Tasmanian Health Service v Public Trustee as
[2020] TASFC 6
•20 October 2020
[2020] TASFC 6
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Tasmanian Health Service v Public Trustee as
Administrator of the estate of J [2020] TASFC 6
PARTIES: TASMANIAN HEALTH SERVICE
v
PUBLIC TRUSTEE AS ADMINISTRATOR
OF THE ESTATE OF J
FILE NO: FCA 1080/2019
JUDGMENT
APPEALED FROM: J v Guardianship and Administration Board [2019] TASSC 15
DELIVERED ON: 20 October 2020
DELIVERED AT: Hobart
HEARING DATES: 9 October, 15 November 2019
JUDGMENT OF: Brett J, Geason J, Martin AJ
CATCHWORDS:
Administrative Law – Administrative tribunals – Statutory appeals from administrative authorities to courts – Appeal from decision of Guardianship and Administration Board – Appeal on question of law – Whether primary judge, having stated the correct test, then correctly applied that test – Whether determination of the Guardianship and Administration Board was reasonably open on the evidence.
Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20, 29, 65, 76.
PJB v Melbourne Health (Patrick's Case) [2011] VSC 327, 39 VR 373; PBU & NJE v Mental Health Tribunal [2018] VSC 564, applied.
T [2018] WASAT 128; Re M & R v Guardianship & Admin Board (1998) 2 VAR 213; Public Trustee v Blackwood (1998) 8 Tas R 256; Barker v Guardianship and Administration Board [2019] TASSC 8; Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NWSCA 353, referred to.
Aust Dig Administrative Law [1147].
Mental Health – Guardians, committees, administrators, managers and receivers – Appointment – Guardianship and Administration Board (Tas) – Whether criteria for making a guardianship order met – Disability – Incapacity – Need for appointment of guardian.
Guardianship and Administration Act 1995 (Tas), ss 3 and 20(1).
Aust Digest Mental Health [3]
REPRESENTATION:
Counsel:
Appellant: P Turner SC
Respondent: D Marcenko
Solicitors:
Appellant: Solicitor-General
Judgment Number: [2020] TASFC 6
Number of paragraphs: 114
Serial No 6/2020
File No FCA 1080/2019
TASMANIAN HEALTH SERVICE v PUBLIC TRUSTEE AS
ADMINISTRATOR OF THE ESTATE OF J
REASONS FOR JUDGMENT FULL COURT
BRETT J
GEASON J
MARTIN AJ
20 October 2020
Orders of the Court
Appeal allowed.
Orders made by the learned primary judge are set aside.
Serial No 6/2020
File No FCA 1080/2019
TASMANIAN HEALTH SERVICE v PUBLIC TRUSTEE AS
ADMINISTRATOR OF THE ESTATE OF J
REASONS FOR JUDGMENT FULL COURT
BRETT J
20 October 2020
I agree with Martin AJ.
File No FCA 1080/2019
TASMANIAN HEALTH SERVICE v PUBLIC TRUSTEE AS
ADMINISTRATOR OF THE ESTATE OF J
REASONS FOR JUDGMENT FULL COURT
GEASON J
20 October 2020
Three grounds of appeal are before the Court. They are brought in respect of a decision of Wood J upholding an appeal from a determination of the Guardianship and Administration Board (the Board).
The grounds of appeal are:
"1 The learned Primary Judge erred in law in that upon articulating the legal test applicable upon the appeal before her (whether the Guardianship and Administration Board could have made the findings of fact it did), she failed to apply such test properly or at all.
2 The learned Primary Judge erred in law in that she embarked upon a rehearing upon all of the evidence before the Guardianship and Administration Board in coming to the conclusion(s) that the Board could not have made the findings it did, when the task for her Honour was simply whether the findings of the Board were supported by the evidence before it, not to give the judgment which, in her Honour's opinion ought to have been given in the first instance.
3 The learned Primary Judge erred in fact and law in that her determination that the Guardianship and Administration Board could not have made the findings it did was not a determination open to be made upon a proper consideration of the evidence before the Guardianship and Administration Board."
For the reasons which follow, each ground should be dismissed.
Martin AJ has set out the relevant factual background, including the Board's conclusions, and the applicable statutory provisions.
The Board's determination related to s 20 of the Guardianship and Administration Act 1995 (the Act). That section is expressed in terms which provide, relevantly, that if after a hearing, the Board "is satisfied that the person" the subject of the application "is a person with a disability", and "unable by reason of that disability" to make reasonable judgments about the matters there identified, and "is in need of a guardian", the Board may make an order appointing a guardian on a full or limited basis subject to such conditions as are considered necessary[1].
[1] I need not refer to the matters in s 20(2)-(5) or the principles in s 6 of the Act for the purposes of disposing of the appeal.
The question for the Board was whether upon consideration of all the evidence the requirements for intervention under s 20 were met. If they were, the powers in the section were engaged.
The statutory task reposed in the Board required of it, an evaluation of the evidence.
The question for her Honour was whether the Board's conclusion was correct.
It is not enough in order to succeed for the appellant to show that there was some evidence which sustained a particular outcome. Such an approach is incorrect for its complete avoidance of the question of whether, on the whole of the evidence, the requirements of s 20 are met.
If the Board's finding was correct the decision was unimpeachable. Conversely, if it was not correct, the decision was required to be set aside.
It follows that the appeal to her Honour was on a question of law: Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 at [24]. Leave was not required: s 76(2) of the Act.
The appeal was in the nature of a rehearing: r. 657 Supreme Court Rules 2000. That meant that the court could give "the judgment which in its opinion ought to have been given in the first instance": Fox v Percy [2003] HCA 22, 214 CLR 118 at 125 [23].
This frames the task her Honour was undertaking as one which required an evaluation of the evidence.
It was not possible to determine if the Board was correct without undertaking such evaluation. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [32] Gageler J explains the point:
"To the extent necessary to address the ground or grounds on which an appellant claims that a judgment under appeal is erroneous, an appellate court in an appeal (whether in the strict sense or by way of rehearing) from a final judgment of a judge sitting without a jury 'is obliged to conduct a real review of the trial and ... of [the] judge's reasons' Fox v Percy (above). The appellate court 'cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions' Dearman v Dearman (1908) 7 CLR 549 at 564."
The need for an evaluative approach does not imply an appeal which relates to the exercise of judicial discretion; one in which the question is whether a conclusion was open, as opposed to correct: Warren v Coombes (1979) 142 CLR 53. This is explained by Gageler J in SZVFW (above) at [48]-[49]:
"[48] The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion ...
[49] The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable."
Section 20 is not a provision in respect of which a range of conclusions is open. The evidence sustains a particular conclusion or it does not. Her Honour's method was not a merits review but an evaluation of the evidence to determine whether the statutory criteria were met and the Board's conclusion correct. That was in accordance with the authorities to which I have referred. The appellant's characterisation of her Honour's approach as one involving an impermissible merits review is wrong.
Her Honour's careful evaluation of the evidence demonstrated that the Board's conclusion on the question of whether s 20 was satisfied was not correct. I agree with that conclusion for the reasons her Honour has given.
Conclusion
Each of grounds 1 and 2 proceeds on an incorrect characterisation of her Honour's approach. No error is demonstrated.
Ground 3 is not made out. Her Honour's determination was required on a proper consideration of the evidence conducted in accordance with the approach described in SZVFW (above) at [32].
The appeal should be dismissed.
File No FCA 1080/2019
TASMANIAN HEALTH SERVICE v PUBLIC TRUSTEE AS
ADMINISTRATOR OF THE ESTATE OF J
REASONS FOR JUDGMENT FULL COURT
MARTIN AJ
20 October 2020
Introduction
On 24 August 2018, a social worker at the Royal Hobart Hospital lodged an application with the Guardianship and Administration Board (the Board) for the appointment of the Public Guardian as the respondent's Guardian. The respondent was a patient at the hospital and the application was lodged on behalf of the Tasmanian Health Service (the appellant) as the operator of the hospital.
On 2 November 2018, the Board made an order with effect for 6 months, appointing the Public Guardian as a "limited Guardian" with powers and duties concerning decisions relating to the respondent's accommodation.
The respondent successfully appealed against the order. On 16 April 2019 Wood J delivered reasons identifying errors of law by the Board and ordered that the determination of the Board be set aside: J v Guardianship and Administration Board [2019] TASSC 15.
The appellant appeals against the decision of Wood J on the following grounds:
"1The learned Primary Judge erred in law in that upon articulating the legal test applicable upon the appeal before her (whether the Guardianship and Administration Board could have made the findings of fact it did), she failed to apply such test properly or at all.
2The learned Primary Judge erred in law in that she embarked upon a rehearing upon all of the evidence before the Guardianship and Administration Board in coming to the conclusion(s) that the Board could not have made the findings it did, when the task for her Honour was simply whether the findings of the Board were supported by the evidence before it, not to give the judgment which, in her Honour's opinion ought to have been given in the first instance.
3The learned Primary Judge erred in fact and law in that her determination that the Guardianship and Administration Board could not have made the findings it did was not a determination open to be made upon a proper consideration of the evidence before the Guardianship and Administration Board."
For the reasons that follow, in my opinion, the appeal should be allowed and the orders of Wood J set aside. The appeal from the Board should be dismissed.
