Plaintiff v Defendant

PRACTICE AND PROCEDURE - Parties - Representation - Whether leave should be given to former second plaintiff to represent plaintiff in proceeding - Leave refused.

1 The plaintiff is an inpatient in Royal Melbourne Hospital ('the Hospital').

2 The plaintiff's son, Mr Ermanno Giurina, asserted that a dispute existed between the plaintiff and the Hospital, regarding the plaintiff's discharge from hospital and the terms on which that could occur. The plaintiff asserted that 'her continued detention' by the Hospital is unlawful.

3 By summons dated 8 February 2018 the plaintiff sought an order pursuant to r 57.02 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'), that, relevantly:

(a) the defendant discharge the plaintiff into the care of her son;

(b) all proper and necessary arrangements be made by the defendant to allow the plaintiff to return home to live with her son, without conditions.

4 This application is for a writ of habeas corpus. On the application the court may order that a writ issue or that the person restrained be released. The purpose of habeas corpus is to provide 'a swift and imperative remedy in all cases of illegal restraint and imprisonment'.[1]

5 The plaintiff relied on the following materials in support of the application:

(a) Affidavit of Ermanno Giurina dated 4 February 2018;

(b) Affidavit of Licia Giurina dated 6 February 2018;

(c) Supplementary Affidavit of Ermanno Giurina dated 8 February 2018;

(d) Supplementary Affidavit of Licia Giurina dated 11 February 2018;

6 As the summons raised the Charter of Human Rights and Responsibilities Act 2006 (Vic), the plaintiff's son gave notice to both the Attorney-General, and the Victorian Equal Opportunity and Human Rights Commission. To date, each has declined to intervene in this proceeding.

7 On 4 December 2017, the plaintiff fell at home and dislocated her shoulder. She was taken to the hospital. While at the hospital, the plaintiff's bladder was not functioning properly and a catheter was inserted. For reasons including the plaintiff's osteoarthritis, she had difficulty getting out of her bed. Doctors informed the plaintiff's son that the plaintiff had limited flexibility in her hips, and would likely be bed-bound requiring a higher level of care.

8 A critical question would be whether in the circumstances there is illegal restraint and imprisonment of the plaintiff.

9 When the proceeding first came before the court on 12 February 2018, the plaintiff's son was named as the second plaintiff. At that hearing, the son appeared for himself and sought leave to appear as the plaintiff's legal representative, which leave I refused.

10 First, I concluded that the son had no real interest in the proceeding, apart from acting as an advocate for his mother. I ordered that his proceeding as plaintiff be dismissed and that he be removed from the title to the proceeding as a plaintiff.

11 Secondly, it was apparent from the plaintiff's affidavits that she had no, or an extremely limited, ability to read and write in English, and her native language was Italian. However, her affidavits had not been translated to her at the time of swearing. In light of this I informed the son that I could not accept her affidavits as proof that she understood the matters to which she had purportedly deposed or that she had properly instructed him to bring a proceeding on her behalf.

12 Thirdly, the defendant drew my attention to a further preliminary issue. There were extant proceedings in VCAT regarding the guardianship of the plaintiff that were based on reports about the plaintiff prepared by a social worker and a neuropsychologist. These reports raised a prima facie issue of whether the plaintiff was a person under disability in the sense referred to in Order 15 of the Rules. The need for a litigation guardian and the proceedings in VCAT are related.

13 The plaintiff granted her son an Enduring Power of Attorney and appointed him as her enduring guardian.

14 A social worker at the Hospital, Ms Nicole El-Hage, applied to VCAT on 15 January 2018 seeking the appointment of an independent administrator and guardian for the plaintiff. She made that application on the basis that:

(a) the treating team at the Royal Melbourne Hospital had recommended residential aged care for the plaintiff, but the plaintiff and her disagreed with that recommendation; and

(b) an independent administrator was needed to make decisions about funding lifestyle services/supports as may be decided by a guardian.

15 Further, the application detailed the concerns of hospital staff that the son did not have an proper understanding of the hospital's concerns regarding his mother's safety and welfare, in particular an understanding of the seriousness of his mother's health conditions and the nursing requirements for her proper management.

