CKG v Public Guardian

NCAT Appeal Panel|2014-06-24

reasons for decision 1Mr CKH is Vietnamese and came to Australia with his family in 1987 at the age of 25. CKH has cerebal palsy and also has been diagnosed as having a mild intellectual disability and mental illness. For many years his parents provided him with personal care and accommodation. 2In 1995 CKH became, for the first time, the subject of a guardianship order. The Guardianship Tribunal made a limited guardianship order appointing the Public Guardian to manage certain of his care decisions. Following review in 2000, the Tribunal decided no further order was necessary and the order was permitted to lapse. As a result CKH resumed managing his care needs directly, with the support and assistance of his parents and immediate family. 3CKH's brother, and appellant in this appeal, CKG applied to the Guardianship Tribunal early in 2006 seeking the appointment of a guardian. A new guardianship order was made in February 2006. There were three-year reviews in 2007, 2010 and 2013, and CKG's appointment was continued. 4In the 2013 decision the Tribunal directed that the order be reviewed in 12 months' time rather than in three years' time. In setting the shorter review period, the Tribunal was influenced by an expert report from CKH's treating behavioural psychologist, Mr McIntyre. The Tribunal endorsed his recommendation that the Behaviour Intervention and Support Plan (BISP) last completed in 2009 be updated. The Tribunal noted in that regard the need to examine two restrictive practices to which CKH was subject (restricted access to cigarettes and only being allowed to access the wider community accompanied). 5The review took place in February 2014. In its decision dated 24 February 2014, the Guardianship Division of this Tribunal (the successor to the Guardianship Tribunal) decided not to renew CKH's apppointment as guardian and appointed instead the Public Guardian. 6CKG now appeals under s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The appeal has been heard by a three member panel constituted in accordance with the Act (sch 6, cl 13). The scope of the appeal is regulated by s 80(2)(b). An appellant may appeal 'on any question of law, or with the leave of the Appeal Panel, on any other grounds'. 7The respondents to CKG's appeal are the Public Guardian and the subject person (CKH). Following a directions hearing on 22 May 2014, Ms Betty Weule was appointed as special guardian for the purpose of the legal proceedings (guardian ad litem) for CKH. She was present at the appeal hearing. Ms Simeonides of the Legal Aid Commission appeared as legal representative for CKH and Ms Weule. The Public Guardian did not attend, and entered a submitting appearance. A number of members of CKH's family attended the hearing, along with a staff member from his present care facility, House With No Steps, Minto (HWNS).

The Tribunal's Reasons 8The Tribunal concluded that CKG was no longer adequately able to perform the role of guardian for his brother. There being no other private person identified by the Tribunal as willing and able to perform the role of guardian for CKH, the Tribunal appointed the Public Guardian. 9In its reasons the Tribunal noted that CKH had lived at his present group home, HWNS, since August 2011. The reasons for decision referred to various criticisms CKG had of the adequacy of the care provided there, and his view that CKH would better placed somewhere else (though no alternative option was presented). The reasons referred to his concern over the need to restrict CKH in relation to the use of cigarettes. The reasons referred to his view that CKH would be benefit from practices that were more culturally sensitive, including in relation to meal types. The Division referred in considerable detail to the information given to it by three members of staff of the HWNS, by way of a written report filed prior to the hearing and orally at the hearing. The Tribunal, in deciding not to continue CKG as guardian, gave weight to several matters raised in the report in criticism of CKG. They included, for example, concerns as to his conduct in the care facility, for example, that he had been 'abusive and rude' to staff; and that when he visited he gave CKG cigarettes on request, disregarding the restrictive practice that was in place. The reasons also referred to reported attempts by CKG to have CKH taken off all medications, a step not approved by his medical staff, some of whom (e.g. Dr Nguyen) have been attending to his needs for many years. We will not repeat all the concerns here. 10In conclusion the Tribunal said: 'In recommending that the Public Guardian be appointed Ms Lui and Ms Mojesko [senior staff, HWNS] acknowledged the strong bond between CKH and his brother. However, the issues they had raised in relation to alleged misrepresentation of medical advice, lack of sharing of information to enable proper care to be provided, and, the breakdown in communication and ability to liaise with [CKG] about [CKH's] care, had reportedly limited HWNS ability to provide support in all areas of his life. During the hearing [CKG] was given the opportunity to respond to the concerns raised by HWNS in relation to their recommendation that the Public Guardian be appointed as [CKH's] guardian. In contrast to earlier evidence, [CKG] said that communication with staff at HWNS was no problem for him at all. He said his main problem was with management and the frequent changes of staff supporting his brother. Mr CKG reiterated his general dissatisfaction with the use of casual inexperienced staff and the inconsistency in staff supporting [CKG] and attending appointments with him. Late in the hearing Mr CKG stated that he had only received the report from Ms Lui and Ms Mozejko from HWNS on the Wednesday prior ot the Monday hearing date. He said he had not had sufficient time to prepare a response to the information contained therein, particularly in regard to the issue of who should be appointed as guardian. He claimed the information from HWNS was not true. Mr CKG did not request the Tribunal to adjourn the matter. The Tribunal takes the view that in order for a person to be appointed as a private guardian to be 'able' to exercise the functions of the order they must be able reliably and effectively to consult and communicate with all relevant stakeholders in a reasonable and common-sense manner in order to make and give effect to decision in the best interests of the subject person. The Tribunal was not satisfied that [CKG] is able to adequately fulfil this requirement in the role of guardian at present, notwithstanding his apparent genuine concern for the welfare of his brother. It was evident that [CKG] has come into conflict with and lacks confidence in [CKH's] accommodation service. The attitude of [CKG] that the service is negligent and lacking in their duty of care raised doubt about his willingness and ability to engage in proper and reasonable weighting of their opinions as it relates to their contribution to his brother's care presently. The Tribunal was persuaded that this attitude had resulted in uncertainty and (reciprocal) distrust, and, had impeded optimal service provision to [CKH]. The Tribunal is not satisfied that Mr CKG meets the requirements to be appointed as guardian for [CKH]. No other private person was proposed. The Tribunal therefore, determined that the Public Guardian should now be appointed.'