Background
The relevant factual background leading to the application for an appointment of a Guardian was summarised by Wood J:
"2The [respondent] is a mature aged man who lived alone aboard his yacht on a mooring until 11 May 2018 when his yacht ran aground in a storm. He visited a pharmacy and sought advice about his foot which was causing him discomfort. His toe was black and he was advised to attend a hospital. He attended the Royal Hobart Hospital the same day, presenting with a gangrenous foot. He was admitted and underwent four surgical procedures culminating on 4 July in an amputation of his right leg above the knee.
3The [respondent]was transferred to the Acute Rehabilitation Unit of the Hospital. He required a wheelchair and was otherwise immobile. He could not use crutches. The [respondent] intended that he would return home to his yacht which he planned to berth at a marina.
4On 15 August 2018, the Rehabilitation Allied Health Team, involving an occupational therapist, physiotherapist and social worker, visited the [respondent's] yacht to assess whether it could be modified to accommodate his physical requirements and satisfy safety considerations. The occupational therapist and physiotherapist assessed that the yacht could not be modified to become a safe or viable discharge option. The Team met with the [respondent] on 23 August 2018 and he was advised that returning to the yacht was not recommended due to multiple safety concerns which could not be mitigated.
5The [respondent] would not consider living elsewhere. An assessment was made that the [respondent] was 'lacking the capacity to decide about his accommodation'."
At the time of the application, the discharge of the respondent from the Acute Rehabilitation Unit was imminent. The application stated that the respondent had "been assessed as lacking the capacity to decide about his accommodation and as such a Guardian is required to decide about his discharge location." In determining the outcome of the application, the Board was required to apply the statutory criteria found in s 20(1) of the Guardianship and Administration Act 1995 (the Act):
"20 Guardianship order
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –
(a)is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c)is in need of a guardian —
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary."
Section 20 also contains directions to the Board:
"(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.
(5) Where the Board makes an order appointing a limited guardian in respect of a person the order to be made is that which is least restrictive of that person's freedom of decision and action as is possible in the circumstances."
The directions in s 20(2)-(5) echo the general principles found in s 6:
"6 Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that —
(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b)the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect."
At the conclusion of the hearing, the Board provided brief oral reasons and announced its decision that the statutory criteria were satisfied. Subsequently, written reasons were provided which included the following conclusions:
"After hearing an Application for Guardianship in respect of [the appellant] (hereinafter called the 'Represented person'), the Board was satisfied that the Represented Person:
· is a person with a disability;
· is unable by reason of that disability to make reasonable judgments in respect of certain decisions affecting is person or circumstances; and
· is in need of a limited Guardian."
Earlier in its reasons the Board identified the specific issue in respect of which it found there was an inability to make reasonable judgments:
"The Board was satisfied that as a result of his disability [appellant] lacked capacity to make reasonable decisions about his accommodation."
It is common ground that the respondent was entitled, as a right, to appeal against the determination and order of the Board only on a question of law. On any other basis the respondent could appeal only with the leave of the Court: s 76(2) of the Act. The respondent's grounds of appeal were as follows:
"1 That the Board erred in law in making the determination at paragraph 16 of its reasons that the Appellant suffers from a disability for the purposes of Section 20(1)(a) of the Act where no Board properly instructed in the law would have made such a finding.
2 That the Board erred in law making the determination at paragraph 27 of its reasons that, as a result of a disability, the Appellant lacked capacity to make reasonable judgements about matters relating to his person and circumstance for the purposes of 20(1)(b) of the Act where no Board properly instructed in the law would have made such a finding.
3 That the Board erred in law by failing to take into account, or give sufficient weight to, the principles to be observed in Section 6 of the Act, particularly as they applied to the Appellant's liberties and wishes."
After reviewing the evidence presented to the Board, Wood J found that the findings of the Board cited earlier, involved three errors of law. First, "the evidence was not capable of satisfying the Board that the [respondent] had a disability within the meaning of the Act". Secondly, "it was not open to the Board to conclude that the [respondent] lacked capacity to make reasonable judgments by reason of his disability" in respect of all or any matters relating to his person or circumstances. Thirdly, "even if the other criteria of disability and incapacity were satisfied", on the evidence, the Board "could not have been satisfied … that the [respondent] was in need of a Guardian."
At the outset of the appeal hearing, following a request from the Court, counsel for the appellant informed the Court that before the guardianship order had been set aside, with the knowledge of the Public Guardian, the respondent had returned to live on his boat. It appears that he has lived on his boat since that time. Nevertheless, the appellant sought that the appeal proceed in order to correct the errors the appellant submitted were made by Wood J. In addition, if the appeal to this Court is successful, it is likely to affect the question of costs of the appeal from the Board. The respondent did not make any submissions in this regard. In the circumstances the Court determined it was appropriate to hear and determine the appeal.
Regrettably after the oral hearing of the appeal was completed, and before the reasons of the Court were delivered, the respondent died. The Public Trustee was granted letters of administration in respect of the respondent's estate. The parties agree that the appeal remains on foot and that, because of outstanding issues, the appeal should be determined.
Appeal – legal principles
The appellant does not challenge the statements of legal principles governing the appeal which were enunciated by Wood J:
"13A finding of fact cannot be reviewed on an appeal relying on an error of law unless the finding is vitiated by an error of law; there is no error of law in simply making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77. Illogical reasoning in drawing an inference is not an error of law providing there is some basis for the inference, that is, if the particular inference is reasonably open:. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356.
14Findings of fact may not be reviewed unless those findings are ones that no tribunal, properly instructed as to the law and acting reasonably, could have made: Underwood J (as he then was) in Ling v Incat Tasmania Pty Ltd [2000] TASSC 87 at [19]; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 per Hope JA at 2-3. In Public Trustee v Blackwood (1998) 8 Tas R 256 involving an appeal under the Guardianship and Administration Act 1995, Underwood J stated at 267:
'It is well established that if a tribunal makes a decision that no tribunal, properly instructed as to the law and acting reasonably, could have made an error of law has occurred.'
15The relevant test for an appeal in point of law was comprehensively considered by Crawford J (as he then was) in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 at [24]. After referring to Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 at 450 and Hope v Bathurst City Council (1980) 144 CLR 1 at 9, Crawford J stated that a question exclusively of law arises if, on the facts found, only one conclusion is open concerning whether the case does or does not come within a statutory expression. It was noted at [25] that an obvious corollary is the proposition from Mason JA in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 that it is not possible to conclude that the decision appealed from is erroneous in point of law if the question is largely one of degree upon which different minds may take different views. If different conclusions are reasonably possible, the determination of which is the correct conclusion, is a question of fact.
16The question is whether the conclusions of the Board that it was satisfied that the criteria in s 20(1) were established was one that no tribunal, properly instructed as to the law and acting reasonably, could have made.
17As stated to counsel during submissions, I will treat the grounds of appeal as asserting an error of law of the kind that reflects established principle. It will be seen that the impugned findings of fact relate to each of the necessary criteria for making a guardianship order, set out in s 20(1)(a), (b) and (c) of the Act. Insofar as the grounds seek a review of those factual conclusions, I will treat the grounds as asserting that the Board could not have been satisfied of each of the criteria in question. The [respondent] can only succeed if the Board's findings as to the application of the criteria in s 20(1) were not reasonably open."
In respect of Wood J's summary that the appeal could only succeed if the findings as to the application of the criteria "were not reasonably open", the appellant accepted that this statement is "unexceptional", but added the proviso that the word "reasonably" conveys only that the Board was acting "rationally". Counsel referred to the following passage from the judgment of McDougal JA, with which Beasley P and Simpson AJA agreed, in Wesiak v D&R Constructions (Aust)Pty Ltd [2016] NSWCA 353 at [73]:
"In my view, the authorities to which I have referred, although they deal with different statutory appellate regimes, establish that an ultimate finding of fact can only be vitiated by error of law if:
(1)there is no evidence to support that finding; or
(2)the finding was not reasonably open on the whole of the evidence ('reasonably' in this usage denotes 'rationally', not 'something on which minds may reasonably differ')."
While not challenging the analysis of the legal principles by Wood J, counsel for the appellant submitted that, properly applied, the legal test "demands contrary conclusions to those reached by her Honour". Counsel contended the evidence supported each material finding of fact made by the Board, and that those primary facts were capable of supporting the Board's ultimate conclusions.
Evidence
In view of the grounds of appeal, which included the assertions that Wood J embarked on a rehearing and that the findings of the Board were supported by the evidence, it is appropriate to consider Wood J's approach to the evidence. Counsel for the appellant did not suggest that Wood J erred in her summary of the evidence before the Board.
Dr Madeline Black provided a Health Care Professional Report (HCPR) which Wood J summarised:
"23… There is evidence of disability in the health care professional report (HCPR) of Dr Madeline Black. She ticked a box, 'yes', to whether the [the respondent] had a disability. The report described the [respondent's] disability as 'cognitive impairments presumed secondary to cerebral small vessel ischaemia in the setting of poorly controlled type 2 diabetes, peripheral vascular disease, hypertension and hypercholesteroiaemia'. The report went on to note that the [respondent] had refused a comprehensive cognitive assessment.
