S v Public Guardian

[2007] NSWADTAP 42

Appeal Panel - External

CITATION:	S v Public Guardian & ors [2007] NSWADTAP 42
PARTIES:	APPELLANT S FIRST RESPONDENT Public Guardian SECOND RESPONDENT Brenda Stephens THIRD RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078003
HEARING DATES:	1 August 2007
SUBMISSIONS CLOSED:	1 August 2007
DATE OF DECISION:	20 August 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Guardianship order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	File No C/35242 Matter No 2006/6993
DATE OF DECISION UNDER APPEAL:	02/16/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Mental Health Act 1990
CASES CITED:	IF v IG & Ors [2004] NSWADTAP 3 K v K [2000] NSWSC 1052 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re R [2000] NSWSC 886 (17 August 2000) S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT S Hanstein, solicitor THIRD RESPONDENT & DECISION MAKER E Cho, legal officer
ORDERS:	The decision of the Guardianship Tribunal dated 16 February 2007 in respect of S is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 S is a Turkish national who has been in detention in Villawood Detention Centre since June 2003 after overstaying his visa. He came to Australia in 1990 on a student visa and no longer has Turkish citizenship. He has no family in Australia. He has been diagnosed as having a Chronic Delusional Disorder and has been scheduled twice for short periods under the Mental Health Act 1990. He refuses to take any medication for his illness and says that he is a sane and stable person.

2 On 15 November 2006 Ms Brenda Stephens, an officer from the Department of Immigration and Citizenship, (the Department) applied to the Guardianship Tribunal for a guardian to be appointed to make substitute decisions for S. The reason for the application was so that S could ultimately leave detention and live in the community in accommodation organised by the Department under a special visa. However, Ms Stephens’ view was that S needed to be mentally stable before leaving detention. Her plan was to stabilise S’s mental condition by moving him to St John of God Hospital at Richmond so that he could undergo treatment for his mental illness. S would not agree to stay at the hospital voluntarily so a guardian would be needed to make substitute decisions for S about how long he should remain in that accommodation and the care and treatment he should receive.

3 After adjourning the hearing listed for December 2006, in order for S to obtain further medical evidence, the Guardianship Tribunal set the matter down for hearing on 16 February 2007. On that date an order was made for limited guardianship for 12 months and the Public Guardian was appointed to be S’s guardian. The guardian was given the functions of making decisions about S’s accommodation, health care, medical and dental consent, services and legal advocacy. S has appealed to this Tribunal against the Guardianship Tribunal’s decision.

Jurisdiction and parties

4 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision to make a limited guardianship order and appoint the Public Guardian: Guardianship Act1987, s 67A. An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other ground: Administrative Decisions Tribunal Act1997 (ADT Act), s 118B(1). S appealed on questions of law and also sought leave to appeal on other grounds.

5 S appeared in person at the hearing. Ms Hanstein represented Ms Stephens who was the applicant in the Guardianship Tribunal proceedings. The Public Guardian did not wish to be present or make submissions. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal’s practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Preliminary applications

6 S applied for the hearing before the Appeal Panel to be adjourned. We refused that application and gave oral reasons at the time. We also refused Mr S’s application for several summonses to give evidence to be issued and for fresh evidence to be tendered. As we told S during the hearing, the reason for refusing those applications was that new evidence would only potentially be relevant if we gave leave to extend the appeal to the merits of the Guardianship Tribunal’s decision. As no decision to grant leave had been made at that time, his applications were refused. We consider S’s application for the appeal to be extended to the merits of the Tribunal’s decision at [25] below.

Background to Guardianship Tribunal’s decision

7 In order to understand S’s grounds of appeal we set out below a brief chronology of events referred to by S in his grounds of appeal.

18 December 2006: The Guardianship Tribunal, on its own motion, appointed a separate representative for S. The representative was Ms Nihal Danis, solicitor from the Mental Health Advocacy Service at the Legal Aid Commission.

