LX v NSW Trustee [2009] NSWSC 415 | Case summary

REASONS FOR DECISION 1 The appellant, whom we refer to in these reasons by the pseudonym 'LX', appeals against a decision made by the Guardianship Tribunal appointing the NSW Trustee (formerly the Protective Commissioner) to manage her estate. She asserts that the Tribunal denied her procedural fairness, based its decision on flawed expert evidence and failed to have regard to a relevant consideration - namely a proposal to provide her with assistance in managing her affairs. 2 The Tribunal considered and dismissed an application for guardianship orders. That decision is not the subject of this Appeal. 3 The only parties to participate in the Appeal were the appellant and the second respondent. The appellant was represented by solicitor, Dr Ben Gelin. She also participated in the hearing. The second respondent, Dr Margaret Gartrell, attended in person. Dr Gartrell was the applicant in the proceedings before the Guardianship Tribunal. The third respondent, LY, the appellant's son, wrote to the Appeal Panel advising that he was unable to attend. He stated that he supported the Appeal and believed that his mother was fully competent to make her own decisions and manage her affairs. 4 The appellant made an application to the Administrative Decisions Tribunal for a stay of the financial management order made by the Guardianship Tribunal. That application was refused. 5 All references in these reasons to 'the Tribunal' are to the NSW Guardianship Tribunal. Background 6 The appellant is a 79-year-old woman who suffers from a number of medical conditions ― brain tumours, osteoarthritis, back problems and morbid obesity. Since December 2008 the appellant has lived in a nursing home in Richmond and is reported to be settled and content. 7 In late 2007, the appellant's health deteriorated and she went to live with her daughter in Bathurst. Until then she had been living at home with assistance from her son. In early 2008, she fell and fractured her spine and underwent surgery. She then had a prolonged stay at Bathurst Base Hospital before being transferred to Bathurst Nursing Home in June of that year. 8 Around this time, the relationship between the appellant's son and daughter, which apparently had been strained for many years, soured. Each accused the other of exploiting their mother and not providing her with proper care. Matters came to a head in September 2008 when the appellant executed a Power of Attorney appointing her son as sole attorney and revoking the Power of Attorney, made eight months earlier, that had appointed her daughter as sole attorney. At about this time the son threatened to remove the appellant from Bathurst Nursing Home. The daughter was of the view that her mother was well cared for and should not be moved. The son believed that his mother should live with him or a nursing home closer to where he lived. Matters were further complicated by a dispute with the Nursing Home about the fees payable by the appellant. 9 It was against this background that Dr Margaret Gartrell, clinical nurse consultant with the Bathurst Aged Care Assessment Team, made an application to the Guardianship Tribunal. Dr Gartrell wrote that: She was concerned about the revocation of the POA and the son's insistence that the appellant be moved from Bathurst Nursing Home; It was her belief that the son's 'ultimate objective' was to bring his mother home which she believed would be 'disastrous' as he could not provide the level of care that she now required; The appellant was being exposed to escalating conflict between her children and that her son was 'angling to have his mother's house signed over to him'; The Director and staff of the nursing home felt that the appellant lacked capacity to make a decision about the POA. 10 The matter was listed for an urgent hearing before the Guardianship Tribunal on 12 September 2008. Proceedings were adjourned to a further hearing on 21 November 2008 to allow an assessment to be carried out about by neuropsychologist, Dr Suzanne Davis. 11 In the Appeal, the appellant tendered a copy of the transcript of the Guardianship Tribunal proceedings. It is common ground that it was incomplete and contained a number of errors. (See letter from Dr Gelin to the ADT, 11 May 2009.) Jurisdiction 12 It is not in issue that the Appeal Panel has power to hear an appeal from the decision. Appeals from such decisions are described as 'external appeals' (s 118A of the Administrative Decisions Tribunal Act 1997). 13 Section 118B of the Administrative Decisions Tribunal Act provides that an external appeal may be made, as of right, on any question of law and, with the leave of the Appeal Panel, on any other ground. Grounds of Appeal 14 In broad terms, the errors of law relied on are: (a) Failure to afford procedural fairness, in that the Tribunal did not provide the appellant with an opportunity to test or rebut adverse evidence or make final submissions; (b) Failure to take into account a relevant consideration, namely a proposal endorsed by the appellant and supported by others which, if adopted, would have provided her with support and assistance to manage her financial affairs; (c) Failure to attempt conciliation; (d) Having regard to the opinion of a purported expert who lacked relevant qualifications and, furthermore, making an error of fact in dealing with that evidence. 