24 Under the heading 'circumstances' Dr Black's report noted:
'These concerns have been expressed to [the respondent] who remains adamant that he will be able to manage safely on his boat on discharge. He cannot fully appreciate the safety concerns of the team and demonstrates poor insight, reasoning and problem solving skills related to his level of disability and the functional implications for this.'
25Under the heading 'effect of disability on the person's circumstances' and a sub-heading 'Does the person experience deficits in particular areas by reason of a disability', Dr Black ticked a box for 'impulse control' and 'planning and reasoning skills'. Under the heading 'how does the disability affect the person's ability to make a reasonable decision about the circumstances you have outlined?' Dr Black stated:
'[The respondent's] poor insight, reasoning, judgment and decision making skills put him at high risk in the community. He does not appreciate the many safety concerns associated with living onboard a boat. He cannot clearly and accurately identify the reasons leading to his admission to hospital and subsequent surgery. He has very poor understanding of his diagnosis of type 2 diabetes and how his poor diabetic control has contributed to his health problems.
Despite multiple conversations from the many members of his multidisciplinary team, [the appellant] does not accurately identify the potential safety risks associated with discharging to his boat. He lacks insight into how his amputation affects his function. He is impulsive which puts him at further risk of injury. [The respondent] has poor safety awareness.
[The respondent] is unable to problem solve good alternatives for accommodation on discharge. [The respondent's] cognitive impairment has a profound impact on his decision making and puts him at potential risk.
He requires support to make informed decisions regarding his accommodation'."
A psychologist at the Royal Hobart Hospital, Mr John Murphy, provided a report described as a "cognitive assessment report". Wood J summarised Mr Murphy's report:
"26... In the report it was noted that the [respondent] refused to participate in any form of objective cognitive assessment. It was noted that the [respondent's] 'speech was often rambling and tangential but he was able to loosely tie his thoughts together when questioned. He expressed some thoughts that were odd and bordering on paranoia but not clearly delusional.' During assessment he was dismissive of any functional impairment due to the amputation. He was unable to identify any potential difficulties in returning to live on the boat, stating he could bring his wheelchair on board and sit on a seat and 'watch any bad weather'. By way of summary Mr Murphy noted:
'While his medical team have concerns about his ability to manage independently on the boat he is fixated on returning to the boat and dismissive of the medical rational against it. While he is able to state and recall the facts and decisions that need to be made [the respondent] does not appear to be able weigh up the consequences and implications of his actions. His responses show a lack of understanding about the events that led to his current situation, as well as the effects of his medical condition. He also shows limited insight into the functional implications of his amputation. This puts him at risk of deteriorating further, and creates significant risk of injury if he returns to unsupported living on his boat. Due to his refusal of objective assessment his current cognitive state is unable to be assessed; however his tangential thought and poor decision making processes indicate there is likely some cognitive impairment. In my clinical opinion he does not have capacity to make decisions about his future accommodation and adjusting to his new limitations'."
Evidence upon which the respondent relied before the Board was provided in the form of a report by Dr Jane Tolman, a geriatrician, who had undertaken a two hour assessment of the respondent. Dr Tolman also had regard to the application for guardianship and the reports of Dr Black and Mr Murphy. Wood J summarised Dr Tolman's report:
"27… After a two hour assessment, her findings were as follows. She found the [respondent] scored well on all cognition tests he undertook, including the mini mental state examination known as MMSE, clock face, list generation, abstract thinking and showed no dyspraxia and an excellent memory for complex events. Dr Tolman saw no evidence of 'cognitive impairments' and no evidence of 'poor safety awareness'. The [respondent] was able to mobilise around the room safely. He demonstrated insight into the difficulties of his amputation, the nature of his stump wound, and his plans for the future, including a prosthesis, modifications to his yacht, the need for a personal alarm and how to obtain one, and his ready acceptance of a second opinion from a private occupational therapist for the purpose of helping him regain control of his life. Dr Tolman found him to have above average problem-solving skills and to be very focussed about how to achieve his goals, and gave various examples. Dr Tolman made observations about his personality including:
'aHe has not led a conventional life and has gathered few friends or even close acquaintances.
bHe has made some poor decisions.
cHe thinks and talks quickly, sometimes without listening carefully.
dHe is sometimes quick to take a contrary view, and sometimes does not listen carefully to others.
eHe has a strong need to be heard and listened to.
fHe can be long winded and feels it is important that he is heard.
gHe can be impatient and dismissive of the opinions of other.'
While not professing to have expertise in psychiatry, she noted the [respondent] is guarded but not suspicious, paranoid or delusional, and while his speech is fast she saw no tangential speech. In concluding, Dr Tolman expressed the opinion that the [respondent] was not cognitively impaired."
A rehabilitation consultant at the Royal Hobart Hospital, Dr Lucy Madelbwe, gave evidence before the Board. Although the proceedings were recorded, the recording was lost and there is no transcript, but her Honour summarised notes taken by the Board members and the summary of the evidence found in the Board's reasons for decision:
"28… The hearing notes taken by the Board members of her evidence include the following: 'peripheral vascular disease, vascular disease presumed to be in the brain'; 'Treating doctors indicate there is cognitive impairment – based on clinical assessment over long period … – cerebral ischaemia? … Formal cognitive assessment not done …'. The Board's reasons for decision provide a summary of the evidence given by Dr Madelbwe:
'13 Dr Madelbwe gave evidence at the hearing. Dr Tolman's opinion did not change her view that the presumption of cerebral ischaemia in a setting of peripheral vascular disease and poorly controlled diabetes was justified and that cognitive impairment is a reasonable assumption secondary to small vessel ischaemia. She did not agree that Dr Tolman's testing ruled out cognitive impairment. She said that MMSE testing is a screen specifically only for dementia of the Alzheimer's type, it is not diagnostic, and it is not sufficient to exclude cognitive impairment. Dr Tolman did not test for impulsivity, executive functioning, problem solving and matters of insight which may be caused by damage to the brain. Dr Madelbwe said that this would be assessed in more depth through full neuropsychological testing which the RHH had intended and which [the respondent] had declined. She noted that CT imaging of the brain would not be of assistance in diagnosis'."
Having summarised the evidence, Wood J referred to the reasons of the Board in which the Board stated that it preferred the evidence provided by the [appellant] and the treating team to that of Dr Tolman. In particular, the Board stated it accepted the evidence of Dr Madelbwe "regarding the limitations of dementia screening tests and diagnosing impairments to executive functioning". Wood J's reasons continued:
"15… The diagnosis of peripheral vascular disease, the clinical observations of the treating team over time, the explanation as to why it was reasonable to draw from these the conclusion of cognitive impairment were persuasive …
16The Board found, for all the above reasons, that [the respondent] suffers from a disability; namely a cognitive impairment secondary to vascular ischaemia and presumed ischaemia of the brain. [The respondent's] poor decision making, and in particular his decision to live on his boat on discharge informed this diagnosis."
Disability
The first question for the Board was whether the evidence satisfied the Board that the respondent was a person with a "disability". Section 3(1) of the Act provided a definition:
"'disability' means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner."
Wood J correctly noted the following features arising from the definition:
· The definition requires "a restriction or lack of ability to perform an activity in a normal manner". The focus is on the ability to perform an activity, rather than an actual performance, and the ability is "tied to performance of an activity in a normal manner, capturing a range or spectrum falling below optimal carrying out of an activity".
· The restriction or lack of ability must result from "absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function". Her Honour described this as a "cause and effect" and the cause must be "an absence, loss or abnormality as described".
· "Personality traits which may individually or in combination impact on a person's capacity to carry out an activity would not qualify as a relevant absence, loss or abnormality. Traits such as obstinacy, arrogance, impulsivity or a determined mind-set would not be sufficient, although they of course could be present in the case of someone who has a disability, just as they might be present in someone who does not have a disability".
Wood J observed that the disability relied upon by the Board was a "cognitive impairment", in respect of which the underlying cause was "presumed cerebral ischaemia". Her Honour correctly noted that this was not a "definitive diagnosis of an underlying cause", merely a "presumed cause, an assumption".
In respect of the Board's conclusion that there was a disability in the form of "cognitive impairment secondary to vascular ischaemia and presumed ischaemia of the brain", Wood J accepted there was evidence of a diagnosis of peripheral vascular disease, but added that it had not been "opined that cognitive impairment was secondary to vascular ischaemia, as opposed to a presumed link." In her Honour's view, "cognitive impairment as secondary to one of the [respondent's] medical conditions had not been established on the evidence".
In these circumstances, Wood J found that the description of the disability was "an error", but in context it was not a "particularly significant error given that the Board's characterisation of the disability acknowledged that ischaemia of the brain was presumed". However, her Honour identified a passage in the Board's reasons when the Board was considering the criterion of capacity which her Honour regarded as a further error:
"35… The Board stated: 'in the HCPR Dr Black reported that the cerebral damage impaired [the respondent's] impulse control and planning and reasoning skills'. It can be seen from the HCPR report that this account of Dr Black's evidence in the report was incorrect. Furthermore, the evidence before the Board was incapable of supporting a positive finding of satisfaction of cerebral ischaemia or brain damage."
