XJ v Public Guardian & Ors

[2006] NSWADTAP 49

Appeal Panel - External

CITATION:	XJ v Public Guardian & Ors [2006] NSWADTAP 49
PARTIES:	APPELLANT XJ FIRST RESPONDENT Public Guardian SECOND RESPONDENT XK THIRD RESPONDENT XL FOURTH RESPONDENT XM FIFTH RESPONDENT XN DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068010
HEARING DATES:	8/09/2006
SUBMISSIONS CLOSED:	09/08/2006
DATE OF DECISION:	09/20/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Guardianship order - review - No evidence - Opportunity to be heard - Opportunity to respond to adverse evidence - Statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/19986
DATE OF DECISION UNDER APPEAL:	05/10/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 IF v IG & Ors [2004] NSWADTAP 3
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT In person SECOND RESPONDENT A Moen, barrister THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance FIFTH RESPONDENT In person DECISION MAKER E Cho, legal officer
ORDERS:	1. Order 5(a) of the Guardianship Tribunal’s Limited Guardianship Order dated 10 May 2006 is set aside; In substitution for that order the following order is made; Health care; To determine what health care, apart from major and minor medical and dental treatment, XK may receive; 2. The Guardianship Tribunal’s order Confirming a Guardianship Order dated 10 May 2006 is set aside. In substitution for that order the following order is made; The Tribunal varies its order of 7 December 2004. The variation is that Order 5(a) is deleted and the following words are substituted; Health Care; To determine what health care, apart from major and minor medical and dental treatment XK may receive; 2. Leave to extend the appeal to the merits of the Guardianship Tribunal’s decision refused

Introduction

1 XK is a 48 year old woman who lives with her elderly parents and one of her brothers. She has an intellectual disability and has been diagnosed with schizophrenia. In 2001 the wife of another brother, who we will refer to as the sister-in-law, applied to the Guardianship Tribunal for a guardianship order in relation to XK. The Guardianship Tribunal made a limited guardianship order appointing the Public Guardian as XK’s guardian. Twelve months later, the Guardianship Tribunal renewed that order for a period of two years. The Public Guardian was given the functions of determining “what health care and major and minor medical and dental treatment” XK was to receive and “to make decisions on her behalf concerning major services to which she should have access.”

2 In July 2005 the sister-in-law requested a review of the guardianship order. Two of the sister-in-law’s concerns are that XK has not been correctly diagnosed and that XK’s psychiatrist, Dr Hansen, is not prescribing appropriate medication for XK’s psychiatric condition. She is no longer in a relationship with XK’s brother and neither he, nor his family, want to have anything to do with her.

3 In May 2006 the Tribunal concurrently conducted two reviews of the guardianship order, one at the request of the sister-in-law and the other because the order was due to expire. The Guardianship Tribunal made two sets of orders because the legislation gives the Tribunal different powers when conducting a requested review from those when conducting an expiration review: Guardianship Act 1987, s 25C. In relation to the expiration review, the Guardianship Tribunal made orders identical to the previous orders including an order giving the Public Guardian a “services” function, a health care function and the function of consenting to major and minor medical treatment. Similarly, the Guardianship Tribunal’s orders in relation to the review at the request of the sister-in-law confirmed the order made on 7 December 2004. Those orders gave the Public Guardian a “services” function, a health care function and the function of consenting to major and minor medical treatment. The reasons make it clear that even though the orders give the guardian the function of consenting to major and minor medical treatment, it was not the Guardianship Tribunal’s intention to do so. We deal with this issue below at [34].

4 The sister-in-law has appealed to the Appeal Panel against the Guardianship Tribunal’s decision.

Jurisdiction, parties and representation

5 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision: Guardianship Act 1987, 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 Act 1997 (ADT Act), s 118B(1). The sister-in-law appealed on questions of law and also sought leave to appeal on other grounds.

6 The sister-in-law represented herself at the hearing. XK was represented by Ms Moen of counsel. XK’s brother, who is currently residing with her, also appeared and represented himself. XK’s other brother, who is the ex-husband of the sister-in-law, was not a party to the proceedings and did not appear. The Public Guardian did not wish to be present or make submissions in relation to the matter. 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.

