Qumsieh v Guardianship and Administration Board

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 5656 of 1998

SHARIN QUMSIEH

Appellant

THE GUARDIANSHIP & ADMINISTRATION

BOARD AND LANCE PILGRIM

Respondents

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JUDGES:	WINNEKE, P., BROOKING and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 1998
DATE OF JUDGMENT:	17 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 45

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Administrative Law - Guardianship and administration - Order made by Board appointing temporary guardian in respect of health care decisions - Guardian directing blood transfusions to appellant contrary to her wishes and beliefs - Judge refusing to order review of Board’s decision - Whether Board acted within jurisdiction - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. W.P. Cathcart	V. Toole
For the Respondents	No appearance

WINNEKE, P.:

This is an ex parte appeal from an order of Beach, J. made on 7 May of this year in which his Honour refused an ex parte application on behalf of the appellant, Sherin Qumsieh, for an order for review of a decision of the Guardianship and Administration Board made on 24 February of this year. The application was made to Beach, J. pursuant to s.3 of the Administrative Law Act 1978 and sought an order for review of the Board's decision in order to have it declared invalid pursuant to s.7 of that Act.
The matter had arisen in this way.
(a)        On 20 February 1998 the appellant was admitted to the Mercy Hospital for delivery of her first child. She is 20 years of age and is married to Nidal Qumsieh. She is a strongly committed Jehovah's Witness and thus holds firmly to the religious belief that she should abstain from blood. Her religious beliefs therefore include the belief that she should abstain from blood transfusions. To her an imposed transfusion of someone else's bodily fluid is the equivalent of rape or abortion.
(b)        Although on 20 February 1998 she was successfully delivered of a healthy baby boy, her post-delivery state rapidly declined through haemorrhaging. A radical hysterectomy was performed at the Mercy Hospital and she was later transferred to the intensive care unit of the Western General Hospital, where facilities, so it is said, were more advanced. She remained at that hospital until 24 February 1998 when it would seem she was very anaemic through blood loss and under heavy sedation.
(c)         At the Mercy Hospital the applicant had signed a form called a "consent to operative treatment and administration of anaesthetic" in which she had consented to examination of herself under anaesthetic at the Mercy Hospital by Dr Jansen. In conjunction with such treatment she consented to the "administration of such anaesthetics as may be considered ... advisable with the exception of blood transfusion/blood products". The last four words were in handwriting.
(d)        It would seem that when the applicant's post-natal condition began to decline in the Mercy Hospital the applicant's husband, Nidal, produced to the medical staff a document called an "Advance Medical Directive" signed by the applicant on 15 January 1998 directing that "no blood transfusions ... be given to me under any circumstances".
(e) Early in the morning of 24 February 1998 the applicant's husband, Nidal, went to the offices of Messrs Slater & Gordon, solicitors, and spoke to a Mr Paul Henderson. He told Mr Henderson that he and his wife were both Jehovah's Witnesses, that his wife's condition was at a low ebb and that she had been refusing to have blood transfusions, but that he wished her to be properly treated. Henderson had then rung the Western General Hospital and, having done so, asked the husband whether the appellant had signed what was called an "enduring power of attorney" pursuant to the provisions of the Medical Treatment Act 1988. The husband told him that the applicant's attorney was a Mr Tawfik Ibrahim. Mr Henderson then tried but was unable to contact Mr Ibrahim.
During the course of 24 February 1998 Mr Henderson told the applicant's husband that a hearing had been arranged before the Guardianship and Administration Board, which was presided over by the second respondent, Mr Lance Pilgrim. At the hearing both Henderson and the applicant's husband were present, as was a Mr John Snowden, who was the hospital's solicitor. It would seem that produced to the Board was the applicant's enduring power of attorney, which clearly was not in compliance with the provisions of the Medical Treatment Act 1988. The proceedings before the Board were conducted as a matter of urgency and, although the Board was told that the applicant had refused a blood transfusion, it is apparent from the material that it was not told "why". The Board did not have before it the applicant's "Advance Medical Directive" to which I have previously referred. The Board asked the applicant's husband whether he wished the applicant to receive a transfusion. The husband replied that he did, and he signed a form which stated:
"I instruct my solicitors ... to inform the solicitors for the hospital that I
wish my wife to have blood and other treatment that is necessary".
The Board was told that the applicant was unconscious and upon artificial ventilation. It was told that there was "a window of opportunity" of only about one hour before irreparable brain damage would occur.
The Board proceeded pursuant to s.32 of the Guardianship and Administration Act which enables a person to apply for a temporary order appointing the Public Advocate as the guardian of a person in respect of whom an application could be made under s.19 of that Act. If the Board considers that the circumstances of the person "are such that a hearing should be held without unreasonable delay" it must hold a hearing. The Board was satisfied that an urgent hearing should be held and waived notice pursuant to s.20(3) of the Act. Section 33 of the Guardianship and Administration Act stipulates, so far as relevant, that:

"(1) If the Board is satisfied that the person in respect of whom an
application has been made under s.32 -
(a)        is a person with a disability; and
(b)        is unable to make reasonable judgments in respect of all or any of the matters relating to her person or circumstances; and
(c)         is in need of a guardian -

the Board may make a temporary order appointing the Public Advocate
as the limited guardian of that person."

