WNM v The Public Guardian
[2014] QCATA 170
•7 July 2014
| CITATION: | WNM v The Public Guardian [2014] QCATA 170 |
| PARTIES: | WNM (Appellant) |
| V | |
| The Public Guardian (Respondent) |
| APPLICATION NUMBER: | APL559-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 7 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed |
| CATCHWORDS: | APPEAL – where allegations that decision made on facts where no appropriate evidence was produced or excessive weight given to evidence – where allegations that insufficient weight given to evidence produced by appellant at hearing – where mixed question of law and fact GUARDIANSHIP – where review resulted in a change of guardian – where allegations that guardian had failed to access appropriate services and equipment for adult – where allegations of injuries sustained by adult when in the care of the guardian Guardianship and Administration Act 2000 (Qld) ss 12 & 15 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
| APPELLANT: | WNM represented by Mr Geoff Ebert, Solicitor, Finemore Walters & Story, Solicitors |
| RESPONDENT: | The Public Guardian by Therese Craig, Principal Guardian, Office of the Public Guardian |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
WST is 98 years of age. She had been residing at home in the care of her son, WNM until she was hospitalised. Her medical treatment team considered that WST could not safely continue to live at her home and that she needed residential aged care. On 26 August 2013 the tribunal had appointed the Adult Guardian (now Public Guardian) as her guardian, replacing WNM who had been previously appointed in April 2013 as her guardian.
The appointment of WNM as guardian for WST had been reviewed as a result of an application in July 2013 by a social worker at Bundaberg Hospital. The applicant had stated in her application that WST had presented at the Emergency Department of the hospital on seven occasions since April 2013 and had been admitted to hospital on four of those occasions. The applicant alleged that equipment that had been recommended had not been used in WST’s home, that as a result she had been dropped and needed medical treatment, that nursing services had not been engaged, that recommendations of an occupational therapist had not been implemented and that WST was being given unthickened fluids contrary to the recommendations of a speech pathologist.
The applicant alleged that the hospital staff had concerns about the level of care that WNM had been providing to WST and about cross infection risks. The applicant asserted that WST needed 24hour residential care and that WNM was declining to give consent to that level of care.
WNM via his lawyers had responded to the allegations made by the applicant in the review application. He denied administrating inappropriate fluids and asserted that he was providing thickened fluids as required. He agreed that he had discontinued using a hoist as the use of the hoist had caused stress to WST. He indicted a willingness to use a hoist if recommendations were made by an independent occupational therapist as to its use. He indicated that a Blue Care nurse had been engaged and that the number of visits would be increased to at least three times a week. He denied there were any problems with the manner in which he attended to cleaning of WST and that his techniques had been considered as good techniques by an occupational therapist.
In August 2013 the applicant filed an application for an interim order stating that WST had been brought to hospital by ambulance following an incident when she had fallen from a wheelchair. The applicant stated that the ambulance officers had expressed concern that the injuries were inconsistent with the stated manner in which the incident was said to have occurred. The incident had been reported to the police who wanted to take photographic evidence for their investigations of suspected physical abuse of WST by her son.
The tribunal appointed the Adult Guardian on an interim basis on 16 August 2013 to make decisions about legal matters for WST.
A hearing of the application to review the appointment of the guardian was held on 26 August 2013. The transcript of the hearing reveals that the applicant social worker told the tribunal that she had concerns about the ability of WNM to care for his mother at home and without appropriate services. The applicant told the tribunal that some of the injuries sustained to WST were as a result of the lack of equipment in the home. She was concerned that WST had presented at hospital twice in eight months when quite severely bruised and with swelling. She expressed concern that WST might sustain a serious injury at home if she is not given the attention and care that she could obtain in a residential care facility.
WNM was present at the hearing and he was given an opportunity to tell the tribunal his views about the review application. He gave evidence about the incident in August 2013 when WST fell out of the wheelchair and about an earlier incident when WST had fallen onto the floor. He also told the tribunal about some of the other occasions when WST had been taken to hospital as a result of medical issues. He gave a lengthy explanation of how he had responded to various recommendations made by hospital staff for his mother’s care at home and why some of those recommendations were not appropriate.
