The applicant sought an internal review of a guardianship order made by the Tribunal that appointed the Public Advocate as her son's guardian. The applicant argued that she was denied procedural fairness in the original proceedings because she was not given notice of objections raised in medical reports relied upon as evidence, she did not have an opportunity to respond to or refute any allegations made against her, and she was the most suitable guardian for her son.
[3]
procedural fairness does not dictate that all of the relevant documents must be sent to an applicant or to an interested person ahead of a hearing (particularly in guardianship matters which are not inter partes proceedings).
Information provided in a report from the Public Advocate under s 28 of the Guardianship and Administration Act is provided for the assistance of the Tribunal.
if allegations are raised in a s 28 report or other documents about a person's conduct relevant to their suitability for appointment as a guardian, then those allegations would usually need to be put to that person; the exception would be if to reveal that information would give rise to concerns about the potential of serious harm to the proposed protected person.
the failure to inform the applicant of the objections raised in the written submissions of the social worker and the service providers amounts to a failure to afford procedural fairness to the applicant on the question of her suitability for appointment as a guardian. However, this process failure was cured at the review hearing where the applicant was given an opportunity to respond to the submissions.
Based on the evidence before the Tribunal, the decision to appoint the Public Advocate as the protected person's guardian is the correct and preferable decision.
[4]
Internal Review - Guardianship and administration - Guardianship orders - Full guardianship order
[5]
Administrative tribunals - Procedure - Application of common law principles - Procedural fairness
Mr D Ferraro with Ms C Rosales, Disability Advocacy Services, appeared for the applicant
[14]
Ms J Porter, Crown Solicitor's Office, appeared for the respondent
[15]
Ms N Wade, Equality Lawyers, appeared for the protected person
[16]
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.
[17]
This hearing concerns an application by WIB for an internal review of a guardianship order made on 28 October 2020 in relation to her adult son, RBY. RBY has a mental incapacity, namely an intellectual disability with extremely limited general social and emotional abilities. As a result, RBY has complex care needs. The Tribunal received the application for internal review on 16 November 2020.
All parties were represented at the internal review which proceeded to a hearing on 28 April 2021. At the conclusion of the hearing I made an order and advised the parties verbally that I was satisfied that the correct and preferable decision was to affirm the order made in the original jurisdiction and that I would provide reasons. These are the reasons for the decision.
On 19 May 2020 in the exercise of its original jurisdiction, the Applicant brought an application before the Tribunal for a Guardianship Order pursuant to s 29 of the Guardianship and Administration Act 1993 (the GA Act) in relation to her son, RBY.
On 28 October 2020 in the exercise of its original jurisdiction, the Tribunal made the following orders:
4.1 An order under s 29 of the GA Act appointing the Public Advocate (the Respondent) as full guardian of the protected person.
4.2 An order under s 32 of the GA Act directing that the protected person reside in such place as the guardian from time to time sees fit and authorising the detention of the protected person at the place the guardian decides he is to reside.
4.3 An order under s 35 of the GA Act appointing the Public Trustee as full administrator of the protected person's estate.
Importantly the review date on the guardianship order is 27 October 2021.
Mr Ferraro, counsel for WIB, clarified that the internal review only relates to the guardianship order. His client seeks to be appointed as the guardian. If she is appointed as guardian, she would make an application for a special powers order.
The Applicant seeks a review of the decision appointing the Public Advocate as the legal guardian for the protected person on the grounds that:
[18]
7.1. She was not given any notice to the objections raised in the reports relied upon by Dr Fuller; and
[19]
7.2. She was not given the opportunity to respond to, or refute any of, the allegations made against her; and
[20]
7.3. The Applicant is the most appropriate guardian for her son, RBY, meeting the legislative requirements to be appointed legal guardian.
[21]
The Public Advocate's contention is that the decision to appoint the Office of the Public Advocate (OPA) as the RBY's full guardian was the correct or preferable decision, that the original decision should be affirmed and that the Application for Internal Review should be dismissed.
Ms Wade for the protected person, RBY, submitted that she would essentially abide the decision of the Tribunal as her client was unable to provide any instructions due to extent of his mental incapacity. She was unable to point to any error in the reasoning process adopted by Member Fuller in the ordinary jurisdiction. She noted that the issue of mental incapacity was not in doubt and the need for a guardian had been made out.
However, Ms Wade suggested that the need for a full order should be closely scrutinised by the Tribunal on internal review as there was no clear evidence that RBY needed a health decision maker.
Regarding an appointee, Ms Wade submitted that the evidence before the Tribunal supported the need for a person to be appointed who was competent to discharge the functions of a guardian and she noted the concerns about WIB being readily able to make the necessary decisions. She submitted that the Tribunal had properly considered the criteria in s 50 and s 29 and there was no error in the approach adopted.