21 December 2006: matter listed for hearing before the Guardianship Tribunal. On S’s application, the hearing was adjourned for approximately two months to a date to be fixed to enable S to obtain legal advice and further medical evidence. The resumed hearing was initially listed for 14 March 2007 and then brought forward to 16 February 2007 at the request of Ms Stephens.

16 February 2007: hearing before Guardianship Tribunal. S again applied for an adjournment to enable him to obtain legal advice, medical evidence and to access documents he requested under freedom of information legislation. The Guardianship Tribunal refused that application on the ground that S had already had the opportunity to obtain legal advice and medical evidence and had failed to do so and because it was not apparent as to how the documents requested under freedom of information legislation were relevant to the hearing.

Legislative requirements

8 The Guardianship Tribunal's jurisdiction to make a guardianship order is set out in s 14 of the Guardianship Act 1987. In IF v IG & Ors [2004] NSWADTAP 3 at [24] the Appeal Panel clarified the two step process that the Guardianship Tribunal must undertake when deciding whether to make a guardianship order. That section gives the Guardianship Tribunal a discretion to make a guardianship order if "the Tribunal is satisfied that the person is a person in need of a guardian ..." Consequently, the first step is for the Guardianship Tribunal to ask itself whether the subject person is a "person in need of a guardian". That phrase is defined in s 3 of the Guardianship Act, to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person." The second step is for the Tribunal to decide whether or not to exercise its discretion to make a guardianship order. In accordance with s 14(2), when considering whether or not to make a guardianship order, “... the Tribunal shall have regard to:

(a) the views (if any) of:
(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.”

Guardianship Tribunal’s decision

9 On the basis of the medical evidence before it, namely the reports of Dr A Morgan, S’s general practitioner, dated 19 December 2006 and Dr Selwyn Smith (consultant psychiatrist) dated 18 August 2006, the Guardianship Tribunal found that S was a person with a disability and that because of that disability he was at least partially incapable of managing his person. The Tribunal went on to conclude that there was a need for a guardianship order to be made in relation to S. That conclusion was based on findings that S had a psychiatric disorder which prevented him from living in the community and that residing at Villawood Detention Centre was exacerbating his illness. Even taking into account S’s view that a guardian should not be appointed, the Tribunal concluded that it was in his best interests to do so.

Grounds of appeal

10 Categorisation. The grounds of appeal fall into several categories, namely:

a) grounds which relate to decisions of the Guardianship Tribunal which are not appealable;

b) grounds which do not relate to the Guardianship Tribunal’s decision, but to conduct of other people;

c) grounds which potentially raise a question of law; and

d) grounds which may be relevant to an application for leave for the appeal to be extended to grounds other than a question of law.

11 Grounds which relate to decisions which are not appealable . S complained that the Guardianship Tribunal refused his adjournment application on 16 February 2007 and refused to revoke its appointment of a separate representative so that he could obtain his own legal representation.

12 After hearing S’s complaints about the separate representative, the Guardianship Tribunal confirmed at p 25 of the transcript that the appointment remained on foot and would not be revoked. Both the decision to refuse to adjourn his application and the decision to refuse to revoke Ms Danis’ appointment are interlocutory decisions and are not appealable to this Tribunal: Guardianship Act1987, s 67A.

13 S also submitted that the Guardianship Tribunal failed to direct the Department to comply with his request under freedom of information legislation and failed to follow directions from the Administrative Appeals Tribunal to provide him with medical and other reports. The Guardianship Tribunal has no jurisdiction in relation to applications under freedom of information legislation, nor will it have made an appealable error by failing to direct the Department to comply with an order of another court of Tribunal.