In oral reasons for the decision to appoint a limited guardian, a Board member spoke directly to the respondent and explained that the Board believed the respondent's capacity to make decisions was impaired, "probably by the fact that the vascular events, the peripheral vascular problem that has been diagnosed is likely to also be in the brain". In subsequent written reasons, the Board stated its finding that the respondent suffered from a disability, namely a cognitive impairment, secondary to vascular ischaemia and "presumed ischaemia of the brain". It was two paragraphs later in the written reasons that the Board stated that Dr Black has reported that "the cerebral damage impaired [the respondent's] impulse control and planning and reasoning skills …".
The Board's reasons should not be viewed as the considered reasons of a court. The Board specifically found that the ischaemia of the brain was "presumed". In my view, the incorrect summary of Dr Black's report with reference to "cerebral damage" is of no significance.
Returning to the reasons of Wood J, after accepting the argument that cognitive impairment without a diagnosis of an underlying condition may satisfy the definition of disability, Wood J continued with her examination of the Board's reasons concerning the criterion for disability. Her Honour found, correctly, that it was open to the Board to prefer the opinion of the treating team to that of Dr Tolman. Further, her Honour accepted that poor decisions could be taken into account by the Board, but added that it is important to bear in mind that "ultimately the issue is ability and capacity to make reasonable judgments rather than the judgments themselves". In this context, although her Honour accepted that the poor decision making of the respondent concerning his accommodation could legitimately be taken into account by the Board, she properly noted a need for caution:
"44There is a need for caution about a 'boot straps' approach to guardianship orders in the case of a person declining to accept medical advice that is in their interests, by treating that poor decision as demonstrating lack of insight and poor reasoning, and as supporting an inference of a cognitive impairment and ultimately, a finding of a disability. In reality, the evidence may amount to no more than a fixed decision that is contrary to medical advice, a decision that should be the beginning of the enquiry as to disability and capacity.
45The medical reports of the treating team also reveal this heavy reliance on the [respondent's] fixed poor decision to continue living on his boat. It can be seen that there was a degree of working back from 'poor decisions' to opine poor reasoning. That is not to criticise the legitimacy of taking into account poor decisions, but rather to note the need for caution because, as I have said, poor decisions are not to be equated with poor decision-making ability.
46It is necessary to bear in mind that in this appeal I am not concerned with whether there was due or undue weight given to this consideration. The Court has a limited function, and the question is whether, by reference to the evidence before the Board, the Board could have been satisfied of the criteria for the making of an order. This question requires a consideration of all the evidence that was before the Board and whether it could sustain the conclusions reached. The first question is whether the evidence could satisfy the Board that the [respondent] had a disability."
Wood J summarised the evidence of cognitive impairment relied upon by the Board:
"47 …
·The [respondent's] lack of insight as to how his amputation affects his function.
·Failure to identify and respond to his health needs, including diabetes management.
·Demonstrated unrealistic expectations of support services available to him on discharge.
·Poor insight into factors leading to his hospitalisation and adjustments now required.
·Unable to weigh up consequences and implications of his actions.
·Observations of tangential thinking, rambling responses and disinhibition.
·Impulsivity, examples: completely focussing on living on his boat while refusing to acknowledge any implications of this; attempting to stand when he was unable to do so; and purchasing crutches when told not to ambulate."
Having summarised the relevant factors, Wood J discussed references by the Board to the respondent's answers at the hearing concerning his decision to live on the boat. The Board found his evidence to be "rambling and tangential", and concluded that the answers "supported the fact that he was focussing completely on a return to the boat without any realistic consideration of impediments". Her Honour's reasons continued:
"49It is worth bearing in mind that a person's fixed and resolute determination to live in their home does not necessarily suggest rigid and fixated thinking generally and an inability to make reasonable judgements. A person's attachment to their home is understandable and does not necessarily reveal cognitive difficulties. In the [respondent's] case, his yacht is not just a place to stay, it is his home, his chosen lifestyle. The application noted that the [respondent] has the 'firm opinion that he should return to his yacht, as he states "this is his home".' It was also a financial investment, the application noted that the [respondent] 'reports he has invested a substantial amount of money in the yacht'."
50In Patrick's case, Bell J at [285] spoke about this in terms that are factually applicable:
'There are many reasons why people make genuine and legitimate choices of this kind, [retaining his home] even though (equally genuinely) their friends, family, carers or doctors may think the choice is not in their best interests and has seriously inconvenient consequences for them. So important to the individual is their property and home that this personal freedom of choice is respected in the law, particularly in the fundamental common law rights and freedoms and basic human rights which are engaged in such a case. Those rights and freedoms are equally possessed (although needed more) by people with a mental illness.
The irreversible and extreme step of severing a person's connection with their home and denying them freedom of choice about where to live is a drastic interference with their fundamental common law rights and freedoms and their basic human rights.'
These remarks about the potential importance of 'home' to an individual and their autonomy resonate here, even though Patrick's case was a case concerning the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the legal recognition of human rights provided by the Charter does not have application in Tasmania.
51An aspect of the evidence listed above said to demonstrate the [respondent's] cognitive impairment was that the [respondent] had difficulties coming to terms with the amputation and making the necessary adjustments. The [respondent's] arguments acknowledged that his state of mind may have seemed abnormal as a result of a number of factors, including medication and shock at the loss of a limb. As a general common sense observation, it may be noted that an individual may have difficulties coming to terms with the amputation of a limb, especially when it is unexpected. Understandably, some individuals with no cognitive impairment may struggle to face facts and may cling to their previous lifestyle. Some may find it difficult to learn to make adjustments by listening to advice, but rather they may learn from experiencing their limitations.
52There is a degree of subjectivity about the clinical observations of the [respondent's] reasoning difficulties and cognitive limitations. Professional minds may differ on whether what was observed was evidence of a cognitive impairment. This subjectivity can be seen in the divergence in the opinions of the treating team compared with the opinion of Dr Tolman. Examples of this divergence are that fixated thought and poor insight and may be regarded as the product of a determined personality; tangential thought could be seen as someone who is long-winded and wanting to be heard."
The respondent declined to undergo a full neuropsychological testing of his cognitive state. Mr Murphy stated in his report that notwithstanding the absence of an objective assessment, the respondent's tangential thought and poor decision making processes indicate there is "likely some cognitive impairment."
Wood J noted that the opinions of cognitive impairment were based on observations made in a clinical setting by the treating team over some months, but added that in this setting the respondent was "reluctant to contribute information to his treating team as it may have been used to support the guardianship application". The Board was aware of this issue, and of the respondent's view that the treating team was against him residing on the yacht even before they had seen a picture of it or conducted a visit. In addition, the Board had been informed that the respondent had purchased two mobility scooters and taken advice from Dr Tolman concerning obtaining a private occupational therapist. As Wood J observed, it was evident that the respondent "lacked trust in the advice he was receiving and was suspicious about the objectivity of his treating team."
Against this background, Wood J made the following observations:
"56Inevitably the [respondent's] engagement with his treating team was adversely affected. His attitude may have contributed to his responses that were observed, such as 'bordering on paranoia', 'dismissive' of any functional impairment due to the amputation and 'unable to identify any potential difficulties in returning to live on his boat', as noted by Mr Murphy in his report. It may be noted that he was described as 'guarded' by Dr Tolman. It would not be surprising if the [respondent's] lack of communication for fear that he may be helping to build a case against himself impacted upon the medical assessment of his reasoning ability.
57 The setting for clinical observations was not ideal given these circumstances.
58It may be noted that clinical observations of the [respondent] included his failure to identify and respond to his health needs, and a poor understanding of his medical conditions, including poor diabetic management, as examples of his cognitive difficulties. By the time of the hearing, considerable improvement was seen in that regard, with the [respondent] living independently, and no adverse reports about his response to medical advice and recommendations. An entrenched poor response to medical advice was not evident."
The analysis of the evidence by Wood J to which I have referred led her Honour to the conclusion that the evidence was not capable of satisfying the Board that the respondent had a relevant disability. Her Honour's conclusion in this regard was summarised in the following passages:
"59In conclusion, the Board was left with opinions that are unsupported by objective testing and that are reliant on clinical observations of the [respondent's] difficulties that are not definitive of a cognitive impairment. The clinical setting in which these observations were made was not ideal given the [respondent's] attitude and suspicious mind-set. Further, an underlying condition as the cause of a cognitive impairment was not diagnosed. As a consequence, in the circumstances of this case, questions remained about possible explanations for the [respondent's] presentation, other than cognitive impairment, such as personality traits, perhaps exacerbated by his oppositional stance.
60The evidence was not capable of satisfying the Board that the [respondent] had a disability within the meaning of the Act. As stated, it was open to the Board to reject Dr Tolman's opinion that the [respondent] did not have a cognitive impairment and to reject the conclusions she reached supporting that view, such as the [respondent] having insight and above average problem-solving skills. Assuming acceptance of the evidence of the clinical observations of the treating team, as well as the Board's own observations in support, the evidence necessarily fell short of the threshold of being capable of satisfying the Board on the balance of probabilities that the [respondent] had a disability for the purpose of s 20(1)(a). Ground one of the appeal succeeds."
