procedural. The application for a stay is declined. The parties are ordered to exchange amended grounds and documentary materials by specified dates, to notify intended witnesses, file outlines of argument,...
Key principles
The Tribunal's power under s 73(2) of the SACAT Act to 'stay the operation' of a decision must be construed by reference to its statutory context and is exercised as an...
An application for a stay under s 73(2) requires the applicant to show an 'arguable case' that the review will succeed, but the threshold is lower and must be adapted to the...
In assessing prejudice and the balance of convenience for a stay in guardianship matters, 'prejudice' must be understood as potential adverse outcomes for the protected person,...
Where a reviewable order confers ongoing powers and has already taken effect, a stay operates prospectively and cannot nullify actions validly taken under the order prior to the...
Issues before the court
Whether the Tribunal should grant a stay of the guardianship orders made on 6 November 2019 under s 73(2) SACAT Act pending internal review.
Plain English Summary
The Tribunal refused to halt (stay) the Public Advocate's appointment as guardian pending an internal review by the applicant siblings. It held that the power to stay under s 73(2) SACAT Act must be read in context, that applicants must show an arguable case (a low but coherent threshold adapted to merits review), and that 'prejudice' in this setting means risk to the protected person, not to the applicants. Although some grounds about the siblings' suitability were arguable, the Tribunal concluded that practical considerations — end-of-life timing, actions already taken by the Public Advocate, available statutory mechanisms to manage decisions, short delay to the hearing, and recent improvements in access — meant a stay should not be granted. The stay application was declined and the substantive review was listed with procedural directions.
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Deep Dive
2,028 words · generated 20/06/2026
What is the correct construction and operative effect of a stay of a guardianship order that has already been implemented?
What is the threshold and nature of 'arguable case' in SACAT internal review stay applications?
Cited legislation
2 cited instruments linked from this judgment.
What happened
This is an internal-review interlocutory decision by President Hughes in Re LMP [2020] SACAT 2 concerning an application for a stay of a guardianship order. The protected person, LMP, is an elderly woman in the terminal phase of illness, non-verbal and tube-fed, residing in a Port Augusta nursing home (Procedural background [1]). Two of her children, VLN and QYN, had been joint guardians since 2011 (with a variation in 2017) but, following prolonged conflict with the nursing home and among the children, the Tribunal initially made urgent interim orders in September 2019 and then, after a full hearing on 6 November 2019, appointed the Public Advocate as full guardian with special powers, including authority to determine residence and detention (Procedural background [3]–[6]).
VLN and QYN sought internal review under s 70 SACAT Act and, concurrently, a stay of the Tribunal's 6 November order under s 73(2). The stay application came before a legally qualified member (required by s 73(2)). The Tribunal considered the statutory construction and practical effect of s 73(2), the appropriate test for a stay in the SACAT internal-review context, whether the applicants had an arguable case, the meaning of prejudice in guardianship proceedings, and where the balance of convenience lay. After considering materials and the reasons from the original hearing, the Tribunal concluded that although some grounds of review (particularly suitability under s 50 G&A Act) were arguable, the stay should not be granted. The Tribunal declined the stay and made timetabling orders leading to a hearing in the week commencing 24 February 2020 (Orders).
Why the court decided this way
The decision rests on three interlinked legal and practical propositions set out by President Hughes.
Statutory character of the stay power: The Tribunal emphasised that s 73(2) grants a statutory power to stay the 'operation' of an administrative decision and must be interpreted in the statutory framework of SACAT and the Guardianship and Administration Act (G&A Act). The Tribunal does not possess an inherent court power to stay; the power must be read and exercised according to that statutory context (Legal test para 1). That affects the test and remedies available.
