BZF is a 46 year old woman who lives in supported accommodation. She has regular contact with her mother BZH and her brother BZE. In July 2014 BZG, who is the general manager of the agency which provides accommodation and other services to BZF, applied for a guardianship order. One of the triggers for that application was a concern that BZF may have been sexually assaulted while in the care of her brother BZE on 28 June 2014. BZE categorically denied any wrongdoing.
On 1 October 2014, the Tribunal made a guardianship order and appointed the Public Guardian as BZF's guardian for 12 months: Guardianship Act 1987 (NSW), s 14. The decisions that the Public Guardian is permitted to make under that order are access decisions, including who has access to BZF and on what conditions. BZE has appealed against that decision.
We granted leave for BZE to be represented by a solicitor, Mr Legg. BZG was unable to attend the hearing but a representative from the accommodation service, Ms Berriman, represented BZG. BZF attended the hearing but was not represented and made no submissions. BZF's mother, BZH, did not attend and made no submissions.
[2]
Tribunal's decision
The parties to the hearing in the Guardianship Division were BZF, who was separately represented by Ms Danis, BZG, BZE, BZH and the NSW Trustee and Guardian. BZG appeared in person and a representative from the NSW Trustee and Guardian gave evidence by telephone. The Tribunal granted leave for BZE to be legally represented. BZH did not make any submissions or attend the hearing.
The Tribunal recounted the history of the orders made in relation to BZF since 2002. The Tribunal then posed four questions in relation to the application:
1. Is BZF someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
2. Should the Tribunal make a guardianship order and if so, what order should be made?
3. Who should be the guardian?
4. How long should the order last?
The Tribunal found that BZF has an intellectual disability and that it was not in dispute that, because of her disability, she is totally or partially incapable of managing her person and making important life decisions. In effect, the Tribunal found that BZF is a "person in need of guardian" as that expression is defined in the Guardianship Act. There was no dispute on appeal about that finding.
In relation to the second question, as to whether the Tribunal should make a guardianship order, the Tribunal identified s 14 as the relevant provision and took into account the following evidence:
1. Response Team Report prepared by staff at the group home where BZF lives;
2. consultation notes of Dr Heather Judd dated 4 July 2014;
3. clinical swab results from 7 July 2014;
4. report of Mr Quin, psychologist;
5. evidence from BZE denying any wrongdoing; and
6. observations of BZF's interactions with BZE at the hearing.
After summarising that evidence the Tribunal identified the views of BZF, her separate representative and BZE. The Tribunal recorded that both BZE and BZF's separate representative opposed the making of a guardianship order. The Tribunal also acknowledged the importance of preserving family relationships. The Tribunal found that BZF has a close relationship with her family and enjoys her outings with them.
The following reasons were given in support of the Tribunal's decision to make a guardianship order:
In exercising functions under the Guardianship Act the Tribunal has a duty to observe the principles set out in section 4 of that Act. In this instance the Tribunal was particularly mindful of the principle that the welfare and interest of the person with a disability should be given paramount consideration and that the person should be protected from neglect, abuse and exploitation.
The Tribunal made no finding in relation to whether or not BZF was assaulted on 28 June 2014. Indeed, it did not have before it any conclusive evidence on which such a finding could be based. The Tribunal accepted the consistent evidence from the applicant and from (the separate representative) that BZF is a tactile person who is not able to regulate boundaries for herself. These traits, combined with her limited ability to process information and communicate, make BZF particularly vulnerable to abuse. It is therefore appropriate that the applicant and the staff at BZF's home should take a vigilant and protective approach to BZF's welfare, and it is incumbent on the Tribunal to take a similar approach.
The Tribunal decided that BZF's welfare would be best protected if an independent decision-maker was appointed with the function of making decisions in relation to access, if appropriate, after further investigation and discussion with stakeholders.
The order made was a limited order in relation to access. No conditions were specified in the order. In those circumstances, the guardian has the function of making decisions, taking action and giving consents in relation to who is to have access to BZF.
[3]
Grounds of Appeal
BZE may appeal 'as of right on any question of law or with leave of the Appeal Panel on any other ground": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). At the hearing, BZE abandoned the grounds of appeal in the Notice of Appeal which related to inadequate reasons and failing to make a finding of fact concerning the alleged sexual assault.
The ground of appeal on which BZE relied at the hearing was that the Tribunal's discretion miscarried. It was his submission that the Tribunal erred when exercising its discretion under s 14 to make a guardianship order. He submitted that the fact that BZF is particularly vulnerable to abuse does not mean that a guardianship order should be made. It was submitted that all persons for whom the Guardianship Division has jurisdiction are vulnerable to abuse, but that fact alone cannot be the basis for an order.
Ms Berriman stated that people living with a disability may be vulnerable, but to varying degrees, and agreed that mere vulnerability alone is not a sufficient basis for a guardianship order. In response to BZE's submission, she stated that BZF is very affectionate to her family and to strangers and she is particularly vulnerable to abuse and exploitation. Ms Berriman supported the making of a guardianship order for BZF and stated that the order has worked well.
Before addressing this ground of appeal we set out what counts as an error of law when exercising a statutory discretion and the legislative framework for the making of guardianship orders.
[4]
Errors of law when exercising discretion
The exercise of a statutory discretion can only be overturned in limited circumstances: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. Those circumstances were summarised recently by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] by Beazley P, Emmett JA and Tobias AJA. The Court held that any attack on a discretionary decision must fail "unless it can be demonstrated that the decision maker:
1. made an error of legal principle,
2. made a material error of fact,
3. took into account some irrelevant matter,
4. failed to take into account, or gave insufficient weight to, some relevant matter, or
5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."
