GH v Public Guardian & Ors

Introduction and issue 1 GH is the daughter of GI, an 89 year old woman who is currently living in a nursing home. On 28 November 2002, on the application of a social welfare worker, the Guardianship Tribunal ordered that GI be placed under guardianship for a period of six months and that the Public Guardian be appointed as her guardian to perform certain functions. When the Tribunal's order came up for review in May 2003, the Tribunal renewed its orders for a period of 3 years. The functions which the Tribunal conferred on the Public Guardian in relation to GI were: Accommodation : to determine where GI may reside Health Care: to determine what health care and major and minor medical and dental treatment GI may receive Medical and dental consent: Where GI is not capable of giving a valid consent to her own treatment, to make substitute decisions on her behalf about medical or dental treatment proposed for her by others under the provisions of Part 5 of the Guardianship Act Services: to make decisions on her behalf concerning major services to which she should have access. 2 It is the decision reviewing the guardianship order that is the subject of these proceedings. There was no dispute before the Tribunal, or the Appeal Panel, that GI has a disability, is incapable of managing for herself and is in need of a guardian. (See s 3, definition of "person in need of a guardian".) GH submitted that the Tribunal should have appointed herself as GI's guardian instead of the Public Guardian. Jurisdiction and powers of the Appeal Panel 3 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.) GH did not appeal on a question of law but sought leave to appeal against the merits of the decisions. 4 The Appeal Panel may make such orders as it thinks appropriate including affirming or setting aside the Tribunal's orders and remitting the matter to be heard and decided again. (Section 118C of the ADT Act.) Parties and representation 5 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the Tribunal. (Section 67(2A)(d) of the ADT Act and rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 - "the Regulation".) GH appeared without legal representation. GI appeared and was represented by Ms Bryant, a solicitor with The Aged-Care Rights Service (TARS). 6 While the Protective Commissioner is also a party to the appeal, he chose not to play any role in the proceedings. The Tribunal itself is entitled to be a party to the proceedings. (Section 67(2B) of the ADT Act.) The Tribunal elected to be a party and Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role is limited to making submissions in relation to the powers and procedure of the Tribunal. 7 Mr Free, an officer from the Crown Solicitor's Office, assisted the Appeal Panel pursuant to s 67(2C) of the ADT Act. Mr Free asked the Appeal Panel to come to a firm view on the question of whether the person performing that role is a party to the proceedings. In GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52 the Appeal Panel formed the provisional view that such a person was not a party to the proceedings. The Panel said, at [8] to [10]: Although the issue was not raised in the hearing, the question of whether a person assisting the Appeal Panel is a party to the proceedings, is an important one. The Appeal Panel's power to appoint a person to assist it comes from s 67(2C) of the ADT Act which states that: The rules of the Tribunal may, in respect of an external appeal, make provision for the parties to any such appeal (including the designation of a respondent or other person to assist the Tribunal in the proceedings). Rule 41A(2) of Schedule 1 to the Regulation states that: For the purposes of section 67(2C) of the Act, the Tribunal may designate a respondent or other person to assist the Tribunal in external appeal proceedings. While we do not intend to come to a definitive view on this question given the fact that it was not raised as an issue, we are of the provisional view that unlike a respondent, a person assisting the Appeal Panel is not a party to the proceedings. It is arguable that s 67(2C) only envisages the appointment of parties, but in the case of an officer assisting, that person has no interest in the proceedings and is not advocating or defending a particular position. Their role is to assist the Appeal Panel in coming to a fully informed and legally correct decision. Designation as a party would allow the person to appeal against the decision and leave them open to an adverse costs order. Neither of those outcomes is appropriate for a person whose role is to assist the Tribunal in its deliberations. 