Modified 'arguable case' test: While appellate stay jurisprudence often demands a demonstrable arguable case, a SACAT internal review is merits-based and often resembles a fresh consideration (a hybrid of de novo and merits review). Accordingly, the Tribunal held the 'arguable case' threshold is lower and must be informed by the nature of the review. Applicants must, however, provide a coherent, plausible account of how the original decision was erroneous or how fresh evidence will lead to a preferable decision (Arguable case paras 1, 3). In Re LMP, the Tribunal found the applicants lacked an arguable case on standing (s 33), but did have an arguable case on suitability (s 50) because perhaps too much weight was given at first instance to the conflict with the facility rather than the statutory suitability criteria (Arguable case paras 4, 11).
Prejudice to the protected person and balance of convenience: Crucially, the Tribunal reframed the usual 'prejudice' inquiry. In guardianship cases the Tribunal must apply the G&A Act's paramountcy of the protected person's interests and substitute the concept of prejudice to the applicant with prejudice to the protected person. Thus the question becomes whether keeping the order in force will materially harm the protected person if the review ultimately restores the applicants as guardians (Prejudice and balance of convenience para 2). The Tribunal noted that the Public Advocate had already acted as guardian and that any stay would operate prospectively and could not undo prior lawful actions (Procedural background para 9; Legal test para 4). In this case, with the protected person's life expectancy short, the Tribunal concluded that the combination of limited time, the existence of statutory mechanisms to manage decisions (eg s 74 directions, consultation by the Public Advocate), recent improvements in access negotiated by the Public Advocate, and the minimal volume of material meant the review could be listed quickly. Consequently, a stay was not warranted (Prejudice paras 4–11; Orders).
The Tribunal struck a balance: it recognised the applicants had arguable grounds warranting a hearing, but the urgency and the nature of the risk to the protected person, and the limited remedial effect of a stay, meant that declining the stay while expediting the review was the proper course.
Before and after state of the law
Before this decision, general principles about stays in appellate contexts were well-developed: courts usually require an arguable case, consider prejudice to parties, and weigh the balance of convenience. However, application of those principles in administrative or tribunal contexts raises questions about statutory power, the nature of the review, and the proper focus for prejudice.
Re LMP clarifies several points for South Australian tribunal practice:
It confirms that s 73(2) must be construed by reference to the SACAT scheme and the G&A Act; one cannot simply import the inherent court stay framework wholesale (Legal test para 1).
It articulates a modified 'arguable case' test tailored to SACAT internal review: a lower threshold, requiring a coherent and plausible account of errors or fresh evidence that would change the result (Arguable case paras 1, 3).
It reframes 'prejudice' in guardianship stays as prejudice to the protected person, not to applicants who are seeking review (Prejudice para 2).
It recognises the practical limitation that a stay of an ongoing, already-implemented guardianship order operates prospectively and cannot undo prior lawful acts, and this limits the utility of a stay in end-of-life contexts (Procedural background para 9).
These are not radical doctrinal changes, but they adapt established interlocutory principles to the specific procedural and substantive context of guardianship reviews in SACAT.
Key passages with plain-English translation
"Although s 73(2) uses the word 'stay', the power to be exercised must be understood by reference to its statutory context. The Tribunal has no inherent power to make a stay order." (Legal test para 1)
Plain English: You cannot assume SACAT's ability to pause decisions is the same as a court's general stay power. The Tribunal's stay power is what the statute gives it, read alongside guardianship law.
"Given the particular statutory context of the right to a review, the threshold is not a high one ... there must be at least a coherent and plausible account of what will be established." (Arguable case para 1)
Plain English: Applicants do not need to prove a strong likelihood of success to get past the first hurdle, but they must show a clear, believable argument about what went wrong or what new evidence there will be.
"It is not relevant to speak of prejudice to the applicants. These proceedings are directed at the proper care of LMP ... 'prejudice' must be understood to mean ... adverse outcome for LMP." (Prejudice para 2)
Plain English: When deciding whether to pause a guardianship order, the Tribunal focuses on harm to the person under guardianship, not harm to people seeking review.