It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. As Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant."
[5]
Legislative scheme
Section 14 gives the Tribunal power to make a guardianship order. Before considering whether to make such an order the Tribunal must make a finding of fact that the person is "a person in need of a guardian".
(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(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.
The term "a person in need of a guardian" in s 14, is defined in s 3 as "a person who, because of a disability, is totally or partially incapable of managing his or her person." In s 3(2), a "person who has a disability" is defined in the following terms:
In this Act, a reference to a person who has a disability is a reference to a person:
(a) who is intellectually, physically, psychologically or sensorily disabled,
(b) who is of advanced age,
(c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or
(d) who is otherwise disabled,
and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
If the Tribunal finds that the person is "a person in need of a guardian" it must go on to exercise its discretion as to whether to make a guardianship order. The considerations listed in s 14(2) are mandatory considerations which the Tribunal is bound to take into account. As well as taking into account those considerations it is the duty of the Tribunal when exercising functions under the Guardianship Act with respect to persons who have disabilities, 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.
In IF v IG & Ors [2004] NSWADTAP 3, when considering s 14(2), the Appeal Panel of the Administrative Decisions Tribunal made the point that the Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. If there is no evidence as to one or more of those matters it cannot be considered but the absence of evidence should be noted. The Tribunal described the balancing exercise that the Tribunal must undertake at [28]:
In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987 .
At [30] the Appeal Panel in IF v IG highlighted the importance of s 14(2)(d) ("the practicability of services being provided to the person without the need for the making of such an order") and the confusion which arises from the multiple use of the word "need":
The difficulty occasioned by the drafter's choice of the expression a "person in need of a guardian" to mean a person for whom a guardianship order may be made is compounded by the language used in s 14(2)(d). That paragraph, which refers to a matter which the Guardianship Tribunal must consider before exercising its discretion, also refers to need. It directs the Guardianship Tribunal to consider "the practicability of services being provided to the person without the need for the making of such an order". In other words, one of the matters which the Guardianship Tribunal is required to consider after having found a person to be a "person in need of a guardian", but before exercising its discretion, is whether the person actually needs a guardian because that person may be able to receive all necessary services without a guardian.
While the Tribunal is engaged in a balancing exercise when determining whether to make a guardianship order, the "paramount consideration" is the welfare and interests of the person: Guardianship Act, s 4(a). Where there is a conflict between the welfare and interests of the person and any of the other principles or considerations listed in s 4 and s 14(2), those principles and considerations must yield. The Tribunal's task is to take into account all the relevant considerations and principles, both for and against making a guardianship order, and then determine whether the welfare and interests of the person are best protected by making or refusing to make such an order.
The Tribunal must attempt to obtain the views of the relevant people involved and make findings as to those views. That may not be feasible if a person is not capable of expressing a view or is not available to do so, but it should be attempted. Next, based on the principles in s 4, the mandatory considerations in s 14(2) and its findings on material questions of fact, the Tribunal should assess any competing considerations for and against guardianship. Finally the Tribunal must make its decision based on the welfare and interests of the person: NCAT Act, s 62(3).
The considerations which may favour the making of a guardianship order include that "such persons should be protected from neglect, abuse and exploitation": Guardianship Act, s 4(g). The considerations which may count against the making of a guardianship order include that the freedom of decision and freedom of action of such persons should be restricted as little as possible, that such persons should be encouraged, as far as possible, to live a normal life in the community and the practicability of services being provided to the person without the need for the making of such an order: Guardianship Act, s 4(b) and (c) and s 14(2)(d).
In this case the Tribunal made findings of fact about the views of relevant people. The Tribunal also found, as a question of fact, that:
BZF is a tactile person who is not able to regulate boundaries for herself. These traits, combined with her limited ability to process information and communicate, make BZF particularly vulnerable to abuse.
That finding is relevant to the issue of whether BZF is at risk of neglect, abuse or exploitation. Having found that she was a particularly vulnerable person, the Tribunal regarded it as "appropriate that the applicant and the staff at BZF's home should take a vigilant and protective approach to BZF's welfare, and it is incumbent on the Tribunal to take a similar approach." The Tribunal made a guardianship order on that basis.
In our view the Tribunal failed to observe the principles and take into account the factors in s 4(b) and (c) and s 14(2)(d). The Tribunal should have considered whether its finding about vulnerability meant that it was necessary to restrict BZF's freedom of decision and freedom of action. Relevant considerations include whether services, including decisions about access, could be provided without the need for making a guardianship order. A further relevant consideration is whether informal decision making arrangements are in place or have broken down. If they have broken down, there may be no way of protecting the person from neglect abuse or exploitation other than by making a guardianship order.
As Mr Legg representing BZE pointed out, if the Tribunal's reasoning process was sound then a guardian would have to be appointed for every person who is particularly vulnerable to neglect, abuse or exploitation. That plainly was not the intent of the legislative scheme.
In summary, the Tribunal failed to take into account a relevant consideration that it was bound to take into account. That consideration was whether services, including decisions about access, could be provided without the need for making a guardianship order together with the principles in s 4(b) and (c).
In light of this error, we have decided to direct the Guardianship Division to reconsider BZG's application: NCAT Act, s 81(1)(e). We make that decision so that any further relevant evidence can be adduced including evidence as to whether informal decision making arrangements are sufficient to protect BZF from any risk of neglect, abuse or exploitation.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 01 April 2015