8 In the current proceedings, none of the parties submitted that a person appointed to assist the Tribunal under s 67(2C) should be regarded as a party. Consequently, having given all the parties, as well as Mr Free, an opportunity to be heard on this issue, we confirm the Appeal Panel's provisional view that a person appointed by the Appeal Panel under s 67(2C) is not a party to the proceedings. Grounds of Appeal 9 GH did not appeal on a question of law. She sought the Appeal Panel's leave for the appeal to include the merits of the decision. In support of that application, she attached an "Action Plan" in relation to her mother. Later GH elaborated on her grounds of appeal stating that she did not want the Public Guardian to be appointed to perform any of the functions listed above at [1], apart from the provision of services. The splitting of functions between guardians is permitted by s 16(3) of the Act. In relation to the accommodation function, GH submitted that decisions about where GI should live ought be a family, rather than a government, decision. GH maintained that the family is aware of when GI will require a higher standard of care, for example in a nursing home, and that decision can be made at that time. In relation to the health care function, GH submitted that in some cases she has to make the decisions about medical treatment because the Public Guardian is unable to be contacted to obtain permission for treatment. In addition, GH is a registered nurse with extensive experience with aged patients. Finally, in relation to the medical and dental consent function, GH submitted that she knows GI's wishes about medical and dental treatment. 10 While GH maintained that she and her sister, together with their partners, should make decisions for GI, we have taken GH's submission to be that she should be appointed as her mother's guardian except in relation to the function of providing services which she is happy for the Public Guardian to perform. GH's sister did not participate in the hearing. She wrote a letter to the Guardianship Tribunal on 27 June 2003 stating that if GH had appealed against the Tribunal's decision she did not want to play any part in that appeal. Statutory framework 11 Section 4 of the Act places a duty on every person exercising functions under the Act, to observe certain principles. Those principles are as follows: (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. 12 Guardianship orders. The Tribunal's jurisdiction to make a guardianship order is set out in s 14 of the Act. Its power to review a guardianship order is contained in s 25. In this case, the order was reviewed pursuant to s 25(2)(b) as the original order was due to expire. Under s 25C(2), on reviewing the order, the Tribunal may: (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect). 13 While the provisions of Part 3, Division 3 of the Act set out the criteria for the making of a guardianship order, no criteria are set out in s 25 in relation to the Tribunal's powers to review such an order. In contrast, s 25P of the Act sets out the test which the Tribunal must apply when reviewing a financial management order. Mr Free submitted that the Tribunal's function when reviewing a guardianship order is to determine whether the pre-requisites to the making of the guardianship order still exist. In addition, when reviewing a guardianship order the Tribunal must keep in mind the factors that are relevant to the making of an order. These include the fact that the appointment of the Public Guardian should be made as a last resort. Section 15(3) of the Act states that: A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. 14 However, that "other person" needs to have certain attributes. Under s 17 of the Act: (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied 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. Tribunal's decision 15 The Tribunal noted that GI is living with her daughter GH, and her daughter's husband. (That situation changed prior to the Appeal Panel hearing. GI is now living in a nursing home.) The parts of the decision relating to the question of whether GH is a suitable guardian for GI are as follows: [GH] told the Tribunal that she wanted the present arrangements to continue by which her mother stayed at home. She asked the Tribunal to vary its guardianship order so that she and her sister. . . would be the ones to make the decision as to when GI went into full-time care in an aged care facility should that become necessary. The Tribunal discussed with [GH] the difficulty that she would face making a decision in the best interests of her mother when emotionally she wanted her mother to stay with her. [GH] showed a limited capacity to understand this point. The service providers attending the hearing indicated that they considered it appropriate in [GI's] interests that an independent outsider be the substitute decision-maker about this and other issues. They favoured the continuation of the present guardianship order. The Public Guardian's view advised to the Tribunal in the Public Guardian's report prepared for this hearing was that [GI] needed to have a guardian in the area of accommodation, services and health care. The Tribunal considered that a continuation of the guardianship order as originally made was required in [GI's] best interests. Under such an order the Public Guardian is the substitute decision-maker about medical and dental treatment proposed for [GI] by others. Submissions 16 Ms Bryant, representing GI, told the Appeal Panel that she had met with GI and that she is very frail woman who uses a wheel chair. She requires assistance with being transferred from bed to chair, to motor vehicle etc. Ms Bryant formed the view that GI did not have the functional capacity to provide her with instructions. Having met with some of GI's service providers, the person acting as the Public Guardian for GI and with various case workers and medical practitioners, Ms Bryant's view was that the Tribunal's decision was in GI's best interests. She submitted that GH had not identified any error of law and that the orders should stand. 