"The stay must be understood to operate prospectively and not to nullify the actions taken under the order prior to the stay being ordered." (Procedural background para 9)
Plain English: If the tribunal pauses an order, it cannot undo lawful actions already taken while the original order was in force.
"The Tribunal approaches the application for a stay on the basis that its need must be assessed against the length of time that the order will be effective for if the stay is not granted. That will be several weeks." (Prejudice para 8)
Plain English: The Tribunal weighs whether a pause is necessary against how long the order would remain in effect before the review is decided, here only a short time was expected.
What fact patterns trigger this precedent
Guardianship orders already implemented by a Public Advocate or other guardian, where the former guardians seek an internal review and an interlocutory stay.
Cases where the protected person faces imminent end-of-life decisions and there is a short window before an internal-review hearing can be timetabled.
Disputes where the applicant's standing or suitability is contested, and the original reasons emphasise conflict between family members and the care facility.
Situations where the Tribunal must decide whether to use a stay to reinstate status quo ante but where actions under the new order have already been taken and may be irreversible or necessary for the protected person’s welfare.
In these fact patterns, Re LMP instructs tribunals to prioritise the protected person's interests, to treat 'prejudice' from that perspective, to consider the practical effect of any stay, and to expedite substantive review instead of routinely granting stays.
How later courts have treated it
The decision cites authorities on stay powers and on the arguable case principle (AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013] SASCFC 124; Maxcon Constructions Pty Ltd v Vadasz [2016] SASCFC 119; Croney v Nand [1998] QCA 367). President Hughes used those authorities to situate the Tribunal's approach in established interlocutory jurisprudence, while emphasising the adaptations required by the tribunal's statutory review role (footnotes). Future tribunals will likely follow Re LMP when assessing stays in guardianship matters because it is a reasoned adaptation of appellate tests to SACAT's context. Practitioners should expect tribunals to:
Demand a focused, plausible case for substantive success rather than merely speculative assertions.
Focus prejudice analysis on the protected person.
Expect the tribunal to consider how quickly the substantive hearing can be arranged and whether statutory avenues (eg s 74) can manage interim decision-making.
Given this is a 2020 SACAT decision, its persuasive weight is strongest within SACAT and related South Australian practice. It reasons from first principles and relevant authority rather than overruling prior law.
Still-open questions
Precise paragraph mapping and numbering: President Hughes observed uncertainty about whether s 73 permits reinstatement of the status quo ante because s 73 speaks of staying 'the operation' rather than the decision itself, and noted legislative clarity would assist (Procedural background para 9). The exact remedial scope of a stay where administrative actions have already occurred remains open. Can a stay be structured to reverse particular actions where practicable, or is it necessarily limited to prospective suspension? The decision signals limitation but does not exhaust the possible remedial forms.
Degree of deference to original tribunal process: President Hughes found that the arguable case threshold is lower given SACAT's merits-review role, but he did not give a comprehensive test for how to evaluate the sufficiency of an arguable case in every variety of merits review. Future cases will need to refine how detailed the 'coherent and plausible account' must be, and how much evidentiary material is required at interlocutory stage.
Operationalisation of 'prejudice to the protected person': The decision reframes prejudice to focus on the protected person, but applying that in varied scenarios (for example, where alleged future actions by a guardian could have long-term but not immediate effects) may be complex. How tribunals should weigh speculative future harms to the protected person against current disruptions to family or carers remains to be elaborated.
Use of s 74 and other remedial devices: The decision emphasises alternative statutory mechanisms (eg s 74 advice/direction) to manage interim decision-making. There remains practical uncertainty about thresholds for invoking those remedies versus ordering a stay. When should parties seek s 74 orders instead of or in addition to a stay application?
