WH v Public Guardian & Ors

[2007] NSWADTAP 8

Appeal Panel - External

CITATION:	WH v Public Guardian & Ors [2007] NSWADTAP 8
PARTIES:	APPELLANT WH FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Lorraine Macindoe FOURTH RESPONDENT WI FIFTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068006
HEARING DATES:	18/01/2007
SUBMISSIONS CLOSED:	18 January 2007
DATE OF DECISION:	6 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Rees N - Judicial Member; Green J - Non Judicial Member
CATCHWORDS:	Guardianship order - making - Opportunity to be heard - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	2005/3537
DATE OF DECISION UNDER APPEAL:	02/01/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 J v Lieschke (1987) 69 ALR 647 KA v Public Guardian & Ors [2004] NSWADTAP 25 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand Ltd [1984] AC 808 Moore v Guardianship and Administration Board & Another [1990] VR 902 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 The Grand Hotel v Development Assessment Commission [1998] SASC 7018
REPRESENTATION:	APPELLANT V Roberts, agent FIRST RESPONDENT, SECOND & THIRD RESPONDENTS No appearance FOURTH RESPONDENT L Critchley, solicitor FIFTH RESPONDENT & DECISION MAKER E Cho, legal officer COUNSEL ASSISTING THE TRIBUNAL A Johnson, solicitor
ORDERS:	1. The limited guardianship order made by the Guardianship Tribunal in relation to WI on 1 February 2006 is set aside.; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence.

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 WI is an elderly woman who has dementia. She lives with her husband, WH. On 1 February 2006, following an application from a clinical nurse with an Aged Care Assessment Team, the Guardianship Tribunal made a guardianship order in relation to WI. The Guardianship Tribunal appointed the Public Guardian as WI’s guardian for 12 months. The Tribunal gave the Public Guardian functions in relation to accommodation, health care and medical and dental consent. WH has lodged an external appeal against that decision. WH’s representative made it clear at the beginning of the hearing that the appeal related only to the guardianship order and not to a financial management order made by the Tribunal at the same time.

2 The Appeal Panel has jurisdiction to hear an appeal against the Guardianship Tribunal’s decision: Guardianship Act1987, s 67A. An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other ground: Administrative Decisions Tribunal Act1997 (ADT Act), s 118B(1). WH appealed on questions of law but did not indicate in the Notice of Appeal that he wished to seek leave to appeal on other grounds.

Parties and representation

3 WH was represented by an agent, Ms Roberts. The Appeal Panel appointed Ms Critchley from the Aged Care Rights Service to represent WI. She met with WI but reported that she did not reply to any of the questions she was asked, nor did she show any sign of understanding those questions. We also appointed the Crown Solicitor to assist the Appeal Panel in the proceedings. Ms Johnson represented the Crown Solicitor and provided written and oral submissions. The Public Guardian did not wish to be present or make submissions. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal’s practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Background

4 WH has been married to WI for about 9 years. WI has two daughters and a son from a previous marriage. The original application for a guardianship order came before the Tribunal in November 2005. The Tribunal adjourned the hearing until 1 February 2006 to give the members of WI’s family an opportunity to resolve the issue about where WI should live. The Tribunal noted that if agreement could not be reached then “it may well be that a guardian needs to be appointed with an accommodation function and it may be if there is disputation which cannot be resolved that the public guardian may have to be brought in as an independent objective decision maker on that issue.” The clinical nurse who was the applicant before the Guardianship Tribunal, made efforts to get the family members together to discuss the issues that needed to be resolved, but WH did not make himself available for reasons that it is not necessary to canvass here.

5 WH alleges that while his wife, WI, was in respite care on 2 January 2006, she was sexually assaulted by another patient. WH removed his wife from the facility and reported the incident to the police two days’ later. WH was admitted to hospital on 23 January 2006 with pancreatitis and was expected to be in hospital for about 5 days. WH organised for his sister to look after WI at his sister’s home while he was in hospital. WH’s sister was apparently unable to transport WI to her home because she was behaving aggressively. The applicant to the Guardianship Tribunal proceedings organised for WH to attend hospital on the pretext of visiting her husband. After being assessed by Dr Ticehurst, a psychogeriatrician, she was admitted to the Psychiatric Unit of the hospital and placed on medication.

