NP v NQ

[2009] NSWADTAP 65

Appeal Panel - External

CITATION:

NP v NQ and ors [2009] NSWADTAP 65

PARTIES:

APPELLANT
NP

FIRST RESPONDENT
NQ

SECOND RESPONDENT
NR

FILE NUMBER:

098004

HEARING DATES:

18 September 2009

SUBMISSIONS CLOSED:

18 September 2009

EXTEMPORE DECISION DATE:

18 September 2009

BEFORE:

Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Wunsch A - Non-Judical Member

CATCHWORDS:

Appeal, questions of law, weight of evidence, procedural fairness

DECISION UNDER APPEAL:

Review of a Guardianship Order

FILE NUMBER UNDER APPEAL:

C/35953; Matter No. 2007/1954

DATE OF DECISION UNDER APPEAL:

03/20/2009

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983

REPRESENTATION:

APPELLANT
In person

FIRST RESPONDENT
S Leis, barrister
B Ramjan, Guardian ad Litem

SECOND RESPONDENT
In person

THIRD RESPONDENT
E Cho, solicitor

ORDERS:

1.The appeal is accepted out of time
2. Leave to extend the appeal to the merits of the Tribunal’s decision is refused
3. The decisions made by the Guardianship Tribunal on 20 March 2009 in relation to NQ are affirmed.

REASONS FOR DECISION

EX TEMPORE DECISION

1 The background to this appeal is that NQ is a 73 year old Greek man, who has lived in a nursing home since March 2009. His daughter, NP, has appealed against two decisions of the Guardianship Tribunal made on 20 March 2009. The first decision was a two year guardianship order appointing the Public Guardian to be the guardian of NQ with accommodation, health care, medical and dental consent, services and travel functions. The ‘travel’ function was made because NQ has expressed a desire to move back to Greece. NP supports that decision. NQ’s son, NR, opposes it.

2 The second decision was a financial management order confirming a financial management order made on 29 April 2008 and appointing the Protective Commissioner as NQ’s financial manager.

3 The first decision of the Tribunal is to accept the complaint out of time: Administrative Decisions Tribunal Act 1997 , s 118B(2). The appeal was lodged only a few days late, on 25 May 2009, the decision having been received on 25 April 2009. None of the parties objected to us accepting the appeal even though it was lodged a few days late.

4 I turn now to summarise the Tribunal’s decision in relation to the appointment of the Public Guardian. This was not the first time these matters had been before the Guardianship Tribunal. NP applied for a review of the appointment of the Public Guardian. That application was adjourned for a period of about three months while further information was obtained. The Tribunal went through the issues which it had to determine. The issue in dispute was who should be appointed as NQ’s guardian and financial manager. There was no issue about the capacity of NQ either to make decisions about his accommodation or medical needs or about his capacity to make financial decisions.

5 The Tribunal set out the principles on which guardianship and financial management orders should be made and the statutory criteria for making such orders. In relation to guardianship orders, a continuing order appointing the Public Guardian should not be made in circumstances where another person can be appointed: Guardianship Act 1987 ( Guardianship Act ), s 15(3). In addition, s 17 sets out the criteria for appointing a person to be a guardian:

(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:
(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and
(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

6 The Tribunal was satisfied that the first criteria had been met, that is, that NP had a personality which was generally compatible with that of her father. The Tribunal also found that there was no undue conflict of interest between NP and her father. In relation to s 17(1)(c), the Tribunal found that NP was ‘willing’ to exercise the functions of a guardianship order but that she was not ‘able’ to do so given the history of conflict and communication difficulties with her brother and other family members. The Tribunal said at page 6 of its reasons that ‘The Tribunal was not satisfied, however, that [NP] would be able to exercise the role of guardian given the history of conflict and communication difficulties with her brother and other family members. This level of conflict would, in the Tribunal’s view, severely inhibit [NP] from performing the role of guardian in accordance with the principles set out in section 4 of the Guardianship Act .

7 Section 4 requires that the welfare and interests of the person under guardianship should be given paramount consideration. It also requires recognition of the importance of preserving family relationships. The Tribunal was not satisfied that, as guardian, NP would be open to considering the views of other important people in her father’s life and objectively weigh up other’s ideas and options particularly in relation to the fundamental issues facing NQ as to whether it is in his best interests to remain living in Australia or to move to Greece. That was the basis on which the Tribunal decided not to appoint NP as her father’s guardian.

