Plc v Adult Guardian - [2013] QCATA 11

CITATION:

PLC v Adult Guardian [2013] QCATA 11

PARTIES:	PLC (Applicant)
v
Adult Guardian (Respondent)

APPLICATION NUMBER:

APL244-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Clare Endicott, Senior Member
Ron Joachim, Member

DELIVERED ON:

14 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision to appoint the Adult Guardian as guardian of PJP is set aside.

2. The application for guardianship is returned to the Tribunal for hearing by 2 members who shall not include the original member.

CATCHWORDS:

APPEAL – GUARDIANSHIP – whether error of law occurred – where Tribunal failed to take material consideration into account as to whether there was a need for guardian – where Tribunal failed to consider if another appropriate person available for appointment

Guardianship and Administration Act 2000, ss 9, 12, 14(2), 15 and schedule 1 – general principle 7(4)
Queensland Civil and Administrative Tribunal Act 2009, s 146

House v R [1936] HCA 40

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 (QCAT Act).

REASONS FOR DECISION

PJP is 52 years old and lives with his sister PLC. She has become his carer following the death of their mother. PJP receives day services from a service provider at their premises but returns home to the care of PLC.
PJP has cerebral palsy and intellectual disability. He has a severe communication difficulty and significant physical disabilities.
In November 2011, PLC applied to QCAT seeking to be appointed as PJP’s guardian and administrator.
The applications were heard in April 2012. The Adult Guardian was appointed as PJP’s guardian to make decisions about accommodation, health care and services until further order with a review in 5 years.
The Public Trustee was appointed as PJP’s administrator for all financial matters except day to day finances until further order.
PLC is seeking leave to appeal and is appealing the decision to appoint the Adult Guardian as PJP’s guardian. She considers she should be appointed.
The Tribunal had directed that her application for leave to appeal or appeal will be determined on the papers by written submissions and without an oral hearing.
PLC acknowledges that PJP expressed to the Tribunal that he wanted the Adult Guardian to be appointed as his guardian.
She submits that PJP did not have the capacity to understand the nature and effect of that decision and that the Tribunal should have given more weight to her submissions that she was appropriate for appointment as PJP’s guardian.
PLC further submits that PJP was not given enough information about the role of a guardian in order to make this decision on the day of the hearing and that he was not able to communicate properly with the Tribunal as he did not have his voice machine at the hearing and he could only reply yes or no by physical actions responding to questions.
PLC submits that the Tribunal did not look at whether she was an appropriate person for appointment but made the decision wholly on her brother’s testimony.
PLC submits she is appropriate and has been caring for her brother since October 2011 and has a close relationship with him. PLC submits that the Adult Guardian should only be appointed as a last resort when there is no other appropriate person to be guardian.
The Adult Guardian did not file any submissions in the appeal but merely indicated that he would abide the decision made by the Appeal Tribunal.
The original application by PLC seeking to be appointed as a guardian for her brother had to be considered in accordance with sections 12, 14 and 15 of the Guardianship and Administration Act 2000 (Guardianship Act).
The Tribunal was required to consider 4 issues:
a)    Does PJP have capacity to make decisions about personal matters;
b)    If he lacks capacity, is there a need for decisions about personal matters to be made;
c)    Will PJP’s decision making needs be adequately met without an appointment of a guardian; and
d)    If there is a need for a guardian, who should be appointed.
There was no real contest at the hearing about PJP’s capacity. A reading of the transcript reveals general agreement that PJP does not have capacity to make decisions about personal matters. The finding by the tribunal of impaired decision making capacity for personal matters is not in dispute in the appeal.
There was also no real contest at the hearing that there was a need for decisions to be made about personal matters for PJP particularly in relation to where he lives, what services are provided to him and health care matters. The finding by the tribunal that there is a need for decisions to be made about personal matters is not in dispute in the appeal.
The issue as to whether the existing informal decision making arrangements could meet PJP’s needs was an issue to be determined by the tribunal. The determination of that issue required an exercise of discretion by the hearing member. The Guardianship Act at section 9 recognises a range of persons who can make decisions for an adult with impaired capacity including ‘on an informal basis by members of the adult’s existing support network’ as well as a guardian appointed by QCAT.
There is established authority as to how an appellate tribunal should consider the exercise of discretion in a decision under appeal. In House v R it was stated:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[1]
[1] House v R [1936] HCA 40.