Disability – Discussion
On the hearing of the appeal, counsel for the respondent conceded that the Board had made findings as to the primary facts which were open to it. In substance, counsel also conceded that those primary facts were capable of supporting the conclusion that the respondent was a person with a cognitive impairment. In these circumstances, counsel concentrated upon the criteria in s 20(1)(b) on the basis that if it was open to the Board to find that the respondent was, by reason of cognitive impairment, unable to make reasonable judgments in respect of his accommodation, necessarily it was open to the Board to find that the respondent was a person with a disability.
Those concessions were properly made. A finding that the respondent was unable to make reasonable judgments about his future accommodation, namely, whether he should return to live on his boat, necessarily encompassed a finding that the cognitive impairment restricted the respondent's ability to perform that particular decision-making process in a normal manner.
The Board found that the respondent suffered from a disability, namely, "a cognitive impairment". In addressing the issue of disability, it appears the Board failed to consider whether the cognitive impairment restricted the ability of the respondent to perform an activity in a normal manner. However, for the reasons discussed concerning the concessions, the error was of no significance.
For ease of reference, in the discussion that follows I have equated cognitive impairment with disability.
In view of the grounds of appeal, and in particular the issue raised by s 20(1)(b) of capacity to make reasonable judgments in relation to accommodation, it is necessary to consider the evidence and findings of the Board concerning the nature and extent of both the cognitive impairment and its impact upon the respondent's mental state, together with the approach of Wood J to the evidence and findings.
I do not agree with the appellant's submission that her Honour embarked on a "rehearing" of the evidence before the Board. Her Honour properly undertook an analysis of the evidence in order to address the legal issues raised by the appeal.
The first critical question for Wood J was whether there existed evidence from which the Board could rationally find that the respondent suffered from a cognitive impairment. As her Honour acknowledged, cognitive impairment without a diagnosis of an underlying condition may, nevertheless, satisfy the definition of disability. This was not a case, however, where a potential underlying condition had not been identified. Although a definitive opinion as to the underlying cause was not proffered, clinical observations over time led medical practitioners to identify a potential underlying condition. Dr Medelbwe regarded at the presumption of cerebral ischaemia, in the setting of peripheral vascular disease and poorly controlled diabetes, as "justified".
In determining that the evidence was not capable of satisfying the Board that the respondent had a disability within the meaning of the Act, Wood J relied upon the following matters:
· There is a need for caution about a "boot straps" approach to guardianship orders in treating a poor decision to accept medical advice as demonstrative of a lack of insight and poor reasoning and, therefore, supporting an inference of cognitive impairment.
· There was "heavy reliance" on the respondent's "fixed poor decision to continue living on his boat" and a degree of working back from "poor decisions" to opine poor reasoning.
· It is appropriate to bear in mind that a person's "fixed and resolute determination to live in their home does not necessarily suggest rigid and fixated thinking generally and an inability to make reasonable judgments".
· Some individuals, with no cognitive impairment, "may struggle to face facts and may cling to their previous lifestyle" and find it difficult "to learn to make adjustments by listening to advice".
· The respondent acknowledged that his "state of mind might have appeared abnormal as a result of a number of factors, including medication and shock at the loss of a limb".
· "There is a degree of subjectivity about the clinical observations of the respondent's reasoning difficulties and cognitive limitations." Fixated thought and poor insight may be the product of a determined personality, and tangential thought may be no more than someone who is long-winded and wanting to be heard".
· Full neuropsychological testing was not undertaken.
· The setting for clinical observations over some months was less than satisfactory because the respondent "lacked trust in the advice he was receiving and was suspicious about the objectivity of his treating team" and was "reluctant to contribute information to his treating team as it may have been used to support the guardianship application".
· Clinical observations included the failure of the respondent to identify and respond to his health needs, but by the time of the hearing there had been considerable improvement in that regard.
· There was no diagnosis of an underlying condition as the cause of a cognitive impairment. This left open other possible explanations such as personality traits, perhaps exacerbated by the respondent's "oppositional stance".
In finding that the respondent had a cognitive impairment, the Board relied upon the clinical observations and opinions of Drs Black and Madelbwe, and the psychologist Mr Murphy. Dr Black described the disability as "cognitive impairments". In arriving at that opinion, Dr Black relied upon the following features of the respondent's presentation:
· The respondent "cannot fully appreciate the safety concerns of the team".
· The respondent "demonstrates poor insight, reasoning and problem solving skills related to his level of disability and the functional implications for this".
· The respondent "possesses poor insight, reasoning, judgment and decision making skills …".
· The respondent "cannot clearly and accurately identify the reasons leading to his admission to hospital and subsequent surgery."
· The respondent has "very poor understanding of his diagnoses of type 2 diabetes and how his poor diabetic control has contributed to his health problems."
· The respondent "lacks insight into how his amputation affects his function."
· The respondent is "impulsive" and has "poor safety awareness".
· The respondent "is unable to problem solve good alternatives for accommodation on this charge."
Dr Madelbwe accepted the opinion of treating doctors that there was a "cognitive impairment". In her opinion, the presumption of cerebral ischaemia, in a setting of peripheral vascular disease and poorly controlled diabetes, was justified. Further, in her view "cognitive impairment" was a "reasonable assumption".
Mr Murphy expressed the view that there was "likely some cognitive impairment". In arriving at that opinion, he relied upon the following features:
· The respondent's speech was often "rambling and tangential but he was able to loosely tie his thoughts together when questioned".
· The respondent expressed some thoughts that were "odd and bordering on paranoia, but not clearly delusional".
· The respondent was "dismissive of any functional impairment due to the amputation".
· The respondent was "unable to identify any potential difficulties in returning to live on the boat."
· The respondent was "dismissive of the medical rationale" against returning to the boat.
· The respondent does not appear to be able to "weigh up the consequences and implications of his actions".
· The respondent demonstrated "a lack of understanding about the events that led to his current situation, as well as the effects of his medical condition."
· The respondent demonstrated "limited insight into the functional implications of his amputation".
· The respondent possesses "tangential thought and poor decision-making processes".
· The respondent does not possess "capacity to make decisions about his future accommodation and adjusting to his new limitations."
The matters raised by Wood J are all legitimate considerations in weighing the competing views as to the inferences and conclusions to be drawn from the evidence. However, as to the particular issue of cognitive impairment, in my opinion those matters upon which her Honour relied were not capable of conclusively negating the positive evidence of cognitive impairment. As the overview of the evidence demonstrates, there was positive evidence of cognitive impairment and of a reasonable presumption as to the cause of the cognitive impairment. Further, there was evidence of features of the respondent's conduct and presentation over time which formed the basis of the opinions that the respondent suffered from a cognitive impairment. While there was clearly a need for caution, it was open to the Board to prefer the evidence of other witnesses over that of Dr Tolman, and there was a rational foundation in the evidence for the Board's finding as to the existence of a cognitive impairment. Even if reasonable minds could differ as to conclusions to be drawn from the evidence, it was open to the Board to find that the respondent had a cognitive impairment. It follows that, in my view, Wood J erred in concluding that the evidence was not capable of satisfying the Board that the respondent was a person with a cognitive impairment amounting to a disability.
Incapacity
Once the Board found that the respondent was a person with a "disability", it was a further requirement of s 20 that, by reason of the disability, the respondent was unable to make "reasonable judgments" in respect of matters relating to his person or circumstances. Wood J correctly observed that, from the terms of s 20(1)(b), it is plain there is a "distinction of importance between the making of a good or bad decision and a person's capacity to make reasonable judgments". In addition, her Honour referred to the following pertinent remarks in T [2018] WASAT 128 at [35]:
"[35] There is a common maxim in the jurisdiction that people have a right to make bad or unwise decisions. Competent people make them all the time. It will be for the Tribunal in each instance to ensure that any order under subsection (iii) is appropriate and that the subsection is not simply being used in an attempt to override what are capably made albeit bad or unwise decisions with which others engaged with or close to the proposed represented person simply disagree."
In the same context, Wood J observed that even if the respondent was not making reasonable judgments in terms of his decision to return to live on the boat, the critical question was whether he was "unable to make reasonable judgments in that regard". In her Honour's view, focussing on this distinction highlighted the lack of evidence regarding the respondent's capacity. Her Honour accepted, however, that the Board's reasons acknowledged the distinction between decisions and decision-making capacity.
After referring to the competing views of Dr Tolman and Dr Madelbwe, and concluding that it was open to the Board to prefer the evidence of Dr Madelbwe and to find that the observations of Dr Tolman did not support her opinion, Wood J discussed the Board's approach to the evidence of the respondent. The Board found the evidence to be "rambling and tangential" and that it demonstrated the respondent was focussed entirely on returning to his boat without realistically considering the impediments to such a course. Her Honour noted the Board's view that the recent steps taken by the respondent, such as engaging a private occupational therapist to assist with modifications to his boat and purchasing a personalised alarm system, were "more likely the consequence of recent advice about actions which would help his case than a considered decision-making process". The reasons of Wood J continued:
"71I have referred in detail to the evidence relied upon by the Board as demonstrating cognitive impairment, such as the [respondent's] poor decision to return to live on the boat, and the clinical observations of his treating team. The Board relies upon the same evidence of clinical observations of the [respondent] as revealing poor ability in terms of making reasonable judgements. I have made remarks about the limitations of that evidence in demonstrating disability, such as the lack of objective testing and the exclusive reliance on observations made in a clinical setting which was compromised due to the [respondent's] oppositional stance affecting the rapport between himself and his treating team. These same remarks are applicable to the question of capacity. For those same reasons, it was not open to the Board to conclude that the [respondent] lacked capacity to make reasonable judgements by reason of his disability."
