NGR v The Public Guardian & the Public Trustee of Queensland
[2014] QCATA 271
•18 September 2014
| CITATION: | NGR v The Public Guardian & The Public Trustee of Queensland [2014] QCATA 271 |
| PARTIES: | NGR (Appellant) |
| v | |
| The Public Guardian The Public Trustee of Queensland (Respondents) |
| APPLICATION NUMBER: | APL007-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Gardiner |
| DELIVERED ON: | 18 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEALS – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – whether Tribunal failed to take material consideration into account on issue of capacity – whether error of law occurred Queensland Civil and Administrative Tribunal Act 2000 (Qld), s 28 Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
NGR lives in supported accommodation in south-east Queensland.
On 16 December 2013, QCAT made an order appointing the now Public Guardian as guardian for NGR to make decisions about accommodation, health and provision of services and The Public Trustee of Queensland as NGR’s administrator for all financial matters.
NGR appealed this decision. NGR submits that the Tribunal made errors of law and fact in finding he lacked capacity for personal and financial matters and particularises grounds for this submission.
Because this is an appeal from a decision of the tribunal that raises questions of mixed law and fact, leave is necessary.[1] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4]
[1]QCAT Act s 142(3)(b).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232 at 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the findings are based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5] An appellate tribunal may interfere, however, if the conclusion at first instance is contrary to compelling inferences in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
NGR’s grounds are considered below.
Ground 1 – Failing to take into account or giving weight to medical report of a General Practitioner
This concerns a report dated 26 November 2013. The doctor had been NGR’s general practitioner for three years and had seen him three days earlier. The doctor was of the view that NGR was capable of making simple and complex decisions in all areas. However the doctor placed the rider on this opinion that she would like ‘further clarification of the above’ and that a referral had been sent requesting further higher order cognitive testing at a local General Hospital.
NGR acknowledges the report was taken into account by the learned Member but submits insufficient weight was given to it. He also acknowledges that the doctor states she had no other health professional reports available to her.
However, NGR submits she should have known of his hospitalisation in August/September 2013 and subsequent placement in an aged care facility.
In the absence of other health professional reports, this appeal tribunal is not aware how the general practitioner would gain this knowledge other than directly from NGR who would not have been able to supply the medical information necessary for the doctor to make an informed medical judgment.
The general practitioner’s report was limited to the information she had before her and was assessed by the learned Member in that light. The doctor indicated some reservations expressed in her report by the request for further cognitive testing.
The general practitioner’s report is but one report available to the learned Member at the hearing. It was considered in the light of the other professional reports provided by the hospital doctors, including a neuro-psychiatrist. The learned Member also considered an ACAT assessment report.
The learned Member notes that the general practitioner’s report disagrees with the other medical reports and that the general practitioner’s opinion is qualified. The member finds the general practitioner’s report ‘inconclusive’ in her assessment of NGR’s capacity.
This appeal tribunal is satisfied this finding was open to the learned Member on the evidence before her, in particular the lack of medical reports available to the general practitioner and the doctor’s request for further cognitive testing.
The facts are capable of supporting the learned Member’s conclusions and this appeal tribunal finds no evidence to support the submission of NGR under this ground. Leave to appeal on this ground is refused.
Ground 2 – Giving too much weight to the medical reports of the hospital doctors
In essence, this is the opposite of ground one. A variety of health professionals saw NGR during his hospitalisation and these accounts are recorded in hospital notes, formal assessments, the ACAT assessment and in health professional reports provided to the Tribunal.
In submissions, NGR criticises the learned Member for her comments when reviewing the capacity information where she states[7]:
The Tribunal has regard to both conflicting medical opinions based on quite similar results but also to Ron’s responses and conduct in the hearing, in hospital and prior to hospitalisation.
[7]At paragraph 94 of the reasons.
The conflicting medical opinions referred to were those of the general practitioner and of a hospital doctor. Both conducted mini-mental tests on NGR and although the tests gave similar results, both doctors took differing views on the conclusions from these tests.
But these results are clearly just one piece of evidence considered by the learned Member in coming to her conclusion that NGR lacked capacity for financial matters.
The reasons record the learned Member considering holistically all of the evidence before her – from the general practitioner, from the hospital, the ACAT assessment and how NGR presented at the hearing – the same statement heavily criticised by NGR[8].
[8]As the learned Member describes in paragraph 94 of the reasons.
This appeal tribunal takes a different view of the discussion of the learned Member concerning NGR’s capacity, both from paragraph 91 of the reasons onwards concerning financial matters and earlier, at paragraph 34 onwards, where the evidence of NGR’s capacity for personal matters is extensively discussed.
This tribunal is satisfied the finding of NGR’s incapacity for both personal and financial matters was open to the learned Member on the evidence before her. The learned Member’s insightful analysis of the conflicting evidence displayed a clear understanding of the careful need to evaluate all evidence when making a decision about the capacity of a person to make personal and financial decisions.