After hearing the evidence from the applicant and from WNM, the member indicated that he had come to a position that was against WNM being the guardian for his mother as he was concerned about what had happened over the past four months and about the weight of medical material against the ongoing appointment of WNM as guardian. WNM, having been given an opportunity to respond, disputed that there was medical evidence in favour of WST being placed into residential care.
WNM has filed an application for leave to appeal or appeal the decision which removed him as guardian of his mother and which appointed the Adult Guardian instead. WNM contends that sufficient evidence was not produced by the tribunal to support the decision, that inappropriate weight was placed by the hearing member on issues where no evidence was produced or where no investigation by the tribunal was undertaken of the allegations and issues raised during the hearing.
The appeal is based on mixed issues of law and fact and WNM requires leave to appeal.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the appellant caused by that error.[2] The appeals tribunal may take into account whether there is a question of general importance on which further argument and a decision of the appeals tribunal would be to the public advantage.[3]
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b).
[2] See Pickering v McArthur [2005] QCA 294 at [3].
[3]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
When appointing substituted decision makers under the Guardianship and Administration Act 2000 (Qld), the tribunal must be satisfied that the adult in question has impaired decision making capacity for the matter, there are decisions that need to be made and that the adult’s needs will not be adequately met without an appointment by the tribunal.[4] It is not disputed in this application there was adequate and appropriate evidence to support a finding that WST has impaired capacity for making her own personal decisions.
[4] Guardianship and Administration Act 2000 (Qld) s 12.
It is also not disputed that there are personal decisions that need to be made for WST and that her needs will not be adequately met unless a guardian is appointed by the tribunal. What is in dispute, both at the primary hearing and in this application to the appeals tribunal, is who should be appointed to that role.
WNM has submitted that the tribunal placed excessive weight on there being a police investigation regarding an incident of alleged violence by WNM against his mother. He argued that there was no evidence produced as to the outcome or ongoing nature of the investigation and all that had been proven was that a report had been made to the police.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, on which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]An appellate tribunal may interfere if the conclusion at first instance is contrary to compelling inferences in the case.[6]
[5] Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 214 CLR 118.
[6] Chambers v Jobling (1986) 7 NSWLR 1.
The transcript of the reasons for decision confirms that the hearing member did take into account evidence involving the incident which had been reported to the police. He had expressed concern that there was the need for police investigations to be taking place. However he expressly stated that he was not pre-empting what may come about as a result of those investigations.
The hearing member had in April 2013 heard the earlier application for the appointment of a guardian. He stated in his reasons for decision in August 2013 that he had considered evidence at the April 2013 hearing that there had been an allegation of assault of WST by WNM as involving a one-off incident which was unlikely to occur again. The member noted that he was not now able to conclude that the alleged assault was necessarily a one-off incident given the circumstances of what had occurred in the intervening four months since the April hearing.
The transcript reveals that the member did not base his decision to remove WNM as guardian on the fact that there was an unresolved police investigation. Rather the member based his decision on the fact that there had been a second incident involving WNM which the member linked to a lack of services and appropriate equipment for WST. The argument that the member placed excessive weight on the existence of a police investigation is not made out and is rejected.
WNM submitted that the tribunal had inappropriately inferred that the numerous attendances by WST at hospital had been caused by his actions and by his lack of care when there was no evidence of that contention. He also submitted that excessive weight had been placed on those attendances between April 2013 and the hearing in August 2013.
This argument reveals a misunderstanding of the decision being made by the tribunal. That decision was not about whether WST could remain safely living at home with her son but about who should be the appropriate person to make decisions about her accommodation and care on an ongoing basis. For that reason, there was no need for the tribunal to investigate the causes of the various hospital attendances.
Apart from the incident when WST fell out of the wheelchair in August 2013, the tribunal did not find that any particular action by WNM had been the cause of the various medical conditions that were treated at the hospital between April and August 2013. It was not the role of the tribunal to make any findings of fact or to draw any inferences as to the cause of the attendances. However the tribunal could and did take the facts of those numerous attendances into account as evidence of WST’s need for ongoing care and of WNM’s responses to those ongoing care needs.
The inference that could be validly drawn was that she needed an increasing level of medical care and that her overall care needs would be difficult to manage at home. WNM’s evidence was that he remained convinced that his mother’s care needs could be best met at home by him despite the experience of the recent past. There was evidence from WNM that residential care was not an option he would consider unless his mother was effectively bedbound.