Guardianship Tribunal’s decision

7 Task. The Guardianship Tribunal’s task was to review its previous guardianship order. As the Appeal Panel pointed out in IF v IG & Ors [2004] NSWADTAP 3 at [20], the Guardianship Act 1987 does not specify the matters to be taken into account when conducting a review. However, we agree with the Appeal Panel’s approach in IF v IG that it must apply the provisions of s 14 which set out the circumstances in which a guardianship order may be made. Sections 17 and s 15(3), which relate to the suitability and identity of the guardian, are also relevant.

8 Application of law. The Guardianship Tribunal correctly applied s 14 by asking itself whether XK was a person “in need of a guardian” as defined in s 3 of the Guardianship Act 1987. The Guardianship Tribunal found, and there was no dispute about this, that XK was a person who because of a disability is totally or partially incapable of managing her person. Although the Guardianship Tribunal did not go further and refer to s 3(2) which defines “disability”, there was no dispute that XK was a person who came within that definition. The second step was for the Guardianship Tribunal to determine whether or not to exercise its discretion to appoint (or in this case to renew the appointment of) a guardian. In exercising its discretion in relation to that question, the Guardianship Tribunal must take into account the matters listed in s 14(2), namely:

(a) the views (if any) of:
(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.

9 In its reasons for decision at p 4, the Guardianship Tribunal noted that there was a consensus among the parties that XK continues to need a guardian with the functions of health care and services. Consequently it was agreed that the Guardianship Tribunal should exercise its discretion to appoint a guardian.

10 Functions of the guardian. If the Guardianship Tribunal decides to exercise its discretion to appoint a guardian, the next step is to determine what functions the guardian should have and who should be appointed to carry out those functions: Guardianship Act 1987, s 16(2), s 15(3) and s 17. The functions that are available to the Guardianship Tribunal are not mentioned in the Guardianship Act 1987. In this case the sister-in-law asked the Guardianship Tribunal to give the guardian an “accommodation” function and a “medical and dental treatment function” in addition to the health function and the services function.

11 Accommodation function. Our understanding is that an accommodation function is generally given to a guardian if there is a need for a decision to be made about where the person under the guardianship order should live and/or who will have access to the person at their place of residence. The Guardianship Tribunal concluded in this case that XK “wishes to remain at home and her safety at home is not at risk.” The Guardianship Tribunal noted that no one had proposed that XK move out of her current accommodation and consequently there was no need for a substitute decision to be made at the moment. The Guardianship Tribunal also acknowledged that if there was a change in XK’s circumstances, especially considering the age of her parents, then a further application for review of the guardianship order could be made at that time.

12 Health care function. There was no dispute that the guardian should have a health care function. The health care function gives a guardian the capacity to make substitute decisions about matters of health that do not involve treatment by a medical practitioner or dentist. Those matters include issues such as which doctor the person consults, whether to make an appointment to see a doctor and treatment by people who are not medical practitioners or dentists such as physiotherapists or chiropractors.

13 Consent to medical and dental treatment. The Guardianship Tribunal then addressed the issue of whether to extend the guardian’s functions to include consent to medical and dental treatment. If a guardian is not given that function, then the Guardianship Act 1987 sets out a hierarchy of people who are the “person responsible” for deciding whether or not to consent to medical or dental treatment: Guardianship Act 1987, s 33A. In this case the “person responsible” would include XK’s carers, that is her mother and father and possibly the brother who lives with her. The Guardianship Tribunal found that the sister-in-law’s views that XK was being “chemically restrained” and possibly “poisoned” were not supported by the evidence. The Guardianship Tribunal said that in deciding not to include a medical and dental treatment function, it had regard to the general principles identified in s 4 of the Guardianship Act 1987 and the matters identified in s 14(2). The Tribunal concluded that:

The inclusion of such a further guardianship function at this stage would unnecessarily further restrict [XK’s] freedom of decision and action.

The least restrictive option and retention of [XK’s] mother or other immediate family members as “persons responsible” would be more consistent with the views expressed by XK herself.

The inclusion of such a further function at this stage could negatively impact on the preservation of [XK’s] existing family relationships.