The Appeal 11In his notice of appeal CKG raised a number of points all of which may be gathered together as a claim that he was denied procedural fairness in the way the Tribunal conducted its proceedings: for instance, 'insufficient preparation time prior to hearing', 'insufficient time within the hearing session', 'not informed of entitlement to adjourn hearing', 'not notified that a private guardian option was available'. He also raised as an issue the 'misleading and false allegations made against me'. He asserted that these allegations formed the basis of the Tribunal's decision to replace him as guardian. In regard to the option of a private guardian, he referred to the possibility that his son, Phillip, might be suitable. In his submissions he raised numerous matters going to the merits of he being reinstated as guardian, and requested that the Appeal Panel make an order to that effect. 12In his oral submissions at hearing CKG referred to these points, and gave reasons why he should be reinstated. The special guardian for the proceedings (the guardian ad litem), Ms Weule, made no submissions on that issue. She had met with CKH at the care facility and expressed her satisfaction with the standard of care being provided at HWNS. Ms Simeonides, legal representative, made submissions in relation to the relevant law. There was no active contradictor to CKG's appeal. 13The guardianship jurisdiction of the Tribunal is protective in nature. Any decision that is made must ultimately be guided by what is in the best interests of the subject person, here CKH.

Procedural Fairness 14Nonetheless, the Tribunal is bound to accord procedural fairness ( or 'natural justice') to parties to its proceedings, and, in addition to persons whose interests, rights or legitimate expectations are affected: see, generally, Hess v Public Guardian [2005] NSWADTAP 43 at [20] ff. The duty derives from the common law, and is reinforced by s 38(2) and (5) of the NCAT Act, as follows: (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 15CKG's principal concern was that he was not given an adequate opportunity to respond to the negative material contained in the HWNS staff report to the Tribunal, sent by the manager, Ms Anneliese Mojesko. He received it late Wednesday for a Monday morning hearing. He said that he had little time available over the intervening four days to organise his response to the several matters raised, as he was working each of those days as a driver of accessible taxis. 16Further, similarly to the situation in Hess, CKG is a person of non-English speaking background, in his case Vietnamese. His oral submissions to us and his written submissions suggest a good facility with English. It is, nevertheless, his second language. There was a Vietnamese interpreter present both before the Tribunal below and the Appeal Panel. We note that CKG occasionally called on the interpreter for assistance. 17The Division Registry prepared for us a transcript of relevant passages from the recording of the proceedings. It follows: Hearing scheduled on Monday 24 February 2014 Actual recording start time: 11:32:20 am Actual break time: 1:01:51 pm - 1:13:23 pm Actual recording end time: 1:17:32 pm 12:48:30 CKG: I got this letter from Dr Ivy Vu TRIBUNAL: I can't, uhm...what does it say? Can you tell me... CKG: You know, because I received the report of Annieliese in which, you know, she mentioned about of on the issue, you know, the abuse, you know, which happened...so I received her report too late and I haven't got time, you know, to bring all the document as you know, to the Tribunal...and I just received it on Friday, you know, last Friday, that means a few days ago, that's in relation to the complaint from Annieliese about, you know, about the abuse, you know, to the doctor...and what she said, she said here I abused the doctor, I abuse the medical centre staff, is not true..and so many other things in here are not true. TRIBUNAL: Okay 12:59:07 [CKG : Excuse me...you know I could have submitted more information, but because, I did not expect, I was very surprised, you know, when last Wendesday, I received a report in which there was an attachment from Annieliese, to make a submission?? that a paper, need to be appointed...so I had not time to prepare TRIBUNAL: So you received that last Wednesday? CKG: Yeah, I received it last Wednesday. So I still got some more information I'd like to show you but because I have got time to send it, you know, to the Tribunal. So and maybe, you know, many issue, you know, raised in Annieliese' report, many of them are untrue. And I haven't got, you know, here because we haven't got much time for me, you know, to prove, you know, to bring every, you know, every, evidence, against every, you know, each issue in the report. 18While CKG did have have an opportunity to respond orally at hearing, in our view it was not unreasonable of him to raise as he did his concern about the shortness of the notice of the criticisms of his conduct. 19In our opinion, he could not reasonably have anticipated ahead of receiving the HWNS material or from the course of the previous reviews, in particular the 2013 review, that his appointment was in jeopardy. The 2013 review had raised an important concern - the need for a up to date BISP and the need for particular attention to the restrictive conditions, but it went no further. 