UB v NSW Trustee and Guardian

[2010] NSWADTAP 71

Appeal Panel - External

CITATION:

UB v NSW Trustee and Guardian [2010] NSWADTAP 71

PARTIES:

APPELLANT
UB

1st RESPONDENT
NSW Trustee and Guardian

2nd RESPONDENT
Helen Spinney

3rd RESPONDENT
UG

FILE NUMBER:

108004

HEARING DATES:

26 October 2010

SUBMISSIONS CLOSED:

26 October 2010

 
DATE OF DECISION: 

8 November 2010

BEFORE:

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

CATCHWORDS:

APPEAL – procedural fairness – opportunity to respond to information in medical reports - effective participation in hearing

FILE NUMBER UNDER APPEAL:

2010/86

DATE OF DECISION UNDER APPEAL:

04/09/2010

LEGISLATION CITED:

Guardianship Act 1987
Administrative Decisions Tribunal Act 1997

CASES CITED:

R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Kioa v West (1985) 159 CLR 550

REPRESENTATION:

APPELLANT
M Miceli, solicitor

1st RESPONDENT
No appearance

2nd RESPONDENT
Ms O Sekulic, agent

3rd RESPONDENT
In person

ORDERS:

1.The Guardianship Tribunal's orders in relation to UB dated 9 April 2010 are set aside
2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence, if appropriate
3. This decision takes effect on the date the Guardianship Tribunal decides the matter again.

Introduction

1 UB is a 95-year-old man who lives in an aged care facility. On 7 January 2010 Ms Helen Spinney, the manager of the aged care facility, applied to the Guardianship Tribunal for a financial manager to be appointed to manage UB’s financial affairs. The reason for the application was that UB owed the aged care facility approximately $9,000. UB’s son UG had a power of attorney but had not paid his father's accommodation fees for some time, even though he had access to his pension.

2 The Guardianship Tribunal made a financial management order and appointed the NSW Trustee as UB’s financial manager. UB has appealed against that decision. The appeal was made on a question of law. In addition, leave was sought for an appeal to proceed on the merits of the Guardianship Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

Parties

3 UB was represented by a solicitor, Mr Miceli. UG appeared in person. The second respondent, Ms Spinney, advised the Appeal Panel that she would appear by phone however she was not available and Ms Sekulic, appeared by telephone as her agent. The NSW Trustee did not wish to present a case or to make submissions. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal's practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho, solicitor, appeared for the Guardianship Tribunal.

Legislative framework

4 The Guardianship Tribunal has a protective jurisdiction. Among other things, it is the duty of everyone exercising functions under the Guardianship Act 1987 to observe the principle that “the welfare and interests” of the person who is the subject of the application should be given “paramount consideration”: Guardianship Act, s 4. The Guardianship Tribunal has a discretion to make a financial management order if it has considered the person’s capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and
(b) there is a need for another person to manage those affairs on the person’s behalf, and
(c) it is in the person’s best interests that the order be made: s 25G.

5 If the Tribunal makes a financial management order, the Tribunal may appoint a ‘suitable person’ as financial manager or commit the management of the estate to the NSW Trustee: Guardianship Act, s 25M.

Guardianship Tribunal's hearing and decision

6 The Tribunal’s decision records that UB, UG and Miss Spinney attended the hearing and gave evidence and that Ms Houston was contacted during the course of the hearing and gave evidence by telephone. It was agreed by all the parties that UB did not attend the hearing but gave evidence and made submissions by telephone.

7 The Tribunal found that UB is physically frail, has a hearing impairment and ‘mild dementia’. In relation to the issue of whether UB was capable of managing his financial affairs, the Guardianship Tribunal noted the views of UB and his son UG that he was capable of managing those affairs, but found that he had not been doing so for some time. The Guardianship Tribunal accepted the evidence that since his admission to the aged care facility, UB’s affairs have been managed by UG, either informally or pursuant to a Power of Attorney. According to the Tribunal, UB ‘appeared to fail to understand the gravity of his financial position’ and ‘was annoyed at being required to pay an amount in excess of his pension to the nursing home’. The Guardianship Tribunal added that he ‘seemed to consider it appropriate that a charitable grant pay off the debt’. The Tribunal concluded that:

Having regard to the totality of the evidence the Tribunal was satisfied that UB is incapable of managing his financial affairs. UB had been unable to ensure his pension is used for the payment of his necessary costs, being his accommodation fees to the nursing home. Instead his pension is being spent by his son. UB has also been unable to take steps such as selling or renting his home, to ensure that there were funds available to pay the shortfall in his fees. He did not want to engage in discussion about the need for a financial manager in these circumstances.

8 The Tribunal went on to find that there was a need for another person to manage UB’s financial affairs and that it was in UB’s best interests that a financial management order be made. The Tribunal's reasons for reaching that conclusion were that his fees had not been paid for seven months and he owed the aged care facility approximately $9,000. Despite having paid the fees on his father's behalf for a short time, UG told the Tribunal that he was no longer in a financial position to do so. Given that his fees had not been paid for some time, UB could be asked to leave the facility.