Wood J also referred to the statement in the report of Mr Murphy that the respondent was "unable to identify any potential difficulties in returning to live on the boat". Her Honour regarded this evidence as equivocal in the context of making reasonable judgments because it was apparent that the respondent was reluctant to contribute any information and possessed an "oppositional stance".
Finally in this context, Wood J considered the importance or otherwise of the respondent's earlier poor responses to his medical conditions in comparison with his recent behaviour:
"73In identifying the [respondent's] incapacity as a consequence of his cognitive impairments, a matter that was referred to was the [respondent's] poor response to his medical conditions and his failure to identify and respond to his health needs, including diabetes management. At the time of the hearing, the [respondent] had been discharged from the rehabilitation unit and was living independently in a hotel. There was no suggestion that his management of his medical condition in this setting was proving inadequate. In fact there was uncontradicted evidence before the Board that the [respondent] had been contacting the Royal Hobart Hospital staff at pre-arranged times to check in on his welfare, and he had engaged with community nursing in relation to his ongoing wound care. Indeed, this would seem to provide an example of the [respondent] making reasonable judgements in relation to his medical care.
74A finding that the Board was satisfied that the [respondent] was unable by reason of a disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances was not reasonably open on the evidence. Ground two succeeds."
The respondent's recent responses were clearly relevant. At the time of the hearing, the respondent was living independently in a hotel and there was no suggestion he was failing to manage properly his medical condition. There was un-contradicted evidence that the respondent was keeping appointments with Royal Hobart Hospital staff for checks on his welfare and had appropriately engaged with community nursing in relation to the on-going care of his wound. Her Honour correctly commented that the respondent's conduct in this regard appeared to provide an example of the respondent making reasonable judgments in relation to his medical care. In addition, whatever his motive, the respondent had made reasonable decisions about engaging a private occupational therapist to assist with modifications to his boat and purchasing a personalised alarm system. However, the critical question on appeal was whether there was evidence capable of supporting a finding that the respondent was unable to make reasonable judgments concerning the specific issue of whether to live on the boat following his discharge from hospital.
The respondent advanced the following contentions concerning the issue of capacity to make reasonable judgments about accommodation:
·The degree of impairment required under s 20(1)(b) is of a more significant degree than merely proving a disability.
·In considering whether s 20(1)(b) was satisfied by the evidence and facts relied upon by the Board, this Court should:
"a recognise that an individual's ability to make reasonable judgments about his or her personal circumstances is to be assessed against a 'sliding scale' of capacity;
b determine where on the scale of incapacity a person is to be properly considered 'unable' to make reasonable decisions as to the question of his residence for the purposes of s 20(1)(b);
c not simply assume that the Board or the Appellant's witnesses properly identified the bounds of s 20(1)(b);
d accept all of the Board's primary findings of fact once properly viewed in the context of the evidence before it; and
e carefully consider whether the Board's findings of primary fact can properly be said to have satisfied s 20(1)(b) having regard to the principle that capacity is support dependent."
·"It is respectfully submitted that the Board's ultimate conclusion of incapacity is the product of an error of law by virtue of the misapplication of the Board's excessively paternalistic value judgments. The Board was not in fact 'satisfied' of incapacity but was rather labouring under a misapprehension concerning the scope and meaning of s 20(1)(b)."
·"Capacity is a question of degrees to be assessed against a continuum or spectrum of ability":
'In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision (as Lord Donaldson pointed out in Re T at 113).[2]'
·"This concept of a sliding scale of capacity illustrates the flaws in the appellant's reasoning that it was legally open to the Board to conclude that the requirement for incapacity was met simply because there was some evidence of reduced capacity."
·"Reduced capacity does not equate to incapacity ... Courts have remarked that the question of residence is one which demands only a low level of capacity to sufficiently determine. Where there is some degree of cognitive disability, it is all the more important for courts to guard against discrimination."
·"The phrase 'unable to make reasonable judgments' is imprecise and susceptible to differing constructions … in construing this phrase, the Court should draw a line somewhere along the sliding scale of capacity to delineate where s 20(1)(b) is properly engaged."
·"To the extent possible, the principle of legality should operate to give the provision a construction which reconciles with the liberties which are jealously guarded at common law. It is trite that 'the principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law'".[3]
·"The test for capacity imposed by s 20(1)(b) must account for steps which an individual has taken, or is willing to take, to seek counsel and support of others in making a decision."
·"There is further common law authority for the proposition that capacity is support dependent and that an individual lacking personal insight may have sufficient capacity where there is evidence that advice is available to them. The following extract of Kennedy LJ's judgment in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 was cited with approval in Goddard Elliot (a firm) v Fritsch [2012] VSC 87 at [554]: -
'To have capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice … Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately … Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive'."
·"Given these common law protections of the liberty of self-determining one's own home, the interpretive strictures of the legality principle operate to narrow the scope of the term 'unable by reason of the disability to make reasonable judgments in respect of … any matters relating to his ... person or circumstances'. A much greater degree of impairment than that found by the Board was required to satisfy the s 20(1)(b) criterion."
[2] Hunter and New England Area Health Service v A (by his Tutor T) [2009] NSWSC 761, 74 NSWLR 88, McDougall J at [24]:
[3] North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41, 256 CLR 569 at [11].
In the context of the principles to be applied when dealing with "liberties which are jealously guarded at common law", the respondent relied upon passages from the judgment of Bell J in PJB v Melbourne Health (Patrick's Case) [2011] VSC 327, 39 VR 373 which were cited by Wood J and are set out earlier in these reasons [33]. In addition, the respondent emphasised "the common law's protection of those with a cognitive disability which is not so severe that it warrants a deprivation of their liberties" and relied upon the following passages from the judgment of Bell J in PBU & NJE v Mental Health Tribunal [2018] VSC 564:
"[177] The courts are acutely conscious of the danger of the capacity test being applied in a manner that discriminates against people with mental disability. The issue arose in Sheffield City Council in relation to the capacity to marry of a woman aged 21 years having the mental functioning of a girl aged 13 years. When answering several preliminary questions, Munby J said:
There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. You must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.
This statement was cited with approval in PH v A Local Authority in a case under the Mental Capacity Act. Baker J said:
'Although [the observation of Munby J] concerned the capacity to marry, ... it should be applied to other questions of capacity. In other words, courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability. (Emphasis added) In my judgment, the carefully-drafted detailed positions of the 2005 Act ... are consistent with this approach.'
[178] A capacity test applying to people with mental disability is plain-bread discriminatory on that ground if the standard of functioning required of those persons is greater than the relatively low standard required of people generally. As we have seen, the general capacity standard of the common law requires only that the person, whether mentally disabled or not, is able to understand the general nature, purpose and effect of the medical treatment, transaction or proceeding in question. Section 3(1) of the Mental Capacity Act is interpreted and applied in the same way, as should be s 68(1) of our Mental Health Act.
[179] The issue was further considered in R (B) v Dr SS in relation to the capacity test stated in Re MB by Butler-Sloss, Saville and Ward LJJ (see above). Silber J held in R (B) v Dr SS that this test
'does not ... require the patient to be able to use [the information] or weigh it in the balance to a particular standard. Thus, a patient might be regarded as having capacity if he could understand, retain, use and weigh in the balance this information but could reject it for any rational but undisclosed reason.'
His Honour went on to say:
'Thus a patient could be regarded as having capacity to decide if he wishes to have treatment even though ... he lacked insight or understanding of his problems, which insight might have to be addressed by medication. He could similarly be considered to have capacity not because he was shown to have capacity but because the evidence of, for example, his confused mind, did not go quite far enough to rebut the presumption of capacity'." [Emphasis added.] [Footnotes omitted.]
In analysing the reasons of the Board, the respondent's submissions assert that the reasons "seem to describe the respondent as a man who is:
"· impulsive;
· stubborn;
· dismissive of advice warning against a return to his earlier lifestyle;
· yet to learn of the full practical limitations of his amputation;
· rambling and tangential;
· disengaged with the management of his diabetes;
· a poor listener,
· quick to take a contrary view;
· longwinded;
· exhibits a preference to prioritise short-term pleasure over his long-term health; and
· was willing to discharge his waste into seawater (which is not an offence)."
The respondent's submissions also refer to Dr Black's opinion that the respondent "had reduced planning and reasoning skills which affected his decision-making" and did not recognise his physical limitations.
Missing from the respondent's summary were the following views expressed by Dr Black:
·"He cannot fully appreciate the safety concerns of the team and demonstrates poor insight, reasoning and problem solving skills related to his level of disability and the functional implications for this".
·The respondent "does not appreciate the many safety concerns associated with living on-board a boat" and "does not accurately identify the potential safety risks associated with discharging to his boat."
·The respondent "lacks insight into how his amputation affects his function."
·The respondent's cognitive impairment "has a profound impact on his decision-making, and puts him at potential risk".
·The respondent "requires support to make informed decisions regarding his accommodation."
·The respondent is "unable to problem solve good alternatives for accommodation on discharge."