17 Mr Free submitted that while the Tribunal's decision did not set out the test it was applying, that omission could be explained by the fact that there is no specific statutory test that the Tribunal must apply when reviewing guardianship orders. However, Mr Free pointed out that when reviewing a guardianship order, the Tribunal would need to be satisfied that the findings which formed the basis of its original decision still existed. According to Mr Free, the Tribunal did not look at these matters afresh, but merely satisfied itself that nothing had changed. 18 Mr Free agreed with Ms Bryant's submission that since no question of law had been identified, the issue was whether the Appeal Panel should grant leave for the appeal to be heard on the merits of the Tribunal's decision. Mr Free referred to the Supreme Court's decisions in K v K [2000] NSWSC 1052 and the Appeal Panel's reference to that decision in GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52. In addition to the passage from K v K quoted in GS, Mr Free highlighted the passage at [14] where Young J noted that the legislature has committed the primary working out of the Guardianship Act to the Tribunal and its decisions are to be given great weight. The Court (and by analogy, the Appeal Panel) should not interfere if the Tribunal has directed itself "properly and fairly on the facts" and has "not gone wrong in law." The passage from K v K cited in GS appears at [15] of the Supreme Court's decision: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 19 Submissions were made which referred to criminal proceedings which had been finalised or were pending against GI. Those matters were not before the Tribunal when it made its decision and unless the Appeal Panel grants leave for the appeal to extend to the merits of the Tribunal's decision, GI's criminal history is not relevant. Appeal Panel's decision 20 GH did not appeal on a question of law, but it is incumbent on the Appeal Panel, especially when the appellant is unrepresented, to raise matters with the parties that could amount an error of law. One such matter was the Tribunal's failure to point to any of the legislative tests it was taking into account in reaching its decision. As we noted above at [13], there is no specific legislative test in relation to the review of a guardianship order. According to Mr Free, although the Tribunal did not specifically identify the factors it was taking into account in coming to its decision, it can be inferred that the Tribunal directed its mind to all the relevant matters including those set out in s 4 and in s 15(3) and s 17(1). We agree with that observation and are satisfied that the Tribunal has not fallen into error merely by failing to identify the relevant provisions on which its review decision was impliedly based. 21 There being no error of law, the next question for the Appeal Panel is whether to grant leave to hear an appeal on the merits of the decision. GH did not provide any submissions in support of her application for leave other than reasons for disagreeing with the Tribunal's appointment of the Public Guardian. 22 Mr Free submitted that the Appeal Panel should consider whether leave should be granted in light of the fact that the Act allows anyone with a genuine concern for the welfare of the person under guardianship to apply for a review of a guardianship order. Under s 25B(d) the Tribunal must review the order if such a person applies for a review unless, pursuant to s 25A, the request "does not disclose grounds that warrant a review" or "the Tribunal has previously reviewed the order.. . " In this case, while GH could apply to the Tribunal for a review of the order, it is unlikely that the Tribunal would accede to such a request unless, for example, there was relevant evidence which was not available when the order was reviewed in May. Consequently, in this case the fact that GH is entitled to apply to the Tribunal for a review of the order is not a factor which suggests that the Appeal Panel should refuse GH leave to appeal. 23 In accordance with the decision of Young J in K v K, one basis for granting leave would be if the Tribunal has gone about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result. The Tribunal's decision sets out the oral and documentary evidence available to it. The transcript of the proceedings was not made available to the Appeal Panel. Furthermore, the reports which were available to the Tribunal when it made its original decision were not included as part of the material on which the Tribunal based its review decision. These circumstances, and the fact that the Tribunal did not refer in any detail to this evidence in its decision, make it difficult to assess whether or not the Tribunal's concerns about appointing GH as GI's guardian were based on logically probative evidence. However, in the absence of any positive indication or indeed suggestion that the Tribunal went about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result, we decline to grant leave on that basis. 24 No other matters were brought to our attention which would suggest that leave should be granted to extend the appeal to the merits of the Tribunal's decision. Because the legislature has given the Tribunal primary responsibility for appointing substitute decision makers, the Appeal Panel should not assume that responsibility unless there is a persuasive reason for doing so. Order 1. The appellant's application for leave to appeal against the merits of the Guardianship Tribunal's decision is refused. 2. The appeal is dismissed.