15 The appellant also seeks leave for the Appeal to proceed on the grounds of fresh evidence relevant to the issue of capacity. Failure to afford procedural fairness 16 The appellant asserts that she was not given an opportunity to cross-examine key witnesses, specifically Dr Colin Jamieson, her GP from August 2007 to June 2008, her daughter, and the Director of Nursing, Bathurst Nursing Home. All gave evidence to the effect that the appellant lacked capacity. Furthermore, she contends that she was not given a reasonable opportunity to make closing submissions. 17 The Tribunal did not invite any party to cross-examine any witness nor was an application made. In this Appeal, Dr Gelin said it had been his experience that the Tribunal did not generally permit cross-examination and for that reason he did not make an application. 18 A long line of Appeal Panel decisions has held that the Guardianship Tribunal is required to afford procedural fairness, which includes that parties to applications before the Tribunal receive a fair hearing. See for example GM v Protective Commissioner & Ors [2003] NSWADTAP 59; KA v Public Guardian & Ors [2004] NSWADTAP 25; KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; Carew v Protective Commissioner and Ors [2005] NSWADTAP 13. Among other things the rules of procedural fairness require that the Tribunal must disclose to all parties with an interest in the proceedings, the substance of any adverse or prejudicial information and provide them a reasonable opportunity to respond. 19 The Guardianship Act 1987 provides that a party to proceedings may cross-examine any witness called by another party: s 59(b). 20 Findings and conclusions The transcript - while of poor quality - reveals that the appellant was given an opportunity to comment about key matters raised by Dr Jamieson, her daughter and the Director of Nursing. 21 At the beginning of the second day, the Tribunal spoke to the appellant alone. Dr Gelin was present. The Tribunal summarised the evidence the appellant now characterises as adverse. She was given, and took, the opportunity to respond. (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, pp 6, 7, 8-15). When the hearing resumed with all parties present, the Tribunal summarised those discussions and gave all parties, including the appellant, an opportunity to comment (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, pp 16-20). 22 Dr Gelin was invited to make submissions about Dr Jamieson's report. He did so and also addressed various matters raised by the Director of Nursing and LX's daughter (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, pp 37-40). Those submissions expanded on detailed argument made on the first day of proceedings about the appellant's capacity to manage her affairs. At the close of proceedings Dr Gelin was given a further opportunity to make submissions (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, pp 16-20 pp 54-58). 23 In proceedings before the Tribunal, the refusal to allow cross-examination could, in certain circumstances, constitute a failure to afford procedural fairness. However in the circumstances of this case where the appellant was given an opportunity to rebut testimony and make submissions and - critically - was legally represented, it cannot in our view be said that the Tribunal's failure to invite cross-examination constitutes a failure to afford procedural fairness. 24 In our view no error of law arises. Failure to conciliate 25 The appellant asserts that the Tribunal failed to comply with its statutory obligation to attempt to bring the parties to a settlement. Section 66 of the Guardianship Act provides that the Tribunal shall not make a decision in respect of an application made to it until it has brought or used its best endeavours to bring the parties to a settlement. 26 In support of this contention the appellant relies on the following extract from the Reasons for Decision (p 2): 'There was no considerable dispute in this matter, particularly between [the appellant's] son and daughter'. 27 She contends that the words 'there was no considerable dispute' indicate that the Tribunal did not try to bring the parties to a settlement. 28 The offending sentence is contained in the following passage: Conciliation Before it makes a decision the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. There was no considerable dispute in this matter, particularly between [the appellant's] son and daughter. It become apparent that there were long standing differences, and it soon become clear that it was not possible to bring the parties to an agreed outcome in regard to the issues relevant to the determination of this application [emphasis added]. 29 A fair reading of this passage indicates that the phrase 'there was no considerable dispute' was a slip. This is apparent from the remainder of the passage and the numerous references throughout the Reasons to the dispute between the siblings. 