BJR v VMR
[2014] NZHC 1548
•3 July 2014
NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT
1980.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-001708 [2014] NZHC 1548
BETWEEN B J R
Appellant
AND
V M R Respondent
AND
HUMAN RIGHTS COMMISSION Intervener
AND
A A R
Subject Person
Hearing: 20 June 2014 Appearances:
B M Nathan for the Appellant
E M Ebborn for the Respondent
S A Bell for the Human Rights Commission as Intervener
P J O'Donnell for the Subject PersonJudgment:
3 July 2014
JUDGMENT OF PANCKHURST J
Introduction
[1] In the Family Court “Alice’s” mother applied to be appointed as her daughter’s welfare guardian, pursuant to s 12 of the Protection of Personal and Property Rights Act 1988 (the Act). Alice’s father, the appellant, opposed his ex
wife’s application on the ground that the appointment of a welfare guardian was not
B J R v V M R [2014] NZHC 1548 [3 July 2014]
the only way forward. In the alternative, BJR contended that if an appointment was to be made, it should be of both parents as joint welfare guardians.
[2] Judge Moran concluded that an appointment was necessary.1 She appointed VMR as Alice’s welfare guardian in relation to all aspects of her personal care and welfare. BJR appeals against this decision. He no longer seeks a joint appointment, rather simply that the order appointing VMR be quashed.
[3] Accordingly, the sole issue for determination is whether Judge Moran erred in concluding that the appointment of a welfare guardian for Alice was the “only satisfactory way to ensure that appropriate decisions were made relating to … [her] personal care and welfare”.2
Factual background
[4] Alice was born on 11 July 1985 and is almost 29 years of age. BJR is a self-employed chartered accountant, aged in his early sixties. VMR is a teacher by training, works part-time, and is aged about 60 years. The parties separated in 2001 after 23 years of marriage. Their marriage was dissolved in 2004.
[5] Alice suffers from autistic spectrum disorder (ASD), bipolar affective disorder and moderate to severe intellectual disability. From the age of 17 she has lived in specialist care, more recently at a care facility in Halswell. She also spends one night per week in her mother’s care.
[6] Since she has been in care Alice has been the subject of a welfare guardianship order for a period of about three years, four months. Mr George Francis was appointed as her welfare guardian in March 2007, but he died suddenly four months later. A second independent guardian, Ms Francesca Trip, was appointed in May 2008, continued in the role for three years, but declined reappointment on account of BJR’s opposition. Accordingly, since mid-2011 Alice
has not had a welfare guardian.
1 VMR v BJR [2013] NZFC 9104.
2 Protection of Personal and Property Rights Act 1998, s 12(2).
[7] Between mid-2005 and early 2013 the parties filed 10 applications under the Act seeking either the appointment of a welfare guardian or other personal orders relating to Alice. Save for the present proceeding, the applications were resolved either by agreement or at mediation/settlement conferences.
[8] A further consequence of the various applications was the appointment of Mr O’Donnell to represent Alice from time to time. He was reappointed in relation to VMR’s most recent application, and Mr O’Donnell played an active role in the Family Court and also in this Court. I shall refer to his submissions shortly.
[9] Since expiry of the welfare guardianship order in May 2011, decisions relating to Alice have been made via a multi-disciplinary team which meets about every eight weeks, or more regularly if need be, to review Alice’s progress and tailor her care and treatment to her specific needs at any given time. An acute care management plan has been developed. The plan details Alice’s health issues, with particular reference to her prescribed medication and other medical factors such as allergies. The plan is held electronically so that members of the team have immediate access to all relevant information. The parents are involved in the team meetings, but not Alice.
[10] Recently, another aid, known as a health passport, has been developed for Alice. Based on a format developed by the Health and Disability Commissioner, the passport contains information for the assistance of health providers about the special needs of the person. The passport enables providers to understand the best way to communicate and support Alice, whether in a hospital setting, a surgery or elsewhere. The focus of the passport is upon personality and behavioural aspects, so that providers are equipped to better understand and communicate with Alice while she is in their hands.
[11] Over the past few years Alice’s physical and mental health has been relatively stable. Decisions relevant to her care and welfare have been made in the context of team meetings and this has worked without any apparent disadvantage to Alice.