There was no proper evidence to support [the sister-in-law’s] contentions that [XK] is being chemically restrained, or otherwise subjected to neglect, abuse or exploitation.

14 Identity of guardian. The sister-in-law proposed that XK’s advocate be the guardian for the accommodation and services functions. The advocate declined to be the guardian for those functions. The sister-in-law put herself forward as a suitable person to be the guardian in relation to health care and medical and dental treatment. The Guardianship Tribunal is not permitted to appoint the Public Guardian as the guardian of a person if such an order can be made appointing some other person as the guardian: Guardianship Act 1987, s 15(3). Section 17 sets out the matters about which the Guardianship Tribunal must be satisfied before appointing a person other than the Public Guardian as the guardian. Those matters are that:

(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

15 In addition, when exercising a function under the Guardianship Act 1987, the Guardianship Tribunal is to observe the following principles set out in s 4:

(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.

16 The Guardianship Tribunal gave the following reasons for not appointing the sister-in-law as XK’s guardian for any function:

On her own evidence [the sister-in-law] has practically no contact with [XK] or her immediate family.

When the Tribunal asked [XK] whether she wanted [the sister-in-law] to be appointed as her guardian, [XK] spontaneously and emphatically responded in the negative.

There are other proceedings on foot with respect to certain criminal matters and in the Family Court which would suggest the need for any guardian appointed on behalf of [XK] to be completely neutral and independent, and able to openly communicate with anyone concerned about [XK’s] welfare.

[The sister-in-law’s] complaint against Dr Hansen, and the proceedings before the Medical Board, could also impact on [XK’s] objectivity with respect to any decisions which she might need to make as a guardian with respect to [XK’s] health care and medical treatment.

Having regard to the provisions of s 17(1)(a) of the Guardianship Act, the Tribunal was not satisfied that the personality of [the sister-in-law] is generally compatible with that of [XK].

Furthermore, having regard to the provisions of s 17(1)(b) of the Guardianship Act, the Tribunal was not satisfied that there is no undue conflict between the interests of [the sister-in-law] and [XK].

17 The Tribunal decided to appoint the Public Guardian to be XK’s guardian.

Grounds of Appeal

18 The sister-in-law’s grounds of appeal were as follows:

1. denial of procedural fairness by not being given an adequate opportunity to present her case;

2. making a finding of fact where there is no evidence to support that finding;

3. denial of procedural fairness by not being given her an adequate opportunity to respond to relevant adverse material;

4. relying on inadequate and misleading evidence from XK’s legal representative;

5. ignoring relevant statutory provisions; and

6. misinterpreting the words in a statutory provision.

19 The transcript of the proceedings before the Guardianship Tribunal was not available because the sister-in-law either could not afford it or was not prepared to pay for it. The sister-in-law is not a lawyer and it was clear from her oral submissions that several of her concerns did not disclose the errors of law she suggested they did. She should not be disadvantaged because of her inability to identify possible errors in the reasons for decision. We have attempted to identify her concerns and determine whether any of them constitute errors of law. We do so by reference to the three main issues which were in dispute before the Guardianship Tribunal, namely whether the guardian should have an accommodation function, whether the guardian should have the function of consenting to medical and dental treatment and whether the appointment of the Public Guardian for the health care function was appropriate.

Accommodation function

20 The sister-in-law clarified that she was not asking the Guardianship Tribunal to give the guardian the accommodation function so that the guardian could remove XK from her home. Rather, she merely wanted XK to be assessed for independent living. That is different from the submission she put to the Guardianship Tribunal. She told that Tribunal that “it is impossible for [XK] to progress while ever she lives with her abusers” and that her safety was at risk in her current accommodation. The Tribunal concluded that those assertions were not supported by the evidence as a whole and declined to give the guardian an accommodation function. We can detect no error of law on the part of the Tribunal.

21 The sister-in-law also said that the Guardianship Tribunal denied her procedural fairness when she tried to point out that XK’s guardian should have an accommodation function because her parents are elderly and they may not be able to look after her for much longer. The Guardianship Tribunal heard and understood this submission and referred to it in their reasons. After acknowledging that XK wished to remain living at home, the Guardianship Tribunal said that:

Notwithstanding this, the Tribunal notes that circumstances could change in the future, if for example there is deterioration in the health of [XK’s] parents and they are no longer able to care for her. The Tribunal envisages that if there is such a change of circumstances a further application for review can be made at that time.

