MP v Adult Guardian and the Public Trustee of Queensland
[2011] QCATA 45
•10 March 2011
| CITATION: | MP v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 45 |
| PARTIES: | MP (Applicant/Appellant) |
| v | |
| Adult Guardian and The Public Trustee of Queensland (Respondents) |
| APPLICATION NUMBER: | APL311-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member |
| DELIVERED ON: | 10 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal refused. 2. Appeal dismissed. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where Adult Guardian appointed as guardian and The Public Trustee of Queensland appointed as administrator for MR – review of these appointments found that they should not be altered – where applicant seeks leave to appeal on grounds that the Tribunal made an error of law by failing to consider existing Enduring Power of Attorney, applying an incorrect test, taking into account irrelevant considerations APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where Adult Guardian appointed as guardian and The Public Trustee of Queensland appointed as administrator for MR – review of these appointments found that they should not be altered – where applicant seeks leave to appeal on grounds that the Tribunal made an error of fact by taking into consideration that there were numerous service providers and health care professionals in the adult’s life Guardianship and Administration Act 2000, ss 14, 15, 31, 77 Appellant WABZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 30 |
APPEARANCES and REPRESENTATION (if any):
The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
President:
I have had the advantage of reading the reasons of Senior Member Clare Endicott, in draft. I agree with her reasons, and the order she proposes.
Senior Member Clare Endicott:
MP has been married to MR for 41 years. They have four adult children: three sons and one daughter, ML. MR was diagnosed some years ago with spastic paraparesis, a condition described as a genetic disorder which is progressive in nature and which has had effects on his physical, cognitive and communication functioning.[1]
[1] Lines 15 to 21 of page 2 of the reasons for decision of the tribunal of 28 April 2010.
Disagreement and conflict have arisen over decision-making between MP and ML about almost every aspect of MR’s care, and life. The difficulties with communication, information and decision-making have been unable to be resolved.[2] MP and ML were applicants at various times to the former Guardianship and Administration Tribunal which made orders in 2007, 2008 and 2009 appointing the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for MR.
[2] Lines 1 to 13 of page 7 of the reasons of 28 April 2010.
In 2010 MP applied to the Queensland Civil and Administrative Tribunal, which had replaced the Guardianship and Administration Tribunal from 1 December 2009, to review the appointments of the guardian and administrator. On 28 April 2010 the Tribunal conducted a hearing, but decided to continue the appointments of the Adult Guardian and The Public Trustee of Queensland.
MP seeks to appeal that decision. In her application, she sets out the following grounds of appeal:
1) The Tribunal made an error of law in that:
a) It failed to consider the existing Enduring Power of Attorney when considering whether the adult’s needs will not be adequately met without an appointment, as required under s 31 of the Guardianship and Administration Act 2000 (the Act);
b) It applied a test for co-operative, collaborative and equal communication that was not required by the legislation, specifically the Act and s 77 of the Powers of Attorney Act 1998;
c) It took into account an irrelevant consideration, when making its decision, namely the issue of conflict;
d) It noted that ongoing conflict was the substantive reason for the appointment of the Adult Guardian but then observed that no reduction of conflict had occurred under their appointment in circumstances where it was unreasonable to do so given the statutory preference in s 14 of the Act.
2)The Tribunal made an error of fact in that it found that there were numerous service providers and health care professionals involved in the adult’s life.
Under s 142(3)(b) of the QCAT Act a party may appeal a decision of the Tribunal on a question of fact, or on a question of mixed law and fact, with the leave of the Appeal Tribunal. An appeal based on a question or matter of law does not require leave. The major contentions raised by MP focus on matters that are said to amount to errors of law.
On 6 December 2010 it was ordered that the application for leave to appeal, and the appeal (if any necessary leave was granted) would be determined on the papers and the parties were directed to file written submissions.
Submissions were filed by MP and by ML but the Adult Guardian and The Public Trustee of Queensland notified QCAT that they would not file any submissions and would, in effect, abide the conclusion reached by the Appeal Tribunal.
Turning first to the contention in paragraph 1(a) of the appeal that the Tribunal erred in law by failing to take into account a relevant consideration, it is submitted that the Tribunal did not consider the existence of the Enduring Power of Attorney and whether MR’s needs could be adequately met by his attorney for personal and health matters. MP is his attorney for personal and health matters under an Enduring Power of Attorney dated 8 June 2003.
It is clear from the reasons for decision of the Tribunal that consideration was given to whether MP could adequately meet MR’s decision-making needs. After examining and analysing the evidence about the ability of MP to make decisions for MR, the Tribunal stated as follows:
The Tribunal is not satisfied that [MP] as a decision maker would be able to work cooperatively and collaboratively and communicate equally with her daughter, due to the long-standing hostility.[3]
[3] Lines 29 to 35 of page 8 of the reasons for decision of 28 April 2010.