Interaction with rights to procedural fairness and natural justice: Where a stay is refused but the applicants have arguable grounds, questions arise about ensuring adequate access to evidence and timely hearing. Re LMP directs expeditious listing, but resource constraints in practice may mean longer delays; whether refusal of a stay combined with delayed hearing could engage other remedies is a live question.
Practitioners should use Re LMP as authoritative guidance within SACAT for stay applications in guardianship matters, but expect further refinement of the principles and their application in subsequent SACAT or appellate decisions.
The application for a stay is declined and the matter is to be listed for a full hearing.
The parties to exchange documents detailed in the orders by the dates specified.
[3]
Guardianship and administration - Procedure - Stay of orders - Nature of the Tribunal's power to order a stay - Statutory power to order a stay - Operation of a stay where order already taken effect
[4]
Guardianship and administration - Application for stay order - Relevant factors - Whether applicants have an arguable case - Prejudice to protected person - Where the balance of convenience lies - Consequences if order were to remain in force - Applicants case is arguable - Prejudice to applicants not relevant to the question of a stay - Application for a stay order declined
Mr T Simpson, Crown Solicitor's Office, for the Public Advocate
[13]
This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
These proceedings concern an elderly lady, LMP, in the latter stages of her life. Indeed, sadly, she may have only weeks or months to live. She is unable to speak and is confined to her bed. She obtains nourishment from a nasal-gastric tube. She has breast cancer and numerous other significant health conditions. She resides at a nursing home in Port Augusta.
She is much-loved by her children. Two of her children, the applicants, are strongly desirous of spending as much time as they are able to with her and ensuring that her care is undertaken in the manner that they are confident she would want.
In 2011, one of the applicants, VLN, and their sibling, OES, were appointed by the former Guardianship Board to be joint guardians for LMP. It can be assumed that at that time, LMP had lost the mental capacity to make appropriate decisions as to her own care and welfare. In August 2017, the order was varied to substitute the applicant, QYN, for OEN.
In September 2019, the Tribunal made urgent interim orders varying guardianship to remove the applicants as guardians and to appoint the Public Advocate as guardian. An urgent interim order only endures for 21 days. Within that period, unless the application is not pressed, the application will be set down for a full hearing.
On 4 October 2019, the Tribunal adjourned the full hearing of the application brought by the Managing Director of the nursing home, directing the Public Advocate to prepare a s 28 report and allowing the applicant the opportunity to file further materials with an opportunity for QYN and VLN to respond. In the meantime, given the urgent action orders were due to expire on 7 October 2019, the Tribunal appointed the Public Advocate as interim guardian with special powers.
On 6 November 2019 the Tribunal conducted the full hearing on the application of the Managing Director of the nursing home, to vary the original order to appoint the Public Advocate as full guardian, replacing QYN and VLN. The order was granted. The Public Advocate, as guardian, then made an application to the Tribunal for special powers under s 32 of the ( "G&A Act"). The Tribunal ordered that LMP must reside in such place as the guardian from time to time thinks fit, and may be detained there.
[17]
Although s 73(2) uses the word 'stay', the power to be exercised must be understood by reference to its statutory context. The Tribunal has no inherent power to make a stay order. The application of principles derived from a court's inherent power are subordinate to the construction of the power as derived from the scheme created by the SACAT Act and the G&A Act read together.
The exercise of this power is similar, but not identical, to the exercise by a court of the power to stay an order pending the determination of an appeal. An order made under s 73 is an order made in the course of internal review proceedings which temporarily affects the operation of the reviewable decision.[2] In determining whether to grant a stay of orders pending an appeal in civil litigation, a court will usually consider whether the applicant has an arguable case on appeal.[3] If an arguable case is established, the court will consider prejudice to the parties and where the balance of convenience lies.[4]
In internal review proceedings in the Tribunal, the proceedings within which the application is made are a particular type of review. The proceedings under s 70 of the SACAT Act are a hybrid of an appeal de novo and a merits review, and closer to the latter.[5] The generous nature of the review renders the "arguable case" criterion less capable of strict application. The application of the arguable case principle risks viewing the review as a strict appeal. What is required to establish an arguable case is an account of how the applicants will demonstrate, either through analysis of the process in the original hearing, or the original decision, that there was a defect in that process or error in the reasoning and that the correct or preferable decision is the one they seek. Alternatively, they will demonstrate that they should be entitled to the exercise of the review Tribunal's discretion to receive fresh evidence which would have the effect that the correct or preferable decision is the one they seek.