14 Grounds which do not relate to the Guardianship Tribunal’s decision. S put forward several other grounds of appeal which relate to the alleged conduct of the Department, doctors and the separate representative. Since S is only entitled to appeal against the Guardianship Tribunal’s decision, we have not addressed these grounds. They include allegations that:

a) Ms Stephens breached S’s confidentiality by providing the Guardianship Tribunal with a report from Dr Smith dated 18 August 2006 without S’s consent;

b) the Department prevented S from seeing Dr Smith to clarify what was written in his report;

c) Dr Morgan misled S on 20 December 2006 and parts of his report are not true and are racially motivated;

d) the Department and the Ombudsman’s Office have breached international human rights conventions and s 9 and s 13 of the Racial Discrimination Act1975 (Cth) at the Villawood Detention Centre;

e) Ms Danis, S’s separate representative, failed to act in his best interests, did not provide him with legal advice, did not visit him at the detention centre and represented him at the hearing even though her services had been terminated;

f) S’s phone calls, faxes, letters and visits are monitored by the Department and that prevented him from having an adequate opportunity to prepare his case; and

g) the Guardianship Tribunal did not provide a copy of his statement dated 21 December 2006 to the Administrative Decisions Tribunal.

15 Grounds which potentially raise a question of law. The grounds of appeal which potentially raise a question of law are those which allege that the Guardianship Tribunal denied S procedural fairness or breached a statutory duty. Those grounds are that the Tribunal:
a) denied S the opportunity to obtain further medical evidence;

b) denied S the opportunity to respond to adverse material in medical reports and to present his case;

c) failed to give S sufficient notice of the hearing;

d) was racially biased;

e) failed to take his statements into account;

f) exhibited bias by making a remark after the hearing had finished; and

g) breached its duty to investigate the application.

16 Denial of opportunity to obtain further medical evidence . One of the reasons the Guardianship Tribunal adjourned the proceedings on 21 December 2006 was so that S could obtain further medical evidence. An appointment was organised with a psychiatrist, Dr Newman, and she agreed to see him on a pro bono basis. In a letter dated 7 February 2007, S refused to keep his appointment with Dr Newman because he believed she was not independent of the Department. S also wanted to see Dr Smith again because he believed that his report dated 18 August 2006 was false and was a “stale” assessment on which the Guardianship Tribunal should not rely. The transcript of the hearing on 21 December 2006 reveals, at page 21, that S had an appointment with Dr Smith on 12 January. According to Ms Hanstein, the reason S did not see Dr Smith on that day was that he did not have the money to pay for the appointment. S denies that that was the case. He says he had another appointment with Dr Smith on 9 March 2007.

17 The Tribunal adjourned the proceedings in December so that S could obtain up-to-date medical evidence. Procedural fairness requires that a party be given a reasonable opportunity to respond to adverse material. The Guardianship Tribunal gave S a reasonable opportunity to obtain medical evidence. It was not obliged to adjourn the hearing indefinitely until he had obtained that evidence.

18 Denial of opportunity to respond to adverse material in medical reports and to present his case. S alleged that the Tribunal erred when it relied on a report of Dr Morgan after disregarding that report in the proceedings 21 December 2006 and saying that Dr Morgan did not want to give evidence to the Tribunal. The Tribunal was entitled to rely on the report despite its previous comments. S says that he did not receive a copy of Dr Morgan’s report prior to the hearing. Ms Cho representing the Guardianship Tribunal, provided evidence that that report had been provided to S’s separate representative on 13 February 2007. Given that S’s representative had a copy of the report, S was not denied the opportunity to respond to adverse material. S also said that he was denied the opportunity to put forward submissions to the Tribunal relating to his credibility. A reading of the transcript makes it clear that the Tribunal gave S a reasonable opportunity to give evidence and make submissions in support of his case.

19 Insufficient notice of hearing. S submitted that he only had 6 days’ notice that the hearing would take place on 16 February 2007 instead of 14 March 2007. He said he had made an appointment to see Dr Smith on 9 March and that the change to the hearing date did not give him sufficient time for him to present his case adequately. He said that the Guardianship Tribunal did not obtain his consent to changing the hearing date. According to Ms Hanstein, the hearing was brought forward at Ms Stephenson’s request because S was failing to attend medical appointments some of which he had arranged, and believed that there was a “plot against him” by the Department.

