Qumsieh v Guardianship and Administration Board & Anor [1998] VSCA 45

Court of Appeal (Vic)|1998-09-17|Before: WINNEKE, P., BROOKING and ORMISTON, JJ.A.

The application before his Honour was supported by a vast quantity of material, most of which was not before the Board whose decision is under challenge. There were, amongst others, affidavits from Mrs Qumsieh and many of her friends deposing to the sincerity of her religious beliefs and to her expressed desire at all times not to have a blood transfusion. There was a lengthy affidavit from a New South Wales doctor who had been through the hospital records of the Western General and Mercy Hospitals and who expressed the opinion that the appellant's medical condition was not as grave as the Board was informed. There was much material designed to suggest that the appellant had continued to assert to the doctors that she did not wish to have blood transfusions. Even her husband put affidavit material before the court which tended to suggest that he had reluctantly made decisions contrary to his wife's wishes. Based on this material, his Honour was asked to conclude that the Board's decision could be attacked upon about 21 different grounds, which themselves involved some 42 sub-grounds. It is clear from his Honour's remarks that he took the view that the validity of the Board's decision could only be attacked on the basis of the material which was before it. That material was, as the Board itself remarked, of a very limited nature.

The Board was asked to act, as a matter of urgency, upon material which indicated that the appellant was gravely ill, and without any clear indication that the orders sought from it were against the appellant's wishes on religious grounds. Rather they had an application by her husband indicating that he wished to be appointed as his wife's delegated limited medical guardian. The affidavit of the appellant concedes that the Board was not given her Advance Medical Directive "nor any other evidence which ... showed that my decision to refuse ... blood transfusion ... was made competently and repeatedly".

Mr Cathcart contends that the large quantity of material which was put before Beach, J. is relevant to prove jurisdictional factors which themselves demonstrate that the Board acted without jurisdiction. The evidence of the appellant's competent refusal, he contends, shows that the jurisdiction of the Board under s.33 was not attracted. Thus it is said that the Board's expressed satisfaction under s.33 can be challenged notwithstanding the limited evidence before it. I cannot accept that. It would render, in my view, the Board's function almost untenable. Section 33 defines the Board's jurisdiction. It is to act on material which suggests, at the time the application is made to it, that the protected person is under a disability, is unable to make reasonable judgments and is in need of a guardian. The existence of that jurisdiction is not to be denied, in my opinion, because the protected person has previously made a decision that he or she did not want a blood transfusion in different circumstances.

Mr Cathcart puts it that the Board had sufficient before it to make "alarm bells ring" and that it should have been put on enquiry about the conflict between the husband and the wife. This, I think, puts far too much upon a Board which has embarked, and is empowered to embark, upon an enquiry of urgency. There would be very few enquiries, I think, of this nature in respect of which such potential conflicts would or might not be found. In my view this Act is investing the Board with powers to make urgent decisions in relation to health care matters of persons without having to "look over its shoulder" to ensure that the material before it is complete and is capable of being acted upon. Such past facts would not, in this case, in my view, have helped to establish the jurisdictional facts which caused the Board to act. Mr Cathcart submits that the "consent form" was in any event unequivocal evidence of the appellant's informed refusal to accept blood transfusions. However, it seems to me that the Board was entitled to take the view which it did that this was a qualified refusal to have treatment in certain circumstances at the Mercy Hospital some four days before. In any event it must be remembered that the purpose of the Board's order was only to appoint the appellant's husband as the approved delegate of the Public Advocate who could then make whatever decisions were required to be made in respect of the health care of the appellant. The Board was not itself directing those decisions. Mr Cathcart further submitted that the interim order signed by the second respondent manifested the invalidity of the Board's decision because it stated that the husband was himself the appointed person and that this was done contrary to the provisions of s.33. But it is, I think, reasonable in the light of the Board's formal and sealed order to regard the expression in the interim certificate as simply a "shorthand form" of expressing the order which the Board had in fact made, namely that the husband was the approved delegate of the Public Advocate.

Mr Cathcart addressed further arguments which, he submitted, showed that the decision of the Board was flawed. Amongst other things, he submitted that the Board's decision was shown to be unreasonable, had been shown to be obtained in bad faith, and was tainted in any event by fraud. I think I do no discourtesy to Mr Cathcart if I simply say that none of these submissions compel me to the conclusion that Beach, J. was in error, in the particular circumstances of this case, in declining to make the order for review. His Honour was correct, in my view, to have regard, in determining whether the Board's decision was subject to challenge, only to those matters which were before the Board. Furthermore, the peculiar circumstances of this case, including the large number and variety of grounds upon which the appellant was seeking to challenge the Board's decision, the number of respondents whom the appellant desired to be made parties to the review, the fact that the matter involved an order, now exhausted, made by a body whose statutory powers and functions have changed, and the fact that the order, if made, would bring the appellant into dispute with her husband, were sufficient bases for the conclusion, to which his Honour obviously came, that he should exercise his discretion under s.4 of the Administrative Law Act to refuse the application for an order for review because no matter of substantial importance was involved. I am not prepared to conclude that his Honour was wrong in the exercise of that discretion.

Nothing that I have said should be taken as in any way belittling the feelings of the appellant and the concern which she obviously has as to what has happened to her.

The formal order of the Court will be that the appeal is dismissed.

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