Appellant v Respondent

Appellant v Respondent - [2005] VSC 485 - VSC 2005 case summary — Zoe

[34]

Scope of the Appeal

9 Ms Daynes appeals against the orders made on 05 August 2005 concerning the position of the guardian and the guardian's powers and related orders. She does not challenge the decision concerning the purported revocation of the enduring power of attorney. That part of the order is not sought to be set aside. Counsel for Ms Daynes informed the court that she also has particular concerns about the terms of the order of 5 August 2005 giving the additional power and duty to the Public Advocate as guardian "to make decisions concerning access to the represented person" and about the provision which deals with reassessment of the guardianship order and provides that it is to occur no later than 5 August 2008.

Parties to the Appeal

10 The Originating Motion by which leave to appeal was sought named the Public Advocate's office and VCAT as defendants to the application. On the return of the summons filed in the matter on 21 September 2005, the solicitor for the Public Advocate informed the Court that the Public Advocate would abide any order and did not wish to be heard save on the issue of costs. On that basis the solicitor was excused from further attendance. The Public Advocate remained a party to the proceedings and was subsequently named as the respondent to the appeal. At the hearing of the appeal, there was an appearance on behalf of the Public Advocate's office. Counsel appearing for the Public Advocate indicated that it had always been non-adversarial in its role as guardian taking the view that it should investigate and act only in the best interests of Ms Daynes. Counsel pointed out that it was not even the original applicant for the order. That was a Ms Ogilvie who was a social worker at the hospital where Ms Daynes was an in-patient. Counsel also stated that the Public Advocate had no interest in the outcome of the question whether VCAT had breached its obligations. The Public Advocate did not assert an interest in whether the order was upheld or not. Counsel submitted that the Public Advocate had not itself been involved in any question of substance in the matter. In those circumstances, the Public Advocate was not required to attend further on the appeal.

11 At the hearing before the Senior Master, orders were made that the Tribunal cease to be a party. Further it would appear that Equity Trustees Limited sought leave to be heard by Counsel in the proceeding. That leave was refused in the circumstance, as Counsel for the appellant informed me on the appeal, that it was made clear that it was not sought to challenge the order made on 5 August 2005 that the purported revocation of the power of attorney was invalid.

12 The result of those developments is that the matter has come before me without a contradictor and, as a result, I have not had the benefit of the assistance of arguments presenting a position contrary to that of the appellant.

The Grounds of Appeal and Questions of Law

13 The Notice of Appeal sets out the following grounds of appeal:

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I note that Dr. Woodward's report does not appear to have been on the file of the Tribunal and Counsel for Ms. Daynes expressed concern about that.

21 In the course of discussion, the Tribunal attempted to address the issue of the report of Dr. Adrienne by reading the summary and conclusions of her report. As Counsel for Ms Daynes has pointed out, this did not fully inform her or her representatives of the factual basis of the opinions or the reasoning processes involved in reaching the conclusion obtained in the material that was read.

22 Ms Daynes had provided the Tribunal with a report from a Dr. Myers supporting the argument that her capacities were such that she did not need a guardian under the Guardianship and Administration Act 1986. It is clear that Counsel for Ms Daynes was also wanting Dr. Myers to be called to give evidence before the Tribunal. The Tribunal member responded that she had read Dr. Myers' report along with the other reports and didn't believe she wished to take evidence from Dr. Myers that day. The member said that she was not intending to take evidence from any of the other doctors who had given reports. Counsel for Ms Daynes mentioned another witness that he wished to call, a registered nurse who had concerns about the treatment that Ms Daynes was receiving.

23 It also appears from the transcript that, notwithstanding the concerns that had been expressed about the need to have access to reports adverse to Ms Daynes' application brought on behalf of Ms. Daynes and the opportunity to test them, the Tribunal expressed the view that it preferred the recommendations of Dr. Adrienne over the report relied upon by Counsel representing Ms Daynes, that of Mr Forbes.

24 Late in the hearing the Tribunal attempted to describe the appellant's disabilities. Counsel for Ms Daynes had submitted that she was not suffering from dementia. The Tribunal responded by saying that that was not the issue and that the disability in question was one "which affects her ability to make reasonable decisions about her circumstances". The Tribunal went on to state "her disability is cognitive impairment with attentional and executive dysfunction alcohol related brain impairment". When Counsel put to the Tribunal that there was no memory problem and asked what cognitive impairment meant, the Tribunal responded that Counsel's solicitor, Mr. Brott, had received a copy of the file, which included assessments of social workers, occupational therapists and medical practitioners and the problem described was one which "affected her ability to make reasonable decisions about her circumstances and how she manages at home and decisions that affect her lifestyle and financial affairs". Counsel challenged this assertion relying upon the opinion of a doctor (the transcript does not identify the doctor) who had expressed the opinion that Ms Daynes was able to make rational decisions and had an excellent ability to do so. The Tribunal responded:

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32 It is understandable that such a practice might be adopted in the exercise of powers given by s.98 (1) (b) (c) and (d).[8] It is also consistent with the non-adversarial approach taken to guardianship list proceedings.[9] In many cases, the practice described would cause no difficulty and, in fact, be desirable. It is likely that in a substantial number of cases there will be no issue about the need for a guardianship order or for its continuation.[10] The issue in the present case, however, is whether the requirements of ss. 97, 98 and 102 of the VCAT Act required a different course to be taken having regard to the issues raised. In circumstances where there is a challenge to the guardianship order and a conflict of expert opinion, it becomes difficult to maintain a non-adversarial approach to the matter while ensuring that the statutory procedural requirements, including natural justice, are met.

33 Sections 97, 98 and 102 of the VCAT Act give the Tribunal power to decide the way a proceeding should be conducted but they require that the principles of natural justice be observed[11] and, specifically, the giving of a reasonable opportunity to call and test evidence and make submissions. The effect of s. 102 is to impose expressly a duty to allow a "party" a reasonable opportunity to call evidence, question witnesses and make submissions. It permits the Tribunal to depart from the first duty, concerning the calling of evidence, prescribed in s. 102, if it considers there is already sufficient evidence.[12] It does not qualify the other obligations allowing a "party" a reasonable opportunity to question witnesses and make submissions.

34 It seems to me that particular care must be taken by the Tribunal to comply with the statutory requirements in a case like the present where it is sought, on behalf of the person in respect of whom a guardianship order has been made, to challenge that order and, as the Tribunal itself stated, there was a conflict of expert opinion. It must not be forgotten that the jurisdiction, while protective, is one which can result in the life and liberty of an individual being placed in the control of another.

35 The Tribunal member appears to have regarded the case as a clear case. Her view of the case may, in part, have flowed from the quite detailed conversations the member had with Ms. Daynes at the hearing about a variety of matters including her perceptions of her health problems and their causes. These conversations may have been seen by the member as confirming in the member's mind the expert assessments supporting the order. In addition, there was a substantial body of evidence supporting the original order and the member may have had reservations about some of the expert evidence relied upon by those representing Ms. Daynes.

36 Nonetheless, the Tribunal was obliged to comply with the obligation to accord natural justice, and, in particular, with the requirements of s. 102. In the present case I have come to the conclusion that the procedural requirements were not satisfied and natural justice was denied. There was a clear dispute and conflict on the evidence as to the continued existence of the disabilities that had been found to exist at the time the original order was made. Ms Daynes was denied any real opportunity to adduce evidence and test and counter evidence adverse to her and address argument on the critical issues.

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It cannot be demonstrated that these matters could have had no bearing on the outcome.[15]

37 As for the capacity of Ms Daynes to engage legal practitioners, it seems to me that the Tribunal proceeded appropriately on the basis that such capacity existed until the contrary was demonstrated.[16] After all, a guardian may well be appointed under the Guardianship and Administration Act 1986 for people who need protection because of disabilities they may suffer but those people may still have sufficient capacity to engage lawyers to represent them. Further, it may be said that the objective of the protection of members of the community which lies behind the guardianship legislation and the guardianship jurisdiction is best served if persons in respect of whom guardianship orders have been made can engage lawyers to represent them in applications in respect of those orders.[17]

38 At the same time, the protective role requires the Tribunal to be vigilant to protect persons subject to such orders from attempts by third parties to gain control of their lives and assets. Following the procedural requirements in such circumstances is obviously important and all relevant parties should have a reasonable opportunity to explore the evidence relied upon for the applicant.[18]

39 Finally, I note that one of the issues raised by the Notice of Appeal was the issue of apprehended bias on the part of the Tribunal. A fair reading of the transcript, however, points to the Tribunal conscientiously going about its task but, as I see it, misjudging its approach to providing natural justice and to the procedural requirements that needed to be applied in this particular case.

40 I repeat my concern that I have not had the benefit of arguments of a contradictor in this case. I have attempted to bear that in mind in assessing the evidence and arguments. I have come to the conclusion, however, that the grounds of appeal are made out and that the Order should be set aside.

Appropriate Orders

41 Counsel for Ms Daynes has submitted that the Order made on 5 August 2005 be set aside, save and except for that part of it dealing with the power of attorney so that it would read that

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Judgment (92 paragraphs)

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