6 While WH was still in hospital, arrangements were made for Dr Scane, a geriatrician, to review his capacity to care for his wife. It is not clear from the material who organised that assessment, but it was not WH. Dr Scane assessed WH on 30 January 2006, two days before the Guardianship Tribunal hearing on 1 February 2006. He conducted a Mini Mental State Examination (MMSE) and recommended the appointment of the Public Guardian to assist with care and planning for WI. His report was forwarded to the Guardianship Tribunal. It is apparent from WH’s response to questions from the Guardianship Tribunal that he was not aware of the purpose of Dr Scane’s visit.

Grounds of appeal on question of law

7 WH’s main grounds of appeal were as follows:

1. WH was denied procedural fairness by not being given an adequate opportunity to respond to adverse material in medical and other reports that were before the Guardianship Tribunal.

2. WH was denied procedural fairness because the applicant changed her mind about who should be appointed as WI’s guardian and the Guardianship Tribunal did give him sufficient notice that they were contemplating appointing the Public Guardian.

3. WI was denied procedural fairness by being “prevented” from attending the Tribunal or giving evidence by phone.

4. The Guardianship Tribunal refused to agree to issue summonses for the attendance of the authors of documents containing material adverse to WH.

8 The other purported grounds of appeal either do not relate to the guardianship application or do not raise questions of law and we have not dealt with them in this decision.

Ground 1 - procedural fairness – adverse material

9 The hearing rule. The first ground of appeal is that the Guardianship Tribunal did not comply with the rules of procedural fairness because it did not give WH an adequate opportunity to respond to adverse material contained in documents lodged with the Tribunal. In KA v Public Guardian & Ors [2004] NSWADTAP 25 at [9], the Appeal Panel gave the following summary of the relevant principles of the “hearing rule” aspect of procedural fairness:

When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose "interests, rights or legitimate expectations" are affected. ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.) The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case." ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is "credible, relevant and significant to the decision to be made." ( Kioa v West (1985) 159 CLR 550 per Brennan J at 629.) While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of that material should be disclosed. (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.)
10 Our task is to determine the content of the hearing rule taking into account the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice. We have drawn on the analysis in a comprehensive journal article by John Blackwood which deals with the disclosure of documents by Guardianship Tribunals. (Blackwood J, "Fairness v Privacy: Disclosure of Documents by Guardianship Tribunals" Psychiatry, Psychology and Law , Volume 11, Number 1 2004 pp 122-140.)

11 Issues. The questions which the Appeal Panel must ask itself are:

(a) whether the interests, rights or legitimate expectations of WI and WH were affected by the Tribunal’s decision ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J);

(b) whether the adverse material is "credible, relevant and significant to the decision to be made" (Kioa v West (1985) 159 CLR 550 per Brennan J at 629);

(c) if so, whether that material, or the substance of that material, was put to WH in circumstances where he had an adequate opportunity to respond to it;

(d) whether there is a "clear manifestation" in the Guardianship Act or some exceptional circumstances which mean that participants in proceedings do not have to be accorded procedural fairness (Kioa v West (1985) 159 CLR 550 per Mason J at 584).

12 Interest and rights of WH and WI . Because the appointment of the Public Guardian deprives WI of the benefit she would normally have of making independent decisions about her own life, her welfare and interests "should be given paramount consideration." ( Guardianship Act : s 4(a).) Although WI’s interests are paramount, her interests are not the only interests that are affected by an order of the Guardianship Tribunal. ( R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387, per Ewbank J.) Other people may have interests which, depending on the circumstances of the case, give rise to an obligation to afford them procedural fairness. WH’s interests stood to be affected by the Guardianship Tribunal’s decision because he was the person making decisions about matters including where his wife should live and the medical treatment that she should receive. If the Guardianship Tribunal made an order appointing the Public Guardian, then he would be deprived of the capacity to make those decisions for his wife.

13 Credible, relevant and significant material? Two documents which contain information which is adverse to WH are the report of Dr Scane and the Police Report relating to WH’s allegation that his wife had been sexually assaulted. Dr Scane’s report made various comments including:

“Despite MMSE of 29 did not make adequate provision for his wife’s care while in hospital, therefore she was admitted to mental health unit ...

Serious allegations re sexual abuse at hostel respite. But he did not report this initially to the police. Was not able to give dates etc. Other staff raise concerns on his ability to care for his wife ....

In summary multiple inconsistencies and poor insight and planning of future care. I would agree to the appointment of a public guardian to assist with care planning for [WI]. [WH] may have frontal dementia. May benefit from detailed assessment by Dr Ticehurst, psycho geriatrician but [WH] is unlikely to agree.”

