Victorian Civil and Administrative Tribunal|2005-12-09

The application by the attorney is otherwise adjourned to a date to be fixed by the principal registrar before me or other presidential Member, but a further hearing of the application shall be scheduled only if the application is renewed by the attorney on notice in writing to the principal registrar and all parties." (Emphasis added).

(I note in passing that an attorney who is exercising power under the EPA in accordance with the Instruments Act 1958 and the general law will, as the attorney in this case has essentially agreed, cease to do so if the power is validly revoked by the donor).

MD's solicitor finally made two applications that properly invoked the Tribunal's jurisdiction. One made on 24 November 2005 sought revocation of the EPA and other orders in relation to the EPA; another made on 6 December 2005 sought a further reassessment of the guardianship order.

Although, regrettably, the notice of hearing did not make the position clear, the Tribunal, upon receiving the first of these applications, gave notice of what was intended to be a directions hearing under section 80 of the Victorian Civil and Administrative Tribunal Act 1998. After notice was given, but before the directions hearing was held, the Tribunal received the second application. The Public Advocate also applied for reassessment of the guardianship order "should such a reassessment be legally possible" in the circumstances.

Accompanying MD's application for reassessment of the guardianship order was material including reports by Professor M. Saling, Associate Professor and Convenor of Neuropsychology, The University of Melbourne, dated 16 November 2005 and by Professor G. Burrows, Professor of Psychiatry, The University of Melbourne, dated 28 November 2005. I will refer to this evidence as the "new expert evidence".

Professor Saling assessed MD on 16 November and found "no tangentiality, confabulation or disinhibition". Her performance in various tests was normal or above average - this included a Mini Mental State Examination result of 29/30. Professor Saling concluded that her cognitive function was comfortably within normal limits for her age and he did not consider that she suffered from any dementia. He also stated that Dr. Woodward's findings in 2003 and 2005 that she was cognitively intact suggested that the changes observed during her admission to hospital at the beginning of the year were acute and transient.

Professor Burrows held two consultations. He considered material including the reports by Ms. McGregor, Ms. Adrian, Dr. Myers, Dr. Woodward, Mr. Forbes, Dr. Sivakadadchan, Professor Saling and the social work and occupational therapy report referred to earlier. He expressed the opinion that MD did not have an intellectual or mental disability. He could find no evidence of dementia. She gave no history of anxiety or depression. She said her alcohol consumption consisted of two glasses of wine per day. She smoked a packet of cigarettes per day. There were no psychiatric disorder, delusions, hallucinations or perceptual disturbance found. Professor Saling's report confirmed Professor Burrows' clinical assessment, he said.

Professor Burrows stated that from reading earlier reports he formed the opinion that MD probably had a confusional state and that she was not so active following her surgery. This could be expected, he said, following an anaesthetic and her distress at her fracture and also the fact that the hip operation had not been successful.

Professor Burrows concluded that although there were different opinions about the matter, he was adamant that MD did not suffer from dementia and he was certain that she had mental capacity to revoke her power of attorney. He did not consider that MD had acquired brain injury or that she showed symptoms of alcoholic dementia.

Representatives of the attorney attended the hearing as a courtesy to the Tribunal. They did not contest the new expert evidence and in effect conceded that MD could revoke the EPA by which she appointed the attorney and that she could appoint a new attorney.

The Public Advocate submitted, in effect, that in view of the new expert evidence the Tribunal should reassess the guardianship order.

MD's solicitors and the Public Advocate informed the Tribunal that the decision of the Court in the appeal has not been handed down. They confirmed, incidentally, that the Court did not stay the Tribunal's order dated 5 August 2005.

It is neither appropriate nor necessary for me to decide whether the Tribunal was correct in making a guardianship order in February 2005 or continuing the order in August 2005. However, on the basis of the new expert evidence I was satisfied that MD does not have a disability so that there is now no basis for a guardianship order: section 22 Guardianship and Administration Act 1986.