[12] Nonetheless, VMR filed the application seeking appointment as a welfare guardian in November 2012 and in March 2013 BJR filed a similar application. The cross applications were the subject of a hearing in May 2013, which was adjourned after VMR gave evidence so that she and her former husband could explore the possibility of the appointment of another independent welfare guardian. A woman was nominated for the role, consented to appointment, but shortly before the hearing was due to resume in October 2013 the prospective appointee withdrew her consent on account of BJR’s opposition to her appointment. Hence, the hearing proceeded on the footing that VMR sought a sole appointment, while BJR opposed any appointment, but favoured a joint appointment if an order was to be made.
The Family Court decision
[13] Judge Moran made a number of findings complementary of the abilities, commitment and the love of the parents for their severely disabled daughter. The Judge also made findings concerning the respective roles of the parents, both historically and in the more recent past.
[14] Judge Moran’s conclusion was expressed in this way:3
[34] I have carefully weighed the evidence for and against the appointment of a welfare guardian for [Alice]. The decision has been finely balanced and difficult but I am satisfied that the appointment of a welfare guardian is the only way to satisfactorily ensure appropriate decisions are made relating to [all] aspects of [Alice’s] personal care and welfare.
[35] [Alice] has a comprehensive wrap-round package in relation to her health care through the multi-disciplinary team Management Plan, the Health Passport and of course her parents. That will undoubtedly continue to be the means by which the majority of decisions for her are made. However it fails to provide a method by which critical decisions, particularly in relation to heath care can be made and the consultative or mediation procedures which are favoured by [BJR] do not assist in those circumstances. The likelihood of this occurring for [Alice] is real and this necessitates a welfare guardian being appointed. Furthermore, the package for her does not extend to her day-to-day care and the current concerns around the delivery of that service by Brackenridge Estate also require the appointment of a welfare guardian so that someone has the authority to ensure that [Alice’s] needs are met to an appropriate standard.
3 VMR v BJR [2013] NZFC 9104.
[15] She then added that Mr O’Donnell’s change of stance during the course of the hearing, from neutral to supporting VMR’s appointment, was influential. Finally, the Judge considered it was “significant” that BJR did not oppose the appointment of an independent welfare guardian, although he opposed appointment of the person who consented to assume the role, and that this was “an acknowledgement by him that circumstances will exist where a welfare guardian is necessary for [Alice]”.
The statutory scheme
[16] The appointment of a welfare guardian is the most intrusive order which can be made under the Act. Section 12 governs such appointments. It relevantly provides:
Court may appoint welfare guardian
(1) Subject to the succeeding provisions of this section, on an application for the exercise of a court's jurisdiction under this Part, the court may make an order appointing a welfare guardian for the person in respect of whom the application is made in relation to such aspect or aspects of the personal care and welfare of that person as the court specifies in the order.
(2) A court shall not make an order under subsection (1) unless it is satisfied—
(a) that the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or particular aspects of the personal care and welfare of that person; and
(b) that the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person.
…
(5) A court shall not appoint any person as a welfare guardian under this section unless it is satisfied—
(a) that the proposed appointee is capable of carrying out the duties of a welfare guardian in a satisfactory manner, having regard to the needs of the person in respect of whom the application is made, and the relationship between that person and the proposed appointee; and
(b) that the proposed appointee will act in the best interests of the person in respect of whom the application is made; and
(c) that there is unlikely to be any conflict between the interests of the proposed appointee and those of the person in respect of whom the application is made; and
(d) the proposed appointee consents to the appointment. (emphasis added)
[17] Prior sections in Part 1 of the Act, which deals with personal rights, provide that everyone is presumed to have capacity until the contrary is proved,4 and the jurisdiction of the Court to invoke the powers under Part 1 arises where a person:5
(a) lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(b) has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters.
[18] The objectives of the Act are clearly stated:6
8 Primary objectives of court in exercise of jurisdiction under this Part
The primary objectives of a court on an application for the exercise of its jurisdiction under this Part shall be as follows:
(a) to make the least restrictive intervention possible in the life of the person in respect of whom the application is made, having regard to the degree of that person's incapacity:
(b) to enable or encourage that person to exercise and develop such capacity as he or she has to the greatest extent possible. (emphasis added)
Section 9 defines the “course to be followed by [the] court”, namely to first determine whether jurisdiction to make any form of order exists, and then to determine what form of order is appropriate, having regard to the primary objectives
of the Act.
4 Protection of Personal and Property Rights Act 1998, s 5.
5 Section 6(1).
6 Section 8.
[19] Section 10 defines the “kinds of order”, which range from specific orders relating to living arrangements, medical treatment, travel and the like, to the most intrusive form of order, the appointment of a welfare guardian.