14 In their reasons for decision, the Guardianship Tribunal said that the Police Report stated that:
[WI] appeared to be in a shabby, dirty, dark dress, that she had a strong smell of faeces emanating form her, that she was not able to answer questions, such as what her name was, what week it was and that all questions were returned with “no”. It was also reported that [WH] appeared to get frustrated with [WI] and answer questions for her, that he was overtly aggressive and that he would speak constantly on her behalf. The police report summarises that it may be the case that [WH] has over-exaggerated the incident with a view to assisting his desire to be the primary carer of his wife given the pending guardianship hearing, which is the subject of today’s hearing.
15 We find that both Dr Scane’s report and the Police Report, contain adverse material that was credible, relevant and significant to the decision the Guardianship Tribunal had to make. Although Ms Roberts, on behalf of WH, submitted that most of the documents before the Guardianship Tribunal contained material adverse to WH, we have focused on these two documents because they were particularly relevant to the Tribunal’s decision to appoint the Public Guardian as WI’s guardian, rather than WH.

16 Was the substance of the material put to WH so that he had an adequate opportunity to respond? During the hearing (at p 12 and following of the transcript) the Tribunal raised some of the content of Dr Scane’s report with WH.

Presiding Member: There’s been concern about your abilities to make decisions for your wife and I need to be very direct with you about that. Dr Scane when he assessed you says that – he says that there were multiple inconsistencies in (indistinct) and planning of the future care

WH: Which doctor was this then?

Presiding Member: Dr Scane who saw you. Do you remember seeing him?

WH: No

Presiding Member: Well, he only saw you . .

WH: Where was this, down at the (indistinct) hospital?

Presiding Member: He saw you two days ago. You don’t remember?

Voice: In the hospital

WH: The guy that come in and just – after I’d been down – down and got the news of my wife not going home?

Presiding Member: No, no, you were seen twice. On the first occasion – I don’t want to interfere with your privacy about your medical condition but I do need to tell you that we do have a report that questions your ability to make decisions for your wife. Now that would be unfair for me to have this and not tell you that

WH: Thank you very much. Can I say this – a couple of things there that wants to be corrected.

17 WH then went on to clarify a point that did not relate to Dr Scane’s report. Later, at p 21, the Presiding Member said:
Presiding Member: What do you say then, [WH], about these concerns that have been expressed by (the applicant) and by the geriatrican (Dr Scane) about your ability to make adequate plans for your wife because that’s very much in question and I think that’s – and I say that on a health issue, not the caring. I think you deeply care about your wife and that is absolutely apparent.

WH: You’ve got to.

Presiding Member: Yes absolutely

WH: There’s nothing else

Presiding Member: But behind that there are these other concerns that you may not be now well enough . .

WH: What are they?

Presiding member: Well, the doctor thinks that you – I don’t think it’s appropriate that I discuss your medical condition here.

WH: I don’t think you have even the business, the rights to come in there and question me at the hospital. It’s just what I believe. I never employed him. I never asked him in there.

Presiding Member: He did and he has expressed a view . .

WH: I know he did.

Presiding Member: And he has suggested the Public Guardian. Now that’s before us. I can’t close my eyes to that and so it’s something that sat there. But it also sits with what (the applicant) is saying about this I guess not planning adequately when you went into hospital. There’s a number of things that may . .

WH: I believe (the applicant) I never had a moment to let anyone know.

Presiding Member: Yes.

WH: I just got sick ... here’s no need to come in and say, “Right, we’re taking your wife. We’re putting her in a home. That’s the last you’re going to hear of this.” You’d be upset.

18 In their reasons for decision, the Guardianship Tribunal said:
The Tribunal had been provided with a report of Dr Scane, who reviewed [WH] when he was also in ... hospital during this past week at the same time as his wife. This was for the purpose of providing a report as to whether he considered [WH] was able to make decisions for, and care for his wife. The Tribunal will not deal with this report in any extensive way, so as to not breach [WH’s] privacy. However, the report raised a number of areas of concern at [WH’s] capacity to make substitute decisions in his wife’s best interests. Dr Scane supported the appointment of a Public Guardian.
19 The Tribunal dealt with the issues raised in the Police Report at p 23 and following of the transcript:
Presiding Member: They say that your wife was in an unkempt position (sic) and that you appeared to be answering questions for her ... That you appeared to be controlling and aggressive towards your wife at the police interview. So there’s a number of things that come up.

WH: Well, you’ve got to keep an eye on her that she doesn’t run away, you know, and she did eventually. She went out of the police station on me and I had to go looking for her.