Such a limited order will remain in existence for 21 days.

In exercising its powers the Board reminded itself of its obligations, prescribed by s.4 of the Act, to perform its functions so that, inter alia, the best interests of the person with the disability are protected and the wishes of that person are, wherever possible, given effect to.
The Board, on the information before it, was satisfied that Mrs Qumsieh did have a "disability" within the meaning of s.3 of the Act, a disability which it identified as "intellectual impairment", and also was satisfied that she was unable to make reasonable judgments with respect to her person or circumstances. The Board stated that it:
"was satisfied on the evidence before it that there was an immediate need for a blood transfusion ... but whether or not the ... person received such treatment was a decision for the Public Advocate or a delegated guardian approved by the Board."
The Board noted that there had been put before it the enduring power of attorney dated 11 October 1997 but further noted that the purported agent who was appointed could not act on its authority because it had been executed otherwise than in compliance with s.5A(2) of the Medical Treatment Act. The Board also remarked that:
"it had no evidence before it that the proposed represented person did not want a guardian appointed to make health care decisions, outside her wishes expressed in the ... informed consent form ... which was limited to an examination under anaesthetic."
The Board explained the effect of its order to the husband and, although he was in an emotional state, he said he wished to be appointed as the delegated guardian of the Public Advocate. The Board accordingly made its order.
The order having been made, the instructions of the temporary guardian were transmitted to the Western General Hospital. Transfusions were given and Mrs Qumsieh responded to treatment. She was discharged from that hospital about one week later.
She then applied for orders to review the Board's temporary guardianship order, and it was that application which was refused by Beach, J. in May of this year. The reasons of his Honour were not transcribed but it would seem from the material before this Court that they were brief. By the time the matter came before his Honour, the Board's temporary guardianship order had expired and/or had been revoked. His Honour, according to the material before us, had said:
"the order was made to save her life and no court would contemplate
exercising its discretion to grant a remedy."
Counsel had apparently responded that he wished to seek, pursuant to s.7 of the Administrative Law Act, a "declaration of the invalidity of the Board's decision", to which his Honour is claimed to have responded:
"You cannot do that; in any event I refuse to grant an order for
review."
It would seem that his Honour proceeded on the view that, in granting the temporary order, the tribunal was acting as a "Tribunal" within the meaning of that term in the Administrative Law Act and was bound to comply with the rules of natural justice. I am prepared to proceed on the assumption that it was. Despite the brevity of his Honour's reasons, it should, however, be noted that it is the usual practice of Practice Court judges generally, and this judge in particular, to familiarise themselves with the papers whilst in chambers. It should further be noted that, pursuant to s.4(2) of the Administrative Law Act, the court may in its discretion refuse an application if, inter alia, it is satisfied that no matter of substantial importance is involved. In this application his Honour was being asked to make an order calling upon not only the Board but also the applicant's husband, his solicitor, the solicitor for the hospital and some 13 doctors and nurses of the Western General Hospital to show cause why the Board's decision should not be declared invalid.
It is his Honour's refusal to grant such an order to review which is now under appeal. His Honour's decision has been challenged by Mr Cathcart on behalf of Mrs Qumsieh on grounds which are twelve in number but run into some six foolscap pages. All of them are underscored, I think, by the assertion that his Honour erred in failing to properly consider the application and in failing to find that there was a prima facie case for review.
The application before his Honour was supported by a vast quantity of material, most of which was not before the Board whose decision is under challenge. There were, amongst others, affidavits from Mrs Qumsieh and many of her friends deposing to the sincerity of her religious beliefs and to her expressed desire at all times not to have a blood transfusion. There was a lengthy affidavit from a New South Wales doctor who had been through the hospital records of the Western General and Mercy Hospitals and who expressed the opinion that the appellant's medical condition was not as grave as the Board was informed. There was much material designed to suggest that the appellant had continued to assert to the doctors that she did not wish to have blood transfusions. Even her husband put affidavit material before the court which tended to suggest that he had reluctantly made decisions contrary to his wife's wishes. Based on this material, his Honour was asked to conclude that the Board's decision could be attacked upon about 21 different grounds, which themselves involved some 42 sub-grounds. It is clear from his Honour's remarks that he took the view that the validity of the Board's decision could only be attacked on the basis of the material which was before it. That material was, as the Board itself remarked, of a very limited nature.