9 On the question of who should be appointed as UB’s financial manager, the Tribunal decided that UG was not suitable because he had used his father's pension to meet some of his own expenses. Instead, the Tribunal appointed the NSW Trustee.

Grounds of appeal

The grounds of appeal on questions of law, using Mr Miceli’s words, were as follows:

a) that the Guardianship Tribunal did not afford UB procedural fairness in that prior to the hearing or at the hearing it did not provide UB with the medical reports of Dr Mark Fitzmaurice in the form of a health professional report form dated 16 March 2010 and health professional report form dated 16 March 2010 from Louise Houston which were before the Guardianship Tribunal;

b) that the Guardianship Tribunal did not afford UB procedural fairness in that the Tribunal:

(i) did not afford him the opportunity of attending the hearing as it ought to have done and further it did not personally interview him in the absence of all parties;

(ii) by attempting to take his evidence by telephone the Tribunal denied UB the fairness that was due to him as it was aware from the evidence that he had a severe hearing impairment;

(iii) attempted to take his evidence by telephone in circumstances where he was alone in the presence of the Director of Nursing, Louise Houston, the applicant (who could be said to be in a position of a conflict of interest) and may well have been intimidated and even more disadvantaged in trying to participate in the hearing.

. UB sought leave for an appeal to proceed on the merits of the Guardianship Tribunal's decision on the following grounds:

a) that the Guardianship Tribunal erred in finding that UB was incapable of managing his financial affairs, when the only evidence presented was evidence of the debt due to the nursing home;

b) that the Guardianship Tribunal erred in finding that it was in the best interests of UB to appoint the NSW Trustee as the financial manager when there was already in place an existing enduring power of attorney in favour of UG, his son;

c) that the Guardianship Tribunal erred in not finding that it would better reflect the wishes of UB to appoint a financial manager being his son UG under the direction and management of NSW Trustee.

Opportunity to respond to adverse information

12 Medical reports. The Guardianship Tribunal has a pro forma health professional report form. Dr Mark Fitzmaurice, UB’s general practitioner, and Ms Houston, the Director of Nursing, completed those forms and provided them to the Tribunal. Both reports express the opinion that UB has ‘mild dementia’ which is ‘static’ and which has progressed ‘gradually’. UG said, and we accept, that he was not aware of that diagnosis. UB did not give evidence on that issue. In her Report to the Guardianship Tribunal the case officer records that neither of these reports was released to the parties. No explanation is given as to why those documents were not released. UB did not receive a copy of those reports nor was he advised of the opinions expressed in them.

. The Guardianship Act contains no express requirement that the Guardianship Tribunal abide by the rules of procedural fairness. In deciding that the Guardianship Tribunal was obliged to comply with the principles of procedural fairness in GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52, the Appeal Panel remarked at [28] that:

The jurisdiction of the Tribunal includes power to appoint substitute decision makers to make decisions about a person's personal affairs and/or their property. These appointments deprive the person concerned of the right to make independent decisions about their personal, domestic and/or financial affairs. The seriousness of depriving a person of these rights is moderated by the principles to be observed by anyone exercising functions under the Act as set out in s 4. In particular the freedom of decision and freedom of action of such persons should be restricted as little as possible while ensuring that they are protected from neglect, abuse and exploitation.

14 The Guardianship Tribunal is obliged to comply at least with the minimum content of the hearing rule which is essentially to disclose to parties whose interests are likely to be affected by an exercise of power, the substance of any adverse information that is credible, relevant and significant to the decision and give them a reasonable opportunity to respond: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J, at 584 and 587 per Mason J.

15 Conclusion. The Tribunal said it had regard to the totality of the evidence in deciding that UB was incapable of managing his financial affairs. That evidence included the opinions of Dr Fitzmaurice and Ms Houston that he had mild dementia. While there was no evidence as to whether UB was aware of that diagnosis, his son, UG, was not. There is no requirement in the legislation for the Guardianship Tribunal to find that a person has a particular disability before concluding that they are incapable of managing their financial affairs. Nevertheless, the opinion that UB has mild dementia was relevant to that issue and those opinions were credible and significant. In order to comply with its duty to afford UB procedural fairness, the Guardianship Tribunal should have given UB a copy of both the reports so that he could, if he so wished, adduce evidence contrary the opinions of Dr Fitzmaurice and Ms Houston, that he had ‘mild dementia’. It would not have been sufficient in the circumstances of this case to tell UB what was in the reports during the hearing. UB needed to be advised of the substance of the information in the reports in sufficient time prior to the hearing to enable him to respond to them. The Tribunal’s failure to provide him with that information constitutes an error of law.

Failure to attend the hearing in person

16 Ground of appeal. The second ground of appeal on a question of law was that the Guardianship Tribunal breached the rules of procedural fairness by not ensuring that UB was given the opportunity to appear in person. Hearing UB’s evidence and submissions by phone was said not to be in accordance with the rules procedural fairness because of his hearing impairment and because of the need to ensure that his evidence was not affected by the presence of people connected with Miss Spinney, who was the applicant and the manager of the nursing home.