Presiding Member: The police surmised, [WH] that you may be over exaggerating the incident to assist your desire to be the primary carer of your wife given today’s hearing.

WH: Yes

Presiding Member: I mean the police have written a very comprehensive report.

WH: Well, guilty, Your Honour, if that’s the case. No, it’s not.

20 Apart from telling WH that Dr Scane’s report questioned his ability to make decisions for WI, and that it had been suggested that he was not “well enough” to make decisions about his wife, the Guardianship Tribunal did not communicate to WH the substance of the opinions or allegations contained in the report. In particular, they did not disclose Dr Scane’s opinion that he may have frontal dementia. Nor did WH have any opportunity to obtain evidence to contradict the material in Dr Scane’s report. We note that when WH appealed against the Guardianship Tribunal’s decision, he was provided with a copy of Dr Scane’s report. He then took the opportunity to obtain further evidence about his cognitive ability.

21 The Guardianship Tribunal did not show WH a copy of the Police Report either before or during the hearing. While the Presiding Member listed a number of adverse comments made in the Police Report, the grouping of the allegations together in one question and the failure of the Tribunal to give WH any advance notice of the extremely adverse material in that report leads us to conclude that he was denied procedural fairness. In our view, this is a case where WH needed to be given a copy of both Dr Scane’s report and the Police Report in advance in order to realistically respond to those documents: Ansell v Wells (1982) 43 ALR 41. As Blackwood notes, (supra at 128) "Normally that opportunity is given to the person by providing him or her with a copy of the document that contains the adverse information." Even if it would have been sufficient to give WH a reasonable time to inspect and comment on the document that opportunity was not given. (Moore v Guardianship and Administration Board & Another [1990] VR 902; The Grand Hotel v Development Assessment Commission [1998] SASC 7018 at [45].)

22 Exceptional circumstances? Exceptional circumstances, such as the need to keep material confidential or to hear a matter urgently may displace the hearing rule. (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West (1985) 159 CLR 550 per Brennan J at 629; J v Lieschke (1987) 69 ALR 647 Brennan J at 653). Similarly, if disclosure could cause serious harm to the health or safety of a person, failure to disclose the material may not constitute a breach of procedural fairness. There was no particular urgency in this case, but the Tribunal did express concerns about breaching WH’s privacy.

23 As is the case in most applications before the Tribunal, sensitive and personal information about people’s health and mental capacity is relevant to the decisions that need to be made. However, unless it would cause serious harm to their health or safety, there is rarely any justification for withholding information from the person to whom it relates. In this case, any concern about breaching WH’s privacy could have been avoided by disclosing that material only to WH and then asking him whether he objected to it being disclosed to other parties. Even if there was an objection, in some circumstances, disclosure to other parties may be required to comply with the rules of procedural fairness.

24 The Tribunal must be satisfied that “the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order”: s 17(1)(c). Initially, the proposed guardian was WH. In deciding that it would not appoint him as WI’s guardian, WH’s ability to fill that role was relevant. The fact that the Tribunal made no finding about his ability does not mean that it was immaterial. The Tribunal gave as the reason for its decision, that there was a conflict in relation to where WI should reside and that the family members had failed to resolve that conflict among themselves. Although the Tribunal did not make a finding about WH’s ability, nor did it mention that factor as a reason for its decision, it was nevertheless a factor relevant to the Tribunal’s decision.

25 The Guardianship Tribunal made an error of law by not affording WH procedural fairness in relation to Dr Scane’s report and the Police Report. It was not sufficient to communicate such adverse information in general terms during the course of the hearing. Each of the allegations should have been put specifically to WH and he should have been a reasonable time to respond. Ideally, he should have been given a copy both reports in advance. If that was not practicable, then the hearing should have been adjourned to enable WH to adequately respond to the material in the reports.

Ground 2 – procedural fairness – notice of possible appointment of the Public Guardian

26 WH’s ground of appeal on this point relates to the fact that the applicant for the guardianship order changed her mind about WH being an appropriate person to be WI’s guardian. Any change of mind on the part of the applicant does not necessarily constitute a breach of procedural fairness on the Tribunal’s part. The critical question is whether the Guardianship Tribunal communicated to WH the fact that it was considering appointing the Public Guardian and gave him a reasonable opportunity to respond to that proposal.

