hospital such as getting Dr Tolman's advice, obtaining a private occupational therapist, and retaining legal advice, not just the negative experience he felt was portrayed by the RHH."
It is evident that the appellant lacked trust in the advice he was receiving and was suspicious about the objectivity of his treating team. His resistance and oppositional stance was not in contention.

Inevitably the appellant's engagement with his treating team was adversely affected. His attitude may have contributed to his responses that were observed, such as "bordering on paranoia", "dismissive" of any functional impairment due to the amputation and "unable to identify any potential difficulties in returning to live on his boat", as noted by Mr Murphy in his report. It may be noted that he was described as "guarded" by Dr Tolman. It would not be surprising if the appellant's lack of communication for fear that he may be helping to build a case against himself impacted upon the medical assessment of his reasoning ability.
The setting for clinical observations was not ideal given these circumstances.
It may be noted that clinical observations of the appellant included his failure to identify and respond to his health needs, and a poor understanding of his medical conditions, including poor diabetic management, as examples of his cognitive difficulties. By the time of the hearing, considerable improvement was seen in that regard, with the appellant living independently, and no adverse reports about his response to medical advice and recommendations. An entrenched poor response to medical advice was not evident.
In conclusion, the Board was left with opinions that are unsupported by objective testing and that are reliant on clinical observations of the appellant's difficulties that are not definitive of a cognitive impairment. The clinical setting in which these observations were made was not ideal given the appellant's attitude and suspicious mind-set. Further, an underlying condition as the cause of a cognitive impairment was not diagnosed. As a consequence, in the circumstances of this case, questions remained about possible explanations for the appellant’s presentation, other than cognitive impairment, such as personality traits, perhaps exacerbated by his oppositional stance.
The evidence was not capable of satisfying the Board that the appellant had a disability within the meaning of the Act. As stated, it was open to the Board to reject Dr Tolman's opinion that the appellant did not have a cognitive impairment and to reject the conclusions she reached supporting that view, such as the appellant having insight and above average problem-solving skills. Assuming acceptance of the evidence of the clinical observations of the treating team, as well as the Board's own observations in support, the evidence necessarily fell short of the threshold of being capable of satisfying the Board on the balance of probabilities that the appellant had a disability for the purpose of s 20(1)(a). Ground one of the appeal succeeds.

