Mr v Adult Guardian and the Public Trustee of Queensland
[2011] QCATA 211
•19 July 2011
| CITATION: | MR v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 211 |
| PARTIES: | MR (Applicant/Appellant) |
| v | |
| Adult Guardian The Public Trustee of Queensland (Respondents) |
| APPLICATION NUMBER: | APL022-10 / APL300-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 28 April 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member Patricia Hanly, Member |
| DELIVERED ON: | 19 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Appeal APL022-10 is dismissed. 2. Appeal APL300-10 is allowed. 3. Set aside the orders of the Tribunal made on 4 May 2010. 4. Order that the matter be remitted to the Tribunal for reconsideration, with the hearing and receipt of such additional evidence and submissions as the Tribunal may, in accordance with these Reasons, determine. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – POWER OF ATTORNEY – ERROR OF LAW – where the Tribunal set aside a Power of Attorney under which MN had appointed MR as her attorney – where MR now seeks leave to appeal that decision on the grounds that the hearing gave rise to an apprehension of bias; that the Tribunal had breached the ‘hearing rule’; that it had taken irrelevant considerations, and failed to take relevant considerations, into account; that the decision was unreasonable; and, that the Tribunal had erred in fact and law – where procedural fairness was not provided to a participant at hearing – where a party was not provided with a reasonable opportunity to respond to findings in a report relied on at the hearing – whether leave to appeal should be granted – whether grounds for appeal Guardianship and Administration Act 2000 Attorney-General v Kehoe [2001] 2 Qd R 350, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | MR represented by R Fryberg of Counsel instructed by McInnes Wilson Lawyers |
| RESPONDENTS: | Adult Guardian appeared by Katherine Johnson, legal officer of the Office of Adult Guardian No appearance by or for The Public Trustee |
REASONS FOR DECISION
MR wishes to appeal against a decision of the Tribunal made after a hearing on 4 May 2010 which affected the affairs of his mother, MN.
The order set aside a Power of Attorney made in 2006 under which MN had appointed MR her attorney for financial, personal and health matters and, in his place, appointed the Adult Guardian as her guardian for the matters of accommodation, health care and services for three years, and The Public Trustee of Queensland as her administrator for all financial matters, on an indefinite basis. An amended application was subsequently filed and relied upon by MR at the hearing of his application for leave to appeal.
As argued before this Appeal Tribunal, MR’s concerns about the Tribunal’s conduct of the matter, and its decision, were wide ranging: it was contended that the conduct of the hearing gave rise to an apprehension of bias; that the Tribunal had breached the ‘hearing rule’; that it had taken irrelevant considerations, and failed to take relevant considerations, into account; that the decision was so unreasonable that no reasonable decision-maker could have reached it; and, that the Tribunal had erred in fact and law in finding that there was no appropriate person to appoint to manage MN’s affairs, other than the Adult Guardian.
The Tribunal hearing in May 2010 came about after the Adult Guardian exercised its power under the Guardianship and Administration Act 2000 to suspend, for three months, MR’s authority to act as attorney for personal, health and financial matters under the 2006 Enduring Power of Attorney granted by MN. Those powers were suspended following a complaint made about the attorney. That complaint was subsequently investigated, and found to have been established, by the Adult Guardian.
The Adult Guardian subsequently, during the period of suspension, applied to QCAT for the appointment of a guardian and administrator for MN. The Adult Guardian filed a copy of the investigation report in the Tribunal. A copy of the investigation report had been sent to MR.
MR initially sought to have the Tribunal review the decision of the Adult Guardian to suspend his powers, as attorney. That attempt was misguided, because the decision made by the Adult Guardian is not stated to be a reviewable decision under the Guardianship and Administration Act. MR argued that his application should have been considered by the Tribunal and, by way of a separate appeal (APL022-10), contended that the Tribunal’s failure to consider that matter during the hearing on 4 May 2010 was another error of law.
That argument is not sustainable. There is no statutory basis for QCAT to review or hear an appeal about the decision of the Adult Guardian to suspend the powers of an attorney. That application for leave to appeal (that is, APL022-10) must be dismissed. However, MR’s attempts to have the suspension decision revoked are pertinent to what happened at the hearing in May 2010 and his complaints about how it was conducted.