27 In Mahon v Air New Zealand Ltd [1984] AC 808, the Privy Council was considering, among other things, whether the conduct of a Royal Commission inquiring into the cause of an aircraft accident complied with the rules of procedural fairness, or natural justice. After making some general statements about the rules of natural justice the Privy Council stated (at p 821):

"The second rule (of natural justice) requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result". (Words in brackets added.)
28 A similar comment was made by Mason J in Kioa v West 159 CLR 550 at 587, albeit in relation to administrative decisions:
“... recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.”
29 In this case, WH was not left totally “in the dark” about the risk of the Public Guardian being appointed. In their first decision in November 2005, the Tribunal foreshadowed that the Public Guardian may be appointed if agreement could not be reached among the family members. At the February 2006 hearing, WH was asked (at p 24 of the transcript) whether he had any views about the appointment of a guardian
Presiding Member: So we are dealing with guardianship. Any other views that you want to put to us about the appointment of a guardian. Nothing else?

WH: What do you mean, for me to appoint someone else as guardian?

Presiding Member: No. Well, we have – [the applicant] has suggested that if we appoint a guardian it should be the public guardian.

WH: I don’t think so.

...

Community Member: We’re not talking about care. We’re talking about making a decision, not about care.

WH: Making decisions. Well, I’ve got no say at all as it is up there now because I mean I got sick for a couple of days and they just took charge of her and they were quite sure that I wasn’t taking her home yesterday. So I didn’t bother going and get the police or anything like that to bring someone like that.

...

Presiding Member: That’s fine. I think we understand then [WH] that you believe that you should be the person who makes decisions about your wife? OK.

WH: Yes, I do ...

30 Although WH was on notice of the possibility that the Public Guardian would be appointed, in the words of the Privy Council, he was deprived of a reasonable opportunity “to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding.” WH was not aware of the adverse material before the Tribunal in relation to his capacity to make decisions for his wife until the hearing began. That meant that he was deprived of any opportunity to effectively respond to that evidence. As we have already found, the denial of that opportunity constitutes a breach of procedural fairness and is an error of law.

Ground 3 – procedural fairness – participation of WI in the hearing

31 WH’s third ground of appeal was that WI was denied procedural fairness by being “prevented” from attending the Tribunal or giving evidence by phone. It is true that WI did not attend the Tribunal hearing in person, nor did she participate by phone. In its decision the Guardianship Tribunal said, “The Tribunal was not able to speak with [WI] by phone because of her disabilities. The Tribunal was also advised by the treating doctor that were [WI] able to write down responses to questions that they would be unreliable. The Tribunal therefore determined that it would not be able to obtain any significant evidence from [WI].”

32 Despite the suggestion by WH’s representative to the contrary, the Guardianship Tribunal did not prevent WI from attending the hearing. At the time of the hearing WI was an inpatient at a Mental Health Unit of a hospital. The Guardianship Tribunal heard evidence from Dr Artin at the Unit who said that WI’s communication was so impaired that she was unable to contribute in any meaningful way. The Tribunal accepted that opinion.

33 The Tribunal gave WI notice of the hearing. The fact that she was in hospital at the time of the hearing made it impractical for her to attend the hearing. The Tribunal made inquiries of a qualified medical practitioner as to WI’s ability to participate meaningfully by phone. They accepted his evidence that she was unable to do so. There is no statutory obligation requiring the person who is the subject of an application for a guardianship order to be present at the hearing or to participate in some other way. Although procedural fairness would normally require that the subject person be given an adequate opportunity to respond to an application for guardianship, that was not possible in this case because of WI’s physical and mental state. We find no error of law on this ground.

Ground 4 – refusal to issue summonses

34 WH alleged that the Guardianship Tribunal refused to agree to issue summonses for the attendance of the authors of documents containing material adverse to him. While s 60 of the Guardianship Act gives the Tribunal discretion to issue a summons for the attendance of any person to give evidence, or the production of any document, we are not aware of any decision by the Tribunal to refuse an application to issue a summons. If such an application was made and refused, then a record of the reasons for the refusal should have been included in the reasons for decision. In the absence of any such reasons, we are unable to determine whether the Guardianship Tribunal refused an application for the issue of a summons and, if so, whether their reasons for doing so involves an error of law.

Conclusion

35 Having found that the Guardianship Tribunal made an error of law in not affording WH procedural fairness, the appropriate course is to set aside the Tribunal’s guardianship order and remit the matter to heard and decided again, with the hearing of further relevant evidence. In those circumstances it is not necessary to consider WH’s grounds of appeal relating to the merits of the Guardianship Tribunal’s decision.

Orders

1. The limited guardianship order made by the Guardianship Tribunal in relation to WI on 1 February 2006 is set aside.

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