Incapacity by reason of disability

The Board could not have been satisfied that the requirement in s 20(1)(b) of the Act had been established because it requires satisfaction that the appellant has a disability. Even if a disability had been established, a further requirement of the subparagraph is that the appellant is unable by reason of his disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances.
There is a distinction of importance between the making of a good or bad decision and a person's capacity to make reasonable judgements: NHS Foundation Trust v JB [2014] EWCOP 342 at [7].Similarly, a person may choose not to take advice but be capable of doing so. This distinction is plain from the terms of s 20(1)(b).
The appellant's submissions relied upon authorities which highlighted this distinction. In T [2018] WASAT 128 at [35] it was said:
"[35] There is a common maxim in the jurisdiction that people have a right to make bad or unwise decisions. Competent people make them all the time. It will be for the Tribunal in each instance to ensure that any order under subsection (iii) is appropriate and that the subsection is not simply being used in an attempt to override what are capably made albeit bad or unwise decisions with which others engaged with or close to the proposed represented person simply disagree."
As mentioned, the appellant's submissions also relied upon Briginshaw v Briginshaw. It was submitted that the Board needs to be satisfied of the factors in s 20(1) on the balance of probabilities, but having regard to the nature and seriousness of the order and the impact of the order on the appellant: T at [36]. I accept that the principle derived from Briginshaw v Briginshaw has application. The Board must be satisfied on the balance of probabilities of the statutory criteria keeping in mind the nature of the order and the consequences to the individual which might flow from the findings made: Briginshaw v Briginshaw per Dixon J at 362. However, as will be seen this is not a borderline case in terms of whether the evidence met the requisite standard of proof on the balance of probabilities. There is a lack of clear or cogent evidence of the statutory criteria.
While the appellant may not be making reasonable judgements in terms of his decision to return to live on his boat, the question is whether he is unable to make reasonable judgements in that regard. A focus on this distinction serves to highlight the lack of evidence regarding the appellant's capacity.
The Board's reasons acknowledged the distinction between decisions and decision-making capacity, stating at [17]:
"There is always a presumption of capacity. A person with a decision making capacity is free to make bad decisions even if it causes them harm. Conversely, a person with a cognitive disability may well still be able to make reasonable decisions. The applicant's HCPR and other medical evidence supported the view that as a result of the cognitive impairment [the appellant] was not capable of making reasonable decisions and that this was demonstrated by the decisions he was making, and in particular his decision to live on the boat."
The Board went on to refer to the evidence of Dr Black in her report, Mr Murphy's opinions, the competing opinions of Dr Tolman and the evidence of Dr Madelbwe:
"Dr Madelbwe have examples of the impulsivity observed by the team: completely focussing on living on his boat whilst refusing to acknowledge any implication of this; attempting to stand when he was unable to do so; purchasing crutches when he had been told not to ambulate. She stood by her observations of disinhibition, rambling responses and tangential thinking and noted that Dr Tolman had made her observations and formed her conclusions over two hours not five months. She disagreed that Dr Tolman's evidence shows that [the appellant] is able to make reasonable judgments about his personal circumstances."
The Board set out reasons for preferring the evidence presented by the appellant rather than Dr Tolman's evidence, noting that many of Dr Tolman’s comments did not seem to support her conclusions of "good impulse control", "safety awareness" or "insight", as mentioned. The Board noted the following observations made by Dr Tolman as examples:
·He has made some poor decisions.
·He thinks and talks quickly sometimes without listening carefully.
·He is sometimes quick to take a contrary view.
·He can be longwinded "speaks rapidly" "does not always listen to details".
·He was "pretty good" with his glycemic control until 2013.
·After he came into some money he made the decision to enjoy life to the detriment of his sugar control.
Although a matter on which minds may differ, it was open to the Board to regard the observations of Dr Tolman as not supporting her opinion and even as providing support to the opinions of the treating team.
The Board went on to refer to the appellant's evidence and, as I have mentioned, described his responses at the hearing about his decision to live on his boat as rambling and tangential and supporting the fact that he was focussing completely on a return to his boat without any realistic consideration of the impediments to this course. The Board considered recent steps taken by the appellant, relied on by him as evidence of his sound decision-making and insight, such as engaging a private occupational therapist to assist with modifications to his boat and purchasing a personalised alarm system. The Board considered that these steps were "more likely the consequence of recent advice about actions which would help his case than a considered decision-making process". The Board concluded that it was satisfied "that as a result of his disability [the appellant] lacked capacity to make reasonable decisions about his accommodation."
I have referred in detail to the evidence relied upon by the Board as demonstrating cognitive impairment, such as the appellant's poor decision to return to live on the boat, and the clinical observations of his treating team. The Board relies upon the same evidence of clinical observations of the appellant as revealing poor ability in terms of making reasonable judgements. I have made remarks about the limitations of that evidence in demonstrating disability, such as the lack of objective testing and the exclusive reliance on observations made in a clinical setting which was compromised due to the appellant's oppositional stance affecting the rapport between himself and his treating team. These same remarks are applicable to the question of capacity. For those same reasons, it was not open to the Board to conclude that the appellant lacked capacity to make reasonable judgements by reason of his disability.
Pertinent to the issue of incapacity is the reference in Mr Murphy's report that the appellant was "unable to identify any potential difficulties in returning to live on the boat." In reality this is equivocal evidence of an inability to make reasonable judgements, noting the contents of the application regarding the appellant's reluctance to contribute any information. The appellant's reluctance and oppositional stance is referred in Mr Murphy's report:
"The advantages and disadvantaged of assessment and the impact of not undertaking the assessment were explained to him, but he still refused. He stated there was nothing wrong with his cognition. [The appellant] instead would focus on his compliance within the hospital, that he was attending all sessions, taking all medication and speaking to all the doctors. He noted it was a patients right to live how they wanted."
In identifying the appellant's incapacity as a consequence of his cognitive impairments, a matter that was referred to was the appellant's poor response to his medical conditions and his failure to identify and respond to his health needs, including diabetes management.At the time of the hearing, the appellant had been discharged from the rehabilitation unit and was living independently in a hotel. There was no suggestion that his management of his medical condition in this setting was proving inadequate. In fact there was uncontradicted evidence before the Board that the appellant had been contacting the Royal Hobart Hospital staff at pre-arranged times to check in on his welfare, and he had engaged with community nursing in relation to his ongoing wound care. Indeed, this would seem to provide an example of the appellant making reasonable judgements in relation to his medical care.
A finding that the Board was satisfied that the appellant was unable by reason of a disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances was not reasonably open on the evidence. Ground two succeeds.