He expected that the hearing would provide him with the opportunity to address the application he had filed – that is, to challenge the findings made by the Adult Guardian in the investigation report. That is apparent from the transcript of the hearing, which shows that MR asked at the outset if there would be any discussion about the investigation report. The Presiding Member replied that the panel Members had read everything that had been received by the Tribunal, but that the Tribunal would need to move ‘… forward from this point and not go backwards’.[1]
[1] See page 3 of transcript.
The transcript also shows that, when the Tribunal Members were pressed by MR with his assertions that the Adult Guardian’s investigation that resulted in the report was flawed, the Presiding Member stated that there would be opportunity for MR to talk about those issues, but he was not to talk about irrelevancies.
[10] Shortly after that comment another panel Member stated that the hearing was not an inquiry into the Adult Guardian’s investigation, or the result of it. The Member stated that the Tribunal would talk about who is the appropriate person for appointment as a decision-maker and:
…insofar as the findings of the Adult Guardian’s investigation are relevant to that point, then they will be dealt with but we are not, and I repeat, not going to trawl through the evidence about the suspension of you or the reasons why it was done. It’s not an investigation into that investigation.[2]
[2] See page 4 of transcript.
[11] Consistent with that comment, during the hearing the panel Members asked MR about decisions he would make about certain personal matters if he were to continue as attorney for MN. He put forward his opinion that MN ‘… probably needs to be in a nursing home now’.[3] He also indicated that MN had settled into that home and she would stay there ‘… whether we have any agreement or feeling towards it whatsoever’.[4]
[3] See page 17 of transcript.
[4] See page 20 of transcript.
[12] MR told the Tribunal that personal decisions needed to be made to maintain MN’s health, and for her to be fed an appropriate diet but he described as a ‘fantasy’ the findings made by the Adult Guardian about the diet MN was getting when she was living at home.[5]
[5] See page 18 of transcript.
[13] The Members of the Tribunal also asked MR about the decisions he had made when he was exercising power as attorney for MN. Specific questions were asked about the decision made about MN’s accommodation prior to 5 February 2010, when the attorney’s powers were suspended. MR responded:
Largely I made the decisions, in consultation with the majority of her [sic] brothers that she would remain at home as long as possible until we thought that mum was beyond the point where she was conscious in line with her wishes.[6]
[6] See page 14 of transcript.
[14] MR stated that he had been informed ‘out of the blue’ by her carer that he had ‘had enough’.[7] The carer gave evidence that when MN’s doctor expressed the view that it was time for her to go into a nursing home, steps were taken to place her in one.[8] (That decision was not made by her attorney, whose power had been suspended.)
[7] See page 17 of transcript.
[8] See page 14 of transcript.
[15] MR was not asked to respond to the findings made by the Adult Guardian in the investigation report that he had been instrumental, as attorney, in failing to provide adequate care for MN. He had been told at the commencement of the hearing that there would be an opportunity for him to talk about his assertions that the investigation resulting in the report was flawed but that opportunity was not provided, the transcript shows, at all during the hearing.
[16] The panel Members may have considered that their questions about the past and future decisions of the attorney had, in fact, adequately explored MR’s assertions about a flawed investigation, but such a conclusion is difficult to draw given their comments, at the outset, that they were not ‘going to trawl through the evidence about the suspension of you or the reasons why it was done’.
[17] It is apparent from the transcript that the evidence gathered by the Adult Guardian during the investigation, and the findings it made, were relied on by the Tribunal Members in reaching their decision about the need for the appointment of a guardian other than MR. At the commencement of the hearing they made it clear that they had read the investigation report; that report was the source of much of the information about the care provided to MN before she was placed into a nursing home.
[18] The reasons of the Tribunal also make specific reference to the history of care provided to MN:
Ongoing decisions are required with regard to health care and medical treatment. There is a history pertaining to medical needs and diet not being consistently made in accordance with medical advice. …
The evidence is that the current attorney did not provide evidence to the Tribunal that he understood the adult’s complex care requirements. He did not demonstrate that he made personal decisions on the adult’s behalf that were in her best interests and based on appropriate medical and allied health requirements.[9]
[9] See page 52 of transcript.
[19] MR has established, in the view of this Appeal Tribunal, that the original Tribunal was obliged to give him a reasonable opportunity to be heard in relation to the allegations contained in the investigation report of the Adult Guardian; and that, unless, that occurred, he had not been given a fair hearing.