30 The Transcript reveals that the Tribunal made a genuine attempt to bring the parties to settlement. Indeed, the Tribunal's efforts enjoyed a measure of success with an agreement brokered on the first day of proceedings which preserved the status quo until further evidence could be obtained and the matter re-listed. 31 In our view, the Tribunal fully complied with its statutory obligation to use its best endeavours to bring the parties to a settlement. No error of law is disclosed. Failure to consider the alternative proposal 32 Dr Gelin contended that the Tribunal failed to give proper regard to a proposal that, if adopted, would see him take on a role in assisting the appellant manage her affairs ('the proposal'). 33 Dr Gelin outlined the proposal towards the close of proceedings. In broad terms the proposal was that he and the appellant's son be appointed joint attorneys. He told the Tribunal that this arrangement would obviate the need for appointment of a financial manager and allow him to take on a role in mediating difficulties between family members. The appellant told the Tribunal that she endorsed the proposal. The Tribunal took a short adjournment and on return announced that it considered the proposal unworkable and gave brief reasons. The Tribunal then proceeded to give reasons for its decision in relation to the substantive applications. 34 In rejecting the proposal, the Presiding Member said (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, p 62): We have also considered the proposal that Mr Gelin made toward the end of the hearing today, namely that in order to address some of these issues that he have a more direct involvement through being appointed as an attorney. But we are not confident that that would work effectively, and that's mainly because we are not confident that having joint attorneys, one of whom is [LY], is going to work in [the appellant's] best interests. That will leave her in a situation still, even where there are two attorneys, where there is at least a potential and a lot in our view for further conflict to exist and difficulties in decision making. We respectfully welcome the suggestion that Mr Gelin has made to be further involved in a negotiating role or a mediating role in terms of sorting the issues out. But we don't feel the appropriate way of doing that is through his appointment as we don't think it's going to work in the best interest to have him appointed as a joint attorney. 35 While the written Reasons made no mention of the proposal, it is apparent from the above extract that it was taken into account and not, as the appellant contends, discursively dismissed. It was open to the Tribunal having considered the proposal to reject it. That the Tribunal adjourned for what is said to be a very short period does not mean that the proposal was not taken into account. The oral reasons reveal that the proposal was considered and cogent reasons given for not adopting it. 36 This ground is in truth an attack on the merits of the decision and does not amount to an error of law. Flawed expert evidence 37 The appellant contends that the Tribunal erred in its consideration of the medical evidence by: 1. Having regard to Dr Jamieson's opinion despite the fact that he was a GP and, according to the appellant not qualified to assess her psychological functioning; 2. Preferring Dr Jamieson's opinion over that of neuropsychologist, Dr Davis; 3. Proceeding on the basis of an error of fact by accepting that Dr Jamieson had known the appellant for a lengthy period when in fact he had only been her GP for a short period. 38 To put these arguments in context it is necessary to sketch in the background to the Tribunal's findings on capacity. 39 The Tribunal was provided with three pieces of medical evidence relevant to the issue of capacity: a report prepared by Dr Jamieson dated 20 October 2008; a report prepared by Dr Davies dated 16 September 2008, and, an extract from the clinical notes of Dr Chew. 40 Dr Chew took over the care of the appellant from Dr Davies, in mid 2008. The Tribunal stated that it gave no weight to the 'reported views' of Dr Chew as it was unaware of the context of the comment quoted from his notes. (Reasons for Decision, p 10). No issue is taken with that approach. Apparently the Tribunal was not provided with a copy of the notes. 41 Dr Jamieson in his report offered a diagnosis of 'early onset dementia' and expressed the opinion that the appellant 'had no insight into the consequences of her decisions when it comes to finances and her son's ability to manage those finances'. 42 Dr Davies assessed the appellant in October 2008. She found 'no evidence of significant cognitive dysfunction as would be expected with dementia. …I do not believe she has a cognitive disability under the [Guardianship] Act' (report, 16 September 2008). 43 The Tribunal examined the conflicting evidence and concluded (at 10) that the appellant's symptoms were: '[M]ore suggestive of a permanent dementing condition, rather than any delirium associated with a temporary physical condition'. 