8 In relation to the financial management order the relevant provision is section 25P(2) which states that:

(2) The Tribunal may revoke a financial management order only if:
(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or
(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).

9 Although the Tribunal was reviewing a financial management order, and section 25P applies, it remains the case that the Tribunal may appoint a ‘suitable person’ as the manager of the estate: Guardianship Act , s 25M. The Guardianship Tribunal was not satisfied that NP was a ‘suitable person’. The reasons for that conclusion are set out at page 9 of its decision. In particular the Tribunal said:

‘Of significant concern to the Tribunal, however, was the extent of the conflict between [NP] and her brother. This conflict was evident from the written evidence provided to the Tribunal and throughout the hearing. The conflict and lack of communication between [NP] and [NR] also raised serious questions for the Tribunal about the appointment of either sibling as the private manager particularly in relation to the obligations under section 50 of the Protected Estates Act 1983 to consult with relatives of [NQ] about important financial decisions.’

10 I interpose to note that section 50 of the Protected Estates Act is now section 73 of the NSW Trustee and Guardian Act 2009 .

‘Whilst NP told the Tribunal that she would be willing to write to her brother in advance of important decisions and seek his views, the Tribunal had serious reservations about NP’s ability to meaningfully consult with her brother in the context of the entirety of her evidence and did not accept her evidence that this would occur. For this reason, the Tribunal decided that NP is not a suitable person to be appointed as her father’s financial manager.’


11 The grounds of appeal on which NP relied are set out in her Notice of Appeal. The first and most significant ground was that the Guardianship Tribunal placed too much weight on poor communication between herself and her brother and other members of the family. In this ground NP highlighted that rather than focussing on that conflict the Tribunal should have focussed on the alleged inefficiency and incompetence of the Public Guardian and the Protective Commissioner. In her view there had been significant delays and decision-making had been too slow. She detailed instances where delays had occurred and where, in her view, competent and quick decisions had not been made. At one stage NP said, ‘No human being can be successfully cared for by public authorities.’ That appeared to sum up her view that the Tribunal should have focussed on what she regarded as the best interests of her father rather than allowing a State government agency to make substitute decisions on behalf of another person.

12 We pointed out to NP at the time that this ground of appeal did not raise a question of law. Questions of law, while sometimes difficult to identify, do not include giving more weight to one consideration compared to another unless it is mandatory to give a certain amount of weight to one consideration. This is a case where NP is dissatisfied with the outcome of the decision and the reasoning process that the Tribunal applied. There is nothing in the Guardianship Act itself which obliges the Tribunal to take into account the relative efficiency of a private or public decision-maker. However, in the normal course the Tribunal should not appoint the Public Guardian or the Public Trustee if another suitable person is available. The Tribunal’s decision was made on the basis of a lack of agreement between family members and the need for an independent person to be appointed.

13 Although we appreciate and understand NP’s concerns, those concerns do not raise a question of law nor do we think it appropriate to give leave to extend the appeal to the merits of the Tribunal’s decision on this ground. That is because there was nothing about the Tribunal’s fact-finding process which led them into error.

14 NP proposed that as she was not speaking with her brother, she could set up a ‘Yahoo’ website which would allow family members to contribute to and debate the merits of decisions that needed to be made. It is apparent that the Tribunal took into account those submissions because the index to the written material considered by the Tribunal also mentions the submission where the ‘Yahoo’ proposal was put. Having considered that submission and the remainder of the evidence, the Tribunal retained serious reservations about NP’s ability to meaningfully consult with her brother. In our view that finding was open on the evidence and there is no reason we can see to interfere with it.

15 The next ground of appeal as it appears in the Notice of Appeal was that by appointing the New South Wales Trustee and Guardian, the Guardianship Tribunal disregarded the principle of preserving a person’s cultural and linguistic environment. NP referred to the accepted norms of Greek culture that, for example, the eldest child is responsible for looking after his or her parents and for ensuring their financial and other needs are met. She also mentioned that it was shameful in her culture for a non-family member to be a decision-maker.

16 Section 4 of the Guardianship Act sets out some general principles to guide decision makers. Those principles include s 4(e), ‘the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised’. The Tribunal specifically raised this point at page 6 of its reasons for decision by nominating section 4(e) as one of the considerations they had taken into account. That reasoning discloses that no error of law was made on the Tribunal’s part in neglecting to take into account cultural norms and considerations. Nor are we satisfied that we should extend the appeal to the merits on that basis. The logical extension of NP’s argument is that no Greek person could have a guardian or financial manager appointed other than that person’s oldest child because it would be shameful for any other person to be appointed. That is not our understanding of what is meant by taking into account cultural norms. In fact the Tribunal did consider the possibility of appointing NP but found for other reasons that that was not appropriate.