In those circumstances, MD's counsel sought immediate revocation of the guardianship

order or, in the alternative, a stay of the guardianship orders.

Should the Tribunal reassess the guardianship order before the appeal is

concluded?

The Tribunal has discretion whether or not to conduct an early reassessment of a

guardianship order: section 61 Guardianship and Administration Act 1986.

I asked Mr. Levine whether in the circumstances MD had discontinued or intended to

discontinue the appeal. He informed me that she would not seek to discontinue the

appeal, irrespective of the outcome of the proceeding before the Tribunal. She wanted

to be vindicated, he said, and to pursue any entitlement to costs of the appeal.

Mr. Levine submitted that I should exercise my discretion to reassess the guardianship

order immediately and revoke it - especially when it was not known when the decision

in the appeal proceeding would be handed down.

First, he said the guardianship order was unworkable. (Mr. Grano on behalf of the Public Advocate confirmed this, explaining that for instance MD, being able to control her own finances, could effectively veto any decisions made by the guardian about whether certain works should be carried out at her home as a pre-condition of her returning there).

Secondly, he submitted that MD had no relevant disability and may never have had one.

Thirdly, he submitted that the existence of a guardianship order that had no basis infringed her human rights.

Finally, Mr. Levine submitted in effect that concern by the Tribunal not to offend (that is, frustrate) the appeal was misplaced. It was founded on a technical point and should give way to MD's individual rights. He referred to what he understood to be the practice in certain other jurisdictions that should encourage the Tribunal to revoke the guardianship order.

I accept that the guardianship order is unworkable and that, in any event, it is unworkable.

As to the most important matter of MD's human rights, it must be said that, obviously, the proper purpose of a guardianship order in a case like the present is actually to promote a person's welfare by protecting the person from abuse, neglect or exploitation. In any event, in my view, in the unusual circumstances of this case, it cannot reasonably be said that the guardianship order would infringe MD's human rights provided that the order could not result in the actual restriction of her freedom of decision and action. A stay of the orders would achieve that result for the time being.

The concern that the Tribunal not make any order that may impede the administration of justice by making the appeal nugatory may perhaps be characterised as technical but is nevertheless important.

Can and should the Tribunal stay the guardianship orders?

Mr. Levine pointed out that although the guardianship order dated 17 February 2005 provided that it was be reassessed no later than 17 August 2005, it also provided that the order continue to have effect until further order of the Tribunal. And, as noted, the Court has not stayed any of the Tribunal's orders. If the Tribunal now stayed only the operation of the order dated 5 August 2005 the earlier order would continue according to its terms, for the August order (properly) did not revoke it.

Section 149 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may stay the operation "of any order it makes" pending the determination of any appeal. On its face the section permits the Tribunal to stay the operation not only of the order that is the subject of the appeal but any order it makes. It is also important to point out that the section does not impose any time limit as to when the Tribunal may stay the order.

Pizer's Annotated VCAT Act (2d edition), JNL Nominees Pty. Ltd., Melbourne, 2004 paragraph [51120] states that in Dias v. Burbank Aust Pty. Ltd. (unreported, VCAT, Walker SM, 26 September 2000) the Tribunal decided that the proper interpretation of section 149 was that it enabled the Tribunal to grant a stay of the order that is the subject of the appeal but that no basis could be seen for staying the operation of an order that was not the subject of an appeal.

My inquiries reveal that there are written decisions in Dias, but not concerning this actual point. There were however orders in that case dismissing an application for a stay and oral reasons were given that, I accept, were to the effect discussed in Pizer. Nevertheless, I do not understand the Senior Member to have said more than that in the circumstances of that case (a proceeding in the Domestic Building List of the Tribunal) no basis could be found for staying the operation of an order that was not the subject of an appeal.

The circumstances of the present case are exceptional. Where, as I found, there was presently no basis for a guardianship order, I considered that I should exercise the discretion to stay not only the order that is the subject of the appeal but also the earlier guardianship order that the order continued.