Further, the question of the balance of convenience is to be considered in the context of a reviewable decision. In this case, the decision has already taken effect. The status of guardian has transferred from the applicants to the Public Advocate. The Public Advocate has acted on the conferral and has performed the functions of a guardian with respect to LMP. However, the order also has ongoing effect. To that extent, there is utility in considering the stay application but traditional considerations concerning the balance of convenience must be understood to operate differently. The differences arise from the nature of the decision and from the fact that it is an ongoing decision that has already taken effect. This is discussed further later in these reasons.
[18]
The applicants need to show an arguable case in order to satisfy the Tribunal that the application for review is not made merely to delay or nullify the decision in circumstances in which the decision has not been shown to be wrong.[6] Given the particular statutory context of the right to a review, the threshold is not a high one, and it will often not be necessary to take evidence. On the other hand, there must be at least a coherent and plausible account of what will be established, and how, on the applicants' case.
The key findings of the Tribunal in the decision that is the subject of review are:
The Tribunal notes that the application was brought before the Tribunal on the grounds that the appointed guardians were interfering with the clinical care of their mother. It was, however, plainly apparent throughout the hearing, that a high level of conflict exists between [QYN] and [VLN] and [the nursing home], to the point where they can no longer visit their mother at the care facility. It was also plainly apparent that a high level of conflict exists and has existed for a long time between the children.
In the circumstances of this conflict the Tribunal is satisfied that the only way to ensure the principles enunciated in section 5 of the Guardianship and Administration Act are adhered to is to vary the guardianship order to appoint the Public Advocate as full guardian. The Tribunal considers there are ongoing decisions to be made in the areas of accommodation, lifestyle and health.
The applicants maintain that they will establish that the correct and preferable decision is that they be (restored as) joint guardians in respect of their mother. The applicants have not finalised their grounds of review. Their interim grounds of review state:
[19]
That the applicant was not a person entitled to make an application of the kind before the tribunal - see s 33[1] G&A Act.
2. The respondents to the application [applicants on this review] were and are suitable persons to be appointed as guardians - see s 50 G&A Act.
[20]
By s 29[4] of the G&A Act the Public Advocate should not have been appointed because another order was appropriate namely the appointment as guardians of the applicants to this review.
The first ground of review refers to the fact that the applicant in the original proceedings was the facility, and it was said not to come within the class of applicants set out in s 33 of the G&A Act. This was drawn to the attention of the Tribunal and the applicant was substituted with the facility's manager. It is evident that a person associated with the facility is an appropriate person to bring an application, being responsible for the care and welfare of the residents of the facility. Whether or not the correct person was selected to bring the application, there seems little prospect that the applicants could show that any defect was not cured or could not have been cured. Bearing in mind the Tribunal's obligations to determine matters by reference to substantive merits and not to place significant weight on errors such as the one identified, I consider that the applicants do not have an arguable case that the decision was not correct or preferable on this ground.
I emphasise that the Tribunal has not taken evidence or heard argument on this issue. A different conclusion may be reached if the ground is pursued on internal review.
The second and third grounds are related. They assert that the decision was not correct or preferable because there were suitable persons to be appointed, namely the applicants. Accordingly, the Public Advocate should not have been appointed, as she is the guardian of last resort.