While the Tribunal did not specifically refer to the existence of the Enduring Power of Attorney and to MP as an attorney during that examination and analysis, it is clear from the reasons taken as a whole that the Tribunal Members were aware of the existence of the Enduring Power of Attorney, and of the appointment of MP as MR’s attorney in 2003.[4] It is not unreasonable to infer that the Members of the Tribunal had taken into consideration the availability of an attorney to provide decision-making for MR.
[4]See lines 13 to 19 of page 3, lines 43 to 47 of page 3, lines 51 to 57 of page 13 and lines 1 to 7 of page 14 of the reasons for decision of 28 April 2010.
The Tribunal clearly reached the conclusion that MP was not an appropriate decision-maker for MR. That conclusion would have equal force whether MP was acting as an attorney, or as a guardian. The ground in paragraph 1(a) of the appeal is not established.
It is contended in paragraph 1(b) that the Tribunal had applied a test for appropriateness of an appointee that was not required by the relevant legislation. In particular it is contended that the Tribunal had applied a test requiring co-operative, collaborative and equal communication between a proposed appointee for guardian and administrator and a family member.
It is necessary to analyse the reasons for the decision to determine what test was applied by the Tribunal.
The reasons reveal that the Members undertook a three-stage process in reaching the conclusion to continue the appointments of the Adult Guardian and The Public Trustee of Queensland as decision-makers for MR. The first stage was to consider whether MR had capacity to make his own decisions. The second stage was to consider whether an appointment of a decision-maker was necessary. The third stage was to consider who should be the decision-maker.
In their discussion of the issues and evidence about the need for a decision-maker in the second stage of its considerations, the Tribunal Members noted that there had been extensive involvement by the Adult Guardian in decisions about a multitude of issues impacting on MR’s care.
It was also noted that the issues relating to MR’s health are complex, and his physical condition is deteriorating and fragile. The health issues were noted to be related to loss of weight, management of pain, diet, his general health and well-being, selection of health care practitioners, palliative care and life sustaining measures.
In addition to heath care issues, the Adult Guardian has been involved in matters related to contact between MR and his family.
In this context of the existence of a multitude of health care and contact issues that had given rise to a need for decision-making, the Tribunal went on to note that there was substantial disagreement and conflict over decision-making about almost every aspect of MR’s care and life between MP and ML. The Tribunal noted difficulties with communication of information between MP and ML which had resulted in decision-making not being progressed.
The Tribunal found that the ongoing conflict within the family had not been resolved and that this conflict has an impact on MR’s health care, his contact with family, and with planning for his future care. Important decisions will need to be made about his health care and those decisions must consider the views of his family as well as MR’s own needs and his best interests. The Tribunal concluded at the end of the second stage of its considerations that timely, independent and objective decisions would be required to ensure that MR’s interests alone were represented, free of emotions, free of conflict and free of difficulties with communicating.[5]
[5] Lines 11 to 17 on page 8 of the reasons dated 28 April 2010.
In the third stage of its considerations, the Tribunal took into account evidence about the appropriateness of the proposed decision-makers. The considerations for appropriateness are set out in s 15 of the Act. The considerations listed in sub-ss (1)(a), (b), (c) and (g) of s 15 are relevant here and are as follows:
a)the general principles and whether the person is likely to apply them;
b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;
c) the extent to which the adult’s and person’s interests are likely to conflict; …
d)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
The Members of the Tribunal did not in the reasons specifically refer to the appropriateness considerations in s 15 of the Act. However the Tribunal’s reasoning for rejecting MP as a decision-maker did in fact deal with the considerations that are found in the subsections of s 15, and are specified in the preceding paragraph.[6]
[6]Lines 1 to 13 of page 7, lines 35 to 45 on page 7, lines 11 to 35 on page 8, lines 13 to 55 on page 9, lines 1 to 23 on page 10, lines 33 to 47 on page 11 and lines 1 to 23 on page 12 of the reasons dated 28 April 2010.
The Tribunal delivered oral reasons on the day of the hearing. It is not unreasonable that oral reasons delivered in such circumstances will be found to lack a precision in language that would generally be expected to be present in written reasons which provide an opportunity for refinement and revision of language. The comments made by Spigelman CJ – “It is not appropriate to parse and analyse judgements given on an ex tempore basis by judges of the District Court, who have a considerable workload” – apply with equal force to oral reasons given by Members of this Tribunal.[7]
[7]Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at 49.
I am satisfied that the Members of the Tribunal on 28 April 2010 applied the correct test for appropriateness, and were not led into error by applying the wrong test. A finding that the Tribunal was not satisfied that “MP as a decision maker would be able to work cooperatively and collaboratively and communicate equally with her daughter” is not tantamount to the Tribunal imposing a test for appropriateness in those terms.