20Clearly the allegations made against him were grave ones. If well founded, they would very likely have led any Tribunal to consider terminating his appointment. In giving the emphasis it did to the account given by the care givers at HWNS in its written reasons, the Tribunal in effect adopted the HWNS criticisms as its own. 21The case has similarities to Hess, cited above. In that instance a person with an interest in application to place a person under guardianship had been the subject of adverse evidence. He appealed. He was of Hungarian background. He had been confronted in the course of the hearing with an adverse report, suggesting he had a manipulative relationship to the subject person, a woman to whom he had been close over many years. At the hearing he was given an opportunity to respond. There was a Hungarian intepreter present who assisted him. There was a second adverse report about him from another person. The Tribunal relied on both reports in reaching its decision to appoint a guardian. At the appeal hearing, he gave evidence. The Appeal Panel accepted his evidence that he had not been told about its existence, let alone been allowed to see it. 22In upholding his appeal, and finding that he had been denied procedural fairness, the Appeal Panel said: 19 It was apparent to the Appeal Panel during Mr Hess' evidence that he was a person who would be unable to protect his interests in the hearing of a legal proceeding by reason of his inability to speak and read English, his inability to understand the proceedings and his inability to assert himself. In particular, he would not have realised that he could have applied for an adjournment of proceedings to consider the expert reports or to obtain advice about his options having regard to those reports. Nor did he appreciate that he could present his own evidence concerning the application for guardianship and financial management orders. 23The Tribunal has an obligation under s 38(5)(a) of the NCAT Act to ensure that the parties to the proceedings before it understand the nature of the proceedings. If a party complains of late receipt of material of significance they should be invited to explain why they regard themselves as prejudiced in responding to it in the course of the hearing now on foot. They should be asked why they need further time. They should have explained to them their right to apply for an adjournment or some other direction that might alleviate the prejudice they perceive. It does not follow that the Tribunal must accede to such an application, but the person affected should be given the opportunity in circumstances of the present kind to present their case for an adjournment. 24In Hess, the Appeal Panel cited with approval observations by Nettle J in the Victorian Supreme Court (Collection House Ltd v Taylor [2004] VSC 49 at [27]) and Mahoney JA in the NSW Court of Appeal (Rajski v Scitec Corporation (19 June 1986, unreported)) on the special care that must be shown in relation to persons who are unrepresented. While the tribunal must not enter into the arena by giving specific legal advice to a party, it must ensure that the nature and effect of its processes are understood. Mahoney JA said in Rajski that a court (and similarly, we interpose, a tribunal) 'will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.' 25Though the matter was not addressed at the appeal hearing, we have briefly considered whether the surrounding provisions of the NCAT Act displace or qualify the obligation of procedural fairness. The 'guiding principle' for the Act and for the procedural rules requires their provisions be applied so as 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings' (s 36(1)). This principle does not gainsay in any way the right to be accorded procedural fairness. 26There is also a principle of 'proportionality' (s 36(4)): (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 27Nor does this provision gainsay in any way the right to be accorded procedural fairness. It goes only to the way in which procedural fairness is to be achieved in the circumstances of the case. 28An appeal will not be allowed if the breach of procedural fairness would have made no difference to the outcome of the case: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141. For a recent account of the case-law relevant to this principle, see Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40-44]. 29We consider that it was not fair of the Tribunal to fail to canvass the issue of adjournment with him when he raised the issue of recent receipt of the written reports from HWNS that were so critical of his conduct. The Tribunal needed to identify to him the procedural step (application for adjournment) hat was open to him to take to have his objection properly considered and be the subject of a ruling. It was not fair, as occurred in the written reasons, to foreclose that possibility by criticising him for not having the perspicacity to formulate his concern in the procedural language of a legal proceeding, and press it. 30Had that liberty been extended to him, CKG's concerns, as described in the notice of appeal, over 'insufficient preparation time prior to hearing', 'insufficient time within the hearing session' and the need for further time to respond to the 'misleading and false allegations made against me' might have been able to be addressed. 31In our view he had tenable basis for making an application (he was not being vexatious), and had the application been granted he might have been able, more effectively, to counter the criticisms. We cannot be satisfied that affording him the procedural opportunity of making such an application would have made no difference to the outcome of the case. Had such an application been granted and he had more time to respond (say seven days) it may have turned out that the criticisms were wrong, overstated or going to matters where the differences between the guardian and the care facility belonged to the reasonable area of discourse between a committed guardian and a care facility.