During argument on the stay application, I understood the applicants to submit that they would establish at a full hearing that:
(a) They are suitable because the conflict within the family upon which their suitability must have been rejected by the Tribunal at first instance was attributed too much weight;
(b) They are suitable because they could fulfil the obligations of guardian, had indeed done so for some time, and had a deep understanding of their mother's wishes so as to enable them to make appropriate decisions as substitute decision-makers for their mother, and commitment and proximity to enable them to attend at short notice to make such decisions;
(c) They are suitable because although they seek to ensure that their mother's religious beliefs are given as much operation as possible in her treatment and care, they also acknowledge the role and value of medical advice.
[21]
There is a real chance, though no certainty, that end-of-life decisions will be required to be made in relation to LMP between now and the hearing of the internal review. If the stay is not granted, those decisions may need to be made by the Public Advocate. The applicants consider that the Public Advocate may not place appropriate weight on what they say are LMP's deep religious beliefs, and may not apply those beliefs in the making of decisions.
In respect of prejudice, which is the second element of the legal test as it operates for applications to stay orders pending the outcome of an appeal, the principle in respect of an application for a stay insofar as it relates to these proceedings must be modified to take account of the statutory context. It is not relevant to speak of prejudice to the applicants. These proceedings are directed at the proper care of LMP and are not directed at the interests of the applicants or any other person. Importantly, the Tribunal must make a decision that gives paramount consideration to what LMP would have wanted had she been able to express a view. This arises from the requirement in s 5 of the G&A Act. Thus "prejudice" must be understood to mean, in this context, adverse outcome for LMP if the stay is not granted but the review ultimately restores the applicants as her guardians.
It is also relevant that there are various mechanisms by which the effect of the operation of the decision may play out in different ways. Whomever is appointed guardian may apply to this Tribunal for advice or direction on the exercise of a power as guardian, or seek advice or direction as to the scope of their powers: s 74. There may be circumstances in which a guardian's proposed action can be prevented by an order of the Tribunal or of the Court. The nature of the decision under review is quite different from, for example, a decision that one party must pay another party a sum of money.
Careful consideration must be given to the consequences of the order remaining in force, and of it being stayed. In this context, the effluxion of time is critical. There is a real risk that LMP will experience a health complication that will bring about her death. The applicants consider that if the decision is not stayed and end of life decisions are required before the review is heard, those decisions may be made by people who do not know LMP well, and may be made with insufficient input from them. They say that this would be detrimental to LMP.
[22]
Following the argument with respect to a stay, the applicants submitted to the Tribunal a proposal that they be given until 5.00pm on 28 January 2020 to file amended grounds. They sought for a hearing to be listed not before 18 February 2020.
Bearing in mind that the review is sought by the applicants such that other parties are not disadvantaged by this request, it is appropriate to grant the request. I will make further orders below regarding the filing of documents and other steps preparatory to hearing.
[23]
The application for a stay is declined.
The applicants are to file and exchange with the other parties amended grounds of review by 5.00 pm on 28 January 2020.
The parties are to file and exchange any further documentary material upon which they seek to rely at the hearing by 4.00pm on 7 February 2020.
The parties are to inform the Tribunal, and one another, of any witness they intend to call, or seek for cross-examination, by 4.00pm on 13 February 2020.
The applicants are to file and exchange an outline of argument by 4.00pm on 13 February 2020.
The Public Advocate and the protected person are to file and exchange outlines of argument by 4.00pm on 18 February 2020.
The matter is listed for a full hearing in the week commencing 24 February 2020 (excluding Wednesday 26 February) (one day set aside).
[24]
[1] See, for example, AVS Group of Companies Pty Ltd v Commissioner of Police[2010] NSWCA 81 at [18]- [26] construing the effect of a differently-worded statutory power to stay an administrative decision.
[3]Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2)[2013] SASCFC 124 at [95] per Blue J (with whom Sulan and Stanley JJ agreed).