44 The Tribunal went on to find (at 10): [O]n balance that [the appellant] is a person in need of a guardian… because her cognitive impairments cause her at least partly unable to manage her person in the sense of making informed decisions about significant issues. The Tribunal is further satisfied that [the appellant] is not capable of managing her financial affairs…To properly plan for the future she must be able to understand her illness, and not be influenced by delusional thoughts. The Tribunal is satisfied that [the appellant's] altered thinking impedes her ability to make clear decisions about her financial affairs. 45 Unqualified to offer an opinion The appellant contends that her GP had no 'qualifications to make psychological or psychiatric assessment, much less to practice as a family therapist'. She contends that his diagnosis of early onset dementia is 'absurd'. She contends that it was not open to the Tribunal to prefer his opinion to of neuropsychologist Dr Davies, who believed there to be 'no evidence of significant cognitive impairment'. 46 Provided that the doctor is qualified by virtue of training, study or experience, the fact that a doctor is a General Practitioner rather than a specialist does not, of itself, disqualify him or her from offering an expert opinion in a relevant field of expertise. The Tribunal was sufficiently satisfied that the GP had the relevant qualification and admitted the report. Thereafter, whether the GP's opinion was preferred to that of the neuropsychologist by the Tribunal depended on the relative weight attached by the Tribunal to each opinion. 47 In our view, it would not be surprising if a GP with some years in practice was qualified by virtue of experience and on-the-job study of relevant medical literature to undertake assessments of a person's cognitive function. It is a matter of common knowledge that dementia is a pervasive disorder affecting elderly people and that GPs quite frequently encounter and treat such patients. While to admit the expert opinion of an unqualified person would be an error of law we do not consider that the Tribunal was in error on this point. 48 Preferring Dr Jamieson's opinion The appellant's alternative submission is that the Tribunal erred in preferring Dr Jamieson's opinion over that of Dr Davies as the former was a specialist with undisputed qualifications in the field of neuropsychology. 49 An assertion that a finding of fact or ultimate conclusion is against the weight of evidence does not amount to a question of law (Haines v Leves (1987) 8 NSWLR 442; Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149). The weight to be given to the opinion of the experts was a matter for the Tribunal. 50 Error of fact The appellant contends that the Tribunal erred by misconstruing Dr Jamieson's evidence. She contends that the Tribunal proceeded on the mistaken assumption, that Dr Jamieson had based his opinion in part at least on his observations of her before she came into his care. The Tribunal apparently made that finding on the basis of the daughter's evidence. Dr Jamieson made no mention in his report of any contact, association or knowledge of the appellant before she came into his care. 51 In oral reasons the Tribunal said: (Transcript of proceedings, Guardianship Tribunal, 21 November 2008, p 60): [Dr Jamieson] has been a long term GP and although he hasn't seen [the appellant] for some time we accept that he had a history of dealing with her which is something we should not ignore in terms of the evidence that he provides. We do take that into account… 52 The Tribunal in its written reasons correctly stated that the appellant came into Dr Jamieson's care in November 2007. It went on to state (pp 8, 10): The Tribunal accepts that he is an experienced GP with a lengthy association with [the appellant] and her family. … [His] position as a family doctor for many years gives him the advantage of having observed [the appellant] for some time, and he has been able to take somewhat of a longitudinal view [emphasis added]. 53 Dr Jamieson's evidence was not the only evidence before the Tribunal that supported a finding of incapacity. For example, both the Director of Nursing and Dr Gattrell gave evidence to the effect that the appellant had 'good and bad days' but they had each observed 'a level of deterioration' in the later part of 2008. 54 While Dr Jamieson's opinion was not the only evidence to support a finding of incapacity it was the only medical evidence supportive of that conclusion. The Tribunal clearly saw Dr Jamieson's ability to take 'a longitudinal view' as relevant. 55 It is not possible, on what is before us, to say with any certainty whether Dr Jamieson had observed and/or interacted with the appellant before she came in to his care, and if he did, whether his ultimate opinion on her condition and capacity was based on those observations/interactions. Nor is it possible to say if the Tribunal would have reached a different view on capacity had it not misconstrued Dr Jamieson's evidence. 