XJ v Public Guardian

[2006] NSWADT 327

CITATION:	XJ v Public Guardian [2006] NSWADT 327
DIVISION:	General Division
PARTIES:	APPLICANT XJ RESPONDENT Public Guardian
FILE NUMBER:	063306
HEARING DATES:	10/11/06
SUBMISSIONS CLOSED:	11/10/2006
DATE OF DECISION:	11/16/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Bull v Attorney-General (NSW) (1913) 17 CLR 370
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The application by the Public Guardian to dismiss XJ’s application for want of jurisdiction is dismissed.

Section 126 provides

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

(a) proceedings in the Community Services Division of the Tribunal,


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

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

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

(a) who appears as a witness before the Tribunal in any proceedings, or


(b) to whom any proceedings before the Tribunal relate, or


(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

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

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

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

REASONS FOR DECISION

Introduction

1 The issue addressed in these reasons is whether the Tribunal has jurisdiction to review a decision made by the Public Guardian not to provide XJ with details relating to the private affairs of her sister in law, Ms A. Ms A is a middle aged woman who lives with her elderly parents and one of her brothers. Ms A’s sister in law, XJ, has concerns about her welfare and wishes to advocate on her behalf. Two of Ski’s concerns are that Ms A has not been correctly diagnosed and that her psychiatrist, Dr Hansen, is not prescribing appropriate medication for her psychiatric condition. XJ is no longer in a relationship with Ms A’s brother and neither he, nor his family, want to have anything to do with her. Following an application by XJ to the Guardianship Tribunal in 2001, the Public Guardian was appointed as Ms A’s guardian. That order was renewed in May 2006 and the Public Guardian was given the functions of making decisions concerning the services to which Ms A should have access and the health care Ms A should receive.

2 In response to a letter XJ wrote to the Guardianship Tribunal, the Deputy President, Ms Marion Brown, suggested that she take up her concerns about Dr Hansen’s clinical practice and professional conduct with the Medical Board. XJ then complained to the Medical Board about Dr Hansen and was provided with a form for Ms A to sign evidencing her consent to Dr Hansen releasing information about her medical history and treatment. XJ sent that form to the Guardianship Tribunal, but they returned the form to XJ and advised her that she should forward the Form to the Public Guardian to sign on Ms A’s behalf, if appropriate. XJ telephoned the Guardianship Tribunal and asked them to forward the form to the Public Guardian. XJ says she then telephoned the Public Guardian to see whether he had received the form from the Guardianship Tribunal. XJ says that her calls were not returned and that she finally spoke to Paul Marshall on or about 17 May 2006. XJ’s version of that conversation is that Mr Marshall did not know anything about a consent form and that he terminated the conversation. On 26 June 2006, the Guardianship Tribunal complied with Ms A’s request to send the consent form directly to the Public Guardian.

3 Meanwhile, on 24 May 2006, XJ says she received a letter from the Public Guardian “out of the blue” telling her that a decision had been made not to provide her with details of Ms A’s private affairs. The Public Guardian’s letter said, in part, that:

OPC and OPG have an obligation to respect the wishes of their clients wherever possible. In this case (Ms A) has clearly stated to the Guardianship Tribunal and to my staff that she does not want you to be involved in decisions relating to her life. I trust you will appreciate that this places OPC and OPG in a difficult situation when it comes to whom it should consult about decisions relating to (Ms A).

In order to respect (Ms A’s) wishes, a decision has been made not to provide you with details relating to her private affairs. However, if a decision has to be made by either OPC or OPG and you have provided information to either office that may be relevant to that particular decision, it will be considered.

In view of (Ms A’s) stated wishes, I do not think it is appropriate to continue phone communication with you regarding (Ms A). If you do wish to raise anything that may assist in future decision making by OPC or OPG please feel free to write to either office.

4 According to XJ, she had not been asking for any details about Ms A’s private affairs. She had merely been inquiring about whether the Public Guardian had received the consent form. Nevertheless, when XJ requested an internal review of the Public Guardian’s decision not to provide her with details relating to Ms A’s medical or health care information, she wrote:
As you well know, I have requested this information because of my continuing concerns about the health and welfare and slow progress of my sister-in-law.
5 Mr Graeme Smith, Director of the Office of the Public Guardian, affirmed the Public Guardian’s decision not to provide XJ with details relating to the private affairs of Ms A, including health related information. XJ has applied to this Tribunal for a review of that decision. The preliminary issue addressed in these reasons is whether the Tribunal has jurisdiction to review that decision.

Relevant legislation

6 The Tribunal’s jurisdiction to review decisions of the Public Guardian is found in s 80A of the Guardianship Act 1987. That provisions states that:

(1) An application may be made to the ADT for a review of a decision of the Public Guardian that:

(a) is made in connection with the exercise of the Public Guardian’s functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

(2) An application under this section may be made by:

(a) the person to whom the decision relates, or

(b) the spouse of the person, or

(c) the person who has the care of the person to whom the decision relates, or

(d) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision. (Emphasis added.)

7 The Public Guardian did not dispute XJ’s standing to make the application. In relation to the Tribunal’s jurisdiction to review the decision, Cl 17 of the Guardianship Regulation 2005 states that:
All decisions made by the Public Guardian in connection with the exercise of the Public Guardian’s functions under the Act as a guardian are prescribed for the purposes of section 80A of the Act.
8 Section 3(6) of the Guardianship Act defines the words “function” and “exercise of a function” in the Act:
In this Act:

(a) a reference to a function includes a reference to a power, authority and duty, and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Submissions

9 Mr Tunbridge, representing the Public Guardian, also referred to the ancillary powers of a guardian which are defined in s 21B:

A guardian may, on behalf of a person under guardianship, sign and do all such things as are necessary to give effect to any function of the guardian.
10 Mr Tunbridge made two submissions. The first was that XJ is not engaged in the provision of health care or services to Ms A and that the provision to her of Ms A’s private information is not necessary to give effect to functions of the Public Guardian - nor is it ancillary to the health care or services function. The second submission was that the decision was made exercising the Public Guardian’s function which it shares with all public sector agencies, that is determining whether a particular person should have access to personal information about another person which is held by the agency.

Reasons

11 The Guardianship Act is beneficial legislation and should be interpreted so as “to give the fullest relief which the fair meaning of its language will allow”: Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384 per Isaacs J. The Public Guardian is Ms A’s guardian. He has power “to the exclusion of any other person, to make the decisions, take the actions and give the consents . . .that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity”: Guardianship Act, s 21(2A). That power exists in relation to the functions specified by the Guardianship Tribunal in its order. In this case, the functions are making decisions concerning the services to which Ms A should have access and determining what health care Ms A should receive. When making those decisions, the Public Guardian must observe the principles in s 4. Those principles are that:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

12 Section 80A of the Guardianship Act gives this Tribunal jurisdiction to review a decision made in connection with the exercise of the Public Guardian’s functions under this Act as a guardian as long as it belongs to the class prescribed by the regulations. The Regulation prescribes “all decisions”. If Ms A had the requisite legal capacity, she would be able to decide whether to disclose her personal information to XJ when making decisions about the services or health care she should receive. Because Ms A lacks legal capacity, and the Public Guardian has been appointed to make those decisions on her behalf, it is for the Public Guardian to decide whether or not to disclose Ms A’s personal information. The decision by the Public Guardian not to disclose Ms A’s personal information to XJ was made “ in connection with ” the exercise of the Public Guardian’s functions under the Guardianship Act and is therefore reviewable by this Tribunal.

Order

The application by the Public Guardian to dismiss XJ’s application for want of jurisdiction is dismissed.