[6]Croney v Nand[1998] QCA 367; [1999] 2 Qd R 342 (judgment of the court, McPherson JA, Pincus JA and Jones J, of the Court of Appeal of the Supreme Court of Qld) at 348 and 349.
Legislation Cited (2)
Australian Civil and Administrative Tribunal Act 2013
Administration Act 1993
AI Analysis
Outcomeprocedural
Disposition:
The application for a stay is declined. The parties are ordered to exchange amended grounds and documentary materials by specified dates, to notify intended witnesses, file outlines of argument, and the matter is listed for a full hearing in the week commencing 24 February 2020 (Orders 1-7).
QYN and VLN have sought an internal review of those orders. An application for internal review is brought under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act"). Their grounds of review were filed on an interim basis whilst they awaited a copy of the Tribunal's statement of reasons for its order. Those reasons were issued to the parties through their representatives on 16 December 2019.
The filing of an application for internal review does not affect the operation of the decision under review or prevent the taking of action to implement the decision: s 73(1), SACAT Act. However, s 73(2) of the SACAT Act provides that the Tribunal may make an order staying the operation of the decision until the proceedings are finally decided including an order made on conditions as may be specified in the order. Such a decision may only be made by a legally qualified member. At the first directions hearing, the applicants applied for a stay of the orders made on 6 November 2019.
Whilst it is not beyond doubt, s 73, when construed with the provisions of the G&A Act, should be understood to permit the Tribunal to make, as an interlocutory decision following the filing of an application for internal review, an order the effect of which would be to suspend the Public Advocate's appointment and reinstate the legal status quo immediately prior to the Public Advocate's appointment. Therefore, LMP's guardians would be the applicants. It is not without doubt because s 73 refers to staying 'the operation' of the decision rather than the decision itself.[1] Where, as here, the Tribunal's original decision confers powers of an ongoing nature upon a person, the stay must be understood to operate prospectively and not to nullify the actions taken under the order prior to the stay being ordered. These issues might benefit from further legislative clarity.
The Tribunal has taken into account the materials that were considered by the Tribunal in the making of the decision of 6 November 2019, the Tribunal's reasons and materials submitted in support of the application for a stay.
Nothing in the SACAT Act or the G&A Act supports the proposition that a stay is a case-flow management tool. In other words, an order should not be made to stay a decision that is subject to a review simply because the review cannot, for whatever reason, be heard in a timely fashion. However, it is a relevant consideration for the balance of convenience for the Tribunal to consider when the internal review can be heard. The Tribunal endeavours to list matters as soon as all of the parties are ready and interested persons have been given notice.
It was not entirely clear to me from the submissions made by the applicants how they considered that the Tribunal ought to have dealt with the evidence of the significant antipathy between the applicants and the management of the nursing home, which had led to the applicants' access to their mother being significantly restricted. If I understood the applicants' case, their position was that in having the status of guardians their rights of access, or their ability to negotiate access, might be improved.
Mr Simpson, for the Public Advocate, submitted that the applicants had not established an arguable case and that the Tribunal's finding that the intractable dispute between the applicants and the nursing home denied the applicants the ability to make decisions on behalf of LMP in her best interests.
A review of the statement of reasons reveals that the difficult task of marshalling evidence from a group of non-legally trained persons in circumstances of high emotion and conflict has been undertaken in a manner that is directed at yielding facts to which the framework of s 29 of the G&A Act can be applied. Mr Simpson, for the Public Advocate, suggested that a perusal of the transcript of the proceedings of the Tribunal at first instance reveals that the focus of the evidence led at the hearing was the ability of the nursing home management to implement health care decisions because of the applicants' physical 'interference' with their mother's care. Indeed, there was a significant deterioration of the relationship which has, to some small extent, been remedied since the appointment of the Public Advocate who, it would appear, has been acting as an intermediary between the applicants and the nursing home since her appointment.