16 On 30 January 2018, VCAT adjourned the proceeding before it:

(a) to enable the Public Advocate to complete an investigation and report to it; and

(b) for the applicant, the proposed represented person and her enduring guarding to enter into negotiations about the conditions required, the relevant period and the systems for monitoring and evaluation necessary for the proposed represented person to have a trial return to her home in the care of her enduring guardian and possibly other persons or agencies.

17 The son, who is a party to the VCAT application, opposes the relief being sought.

18 In a Neuropsychology Report filed in the VCAT proceeding and exhibited before me, Dr Natalie Genardini, a clinical neuropsychologist, detailed her neuropsychological assessment of the plaintiff and opined that she:

has a cognitive disability (likely dementia) that impairs her capacity to make informed and reasonable decisions about medical treatment, her care needs, and her living circumstances. She does not have insight or understanding of her considerable physical impairment and the implications for her ability to be cared for safely at home with only her son's support.

19 The son produced, in response, a note from his mother's general practitioner, which stated:

I am her GP and have been so for over 15 years.

I have seen her at my clinic approximately 8 times in the past 2 years, the latest being 3/10/2017. Although I have not performed any formal cognitive testing on Mrs Giurina, I have always found her to be capable of understanding her medical conditions, and risks and benefits of proposed investigations and treatments. Lack of insight into her medical care has never been an issue in our consultations.

20 I did not accept that this practitioner had the information necessary for him to provide a meaningful opinion to this Court. I ruled that the evidence of his opinion did not fall within the exception under s 79 of the Evidence Act 2008 (Vic) and was therefore inadmissible under s 76 of that Act. There was no evidence other than the opinion of the neuropsychologist at the hearing on 12 February 2018.

21 My preliminary view was, and remains, that there was a real issue that the plaintiff is a handicapped person under a disability who lacks capacity to bring this proceeding other than by a litigation guardian, a person who must act by a solicitor (r 15.02(3)).

22 I adjourned the proceeding until 8 March 2018 to:

(a) allow the son an opportunity to obtain and file certified translations of the plaintiff's affidavits;

(b) obtain an independent neuropsychologists' report regarding the plaintiff's capacity;

(c) await any determination made in the related VCAT proceeding, and

(d) to appoint a litigation guardian unless persuaded that it was not appropriate to do so.

23 On 6 March 2018, VCAT ordered, relevantly, that:

2. Ermanno Giurina is directed to immediately seek an advisory opinion from the Law Institute of Victoria - and submit a copy of any response to the Tribunal before the next hearing - as to whether the following circumstances give rise to a conflict of interests for a legal practitioner:

Ermanno Giurina is acting for his mother, Licia Giurina, as her legal representative in proceedings where the applicant, Melbourne Health trading as the Royal Melbourne Hospital, is seeking the appointment of an independent guardian and an independent administrator.

Ermanno Giurina's appointment as Licia Giurina's attorney under an enduring power of attorney and his appointment as her enduring guardian under an enduring power of guardianship is impugned by the application, also making him a party to the application, and his powers and duties under such appointments may be circumscribed if the Tribunal ultimately makes the orders sought.

...

Temporary Guardianship Order:

The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about her person or circumstances; and needs a guardian.

The Tribunal orders and directs that:

...

4. The Public Advocate...be appointed limited guardian of the represented person with powers and duties:

to make decisions concerning accommodation

to make decisions concerning medical or dental treatment or other health care

to make decisions concerning access to services

The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.

5. This temporary guardianship order has effect until and shall be reassessed by 27 March 2018 unless renewed by further order.

24 At the hearing before me on 8 March 2018, the son provided a translator's certification in respect of the plaintiff's affidavits that stated:

I have read over and translated into the Italian language to the said Licia Giurina the contents of a true copy of her affidavit of 6 February 2018 including the jurat and Exhibit Note which are attached to this certification and she being an Italian and Italian being the customary language understood by her and she seemed fully to understand the same and the nature and effect thereof.

25 He did not obtain an independent or any neuropsychological report as had been anticipated. He relied on the translator's certificate as evidence that the plaintiff understood the nature and effect of the proceeding and the underlying issues relating to her care.

26 The son sought leave to represent his mother, and submitted that this proceeding could continue in its present state notwithstanding what had occurred in the VCAT proceeding.

27 The defendant's solicitor deposed to his inability to locate the son on the Register of Legal Practitioners and Law Practices. The son vaguely asserted he had a volunteer practising certificate and produced a copy of his certificate of admission to legal practice. I was not satisfied that he is a solicitor in the sense required by r 15.02(3), or that there was a proper basis to exercise a discretion to waive compliance with that rule.