Other Matters 32As previously noted, CKG, responding to the reference in the reasons to the usual rule that a private guardian is preferable, raised in his notice of appeal his concern that he was 'not notified that a private guardian option was available'. We have not reviewed the whole of the recording of the hearing or any preliminary communications to ascertain whether he was informed of this point. As a guardian of long standing who had been to several hearings of the Tribunal, we doubt that he would have been unaware of this point. 33Nonetheless, we need not rule on this aspect of this aspect of the appeal, as the issue can be taken up in the course of action we propose later in these reasons. (We would simply note (as the presiding member did at the directions hearing) that were the Tribunal to decide on reconsideration that CKG is not a suitable private guardian, it may be difficult to satisfy it that CKG's son, Phillip, is a suitable alternative private guardian. While he may have, as CKG has submitted, professional qualifications that suit him to such a role, there would possibly be concern that he might be influenced by his father in exercising his discretions.)

Form of Order 34The Appeal Panel has broad and flexible powers of disposal (see s 81, NCAT Act). They include remittal, or the exercise of the powers available to the Tribunal at first instance. We do not see this as a case where it is preferable for the Appeal Panel to give leave to extend the appeal to the merits. It is better, in our view, that the matter be returned to the Guardianship Division for futher consideration. In this instance we have decided to exercise the Tribunal's power to order a review on its own motion (Guardianship Act 1987, s 25). 35In the ordinary courts the usual consequence of a finding of procedural unfairness is that the affected proceedings are treated as a nullity and orders set aside. If applied to this case, that would mean that the order made 24 February 2014 would have to be set aside. In our view and in accordance with usual practice in the past in this appeals jurisdiction (see, e.g. ADK v NSW Trustee and Guardian [2011] NSWADTAP 60) it is preferable in the interests of stability for the time that the present guardianship order be left in place pending completion of the review. 36In its review, the Tribunal should include in its consideration all the material CKG placed before the Appeal Panel in support of the merits aspect of his appeal, as well as any further material that the care facility and the special guardian (Ms Weule) may wish to place before it.

Orders 1.The appeal is allowed on the question of law. 2.Leave to extend the appeal to the merits is refused. 3.The Appeal Panel directs that the order made 24 February 2014 be reviewed by the Tribunal of its own motion as permitted by s 25(1) of the Guardianship Act 1987. 4.The matter is remitted to the Guardianship Division of the Tribunal for that purpose. 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. Principal 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

Amendments 20 January 2016 - Anonymisation of parties DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2016

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