[20] Finally, s 17 provides for the expiry of orders on a date specified by the
Court, or, in the absence of a specified date, 12 months after the date of the order.7
However, at the specified, or deemed, expiry date the Family Court may review the case and decide that the order should continue in effect for a further period.8
Approach on appeal
[21] Section 83(1) of the Act confers a right of appeal to the High Court. The procedure on appeal is governed by the District Courts Act 1947,9 meaning that the appeal is by way of rehearing.
[22] In another appeal to this Court Andrews J concluded that the appointment of a welfare guardian was a discretionary decision, in relation to which the normal principles for disturbing a discretionary evaluation applied.10 I agree. Accordingly, the appellant must show that the decision-maker erred in law; took into account irrelevant, or failed to take into account relevant, considerations; or that he or she was plainly wrong.
[23] While this required approach may circumscribe the ambit of the appeal a little, the need for this Court to intervene where a decision is plainly wrong means that I must scrutinise the judgment under appeal with particular care. I am also conscious of the fact that Judge Moran enjoyed the advantage of seeing and hearing both the parents giving evidence, and whilst this does not justify a deferential
approach, it is an advantage to be borne in mind.
7 S 12(8) requires that an expiry date not more than three years out be specified in relation to the order.
8 S 17(2).
9 District Courts Act 1947, ss 74-78.
10 Treneary v Treneary [2009] NZFLR 1062 (HC) at [34]-[35].
The grounds of appeal
[24] Mr Nathan advanced four main grounds of appeal; three grounds directed to specific findings in the Family Court decision and one asserting an error of law. These were that:
(a) The Judge erred in paying regard to the number of previous applications filed in the Family Court, as this was a neutral factor, or, if relevant at all, a factor which called in question the wisdom of appointing one parent to the exclusion of the other, given their commitment and capacity to provide for Alice’s care and welfare.
(b)A finding that VMR had “greater empathy” with Alice was inconsistent with the evidence.
(c) Reliance placed by the Judge on management and performance issues at the care facility where Alice resides was now shown to be an irrelevant consideration, and therefore misplaced.
(d)The Family Court erred in principle in concluding that the only satisfactory way to ensure appropriate decision-making in relation to Alice’s care and welfare was by the appointment of VMR, when the evidence established that a less restrictive option existed, namely decision-making through the multi-disciplinary team process with input from both parents.
[25] In opposing the appeal Ms Ebborn, for the respondent, supported the reasoning of the Family Court Judge. Counsel submitted that the judgment under appeal, read as a whole, demonstrated that there was not only a need for an appointment in terms of the statutory test, but that there were sound reasons for VMR being appointed to the guardianship role. Mr O’Donnell made not dissimilar submissions, in which he stressed that the s 12 jurisdiction is protective, forward looking and in the circumstances of this case provided an necessary safety net, including in relation to health treatment decisions required to be made as a matter of urgency.
Evaluation of grounds of appeal
Jurisdiction – incapacity
[26] It is important to note that the jurisdiction of the Family Court to make the order, and therefore the issue of an incapacity, is unquestioned. Judge Moran said this:
[6] In this case there is no issue regarding [Alice’s] lack of capacity as neither parent challenges the medical evidence which has consistently and unequivocally found that [Alice] totally lacks the capacity to understand the nature and foresee the consequence of decisions relating to her personal care and welfare.
Further, I note that Alice’s capacity to communicate is also very limited, albeit not wholly lacking. She has a vocabulary of approximately 45 words.
The number of Family Court applications
[27] I do not read Judge Moran’s references to this aspect as pejorative in nature. She set out a chronology of the various applications, but in the context of the history being an integral part of VMR’s evidence that there has been a high level of conflict between the parties. Counsel argued that the Judge’s decision implied that BJR was at fault and had filed numerous applications, when in reality the parents had filed applications equal in number.
[28] My appreciation, however, is that the Judge was influenced by the fact of numerous applications, not whether one parent or the other caused this state of affairs. And this consideration, that there had been repeated applications to the Family Court, was surely relevant to whether an appointment was the only satisfactory way to ensure appropriate decision-making in relation to Alice. It provided positive confirmation that over time difficulties had cropped up, despite the intelligence, care and capacity of the parents.
[29] Nor do I accept that Judge Moran erred in appointing one parent to the exclusion of the other. It is apparent that every endeavour was made to secure the services of an independent welfare guardian, but this did not prove possible. The Judge was then placed in the invidious position of deciding between cross
applications for appointment. She favoured the appointment of VMR for reasons she carefully explained, and the merits of this aspect of the decision are no longer in issue.