The Board was asked to act, as a matter of urgency, upon material which indicated that the appellant was gravely ill, and without any clear indication that the orders sought from it were against the appellant's wishes on religious grounds. Rather they had an application by her husband indicating that he wished to be appointed as his wife's delegated limited medical guardian. The affidavit of the appellant concedes that the Board was not given her Advance Medical Directive "nor any other evidence which ... showed that my decision to refuse ... blood transfusion ... was made competently and repeatedly".
Mr Cathcart contends that the large quantity of material which was put before Beach, J. is relevant to prove jurisdictional factors which themselves demonstrate that the Board acted without jurisdiction. The evidence of the appellant's competent refusal, he contends, shows that the jurisdiction of the Board under s.33 was not attracted. Thus it is said that the Board's expressed satisfaction under s.33 can be challenged notwithstanding the limited evidence before it. I cannot accept that. It would render, in my view, the Board's function almost untenable. Section 33 defines the Board's jurisdiction. It is to act on material which suggests, at the time the application is made to it, that the protected person is under a disability, is unable to make reasonable judgments and is in need of a guardian. The existence of that jurisdiction is not to be denied, in my opinion, because the protected person has previously made a decision that he or she did not want a blood transfusion in different circumstances.
Mr Cathcart puts it that the Board had sufficient before it to make "alarm bells ring" and that it should have been put on enquiry about the conflict between the husband and the wife. This, I think, puts far too much upon a Board which has embarked, and is empowered to embark, upon an enquiry of urgency. There would be very few enquiries, I think, of this nature in respect of which such potential conflicts would or might not be found. In my view this Act is investing the Board with powers to make urgent decisions in relation to health care matters of persons without having to "look over its shoulder" to ensure that the material before it is complete and is capable of being acted upon. Such past facts would not, in this case, in my view, have helped to establish the jurisdictional facts which caused the Board to act. Mr Cathcart submits that the "consent form" was in any event unequivocal evidence of the appellant's informed refusal to accept blood transfusions. However, it seems to me that the Board was entitled to take the view which it did that this was a qualified refusal to have treatment in certain circumstances at the Mercy Hospital some four days before. In any event it must be remembered that the purpose of the Board's order was only to appoint the appellant's husband as the approved delegate of the Public Advocate who could then make whatever decisions were required to be made in respect of the health care of the appellant. The Board was not itself directing those decisions. Mr Cathcart further submitted that the interim order signed by the second respondent manifested the invalidity of the Board's decision because it stated that the husband was himself the appointed person and that this was done contrary to the provisions of s.33. But it is, I think, reasonable in the light of the Board's formal and sealed order to regard the expression in the interim certificate as simply a "shorthand form" of expressing the order which the Board had in fact made, namely that the husband was the approved delegate of the Public Advocate.
Mr Cathcart addressed further arguments which, he submitted, showed that the decision of the Board was flawed. Amongst other things, he submitted that the Board's decision was shown to be unreasonable, had been shown to be obtained in bad faith, and was tainted in any event by fraud. I think I do no discourtesy to Mr Cathcart if I simply say that none of these submissions compel me to the conclusion that Beach, J. was in error, in the particular circumstances of this case, in declining to make the order for review. His Honour was correct, in my view, to have regard, in determining whether the Board's decision was subject to challenge, only to those matters which were before the Board. Furthermore, the peculiar circumstances of this case, including the large number and variety of grounds upon which the appellant was seeking to challenge the Board's decision, the number of respondents whom the appellant desired to be made parties to the review, the fact that the matter involved an order, now exhausted, made by a body whose statutory powers and functions have changed, and the fact that the order, if made, would bring the appellant into dispute with her husband, were sufficient bases for the conclusion, to which his Honour obviously came, that he should exercise his discretion under s.4 of the Administrative Law Act to refuse the application for an order for review because no matter of substantial importance was involved. I am not prepared to conclude that his Honour was wrong in the exercise of that discretion.
Nothing that I have said should be taken as in any way belittling the feelings of the appellant and the concern which she obviously has as to what has happened to her.
I would accordingly dismiss the appeal.

BROOKING, J.A.:

I concur.

ORMISTON, J.A.:

I also agree.

WINNEKE, P.:

The formal order of the Court will be that the appeal is dismissed.

[1998] VSCA 45

17 September 1998