The hearing member correctly identified that the question arose as to who should be the most appropriate care provider. There was clearly a decision to be made about accommodation and care of WST on an ongoing basis. The hearing member concluded that the circumstances of the previous four months convinced him that decisions about the provision of ongoing care should not be made by WNM but by the Adult Guardian. This was a conclusion that was open on the evidence.
The reasons of the member were unfortunately very short and did not set out expressly the findings of fact on which his conclusions were based. It would have been of assistance to the parties if the member had been more comprehensive in his reasons but no substantial error was disclosed in what he said in his conclusions. The argument that the hearing member had made inferences unsupported by evidence or had placed excessive weight on the hospital attendances is not made out and is rejected.
WNM argued that the tribunal was wrong to accept that he had not accessed available services for the care of his mother. He submitted that the applicant had incorrectly represented the care packages available in the local area and that any conclusion about the use/non-use of a hoist to lift WST was reached without a report from a qualified occupational therapist.
Evidence had been given by the applicant social worker and by an occupational therapist as to the need for a hoist to be used in lifting WST. There was no evidence from other any health professional to contradict this evidence. It was open to the member to make a finding that the lack of equipment such as a hoist for lifting amounted to WNM not accessing appropriate services for his mother.
Evidence was given by the applicant social worker that WNM had been referred to agencies to engage care packages but the packages were not available at the time. However her evidence was that there was always an opportunity to engage nursing services as required until the packages became available. WNM gave evidence that he was aware that he could engage nursing services at a cost of $69.90 per week but he was waiting until the cost could be subsidised through a government care package. Blue Care had offered to come into the home five days a week to bathe his mother but he did not agree to this on the grounds that he could provide that service himself.
The hospital staff had expressed their professional concerns to WNM about the risk of urinary tract infections and had made specific recommendations to him as to hygiene care. The evidence given to the tribunal was that at least one of the hospital attendances related to a urinary tract infection and another related to an indwelling catheter. It was open to the tribunal to find that WNM had not accessed available in home nursing care despite funding packages not being available at the time. The argument that the findings by the member on this issue were not supported by evidence or that he had placed excessive weight on the evidence is not made out and is rejected.
WNM submitted that the member had placed excessive weight on the financial situation of WST and her son. The transcript of the hearing reveals considerable discussion about financial matters even though there was no application on foot about financial matters. However the reasons for the change in the guardianship appointment are not based on financial considerations. The member’s comments relate to a possible conflict transaction for which authorisation by the tribunal would be required in the event that WST was to be placed permanently into residential care. The comments are gratuitous comments irrelevant to the determination made by the tribunal and have not contributed to any error on the part of the tribunal. That submission is not made out and is rejected.
WNM submitted that the member placed insufficient weight on the overwhelming support that family members gave to WNM remaining as guardian for his mother. The member had noted this level of support in his reasons but there is no requirement that the tribunal appoint a substituted decision maker on the basis of popularity or family endorsement. The appropriateness considerations in section 15 of the Guardianship and Administration Act require the tribunal to consider a person’s competence to exercise powers as a guardian. The member was not satisfied that WNM had exercised his powers as guardian competently in making ongoing care decisions for his mother. This submission has not been made out and is rejected.
The final submission by WNM criticises the actions of the applicant in bringing the review application to the tribunal. It is submitted that the original application contained errors and that any evidence by the applicant should have been reinforced by evidence from another person. This submission is misguided and wrong. The applicant was a social worker in the hospital where WST received treatment both as an inpatient and outpatient. She had a relevant interest in the welfare of WST to bring the application. The written evidence provided by her was accessible before the hearing and she participated in the hearing and was available to have her evidence tested at that time.
Her evidence was disputed in part by WNM but her evidence was preferred by the tribunal. The findings made by the tribunal that the decisions of WNM had resulted in a lack of access to services and lack of appropriate equipment were supported by the evidence, including the evidence of WNM that he was not using a hoist to lift his mother and that he had declined five day a week bathing assistance from Blue Care nurses. This final submission is not made out and is rejected.
For the reasons set out, the decision is not attended by error and an appeal is not necessary to correct a substantial injustice to the appellant in the tribunal’s decision or in the process by which the member reached his decision. No important or novel questions are inherent in the matters raised by WNM.
Leave to appeal is refused, and the application for leave to appeal is dismissed.
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