It is, rather, merely one of the conclusions made on the facts in the Tribunal’s assessment whether MP could provide care in circumstances which satisfied the general principles, and whether her interests were likely to conflict with the interests of MR. The finding was relevant to whether MP could reliably put aside her ongoing conflict with ML to make decisions in the interests of MR, when to do so might require MP and ML to co-operate and collaborate – when the evidence had disclosed a singular lack of agreement about almost every aspect of MR’s care and life to the date of the Tribunal hearing. The grounds for appeal in paragraph 1(b) are not established.
For the reasons set out earlier, the grounds for appeal in paragraph 1(c) are also not established. The issue of conflict between MP and ML is not an irrelevant consideration for the appropriateness of a decision-maker. The existence of such conflict can be directly relevant to sub-ss (a), (c) and (g) of s 15 of the Act. When conflict between family members becomes as pervasive as in this case, it is inevitable that the conflict is likely to affect the interests of the adult about whom decisions are to be made. This was evident in the evidence accepted by the Tribunal about difficulties caused by the conflict between MP and ML in having contact and health care decisions made for MR.
It appears to be inherent in the contention in ground 1(d) of the appeal that MP asserts that the Tribunal made an error of law in preferring the appointment of the Adult Guardian over the appointment of MP, given the provisions in s 14(2) of the Act that the Adult Guardian may be appointed only if there is no other appropriate person available for appointment. Ground 1(d) is not soundly based. The application determined by the Tribunal on 28 April 2010 was a review of the appointment of the guardian under s 31 of the Act and not a determination of an initial application for the appointment of a guardian requiring application of s 14 of the Act.
Under s 31 of the Act, once the Tribunal is satisfied that there are appropriate grounds for an appointment of a decision-maker to continue, the Tribunal has to consider whether to continue the previous appointments or change those appointments. The Members specifically referred to, and applied, sub-s (4) of s 31 which is as follows:
(4) However, the tribunal may make an order removing an appointee only if the tribunal considers—
(a) the appointee is no longer competent; or
(b) another person is more appropriate for appointment.
The Tribunal found that the Adult Guardian had been competent and found that MP was not more appropriate than the Adult Guardian for appointment. The Tribunal specifically concluded that despite the good intentions and the clear love and concern that family members have for MR, an independent decision-maker was more appropriate to act as guardian for MR. Again, for the reasons set out above, the criteria adopted by the Members of the Tribunal to assess the appropriateness of the current and proposed appointees for guardian were correct, and do not reveal an error of law.
The remaining issue raised by MP in her application to the Appeal Tribunal is a contention that the Tribunal had made an error of fact in finding that there were numerous service providers and health care professionals involved in MR’s life. Under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 MP needs leave from the Appeal Tribunal to appeal on a question of fact.
Leave to appeal is ordinarily granted when there is some question of general importance that would benefit from having a decision of the Appeal Tribunal or there has been a substantial injustice caused by an error of fact. It has not been submitted that any substantial injustice was caused in the event that the finding of fact made by the Tribunal was incorrect. It is not apparent to the Appeal Tribunal that any injustice, let alone substantial injustice, has been caused by the Tribunal finding that numerous service providers and health care professionals are involved in MR’s life if that in fact is not the case. The continuation of the appointment of the Adult Guardian was not dependant on that finding of fact. Leave is not granted to appeal against this alleged error of fact.
A final issue needs to be addressed. Although it was not raised as a ground of appeal in the appeal application, in the submissions filed on her behalf by her legal representative it is submitted that the Tribunal had breached the rules of natural justice by failing to allow MP legal representation. Reliance was made on a Federal Court authority which had upheld the principle that procedural fairness may require a person to be represented in the circumstances of a particular case despite the operation of a statutory framework that precluded representation.[8]
[8]Appellant WABZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 30.
The submission is not sound. Section 43 of the QCAT Act provides that parties are to represent themselves unless the interests of justice require otherwise. Section 43 does not offend against the principle in the authority relied on as the section specifically permits representation in the interests of justice.
Granting leave to a person to be represented is at the discretion of the Tribunal. It was submitted by counsel for MP that the Members of the Tribunal were in error in declining to grant leave on the basis that the proceeding did not involve complex questions of fact or law. Nothing has been presented to the Appeal Tribunal to establish that the Tribunal improperly exercised its discretion. At best, the submissions pointed to what was alleged to be an inconsistency in the reasons where the Tribunal had referred to certain issues being complex.
That submission misinterprets what was said by the Tribunal. What the Tribunal recognised as complex were the issues on which the guardian had to make decisions. The Tribunal did not find that the issues which the Tribunal had to decide were complex.
The application for leave to appeal on questions of fact is refused, and the appeal on question(s) of law is dismissed.
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