The Tribunal at first instance was clearly considering that there will be a need for the guardian to make difficult end-of-life decisions taking into account the divergent views of the siblings and the medical advice, all within the context of the facility. In undertaking this task, I consider that the applicants have an arguable case that the manner in which the evidence was received led to too little focus being given to the suitability of the applicants, by reference to the criteria in s 50 of the G&A Act, in favour of a solution to the apparently intractable problem of the conflict between the nursing home and the applicants.
Again, the arguments have not been fully ventilated nor the evidence or process of the Tribunal at first instance fully analysed. The applicants' case may become stronger, or be shown to be weaker, when the matter is argued at a full hearing. The reaching of a conclusion as to an arguable case does not signal an attitude as to the applicants' likelihood of success at the substantive review, when the materials available to the Tribunal at first instance will be considered in detail and any fresh evidence the Tribunal decides to receive will be taken into account.
The Public Advocate submits that any decision-making that must occur while her delegate is guardian, will be undertaken in accordance with the principles of the G&A Act, and in consultation with all of LMP's children. Counsel for the Public Advocate submitted that important gains had been made in enabling the applicants to have greater access to their mother, since the Public Advocate was appointed. Further, the Public Advocate was taking steps to consult with a priest whom the applicants hold in high regard, and to ensure that decisions made on behalf of LMP were consistent, as far as possible, religious beliefs whilst still giving appropriate weight to the medical opinion of LMP's treating team.
The compass of the issues to be determined on review is not broad, though their significance is of course most serious. The documentation is not voluminous. The original hearing occupied three hours. The statement of reasons is four pages long. These factors militate strongly in favour of a hearing of the internal review being listed as expeditiously as possible.
Although the applicants have not yet finalised their grounds of review, the Tribunal can accommodate a full hearing in about three weeks or such longer time as the parties need to prepare. That is relevant to the question of whether the orders should be disturbed.
The Tribunal approaches the application for a stay on the basis that its need must be assessed against the length of time that the order will be effective for if the stay is not granted. That will be several weeks. It is also relevant to understand the use to which the status of guardian will be put if the stay is granted. On this, the applicants cited several areas of concern regarding the Public Advocate's decision-making, including the issue of whether the Public Advocate was consulting with them sufficiently and giving appropriate weight to their mother's religious beliefs.
However, significantly, a decision that the applicants foreshadowed at the directions hearing, to make an accommodation decision on behalf of their mother to move her out of the nursing home, is no longer pressed as a basis for needing the stay. The applicants concede, on the basis of access to medical evidence that they now have, that it would be contrary to LMP's best interests from a health perspective, to attempt to move her now.
The applicants also have concerns relating to their lack of access to their mother. The nursing home's provision of access to the applicants is limited. I am not satisfied that this has been shown to be relevant to the question of whether a stay should be granted. The applicants did not assert that the Public Advocate shared the nursing home's position about the applicants' access to their mother. It would appear that insofar as the Public Advocate and the applicants are concerned, they both consider that the decision that LMP would make if she were able would be to have access to the applicants. However, that is separate from whether the nursing home confers such access.
Ms Simpson is appointed to represent LMP. She has not been able to take instructions due to LMP's incapacity and so made submissions on a 'best interests' basis. Ms Simpson has significant experience in acting in such a role in the Tribunal. Ms Simpson did not support the application for a stay. Ms Simpson deferred to the applicants in respect of their understanding of LMP's wishes and beliefs. She submitted on LMP's behalf that she joined the applicants' dismay at the applicants being provided such limited access to LMP. However she observed that the limited access that was currently being provided had been achieved by virtue of the Public Advocate's negotiation with the nursing home and had ensured that LMP had at least some access to the applicants. She submitted that she expected that the Public Advocate may be able to achieve further improvements to the relationship between the applicants and the nursing home so that greater access would be provided and that this would be in the best interests of LMP.
Having considered the submissions and whilst I consider that the applicants have an arguable case, I am not satisfied that a stay should be granted.