While the existence of an informal support network comprised of PLC making personal decisions for PJP was canvassed at the hearing, the hearing member gave scant consideration to the adequacy of this form of substituted decision making. In his reasons he refers to the informal support network ‘operating in the past with some difficulty in relation to the service providers, either by way of lack of communication or other areas’.[2] He does not identity the evidence on which that comment is based but moved on immediately to comment that PJP had expressed a clear preference for the appointment of the Adult Guardian. There was evidence at the hearing that personal decision making was being made over a range of areas for PJP but that evidence was not specifically analysed or discounted by the hearing member.
[2] Transcript at page 38.
In our view the hearing member had not given proper consideration to the question of need for the appointment of a decision maker. He did not take into account whether retaining an informal decision making process would met the needs of PJP in the circumstances of the case. In so doing he has not properly exercised his discretion and had therefore made an error of law.
Should we be wrong on this point, we have gone on to consider the approach taken by the hearing member when he determined who should be appointed as guardian. PLC has submitted that the hearing member had placed too much emphasis on PJP’s view. We agree with that submission.
At the hearing PJP expressed a view, allegedly for the first time, that he wanted someone independent of his sister, namely the Adult Guardian to be his decision maker.
The hearing member relied in part on General Principle 7 of the Act to justify appointing the Adult Guardian. This principle refers to an adult’s views and wishes being taken into account. It does not say they must be followed.
We agree with the hearing member that PJP’s views cannot be ignored, but having found that PJP lacks capacity for decision making, the Tribunal must exercise its discretion carefully as to how those views are taken into account in the mix of all the evidence.
We note the hearing member said during the hearing:
Now, PLC, it may well be that you are the most appropriate person in this room, including the Adult Guardian if they were sitting here, but I would have great difficulty climbing over PJP’s own expressed wish that this is what he wants. So I’m going to put it to you now: Does anyone have a submission as to why I shouldn’t appoint the Adult Guardian in these circumstances?[3]
[3] Transcript page 24.
In his reasons, the hearing member stated that PJP had been able to clearly articulate his expressed view about the appointment of the Adult Guardian and the Tribunal is unable to ignore that view. The hearing member concludes as a result that there is no other appropriate person available for appointment as guardian for PJP.[4]
[4] Transcript pages 38-39.
There are no findings as to why PLC is not appropriate for appointment. There is scant discussion in the reasons as to how she had performed decision making for PJP in the past as an informal decision maker and her competency in that role does not seem to have been taken into account.
We conclude that the hearing member made an error of law in failing to take into account a material consideration, namely the appropriateness of PLC to perform the role of appointed guardian. He has relied only on PJP’s views expressed at the hearing. Those views were communicated to PLC for the first time on the day of the hearing. There was evidence that PJP had wanted PLC to be his decision maker until he had spoken to his advocate who was appointed in the week prior to the hearing.
Section 14(2) of the Guardianship Act, to which the hearing member referred, permits the appointment of the Adult Guardian only if there is no other appropriate person available. That section clearly imposes an obligation on the Tribunal to apply the appropriateness considerations set out in section 15 of the Guardianship Act before it determines that a person seeking appointment is not an appropriate person for appointment. The hearing member, as revealed by his comments at page 24 of the transcript, appears to have given sole consideration to one of the factors in section 15(1)(a) but not to the remaining relevant factors in that section. He has relied on PJP’s views alone.
It is a relevant consideration in this case that the evidence discloses that PJP was only able to give yes or no answers to closed questions at the hearing. Those answers were not given verbally but interpreted from his bodily reactions to the closed questions. It is obvious from the transcript that a number of leading questions were asked of him in relation to guardianship. Because of his communication difficulties, it was not possible for the hearing member to gain an understanding from PJP as to why he expressed a preference for the Adult Guardian when he had earlier expressed quite a different view. Those communication difficulties should have placed the hearing member on notice to look at the section 15 appropriateness consideration more comprehensively, particularly as to the compatibility of PLC to act as guardian given the acknowledgement at the hearing that PLC would have a better idea about PJP’s communication skills.[5]
[5] Transcript page 5.
In view of the error of law made by the hearing member, the appointment of the Adult Guardian must be set aside. There is insufficient evidence for the Appeal Tribunal to decide if there is a need for a guardian and as to who would be the appropriate appointee. These issues need to be determined with consideration of further evidence by the Tribunal.
The Appeal Tribunal sets aside the decision and returns the matter to the Tribunal for rehearing. The Tribunal should consist of 2 members and not include the member who heard the original application.