17 The third ground of appeal relates to breach of procedural fairness. There are two aspects of procedural fairness, the right to be heard and the right for an application to be determined by a non-biased Tribunal. In relation to the right to be heard, NP said that the report of the Public Guardian was presented to her on the morning of the hearing and that, while she read that report, she did not have sufficient time to counter the evidence it contained. She pointed to a number of errors that she said were in the report. The majority of those errors were not material to the Tribunal’s decision. The only point which NP raised about that document which was potentially prejudicial, was at page 3 of the report where the Public Guardian mis-described her conduct in relation to transporting and delivering her father to a particular venue. NP said that that reflected adversely on her capacity to be her father’s guardian and she did not have an adequate opportunity to address that issue.

18 In our view, even if we accept that submission, the conduct was not a basis for the Tribunal’s decision. The Tribunal was careful to point out that NP had been an extremely enthusiastic and devoted advocate for her father, so there was no question in the Tribunal’s members’ minds that she was capable of caring for her father and committed to him. Given that this was not a material fact on which the Tribunal relied, the Tribunal has not made a legal error.

19 The second way in which NP said that she had not been afforded procedural fairness was that Dr Hodges’ report was only made available on the day of the hearing. That report was about life expectancy, not about the assessment of decision-making capacity and it was accepted in that context by the Guardianship Tribunal. There was no issue about NQ’s capacity. Furthermore, NP had a copy of Dr Hodges’ report prior to the hearing and had an opportunity to address issues in that report.

20 The next aspect of the procedural fairness ground was that Ms Flanagan, who was the professional member of the Guardianship Tribunal, was a member of the Cognitive Disorders Clinic which was the same organisation that Dr Hodges belonged to. He wrote reports dated 24 September 2008, 13 August 2008 and 11 December 2008 under the auspices of that organisation. It was common ground that Ms Flanagan disclosed her association with the Cognitive Disorders Clinic at the commencement of the hearing and invited any objections parties might have to that involvement. NP acknowledges that she did not object at that time although in retrospect she says that Ms Flanagan’s finding that her father was obsessive in his desire to travel to Greece could have reflected a biased view on her part. At page 9 of the decision at the end of the first paragraph, the Tribunal says:

‘Whilst the Tribunal had some concerns about NP’s ability to weigh up the pros and cons of such a move given her father’s age and health issues, and the impact that his dementia may be having on what can be appropriately be described as, in the Tribunal’s view, his obsessive desire to travel to Greece, the evidence indicated that NP is motivated by seeking to act in her father’s best interests.’


21 NP said that there was no forensic evidence about any such obsessive behaviour and that Ms Flanagan had relied on her own experience as a clinical practitioner to come to that view.

22 There are two points which should be made here. First of all, the Guardianship Tribunal is bound to disclose any potential conflict of interest. That was done. Parties were invited to object. NP did not do so and consequently has waived any right to object after the event.

23 Secondly, it is correct, as a matter of principle, that if a member of the Tribunal forms a view from their own experience or has a view as a result of their own qualifications, procedural fairness requires that view to be disclosed in order to give parties an opportunity to put a different view. It could be argued that if Ms Flanagan formed the view that NQ had an obsessive desire to travel to Greece and it was not a genuine preference, she should have disclosed to the parties that she had formed that view. However in this case because that view was not an essential element of the Tribunal’s decision, it cannot have affected the outcome and for that reason there is no justification for setting aside the Tribunal’s decision on that basis.

24 There are two other grounds of appeal which appear in the Notice of Appeal but which NP did not address in oral submissions. The first was that the Tribunal made a factual error when they said that her father’s movement into a high care facility was because his needs had changed rather than because his carer’s needs had changed. The second matter was that there was no evidence from the separate representative of NQ at the guardianship hearing about his views as to who should be the guardian. Neither of those matters was relied on in oral argument and in any case neither raises a question of law. Nor do they justify extending the appeal to the merits of the Tribunal’s decision.

Orders

1.The appeal is accepted out of time
2. Leave to extend the appeal to the merits of the Tribunal’s decision is refused
3. The decisions made by the Guardianship Tribunal on 20 March 2009 in relation to NQ are affirmed.