·The respondent has demonstrated "poor understanding of his underlying medical conditions and how these have contributed to his current level of disability."
·The respondent "fails to identify his basic day-to-day needs (transport, showering etc), but feels the NDIS will help him with 'putting out the bins' and 'sailing lessons'. This further demonstrates [the respondent's] poor insight into the functional implications of his medical condition and the required supports."
As to the evidence of Mr Murphy, the respondent submitted that when Mr Murphy's opinion is considered in its "proper context", the opinion "betrays a well-intentioned but overly paternalistic attitude towards the question of whether the respondent had sufficient capacity to decide where he was to live." In support of that contention, the respondent sighted a passage from the opinion of Mr Murphy in which Mr Murphy expressed the view that the respondent's "tangential thought and poor decision-making processes indicate that there is likely some cognitive impairment".
There is no evidence to support the proposition that Mr Murphy possessed a "well-intentioned but overly paternalistic attitude" toward the critical question. Mr Murphy was careful in his choice of words and identified the basis upon which he reached the views that there was "likely some cognitive impairment" and the respondent did not possess the capacity "to make decisions about his future accommodation and adjusting to new limitations".
The respondent accepted that the evidence of Mr Murphy placed the respondent within "the reduced capacity section of the sliding-scale", but contended that Mr Murphy's opinion did not suggest that the respondent "actually [lacked] capacity". While Mr Murphy did not explain his view as to the meaning of "capacity", or elaborate upon the extent of the incapacity to make decisions about future accommodation, nevertheless Mr Murphy expressed the simple opinion that the respondent "does not have capacity to make decisions about his future accommodation and adjusting to his new limitations".
In addition, Mr Murphy did not explain the extent of cognitive impairment other than expressing his opinion that the respondent suffered from "some" cognitive impairment. The evidence of Dr Madelbwe does not assist in assessing the extent of the cognitive impairment, but the evidence of Dr Black to which I have referred identifies the effects of the impairment. In the opinion of Dr Black, those effects are significant.
The respondent submitted that the matters identified by Dr Black did not render the respondent "unable to reasonably decide where to live for the purposes of s 20(1)(b)". Matters such as inability to identify the reasons for admission to hospital and poorly managing diabetes were not, in the submission of the respondent, matters relevant to the question of whether the respondent was unable to make reasonable judgments in respect of living on the boat.
It cannot be doubted that there exists a sliding scale of capacity. Similarly, there is a sliding scale of cognitive impairment and physical and mental capacities.
There is also no doubt that the power to interfere with the freedom of an individual to make their own decisions about their lives, including where they live, is a power to be exercised cautiously, particularly in relation to persons with mental or other disabilities. The statements in the authorities to which Wood J and the respondent have referred emphasise this need for caution.
The Act is designed to provide a mechanism for assisting persons with disabilities that affect their capacities to make judgments and care for themselves. But the Act recognises the importance of individual rights and liberties through the principles in s 6 that applied generally to the exercise of a functional power conferred by the Act and, in the specific circumstances of a guardianship order, through the provisions of s 20.
In the case of the respondent, in my opinion there is no basis for an inference that the Board was not conscious of its duty as defined by these provisions of the Act. The notes of decision completed by members of the Board demonstrate that members gave consideration to whether the needs of the respondent could be met by "other means less restrictive" of the respondent's "freedom of decision and action" (s 20(2)), and whether they were satisfied that the making of the order would be in the best interests of the respondent (s 20(3)). Further, the notes demonstrate that the members of the Board were satisfied that the order for a limited guardian was the "least restrictive alternative" (s 20(5)).
In addition, when delivering oral reasons directly to the respondent, in the following passage the Board member reflected an awareness of the impact of an order on the respondent's liberty to make his own decisions:
"We've taken very seriously – we realise that there are severe implications for [the respondent's] freedom of decision making – these are important decisions in his life.
…
Now, no-one wants to take away your right to take as many risks as you like; I think everyone is entitled to do that.
…
It's a really, really difficult one for that reason.
…
So the idea of weighing up reasonably important life decisions is not apparent to us so we're persuaded although albeit very reluctantly at this stage that there needs to be a guardian appointed limited to accommodation …".
In the written reasons, not only did the Board refer to the provisions of s 20, it stated that it "must also balance the principles of s 6" and set out the provisions of s 6. In addition, the fact that the Board limited the order to operate for six months, and specified that the powers and duties of the guardian were "limited to decisions concerning where [the respondent] is to live either permanently or temporarily", further demonstrates the Board's awareness and application of the principles found in ss 6 and 20.
Counsel contended it is apparent from the reasons of the Board, that the Board set the bar of incapacity too low. I do not agree.
Earlier in these reasons I summarised the features of the respondent's conduct and presentation upon which the medical practitioners and Mr Murphy relied in arriving at the view that the respondent was suffering from a cognitive impairment: [46]-[48]. In respect of the specific question of capacity to make a "reasonable judgment", Mr Murphy expressed the opinion that the respondent does not possess "capacity to make decisions about his future accommodation and adjusting to his new limitations". In addition, it is appropriate to repeat the views of Dr Black as to how the "disability" affected the respondent's ability to make "a reasonable decision" about the circumstances under consideration:
"[The respondent's] poor insight, reasoning, judgment and decision making skills put him at high risk in the community. He does not appreciate the many safety concerns associated with living onboard a boat. He cannot clearly and accurately identify the reasons leading to his admission to hospital and subsequent surgery. He has very poor understanding of his diagnosis of type 2 diabetes and how his poor diabetic control has contributed to his health problems.
Despite multiple conversations from the many members of his multidisciplinary team, [the appellant] does not accurately identify the potential safety risks associated with discharging to his boat. He lacks insight into how his amputation affects his function. He is impulsive which puts him at further risk of injury. [The respondent] has poor safety awareness.
[The respondent] is unable to problem solve good alternatives for accommodation on discharge. [The respondent's] cognitive impairment has a profound impact on his decision making and puts him at potential risk.
He requires support to make informed decisions regarding his accommodation."
The difficulty confronting the respondent's case that the Board could not have found that by reason of cognitive impairment, the respondent was unable to make reasonable judgments about whether to live on the boat, is the totality and cumulative effect of all the features relied upon by Dr Black in arriving at her opinion that the respondent was unable to make such reasonable judgments. Individually, a number of matters might not appear to directly impinge upon that question, but viewed in their entirety those features are relevant to an overall assessment of the nature and extent of the cognitive impairment and its effects. Necessarily, a determination as to whether the respondent possessed the capacity to make reasonable judgments with respect to his accommodation had to be made in the light of not only that specific question, but the respondent's overall mental state and capacities.
The Board's oral and written reasons demonstrate that the Board accepted the evidence of Drs Black and Madelbwe and Mr Murphy and, from that evidence, found primary facts which reflected that evidence. The Board stated that it started from the "presumption of capacity" and specifically acknowledged that not only is a person with decision-making capacity free to make bad decisions, even if those decisions cause them harm, "conversely, a person with a cognitive disability may well be able still to make reasonable decisions". The Board concluded that the evidence "supported the view that as a result of his cognitive impairment [the respondent] was not capable of making reasonable decisions and that this was demonstrated by the decisions he was making, and in particular his decision to live on his boat".
There is no error in the approach of the Board or in the Board's assessment of the evidence. I reject the respondent's contention that the Board's decision "reveals that it could not have correctly applied the principle that capacity is support dependent". Not surprisingly, the Board was suspicious of the respondent's motives for his recent cooperation and steps to enlist assistance. There was no evidence before the Board to justify a conclusion that the respondent would have heeded and acted upon any advice that he received. His prior conduct strongly suggested otherwise if he disagreed with the advice.
In my opinion, the primary facts found by the Board were supported by the evidence, and those facts were capable of supporting the Board's finding that, by reason of cognitive impairment, the respondent was unable to make reasonable judgments about his accommodation. It follows that, in my view, Wood J erred in finding otherwise.
Need for a limited Guardian
A determination as to whether the respondent was in need of a Guardian only arose if the Board was satisfied that the respondent was a person with a disability and was, by reason of that disability, unable to make reasonable judgments in respect of matters relating to his circumstances, in particular whether to live on his boat. The question as to need was, therefore, necessarily influenced by the nature and extent of both the disability and the inability to make reasonable judgments.
It is appropriate to cite the full discussion undertaken by Wood J in leading to her conclusion that even if the other criteria of disability and incapacity were satisfied, the Board could not have been satisfied that the respondent was in need of a Guardian:
"76The Board was informed of steps taken by the appellant for his safety. These steps were referred to by the [respondent] at the hearing, referred to by his counsel in submissions to the Board, and noted in the Board's reasons. The steps he had taken included the following:
· He had engaged his own private occupational therapist to implement modifications to his yacht and a return to home plan focussed on safely returning to live on his yacht.
· The [respondent] had engaged with Housing Connect to look at any other reasonable accommodation options if it was decided that returning to live on his yacht was not viable.
· The [respondent] had purchased a smart watch to enable him to remain connected as he had realised he often has difficulty making it to his phone in time when it rings.
· He had purchased mobility devices and a personalised alarm system.