(a) VCAT's finding that the plaintiff has a disability and is unable by reason of that disability to make reasonable judgments about her person or circumstances, and needs a guardian and its appointment of a guardian with the power to make the decisions for the plaintiff squarely falling within the compass of this application, and,

(b) The uncontradicted evidence of Dr Natalie Genardini,

I refused the son's application for leave to represent the plaintiff in this proceeding.

29 The son asserted, on the authority of various cases, of which Antunovic v Dawson[2] was identified, that all that is required is that the plaintiff have a general understanding of the nature and intent of the proceeding or the application that is being made. Whether that is the case is beside the point. What the son has failed to grapple with, or adduce evidence of, is whether the plaintiff is capable of any such understanding. In particular, the son has not provided any evidence, even after explicitly being given an adjournment to allow him to do so, contradicting the conclusions of the neuropsychologist.

30 I am satisfied on the evidence before me that the plaintiff has a cognitive disability and is a person under a disability because she is a handicapped person as that expression is understood in r 15.01. I was not satisfied that the circumstances called into play the court's parens patriae jurisdiction and I am satisfied that appointment of a litigation guardian was necessary before the application could proceed. The litigation guardian could only act through a solicitor holding a current practising certificate. As the Public Advocate has been appointed by VCAT as a limited guardian with powers regarding the matters in issue on the application I adjourned the proceeding to notify the Public Advocate of it. I stated that unless the Public Advocate consented to an appointment as litigation guardian in the proceeding, I would entertain an application that the proceeding be dismissed.

31 I am also satisfied that notwithstanding that an application for habeas corpus is usually characterised by urgency, this is not such a case and that the defendant has the plaintiff's best interests at its primary concern.

32 On 22 March 2018, the Office of the Public Advocate filed an affidavit and letter with the Court, stating the Public Advocate's view that it was not appropriate for it to act as the plaintiff's litigation guardian at this stage, and that it did not consent to being so appointed. The Public Advocate noted the conflict between the plaintiff's contention that her son could determine what she did and the Public Advocate's preliminary view as to the plaintiff's best interests in the circumstances, which created a conflict that would limit the Public Advocate's ability to assist the court as litigation guardian. In particular, if appointed litigation guardian, the Public Advocate would withdraw this application.

33 Further, the Public Advocate noted that it had been appointed as a limited guardian of the plaintiff on a temporary basis, and on 3 April 2018, VCAT would further consider the plaintiff's need for an independent guardian with powers and duties to make decisions for the plaintiff concerning accommodation, medical care, and access to services.

34 This morning the Public Advocate sought leave to appear in this proceeding, by its solicitor, which leave I granted, and has confirmed that its position is as stated in the letter and affidavit to which I have referred.

36 First, it has not, to date, been demonstrated that the plaintiff was, or is, illegally restrained or imprisoned by the Hospital, or otherwise entitled to a writ of habeas corpus. I make no finding on that issue. Likewise, it has not been shown that it is in the best interests of the plaintiff that she be discharged from hospital into the care of her son.

37 Secondly, the Public Advocate has not been able to reach any conclusion as to whether the plaintiff's repeated wish to return home into the care of her son because he will not cooperate in a home assessment to identify her care and home environment needs, notwithstanding his statement in court that he would provide such co-operation to expedite the consideration of his mother's best interests. This is particularly significant where the information received so far by the Public Advocate suggests such assessment is crucial to any decision to be made by an independent guardian about her accommodation, medical and health care and access to services.

38 The issues remain before VCAT on the Hospital's application and there is no proper basis for this application to continue. I doubt that there was a proper basis for it to be initiated. Further, it is entirely inappropriate that there be duplicate parallel applications notwithstanding the son's assertion that the Charter is engaged in the circumstances.

39 The proceeding will be dismissed without adjudication on the merits. A duly appointed litigation guardian acting through a solicitor or the plaintiff, if no longer a handicapped person, may seek appropriate relief from the court by a further application if so advised.

[1] Secretary of State for Home Affairs v O' Brien [1923] AC 603, 609; In re Yates [1925] HCA 53; (1925) 37 CLR 36; Antunovic v Dawson [2010] VSC 377.

[2] [2010] VSC 377; (2010) 30 VR 355 (Bell J)