In need of a guardian

Section 20(1)(c) requires that the Board be satisfied that the appellant was in need of a guardian. Section 20(2) provides:
"In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action."
Section 20(3) provides:
"The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person."
The principle regarding the wishes of the individual in s 6(c) has application as well.
The Board was informed of steps taken by the appellant for his safety. These steps were referred to by the appellant at the hearing, referred to by his counsel in submissions to the Board, and noted in the Board's reasons. The steps he had taken included the following:
·He had engaged his own private occupational therapist to implement modifications to his yacht and a return to home plan focussed on safely returning to live on his yacht.
·The appellant had engaged with Housing Connect to look at any other reasonable accommodation options if it was decided that returning to live on his yacht was not viable.
·The appellant had purchased a smart watch to enable him to remain connected as he had realised he often has difficulty making it to his phone in time when it rings.
·He had purchased mobility devices and a personalised alarm system.
According to the evidence, the appellant will also be giving consideration to a prosthesis, but whether that is a feasible option is still uncertain. These steps were referred to by the Board in the following terms:
"[The appellant] described, as evidence of his sound decision making and insight, steps that he had taken to implement his discharge plan – such as taking legal advice, having a capacity assessment, engaging a private OT to assist with modifications to his boat, purchasing mobility devices and personalised alarm system. However, the Board was not persuaded that the motivation in taking these steps, which were inconsistent with his attitude whilst in hospital, were more likely the consequence of recent advice about actions which would help his case than a considered decision making process. Whether he has the capacity to challenge the application to the Board is not the same question as whether he has capacity to make the accommodation decisions."
These are not the only considerations relevant in terms of the appellant's capacity, but also bear on the need for an order. The Board's point about the appellant's motivation and whether he reluctantly took those steps or genuinely saw the need for them is of less significance in the context of the necessity for the order, providing he was going to take those measures. If he was prepared to take those steps and those steps obviated the need for the order, then an order could not have been made.
In relation to the need for a guardian the Board's reasons are very brief:
"The Board was satisfied for all the reasons set out above that [the appellant] is not able to make reasonable decisions about where he lives. His fixation on living aboard his boat is impractical and risky but immutable. A guardian is required to make decisions about [the appellant's] accommodation which would, of course, take into account [the appellant's] wish to live on his boat if this can reasonably be achieved."
In light of the evidence I have referred to, the immutability of the appellant’s "fixation" to live on the boat was not established. The appellant wanted to explore the option of having his own occupational therapist assess his yacht and see if adjustments could be made. Adhering to his desire to return to his yacht in those circumstances does not disclose that his fixation was immutable. Further, as noted at [73] his recent response to medical treatment would suggest an improvement in the appellant's management of his medical conditions, compared with his response as an inpatient at the rehabilitation unit as observed by his treating team.
There was uncontroversial evidence about the steps the appellant had already taken and was intending to take for his safety in attempting to return to live on his yacht. It is likely that he would adhere to his desire to return to his yacht until those steps were exhausted. If the opinion of his own occupational therapist is that a safe return is not possible, there is the prospect that he will accept that from his own occupational therapist. If his experience is that it is not practicable or viable for him to live on the yacht, there is the prospect that he will see that for himself. An option that the Board has in circumstances where the Board has embarked on a hearing and the individual seeks to demonstrate that they will take certain steps and, if taken, those steps would impact on the need for an order, is to allow that opportunity and to adjourn the hearing for a period without making an interim order. The provisions in the Act would allow that approach. Such an approach may, in an individual case, appropriately reflect the guiding principles in s 6 of the Act.
There are legitimate concerns about the possibility that a safe return is not possible, notwithstanding implementation of safety measures and adjustments to his yacht. There is a concern that the appellant may persevere with his determination to live on his yacht, placing himself in danger. However, the terms of s 20(1)(c) require a present necessity, not merely a contingency that may or may not eventuate in the future, refer: Re M & R v Guardianship & Admin Board (1998) 2 VAR 213; Public Trustee v Blackwood (above) per Underwood J at 265-266; Barker v Guardianship and Administration Board [2019] TASSC 8 per Geason J at [16], [21].
In the event the appellant acts in disregard of his safety, there is the availability of an emergency order pursuant to s 65 of the Act. Section 29 may also have application. If the Board has commenced a hearing it has power to adjourn the hearing and to make an interim order if the Board considers that there "may" be grounds for making a guardianship order: s 73A of the Act.
In light of the circumstances, even if the other criteria of disability and incapacity were satisfied, the Board could not have been be satisfied on the evidence that the appellant was in need of a guardian. Ground 3 is also borne out.

Outcome

The evidence establishes legitimate medical concerns about the appellant's safety and difficulties he was experiencing in adjusting to his condition. Oversight after discharge from the rehabilitation unit and an intensive level of support were undoubtedly warranted. However, the making of a guardianship order requires satisfaction of specific criteria in s20(1). The Board acting reasonably could not have made the findings in s 20(1) of the Act. There was an error of law vitiating the decision of the Board.
The appeal is upheld. It is ordered that the determination of the Board is set aside. I will hear from counsel as to any consequential orders.