According to the evidence, the [respondent] will also be giving consideration to a prosthesis, but whether that is a feasible option is still uncertain. These steps were referred to by the Board in the following terms:
'[The respondent] described, as evidence of his sound decision making and insight, steps that he had taken to implement his discharge plan – such as taking legal advice, having a capacity assessment, engaging a private OT to assist with modifications to his boat, purchasing mobility devices and personalised alarm system. However, the Board was not persuaded that the motivation in taking these steps, which were inconsistent with his attitude whilst in hospital, were more likely the consequence of recent advice about actions which would help his case than a considered decision making process. Whether he has the capacity to challenge the application to the Board is not the same question as whether he has capacity to make the accommodation decisions.'
77These are not the only considerations relevant in terms of the appellant's capacity, but also bear on the need for an order. The Board's point about the appellant's motivation and whether he reluctantly took those steps or genuinely saw the need for them is of less significance in the context of the necessity for the order, providing he was going to take those measures. If he was prepared to take those steps and those steps obviated the need for the order, then an order could not have been made.
78 In relation to the need for a guardian the Board's reasons are very brief:
'The Board was satisfied for all the reasons set out above that [the respondent] is not able to make reasonable decisions about where he lives. His fixation on living aboard his boat is impractical and risky but immutable. A guardian is required to make decisions about [the respondent's] accommodation which would, of course, take into account [the respondent's] wish to live on his boat if this can reasonably be achieved.'
79In light of the evidence I have referred to, the immutability of the [respondent's] 'fixation' to live on the boat was not established. The [respondent] wanted to explore the option of having his own occupational therapist assess his yacht and see if adjustments could be made. Adhering to his desire to return to his yacht in those circumstances does not disclose that his fixation was immutable. Further, as noted at [73] his recent response to medical treatment would suggest an improvement in the [respondent's] management of his medical conditions, compared with his response as an inpatient at the rehabilitation unit as observed by his treating team.
80There was uncontroversial evidence about the steps the [respondent] had already taken and was intending to take for his safety in attempting to return to live on his yacht. It is likely that he would adhere to his desire to return to his yacht until those steps were exhausted. If the opinion of his own occupational therapist is that a safe return is not possible, there is the prospect that he will accept that from his own occupational therapist. If his experience is that it is not practicable or viable for him to live on the yacht, there is the prospect that he will see that for himself. An option that the Board has in circumstances where the Board has embarked on a hearing and the individual seeks to demonstrate that they will take certain steps and, if taken, those steps would impact on the need for an order, is to allow that opportunity and to adjourn the hearing for a period without making an interim order. The provisions in the Act would allow that approach. Such an approach may, in an individual case, appropriately reflect the guiding principles in s 6 of the Act.
81There are legitimate concerns about the possibility that a safe return is not possible, notwithstanding implementation of safety measures and adjustments to his yacht. There is a concern that the [respondent] may persevere with his determination to live on his yacht, placing himself in danger. However, the terms of s 20(1)(c) require a present necessity, not merely a contingency that may or may not eventuate in the future, refer: Re M & R v Guardianship & Admin Board (1998) 2 VAR 213; Public Trustee v Blackwood (above) per Underwood J at 265-266; Barker v Guardianship and Administration Board [2019] TASSC 8 per Geason J at [16], [21].
82In the event the [respondent] acts in disregard of his safety, there is the availability of an emergency order pursuant to s 65 of the Act. Section 29 may also have application. If the Board has commenced a hearing it has power to adjourn the hearing and to make an interim order if the Board considers that there 'may' be grounds for making a guardianship order: s 73A of the Act."
It is apparent from Wood J's reasons that her Honour placed significant weight on the recent steps taken by the respondent and his co-operation with the medical regime since his discharge. In the light of that evidence, her Honour found that the "immutability" of the respondent's "fixation" on living aboard his boat was "not established". In her Honour's view, the fact that the respondent adhered to his desire to return to the yacht did not disclose that his fixation was immutable.
The evidence concerning the respondent's fixation came from Dr Black. In her report Dr Black referred to the respondent's visit to his boat with the ward occupational therapist, physiotherapist and social worker who were of the view that "no available modifications would make the boat a safer or viable discharge location". The report continued:
"These concerns have been expressed to [the respondent] who remains adamant that he will be able to manage safely on his boat on discharge. He cannot fully appreciate the safety concerns of the team and demonstrates poor insight, reasoning and problem solving skills related to his level of disability and the functional implications for this."
Later in the report Dr Black expressed the view that the respondent did not "accurately identify the potential safety risks associated with discharging to his boat". Mr Murphy reported that the respondent was unable to identify any potential difficulties in returning to live on the boat and had stated "he could bring his wheelchair on-board and sit on a seat and watch any bad weather". In addition, Mr Murphy reported that the respondent "did not feel the amputation would cause any difficulties" and, when questioned further about the functional impact of his disability, "could not identify any larger barriers" or dismissed the question saying he "will deal with it when he needs to".
As to the risk of injury, Dr Black described the safety risks to the respondent as "significant". Dr Black expressed the following opinion:
"If he were to discharge to an unsafe destination, he would be at high risk of falls and further injury. Given the environment, this could include the risk of drowning/death."
In Mr Murphy's view, there was a "significant risk of injury" if the respondent returned to "unsupported living on his boat". In the context of the respondent's limited insight and overall attitude, it was Mr Murphy who expressed the view that the respondent was "fixated" on returning to his boat:
"There is evidence that [the respondent] has poor insight into the factors that led up to his injury as well as adjustments that need to be made post-injury. While his medical team have concerns about his ability to manage independently on the boat he is fixated on returning to the boat and dismissive of the medical rationale against it." [My emphasis.]
Notes made of the hearing of 26 October 2018 refer to a discussion involving the respondent. They include the following:
"A fairly lengthy discussion then occurred on the sort of decisions that would be made if a return to the yacht was to be made. His responses were rambling and tangential in nature and the observation/evidence in the HCPR became evident eg the issue of receiving a negative report about the yacht from the OT. Would be open to his opinions changing – there appeared to be little likelihood he would accept them. Accessing the yacht – described how he would do this – near shore and indicated if not, he had a boat/outboard to get there. The issue of ablutions also demonstrated that he would make decisions contrary to normal thinking – ie against the law to empty into the sea but he would get around to it (do it anyway)."
In the oral reasons delivered in the presence of the respondent, the Board member spoke of the respondent's "inability to weigh options and accept advice and accept limitations or follow procedures" which, in the view of the Board, "clearly [had] not been apparent over the months until quite recently when this application was made and then there's been a flurry of activity towards making sensible appointments and good decisions and all the rest of it." The Board member added that there was no evidence that the timing was anything other than "coincidental". However, the oral reasons continued:
"Listening to [the respondent's] responses to some of the questions that we asked, supported some of the observations that the team have had about just really not appreciating the need to weigh up certain things, and to actually think in any other terms than this is the decision, this is what I'm going to do.
So that there is no weighing up; it's a decision that's been made, and that's that. Even if the OT that you have engaged gives a particular advice that [the respondent] doesn't agree with, he I not necessarily going to go along with it. So the idea of weighing up reasonably important life decisions is not apparent to us …".
In the written reasons, the Board made the following finding:
"[The respondent] answered questions at the hearing about his decision to live on his boat. The Board found his responses to be rambling and tangential and supported the fact that he was focussing completely on a return to his boat without any realistic consideration of the impediments to this course. For example, 'you could say the loss of a leg would have some impact but it's still conjecture' and 'the OT' (a second OT which he had engaged himself) will give me the assessment I want."
As to the respondent's recent conduct being used as evidence of his sound decision-making and insight, the Board regarded those steps as "inconsistent with [the respondent's] attitude whilst in hospital" and found that the conduct was "more likely this consequence of recent advice about actions that would help his case than a considered decision making process".
At best from the point of view of the respondent, reasonable minds could differ on the inferences to be drawn from the evidence. However, in my opinion, it cannot be said that the findings of the Board were not open to the Board. Given the conduct and attitude of the respondent over time, in view of his lack of insight and cognitive impairment, it was open to the Board to conclude that he was still fixated on returning to live on his boat and that his fixation was, at that time, immutable. In this regard, with respect it appears to me that Wood J has stepped into assessing the evidence and drawing conclusions from the evidence, rather than determining whether the evidence was capable of supporting the findings made by the Board.
An example of the process of assessing the evidence and alternative views is found in Wood J's statement that if the opinion of the respondent's own occupational therapist was that a safe return to the boat was not possible, "there is the prospect that [the respondent] will accept that from his own occupational therapist". The fact that there was a "prospect" of such a response does not mean that the evidence was not capable of supporting the alternative view.
As to the option of adjourning the hearing to allow the respondent an opportunity to obtain advice and assistance while living on the boat, the Board was faced with the evidence that if the respondent returned to live on his boat, he was at high risk of injury or death. The Board accepted that evidence and this fact weighed heavily against the option of adjourning the application and allowing the respondent to live on his boat while advice was taken and modifications were made.
In my opinion, given the primary facts found by the Board which were supported by the evidence, it was open to the Board to find that the respondent was in need of a guardian for the limited purpose of determining where he was to live upon discharge and for the period of six months. It follows that in my view, Wood J erred in determining otherwise.
For these reasons, I would allow the appeal.
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