[20] In failing to allow him that opportunity the learned Members did not afford procedural fairness to MR, and strayed into error.
[21] A failure to afford procedural fairness is an error of law.[10] Here, that error can only be remedied by hearing the matter again, and it must be returned to the Tribunal for that purpose – that is, a hearing which ensures MR is allowed to present evidence relevant to a matter which may be adverse to him.
[10]Towie v The State of Victoria (2008) 19 VR 640; Francis-Wright v VCAT [2001] 17 VAR 306.
[22] Although this conclusion means that his other grounds of appeal are superfluous they will be considered, for the sake of completeness and because they raise some arguments about the conduct of the proceedings upon which it appropriate to comment.
[23] MR argued that the panel Members displayed apprehended bias in the manner in which they had conducted the hearing on 4 May 2010. He relies on the failure of the Tribunal to allow submissions about the investigation report, on the inquisitorial and argumentative nature of the proceedings, and on the personal experiences of the Members interfering with the Tribunal’s decision-making process. The first point has been adequately discussed in a related argument in the paragraphs above.
[24] The balance of the bias argument is, however, misconceived. The Tribunal may inform itself in any way it considers appropriate, and its procedure is at the discretion of the Tribunal.[11] Hearings in guardianship matters are often conducted in the manner of an inquisitorial approach. The use of such an approach is a departure from the usual manner in which courts conduct hearings, but should not of itself give rise to an apprehension of bias. The suggestion that the panel Members were argumentative is not borne out in the transcript.
[11] Queensland Civil and Administrative Tribunal Act 2009, ss 28(1), 28(3)(c).
[25] In constituting the Tribunal for a guardianship matter, Members can be chosen for their special knowledge or expertise.[12] The Tribunal is regularly constituted by Members who are allied health professionals, psychologists or educators. Their professional expertise is considered to enhance the decision-making ability of the Tribunal in guardianship matters. It is not uncommon for panel Members in guardianship hearings to announce their professional backgrounds to participants. It is not apparent how comments made during the hearing about the professional background of one of the panel Members could reasonably give rise to an apprehension of bias.
[12] Queensland Civil and Administrative Tribunal Act 2009, s 167(1).
[26] MR also argued that the Tribunal had taken irrelevant considerations into account and, at the same time, had failed to take relevant considerations into account in arriving at its decision. His argument contains an implied criticism of the manner in which the reasoning of the Tribunal was set out in its oral reasons at the end of the hearing.
[27] The nature and extent of the obligation to provide full reasons varies according to the nature of the case.[13] In the guardianship jurisdiction, the giving of immediate oral decisions accords with the spirit and the stated objects of the Queensland Civil and Administrative Tribunal Act 2009.
[13]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; McIntyre v Tully [2001] 2 Qd R 338.
[28] Those decisions are unfairly criticised if there is a failure to acknowledge the circumstances in which they are given, or the pressure of the Tribunal’s caseload. The reasons are primarily directed to the parties present at the hearing and incorporate concepts and language that attempt to explain, in straightforward terms, the outcome reached by the Tribunal. An observation of Spigelman CJ, in a similar context, is appropriate: ‘It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload’.[14]
[14] Commissioner of Taxation v Baffsky (2001) 192 ALR 92 at 102.
[29] The absence of a reference in the reasons to the specific considerations raised by MR does not inevitably lead to a conclusion that those considerations were not taken into account by the Tribunal. Further, nothing in the reasons suggests that the Tribunal did not take all matters required by the Guardianship and Administration Act 2000 into account in reaching its decision.
[30] Nor does anything in the reasons suggest that any irrelevant considerations have influenced the decision. A wide range of factors may be relevant to the question whether there is a need for the appointment of a guardian, or administrator (such as an appreciation of care needs by family members or the presence of specific, complex medical needs).
[31] The proper focus of the learned and experienced Tribunal Members during the hearing was upon the interests of MN. They were aware that a decision had to be made promptly, because the suspension of the power of the attorney was due to expire. The hearing took just under three and a half hours, 12 people participated actively in it, and there were many issues to examine. The hearing involved complex applications that required the Presiding Member to maintain a focus on all the issues underlying the decision to be made.
[32] This Appeal Tribunal may, under s 146 of the Queensland Civil and Administrative Tribunal Act 2009, set aside the decision made on 4 May 2010 and return the matter to the Tribunal for reconsideration. That is the appropriate course here.
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