Leave to appeal on this ground is refused.
Ground 3 – the Tribunal failing to inform itself properly by obtaining all possible evidence
NGR criticises the learned Member under this ground for not providing the opportunity for further medical evidence to be obtained and for making her own assessment of capacity.
Both of these criticisms are, in the view of this appeal tribunal, unfounded.
The learned Member had ample medical evidence available to her and had the advantage of direct interaction with NGR who gave evidence at the hearing.
In this matter, the issue of capacity was a complex one which required careful analysis by the learned Member to apply the law to the facts as she found them. There was conflicting evidence so that the learned Member had to evaluate that evidence in the circumstances of the matter.
Section 28 of the QCAT Act places a responsibility on the Tribunal to, as far as practicable, ensure that all relevant material is disclosed to enable the Tribunal to decide the proceeding with all the relevant facts.
NGR provided evidence at the hearing himself and (his submissions recount) from his friends and family. Various medical reports were also available. Evidence from NGR’s sisters and his financial adviser was considered in the reasons but the learned Member observed that NGR appears to encourage assistance from people who agree with him and like-minded supporters and to reject anyone who challenges him[9].
[9]Paragraph 119 of the reasons.
The learned Member found that this made NGR vulnerable to ‘inappropriate influences from ill-informed people who fail to appreciate the complexity of his needs’.[10] The learned Member also found his ‘absolute and unquestioning trust placed in his financial adviser’[11] also a matter of potential vulnerability. NGR’s executive functioning – his higher order complex decision making – was being examined. An examination of this higher level of functioning requires careful consideration of the evidence, as is displayed here by the learned Member.
[10]Paragraph 119 of the reasons.
[11]Paragraph 120 of the reasons.
This appeal tribunal is satisfied that the learned Member had sufficient and varied evidence before her upon which to base her findings and that as far as practicable, the reasons disclose that all relevant material to enable the Tribunal to decide the proceeding was before the learned Member.
Leave to appeal on this ground of appeal is refused.
Ground 4 – Incorrect finding on need
NGR submits that his three sisters were at the hearing and were willing to be appointed as attorneys. NGR had an existing General Power of Attorney dated 11 July 2007. NGR had no Enduring Power of Attorney. As there was a finding of incapacity and as attorney can only be appointed under an Enduring Power of Attorney (the General Power of Attorney failing when NGR became incapacitated), this option was not open to the learned Member.
As NGR correctly states in his submissions, none of his sisters had applied to be appointed as his guardian or administrator. The reasons note that NGR’s resumption of contact with his sisters was a ‘recent development’.[12] It was apparent that the longevity of these continued relationships was yet to be tested.
[12]Paragraph 23 of the reasons.
Section 12 of the Guardianship and Administration Act 2000 (‘GA Act’) states an appointment for a guardian or an administrator can be made where there is a finding that NGR’s needs will not be adequately met or his interests not adequately protected.
Although this ground is headed as being made on the finding of the learned Member in relation to need, the only lack of need addressed is financial because of the services of the financial adviser.
The other submissions under this ground go to the non-appointment of family members rather than the lack of need.
The learned Member points in her reasons to a number of factors which satisfied her that the need for an appointment of an administrator existed for NGR. In particular she pointed to his health issues, his complex financial arrangements, substantial assets, fractured family support, his absolute and unquestioning faith in his financial adviser, his unformed plan to live closer to his sisters in his own home and the deposit that had been paid on his supported accommodation, as reasons why a need for an appointment existed.
This tribunal is satisfied that these reasons disclose substantial grounds to satisfy the requirements of s 12 of the GA Act and that this finding was open to the learned Member on the evidence before her.
In relation to the appointment of the now Public Guardian, the learned Member examined who should be appointed under the appropriateness considerations set out in s 15 of the GA Act.
The member had found self-neglect, impaired insight and impulsive decision making by NGR in circumstances where his close supporters appeared to be unaware of the true facts.[13]
[13]Paragraph 84 of the reasons.
The learned Member found the strong views within the family made an appointment from within this group unlikely to produce a workable relationship. Section 15 requires parties to work co-operatively and to communicate. The member was to satisfied these conditions were met within this family at the hearing.
In any event, again, none of the family had applied to be appointed.
The now Public Guardian was found to be available, competent and independent of the tensions that existed within the family and although the guardian of last resort, able to be accessible to NGR and to his family and friends.
The facts are capable of supporting the learned Member’s conclusions and this appeal tribunal finds no evidence to support the submission of NGR under this ground.
Leave to appeal on this ground of appeal is refused.
Conclusion
For the reasons outlined under each ground of appeal above, the Appeal Tribunal does not find any errors in the decision under appeal that give rise to a necessity to correct an injustice to NGR. Leave to appeal is refused.
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