20 The Tribunal does not have to obtain the consent of the parties before changing a hearing date. S sought to overcome the disadvantage he perceived in relation to the change to the hearing date by applying for an adjournment. The Guardianship Tribunal refused that application and S’s separate representative did not object to the application proceeding. As we have said, this Tribunal has no jurisdiction to hear an appeal against the decision to refuse an adjournment.

21 Racial bias. S said that the Guardianship Tribunal’s decision was racially motivated to prevent him from exercising his legal and human rights in Australia. There is no evidence of any racial or other bias on the part of Tribunal members.

22 Failure to take S’s statements into account. S said that the Guardianship Tribunal did not take his statements dated 21 December 2006 and 16 February 2007 into account. Although he provided a copy of each statement, he said that the members did not look at them at the hearing. In the Tribunal’s reasons for decision neither of S’s statements are listed under the heading “Written material considered by the Tribunal”. However, Ms Cho advised the Appeal Panel in writing on 5 June 2007 that several documents that were not listed in the Guardianship Tribunal’s decision were in fact before the Tribunal including S’s letter dated 16 February 2007. The Guardianship Tribunal also had a copy of S’s previous statement. The Guardianship Tribunal’s oversight in not listing the statements as documents that it took into consideration does not mean that they were not taken into account. The Tribunal had those documents and was well aware of the circumstances surrounding the application and of S’s views. Its failure to list the statements among the documents it took into account does not amount to an error of law.

23 Alleged remark by Tribunal Member. S alleged that following the conclusion of the hearing, the presiding member spoke to Ms Stephens saying words including “deport him”. S said that this was an unfair comment. The comment allegedly made by the Tribunal Member is not recorded in the transcript as it was allegedly made after the proceedings had finished. Ms Hanstein told the Appeal Panel that Ms Stephens denies that the presiding member spoke to her after the conclusion of the hearing. Even if the presiding member did speak to Ms Stephens after the hearing and the conversation included the words “deport him”, in the absence of any information about the context in which those words were spoken, we are not persuaded that it discloses bias or any other error of law on the Tribunal’s part.

24 Inadequate investigation. S said that the Guardianship Tribunal did not adequately investigate the claims made by the Department and did not require the Department to prove matters that were in dispute. Although the Guardianship Tribunal routinely assigns an investigation officer to communicate with the parties and obtain relevant evidence, the Tribunal has no statutory or other obligation to investigate an application. The Tribunal relied on the evidence that was before it to make findings relevant to the application. It was not required to investigate the application. No error arises from their alleged failure to do so.

Leave to appeal on any other ground

25 Having concluded that no error of law has been identified, we must now decide whether to grant leave to hear the appeal on any other ground, namely that there is an issue about the way the Tribunal determined the merits of the application for guardianship: ADT Act, s 118B(1)(b). Although S did not make a separate application for leave for his appeal to cover the merits of the Guardianship Tribunal’s decision, we understand that he was seeking leave to appeal on that basis. The submissions which appear to be relevant to such an application were that:

a) the medical evidence that S needs treatment for a mental illness is false; and

b) S has not obtained up to date medical evidence to refute the medical evidence before the Guardianship Tribunal.

26 The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision in relation to appeals from Guardianship Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:
It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
27 S’s main point was that the Tribunal relied on medical evidence which he regards as false. Having examined all the medical and other evidence that was before the Tribunal, we are satisfied that the Tribunal’s findings were based on logically probative evidence and that it applied the correct legal tests. In those circumstances we decline to grant leave to hear an appeal against the merits of the decision.

Orders

The decision of the Guardianship Tribunal made on 16 February 2007 in relation to S is affirmed.