It is important, I think, to make this observation. MD or her solicitors could have applied for a rehearing under section 60A of the Guardianship and Administration Act 1986. Alternatively, especially if evidence consistent with the new expert evidence was available they could have applied for a further reassessment under section 61 of the Act. They did neither. Instead they commenced the appeal. The appeal is all that now stands in the way of the guardianship order being revoked.

I have not had to determine the truth of various allegations and counter-allegations, but it is important to make the obvious point that the fact that MD does not have a disability within the meaning of the Guardianship and Administration Act 1986 does not mean that she will not be exposed to the risk of abuse, neglect or exploitation. However, her freedom of decision and action must not be restricted.

If in future MD's circumstances change so that she does have a disability any person may apply for a guardianship or other relevant order for her, if necessary, and so invoke the Tribunal's protective jurisdiction under the legislation.

Pursuant to the powers under sections 80 and 149 of the Victorian Civil and

Administrative Tribunal Act 1998 I ordered as follows:

1. The solicitor for the represented person has applied for -

(a) revocation of the enduring power of attorney made by the represented person on 25 May 1995 ("the EPA") and other orders in relation to the EPA; and

(b) reassessment of the guardianship order.

2. The Public Advocate has also applied for reassessment of the guardianship order.

3. The applications for reassessment of the guardianship order were made subsequent to the scheduling of today's hearing.

4. Appeal proceedings were commenced in the Supreme Court of Victoria from the order of the Tribunal dated 5 August 2005, by which the guardianship order made on 17 February 2005 was continued ("the appeal").

5. The Public Advocate has informed the Tribunal that the appeal was heard on 21 November 2005 but that the decision of the Court has not been handed down.

6. There has been no stay by the Court of any order of the Tribunal.

7. There is now expert evidence, being a report by Professor M. Saling dated 16 November 2005 and a report by Professor G. Burrows dated 28 November 2005, that the represented person does not have a disability and that, in particular, she has the capacity to make an enduring power of attorney.

8. The expert evidence is not contested by the attorney under the EPA or the Public Advocate.

9. Having regard to the expert evidence, the Tribunal finds that the represented person does not have a disability.

10. The represented person, by her counsel, seeks leave to withdraw the application for revocation of the EPA and other orders in relation to the EPA.

11. The represented person seeks immediate revocation of the guardianship orders or, in the alternative, a stay of those orders.

12. Counsel for the represented person has informed the Tribunal that the represented person will not seek to discontinue the appeal, irrespective of the outcome of the proceeding before the Tribunal.

For reasons given orally today, the Tribunal orders and directs that.

1. The principal registrar shall amend the register to record that today's hearing is a directions hearing under section 80 of the Victorian Civil and Administrative Tribunal Act 1998.

2. The applicant has leave to withdraw the application seeks leave to withdraw the application for revocation of the EPA and other orders in relation to the EPA..

3. Subject to any further directions, the principal registrar shall schedule a hearing under section 61 of the Guardianship and Administration Act 1986 for reassessment of the guardianship order on date to be fixed before me, if available, immediately upon being notified of the decision by the Supreme Court in the appeal.

4. The parties are excused from attending the reassessment.

5. Pursuant to section 149 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal stays the operation of the orders dated 17 February and 5 August 2005 pending the determination of the appeal.

6. The principal registrar shall send a copy of this order by fax today to the solicitors for the represented person and to the Public Advocate.

Note: The Tribunal notes that the solicitors for the represented person intend to notify the Supreme Court of this order immediately."

Administration Act 1986

MD (Guardianship) [2005] VCAT 2597 (9 December 2005)

MD (Guardianship) [2005] VCAT 2597 (9 December 2005)

At a glance

Court

Decision date

Source

Judgment (46 paragraphs)

Legislation Cited (1)

Cases Cited (1)

MD (Guardianship) [2005] VCAT 2597 (9 December 2005)