22 The Guardianship Tribunal did not deny the sister-in-law procedural fairness in relation to the situation of XK’s parents, nor did they make any other error when deciding not to give the guardian an accommodation function.

Medical and dental treatment

23 The sister-in-law alleges that Dr Hansen, XK’s treating psychiatrist, inappropriately over-medicates her and endorses her family’s resistance to the provision of community services for her. The Tribunal found that:

There was no proper evidence to support [the sister-in-law’s] contentions that [XK] is being chemically restrained, or otherwise subjected to neglect, abuse or exploitation.

24 The sister-in-law was unable to point to such evidence, other than her own assertions. Instead, she submitted that it was the role of the Public Guardian and/or the Guardianship Tribunal to ensure that medical evidence was available so that proper consideration could be given to the issue of whether a medical and dental treatment function was appropriate. The Public Guardian had declined to tender two medical reports, one from a psychiatrist and one from a psychologist in relation to XK, on the basis that they should be kept confidential. Consequently, the Tribunal did not have access to those reports or indeed to any direct medical evidence about XK. That is despite the fact that in its 2004 decision the Guardianship Tribunal said that:

... as to the inclusion of a health care function or not it seemed to the Tribunal that given that there had not been a psychological/functional assessment for over three years that it was in fact appropriate for that to be updated. This was particularly so because [XK] is said to have made considerable gains in recent times in terms of her “coming out of her shell” and accessing activities and the community generally.

25 Although the Tribunal did not have any direct medical evidence, it did have evidence from the Public Guardian and from XK’s advocate, that XK regularly sees Dr Hansen and that he prescribes medication. There was no evidence that Dr Hansen failed to obtain XK’s consent to treatment either directly from her or from one of her carers as the “person responsible”. As the Guardianship Tribunal pointed out, it is not its role to decide whether or not Dr Hansen is an appropriate medical practitioner to treat XK. That is a matter for the guardian to decide under the health care function.

26 The Guardianship Tribunal has power to require any person “to produce to the Tribunal any document that is relevant to the proceedings before the Tribunal”: Guardianship Act 1987, s 60. A summons could have been issued to the Public Guardian to produce the medical reports. However, s 60 is a discretionary power, not one which the Guardianship Tribunal is obliged to exercise. The fact that it did not do so in this case does not amount to an error of law.

27 The sister-in-law is also dissatisfied with the role that the Public Guardian has played to date. She alleges that he has made no effort “in five years” “to link [XK] with Community Mental Health services even though there is evidence that she has schizophrenia.” The Guardianship Tribunal has no power to review decision made by the Public Guardian or to direct the Public Guardian to make certain decisions. Consequently, there is no error of law in relation to this matter.

Appointment of Public Guardian

28 The sister-in-law feels aggrieved that despite the fact that she was the person who initially applied to the Guardianship Tribunal for an order in relation to XK, she is being “discriminated against” by not being appointed as XK’s guardian in relation to health and medical and dental treatment functions. She maintains that she is objective, neutral and independent and that her interests are not in conflict with XK’s interests.

29 As we have said, when determining whom to appoint as a guardian, the Guardianship Tribunal is not permitted to appoint the Public Guardian if an order can be made appointing some other person as the guardian. No person other than the sister-in-law was prepared to be appointed. Section 17 sets out the matters about which the Guardianship Tribunal must be satisfied before appointing a person other than the Public Guardian as the guardian. Section 4 contains the principles the Guardianship Tribunal must apply when exercising that function. It is clear that the Guardianship Tribunal specifically took into account the wishes of XK which were that the sister-in-law not be appointed as her guardian. The Tribunal was not satisfied that the sister-in-law’s personality is generally compatible with that of XK or that there was no undue conflict between the interests of the sister-in-law and those of XK.