56 The law draws a distinction between appealable errors of law and errors of fact which are generally not appealable. The distinction is not always easily drawn. In essence, however, an error of law consists in the misapplication of a legal rule or test, or the failure to apply the correct legal rule or test to some issue the court or tribunal is required to address. An error of fact is just that: a mistake about a relevant fact or facts. 57 In Walsh v Visionstream Pty Ltd [2004] NSWCA 104 it was held that there was no error of law simply in making an error of fact. The Court of Appeal, however, emphasised the distinction to be drawn between primary findings of fact and the ultimate finding of fact. It also noted that a finding of fact made in the absence of probative evidence to support it may amount to an error of law. (See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Bruce v Cole (1998) 45 NSWLR 163.) 58 Given that the Tribunal clearly misconstrued the experience Dr Jamieson had in dealing with and assessing the appellant, and largely based its ultimate findings of fact on the primary error of fact it had made in that regard, it seems to us probable that the error of fact was of such gravity that it amounted to an error of law. It is, however, unnecessary in the event to decide that. This is because the availability of fresh evidence and the error of fact suggest strongly to us that this case ought be reviewed on its merits. Appeal on other grounds 59 For the reasons that follow in our view this is an appropriate case for leave to be granted under s 118B(1)(b) of the Administrative Decisions Tribunal Act. 60 In the course of this Appeal it became apparent that evidence has become available which, if accepted, may support a finding that there has been a material improvement in the appellant's cognitive functioning. These include reports prepared by Drs Schibeci and Sahanardle, dated 23 December 2008 and 30 April 2009 respectively, and the results of cognitive testing performed in January of this year. Both practitioners are of the opinion that the appellant does not suffer any cognitive impairment. 61 Dr Gelin submitted that the staff of the Nursing Home, if called, would give evidence in support of that opinion. 62 Dr Gartrell stated that since the appellant has moved to her current nursing home her condition has improved. She accepted that some of the evidence concerning capacity might have been based on observations of the appellant's behaviour at a time when she was acutely ill and some improvement in her cognitive state was to be expected as her general health improved. Nonetheless, she remained of the view that the Tribunal's decision should not be disturbed and expressed concern that the appellant remained vulnerable to exploitation because of an 'unhealthy family dynamic'. 63 As Palmer J observed in FA v Protective Commissioner & Ors [2009] NSWSC 415 at [11] a cautious approach must be taken to the making of financial management orders: The authorities have made it clear that the liberty of the subject is not to be interfered with and restricted under guise of the Guardianship Act 1987 (NSW) or the Protected Estates Act 1983 (NSW) unless there is a strong and cogent reason for doing so, directly founded upon the demonstrated mental incapacity of the subject to care, or make appropriate decisions, for himself or herself. There is a fairly high standard of proof. 64 Adopting this approach we have concluded that it is necessary to consider the evidence of improvement in the appellant's condition. Coupled with the problems identified above in respect of the Tribunal's consideration of the medical evidence, leads us to conclude that this is an appropriate case for the power to allow the Appeal 'on other grounds' to be exercised. Appropriate orders 65 The appellant urged the Appeal Panel not to remit the determination of the Appeal to the Tribunal. Understandably she would like to avoid further hearings and have the matter resolved expeditiously. 66 In our view on the material before us, it is not possible to finally determine the issues raised. The reports relied upon by the appellant suffer from many of the shortcomings she identified in respect of Dr Jamieson's report - neither practitioner makes clear the length and nature of their association with the appellant or particularise the factual assumptions that underpin their respective opinions on capacity. We believe the Tribunal would be assisted by more detailed reports. Furthermore, while it is has been submitted that the evidence of nursing staff who now care for the appellant would support a finding that she can manage her affairs, we note that this evidence has not been provided. 67 The Tribunal in our view having heard the evidence is best placed to consider this new material. 68 The parties should be invited to provide further evidence about the appellant's current circumstances and cognitive functioning. Orders

The decision of the Guardianship Tribunal to make a financial management order in relation to LX and to appoint the NSW Trustee to manage her estate is set aside.
The matter is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.
These orders do not come into effect until 60 days after the date of this decision.

LX v NSW Trustee

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