17 Notice of hearing. Section 25I(4) of the Guardianship Act requires the Tribunal to ‘cause’ a notice of hearing to be served on each party to the proceedings. Among the documents considered by the Tribunal was a ‘Statement of Service’ dated 22 March 2010 from Miss Spinney attesting that she had served the Notice of Hearing and a copy of the application on UB by posting it to his address at the aged care facility. The Notice of Hearing was not in evidence before the Appeal Panel but we accept that it was served.

18 Participation by telephone. The parties to proceedings may appear in person or, by leave of the Tribunal, be represented by a legal practitioner or agent: s 58(1). The Tribunal, in the course of proceedings before it, may appoint a person as guardian ad litem of the person who is the subject of the proceedings and may also make orders for the separate representation of that person: s 58(2) and (3). In this case, UB appeared in person, by telephone. The evidence as to how it came about that UB participated by telephone, and not face to face, is contained in a letter UB wrote to UG and his family the day before the hearing and in the ‘Report to the Guardianship Tribunal’ prepared by one of the Tribunal’s case officers.

. In the letter that UB wrote to UG and his family dated 8 April 2010, he says:

As I was advised on 1st April, the Guardianship Tribunal appointment to 3 p.m. at Rowntree Street Balmain; the Secretary Betty here in the presence of the Director of Nursing Louise Houston gave me the news that (name of the case officer) had cancelled the previous arrangement, so no further action was required - what a lot of red tape. (Words in brackets added.)

20 The letter was handed to the Tribunal during the hearing and was part of the evidence in the proceedings.

21 The report to the Guardianship Tribunal prepared by a case officer states that:

UB will be available by telephone with the director of nursing, Louise Houston on (phone number deleted).

Ms Houston has advised that she is not sure how UB will go speaking to the Tribunal by telephone as he is hard of hearing but it would not be suitable for him to attend the hearing due to his physical mobility.

. UB received notice of the hearing. The Tribunal’s case officer, on the advice of Ms Houston, arranged for UB to appear by telephone. That was done despite Ms Houston communicating to the case officer that ‘she was not sure how UB will go speaking to the Tribunal by telephone as he is hard of hearing’. The case officer was also aware that UB had problems communicating by phone. In her Report, after recording the content of a telephone conversation between herself and UB, she noted that:

There were issues concerning UB’s hearing so the call was terminated.

23 The Tribunal recorded some of what UB told it in its reasons for decision. There is no indication in the reasons that UB had any difficulty understanding what he was being asked and responding appropriately. UG gave evidence to the Appeal Panel that his father could hear the questions. UB did not tender the transcript of the Guardianship Tribunal proceedings.

The purpose of giving a party notice of the hearing is to allow them to participate in the hearing. According to Aronson et al, Judicial Review of Administrative Action, 4^th ed, Law Book Co 2009 at p 608:

Parties who are not able to participate effectively in a hearing which involves serious consequences for them must, as a general rule, be assisted to the extent that is required to overcome the difficulty that inhibits their participation (such as language or communication problems) so that they may participate in the hearing in an effective and genuine manner. If the party affected cannot arrange this assistance, it will usually fall to the decision maker to do so.

25 The Guardianship Tribunal's hearing involved serious consequences for UB. The Tribunal was on notice that he had a hearing impairment, which made it difficult for him to communicate by phone, and a mobility impairment. Although UB was given notice of the hearing, the Tribunal’s case manager, in consultation with Ms Houston, decided that ‘it would not be suitable’ for UB to attend the hearing in person because of his ‘physical mobility’. Instead, despite the previous difficulties communicating with the case officer by phone, the Tribunal accepted Ms Houston’s suggestion that UB should participate in the hearing by phone. We note that despite his physical frailty UB was able to attend the Appeal Panel hearing in person.

26 Despite the fact that there was a significant risk that UB would not be able to participate effectively in the hearing by telephone, UB has not established that his participation was not effective because of his hearing impairment, or for any other reason. The Tribunal has recorded his responses in its reasons for decision. We accept UG’s evidence that his father understood the questions he was asked. UB’s responses do not lead to any inference that the answers he gave were influenced by the presence of employees of the aged care facility.

27 Contrary to Mr Miceli's submission, the Tribunal did not breach procedural fairness by failing to personally interview UB in the absence of all parties. As Ms Cho pointed out, it is not appropriate in every case for the Tribunal to take evidence from the person who is the subject of the proceedings in confidence.

Leave for appeal to proceed on the merits

28 The remaining grounds of appeal relate to the merits of the Tribunal's decision. Given that a new hearing is necessary to correct the error of law identified above, it is not appropriate to express a view as to whether findings based on the previous evidence were made fairly or reasonably.

1. The Guardianship Tribunal's orders in relation to UB dated 9 April 2010 are set aside.

2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence if appropriate.

3. This decision takes effect on the date the Guardianship Tribunal decides the matter again.