Greater empathy
[30] Judge Moran referred to this aspect as follows:
[30] I accept Mr O’Donnell’s submission that [VMR] has a greater empathy toward [Alice] and that “she probably knows and understands where [Alice] is at because of the time spent with her”. Indeed, the current situation is simply an extension of [VMR’s] care of [Alice] during her formative years when she was the parent at home with her. That is not intended to minimise [BJR’s] commitment and contribution to the family but he was the provider and this consequently limited his role with [Alice] although he willingly undertook nighttime care.
[31] As can be seen, the Judge was responding to a submission made by counsel appointed to represent Alice. More importantly, I do not understand the finding to be relevant other than to the question who should be appointed, not whether an appointment was the only available option. Nor am I persuaded that the finding was in some way unbalanced. The Judge was at pains to record the level and extent of both parents’ commitment to Alice. However, it was factually correct that Alice’s mother had the greater involvement with her daughter (including weekly overnight stays) and that the appellant had the wisdom to entrust routine day-to-day decision making to his former wife.
[32] Perhaps empathy was the wrong word, and indeed the Judge put the matter in this way at the beginning of [31]:
Mrs [R's] deep understanding of all aspects of her daughter’s needs is, in my view, critical when considering the competing applications before me. (emphasis added)
This sentence, I think, places this matter in a proper perspective.
Brackenridge Estate
[33] This is the name of the care facility at which Alice resides. In explaining the
need for an appointment of a guardian, Judge Moran referred to “considerable
criticism and media interest” concerning “serious difficulties” experienced by residents of the home.11 The Judge further observed that VMR was directly working with personnel from Brackenridge Estate about these issues.
[34] New evidence was adduced in this Court, being a report focused on the actual facility, or home, in which Alice resides. I infer Brackenridge Estate has more than one care facility. Mr Nathan pointed out that the report contained nothing which indicated the necessity for the appointment of a welfare guardian, nor did it show that the concerns which prompted media attention existed where Alice lives.
[35] Again, I am far from persuaded that this ground of appeal is of substance when viewed in the context of the decision as a whole. At most, it may well be the case that something the Judge saw as relevant to her assessment that appointment of a welfare guardian was a necessity, was in fact an irrelevant consideration. But, for reasons which will become more evident when I consider the fourth, and final ground of appeal, I do not regard this finding as pivotal. The new evidence, and the diminished significance of this aspect, is not in my view greatly material.
The s 12(2)(b) test was not met?
[36] This, to my mind, was the major ground of appeal. Mr Nathan argued strongly that the evidence did not show that the only way to ensure appropriate decision-making in relation to Alice’s care and welfare was by making an appointment. Further, during the hearing a subset argument was developed, that the order made was not the least restrictive approach available on account of the unrestricted powers vested in VMR. If an appointment could be justified, the order should have been tailored to limited circumstances and situations.
[37] Counsel submitted that the evidence in the Family Court, much of it elicited by questions from the Judge herself, demonstrated that there was no pressing need for the appointment of a guardian. Nonetheless, the Family Court embarked upon an exercise of searching for a situation where hypothetically there may be a need for a
welfare guardian. Hence, in the result and contrary to the approach mandated by
11 VMR v BJR [2013] NZFC 9104 at [32].
s 12(2)(b) and the primary objective of the Act (the least interventionist approach), the Judge appointed a welfare guardian regardless of her acceptance that a collaborative decision-making process was in place, was effective, so that Alice had not been disadvantaged over the previous few years. Mr Nathan concluded on the note that the Family Court “searched for reasons to intervene, and then [did so] in the most restrictive way”.
[38] Ms Ebborn and Mr O’Donnell both stressed that Alice wholly lacks capacity and that the Act is protective and future-focused legislation. While accepting that many decisions will continue to be made through the multi-disciplinary meetings in which the parents are involved, counsel submitted that it was still essential for a guardian to be appointed, given the history of this case and the very real likelihood that important medical decisions will need to be made in haste into the future. Mr O’Donnell also broached how the order might be restricted to particular aspects of Alice’s personal care and welfare, rather than the present unrestricted order being left in place.
[39] To my mind the differing approaches of counsel were informative and also suggested different philosophical approaches to the interpretation of the Act. Mr Nathan seemed to favour a need for evidence to demonstrate that the processes presently in place had failed, or that they were clearly defective, before an appointment should be made. Other counsel sought a more protective approach, designed to facilitate urgent decision-making in circumstances likely to occur in the future.