30 The Tribunal noted that “... there are other proceedings on foot with respect to certain criminal matters and in the Family Court which would suggest the need for any guardian appointed on behalf of [XK] to be completely neutral and independent, and able to openly communicate with anyone concerned about [XK’s] welfare.” The Tribunal also found that [the sister-in-law’s] complaint against Dr Hansen, and the proceedings before the Medical Board, could also impact on [XK’s] objectivity with respect to any decisions which she might need to make as a guardian with respect to [XK’s] health care and medical treatment.

31 The sister-in-law disputes these factual findings. Disagreement with findings of fact does not amount to an error of law. We consider below whether to extend the appeal to the merits of the Guardianship Tribunal’s decision.

Remaining grounds

32 The sister-in-law’s remaining grounds of appeal were that:

(a) the Tribunal failed to note in its reasons that XK’s counsel had limited instructions;

(b) the Tribunal was not concerned that documents she provided to it found their way into the hands of people who were not parties to the proceedings; and

(c) the Tribunal placed undue emphasis on the preservation of existing family relationships.

33 None of these grounds discloses an error of law.

Extension to other grounds

34 The only legal error made by the Guardianship Tribunal was the inadvertent one of including in the formal orders the function of consenting to medical and dental treatment. It is clear from the reasons for decision that the Guardianship Tribunal did not intend to give the guardian that function. The discrepancy between the reasons and the orders should be rectified.

35 The sister-in-law’s concerns do not disclose any other error of law. She has applied for leave for the appeal to be extended to other grounds, presumably the merits of the Guardianship Tribunal’s decision. The sister-in-law said that the Guardianship Tribunal had “harassed” and “intimidated” her. The conduct of the Guardianship Tribunal which she alleges amounts to harassment or intimidation was:

(i) accepting that her ex-husband’s views were relevant in circumstances where he is not one of XK’s carers and has been charged with indecent assault of one of their children;

(ii) not organising separate legal representation for XK until two weeks before the hearing;

(iii) “victimising” and “discriminating” against her by excluding her from any knowledge of the care or treatment of XK or information about her progress;

(iv) “bias” in favour of the Public Guardian rather than herself; and

(v) delaying listing her request for review for 10 months.

36 The report of the investigation officer discloses that an officer did contact the ex-husband. His views were recorded in that report. Although that report was before the Guardianship Tribunal, no mention was made of his views in the decision. We do not agree with the sister-in-law that the fact that an investigation officer contacted her ex-husband to ascertain his views constitutes harassment or intimidation of the sister-in-law. Nor does it justify the appeal being extended to the merits of the Guardianship Tribunal’s decision. Similarly, the fact that the Guardianship Tribunal organised separate representation for XK only two weeks prior to the hearing does not justify the appeal being extended to the merits.

37 The remainder of the sister-in-law’s points are about the way Guardianship Tribunal staff and members have treated her and her belief that she has been discriminated against and victimised. The Guardianship Tribunal’s role in these proceedings was to review the previous guardianship order by deciding whether XK was a “person in need of a guardian”, whether to exercise its discretion to appoint a guardian, what functions to give the guardian and who the guardian should be. Apart from a duty to afford the sister-in-law procedural fairness, the Guardianship Tribunal owes no duties to the sister-in-law. XK is the focus of the proceedings and the legislation makes it clear that her welfare and interests are to be given paramount consideration. The sister-in-law’s concerns about the way the Guardianship Tribunal has treated her do not justify extending the appeal to the merits of the decision. The only order that needs to be made is one correcting the inadvertent error on the Tribunal’s part of including a function of consent to medical and dental treatment in the final orders when the decision makes it clear that it did not intend to include that function.

Orders

1. Order 5(a) of the Guardianship Tribunal’s Limited Guardianship Order dated 10 May 2006 is set aside. In substitution for that order the following order is made:
Health care

To determine what health care, apart from major and minor medical and dental treatment, XK may receive.

2. The Guardianship Tribunal’s order Confirming a Guardianship Order dated 10 May 2006 is set aside. In substitution for that order the following order is made:
The Tribunal varies its order of 7 December 2004. The variation is that Order 5(a) is deleted and the following words are substituted:

Health Care:

To determine what health care, apart from major and minor medical and dental treatment XK may receive.

3. Leave to extend the appeal to the merits of the Guardianship Tribunal’s decision refused.