[40] With reference to the evidence, counsel highlighted answers in which the appellant referred to how infrequently decisions had been taken outside of the multi-disciplinary meetings, answers from a psychiatrist concerning the effectiveness of the multi-disciplinary process and answers from VMR in which she accepted that her use of the guardianship powers would be rare, given that so much can be achieved via the existing collaborative process. I accept the force of this argument. So too did Judge Moran, who found that the reality was that Alice had not had a
welfare guardian since May 2011 “and there [was] no evidence to show that she
[had] been disadvantaged by this”.12
[41] However, it did not follow that the appointment of a guardian was not essential to ensure appropriate decision-making in the future. The Judge made a number of relevant findings, including Alice “remains a young woman with high and complex needs”,13 “inevitably there will be further periods of instability for [Alice] and decisions will need to be made for her which may arise in times of crisis”, “while [the parents] have the benefit of an excellent multi-disciplinary team … this does not go far enough”,14 “access to this team … is by no means instantaneous”15 and “[t]he very essence of the welfare guardianship role is to enable decisions to be made [without] the luxury of time to engage in the fullest level of consultation with the experts that would otherwise be desirable”.16 Clearly, these findings weighed heavily with regard to the final conclusion reached by the Judge at [34]-[35] of her decision (see [14]).
[42] I also agree with Judge Moran’s reliance upon submissions made by Mr O’Donnell. He was first appointed to represent Alice’s interests in 2006, when a difference had emerged concerning replacement of a device that regulated menstrual periods and prevented conception. The device had been implanted five years earlier but required replacement, about which the parents could not agree. The matter became urgent when the surgeon who was to perform the procedure required informed consent from an adult on Alice’s behalf.
[43] It is worthwhile recording that the Code of Patients’ Rights provides that:17
Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent …
“Consumer” is defined to include “… a person entitled to give consent on behalf of that consumer”.18 It follows that where a person lacks the capacity to provide
12 At [19].
13 At [26].
14 At [27].
15 At [27].
16 At [27].17 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights)
Regulations 1996, right 7(1).
informed consent, the ultimate safeguard is for that person to have a welfare guardian empowered to provide consent on their behalf.
[44] For these reasons I am unpersuaded that the Judge erred in concluding that the appointment of VMR was the only satisfactory way to ensure that appropriate decisions were made relating to Alice’s care and welfare. The events in 2006 provided a clear example of the need for a welfare guardian to be in place and duly appointed. At 28 years of age, Alice remains a young woman with complex needs. The fact of so many applications filed by the parents in the Family Court demonstrated that parental agreement was far from a given, including in circumstances of urgency.
[45] I also agree with the submission that the welfare guardian jurisdiction is protective in nature. While the threshold for the exercise of the jurisdiction is closely defined, and appropriately so, it does not follow that there must be evidence of decision-making failures, or delays, before the statutory test for making an appointment is satisfied. To the contrary, if there is evidence of a real risk in relation to the care or welfare of the protected person, absent a s 12 order, then the subs(2)(b) test will be met.
[46] It remains to consider what I have termed the subset argument. Should Judge Moran have made the order but restricted it to a particular aspect, or aspects, of Alice’s personal care and welfare? Initially, I was attracted to the notion that restrictions upon the scope of the order were required. Mr O’Donnell made commendable endeavours to define appropriate restrictions. But this process persuaded me otherwise. Restrictions initially designed to deal with emergency medical situations were then expanded to include urgent care situations. The suggested restrictions became unworkable.
[47] This, I think, reflected the circumstances of this case. Alice is wholly incapacitated and largely lacks the capacity to communicate her views. The multi- disciplinary team meets only periodically, about every eight weeks. Alice is in full-
time care, save for the one night per week she spends with her mother. The parents,
18 Clause 4, definitions.
despite their commitment to and love for their daughter, sometimes disagree concerning what is best for Alice’s care and welfare. In short, this combination results in the need for a welfare guardian empowered to act decisively if and when the need arises.
[48] That said, Judge Moran did not see the appointment as displacing the multi-disciplinary team approach and the excellent decisions made in that context. Rather, the appointment was seen as essential to complement the consultative process.
Conclusion
[49] The appeal is dismissed. Costs are reserved. If sought, and if agreement cannot be reached in light of the existing classification of the appeal, memoranda may be filed.
Solicitors:
Duncan Cotterill, Nelson
Ebborn Law Ltd, Christchurch
Human Rights Commission, Auckland
P O’Donnell, Barrister, Christchurch
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