[22]
Nature of review and procedural fairness errors - release of documents and the s 28 report
[23]
An Internal Review pursuant to s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) is a merits review. This means that there is no need to identify an error before the Tribunal on the internal review. The Tribunal may intervene and reach a different outcome on the internal review even if no error has been identified. The task of the Tribunal is to consider all of the evidence before it, both at first instance and on internal review, and reach the correct and preferable decision.[1]
The Applicant's grounds of review contend that the Applicant was not given any notice of the objections to her appointment as guardian which were raised in the reports relied upon by the Tribunal Member, and that the Applicant was not given the opportunity to respond to, or refute any of the allegations made against her.
This ground of review can be characterised as a complaint about a denial of procedural fairness in the original decision-making process. Mr Ferraro did not forcefully press this submission for the applicant on the internal review as his client was given the opportunity to fully respond to the concerns at the internal review hearing. However, he submitted that it was unfortunate that the written submissions provided to the Tribunal by a social worker and service providers were not sent to his client ahead of the hearing (due to an apparent oversight in the address for service filed with the application). Further, he noted that the Tribunal adjourned after the first hearing and ordered that a report be prepared by the Public Advocate for the benefit of the Tribunal under s 28 of the GA Act. Again, this report was apparently not sent to the applicant.
Mr Ferraro submitted that, as a result of these omissions, WIB was caught by surprise at the full hearing about concerns raised by others regarding her appointment as a guardian. She had insufficient opportunity to make submissions to the Tribunal Member and address those concerns. This is apparent from the transcript. Mr Ferraro made no criticism of the registry for this oversight as it appeared that this may have been due to the incorrect email address being provided concerning the applicant's address for service.
I note that the requirements of procedural fairness do not dictate that all of the relevant documents must be sent to an applicant or to an interested person ahead of a hearing (particularly in guardianship matters which are not inter partes proceedings). In fact, in many matters, due to concerns about confidentiality and privacy, only the person who is the subject of the proceedings will receive all of the relevant documents ahead of the hearing.
In Re XHQ[2018] SACAT 11, Senior Member Stevens explained this procedure and the reasoning behind it as follows at [68] - [70]:
[24]
...The protected person's right to privacy is an important aspect of personal dignity which the legislation (the GA Act) seeks to preserve and respect.
There is a risk that release of highly sensitive personal information (such as details of a person's will) to family members will in fact damage family relationships and consequently cause significant detriment to a protected person.
These factors mean...that there will sometimes be a basis for the Tribunal to receive information relating to the issues before it without disclosing that information in full or at all to those participating in the hearing. It is a matter of judgment for the tribunal.The exercise of that judgment must be approached judicially. Regard should be had to the fact that greater disclosure may enhance accountability and therefore the quality of decision making, but also to the fact that disclosure may constitute an invasion of the privacy of the person ...
(my emphasis)
[25]
In some extreme cases where, for example, the release of information might expose the subject person to a serious risk of harm or other significant concerns, information contained in a s 28 investigation report or other documents may not be disclosed to anyone at all, even to the person who is the subject of the proceedings.[2]
In such cases it would be appropriate to make an order restricting or prohibiting disclosure of the report or documents, or parts of the reports or documents, to a party (the proposed protected person or an applicant) under s 60(2)(h) of the SACAT Act (and see Rule 45 of the SACAT Rules). Such an order would not be required where the likely recipient is not a party to the proceedings, such as an interested family member, as in such a situation the interested person would not be entitled as a matter of procedural fairness to receive the information. However, in those circumstances the Tribunal might consider also making a non-publication order over such a report under s 60(2)(g) of the SACAT Act.[3]
However, where there are no concerns about serious harm or similar concerns, if allegations are raised in documents (including in s 28 reports) about a person's conduct relevant to their suitability for appointment as a guardian, then those allegations would usually need to be put to that person in sufficient detail by the Tribunal Member at the hearing to allow the proposed appointee to address them appropriately.
In some circumstances a very brief adjournment of a hearing might be appropriate, simply to allow a party or interested person to consider the allegations raised in the documents. The extent of the adjournment will depend on the amount of information to be read and digested.
Alternatively, the relevant parts of the reports or submissions should be read out to the person to enable them to comment about any concerns. I refer to re Re XHQ[4] at [74]:
[26]
The rules of procedural fairness are flexible, and it is recognised that they can sometimes be satisfied by summarising information from a document rather than providing the document itself... An approach of disclosing documents prior to a hearing and perhaps regretting it later does not commend itself.
[27]
In this case a close consideration of the transcript suggests that the various concerns made by the social worker and two service providers in written submissions were not put to WIB in as much detail as they perhaps ought to have been. This is not a criticism of the Tribunal Member who was clearly stretched for time (and who may have assumed that the documents had been sent to WIB ahead of the hearing).[5]
Whist the relevant parts of the s 28 report were read out at the hearing, the written submissions of the social worker and the service providers had not been sent to WIB before the hearing and were not discussed in much detail at all at the hearing. Accordingly, I consider that this does amount to a failure to provide WIB with procedural fairness on the question of her suitability for appointment as a guardian.
In summary, in my view, the various concerns should have been raised with WIB in more detail at the hearing and/or at the very least a brief adjournment should have been provided to give her an opportunity to consider the contents of the s 28 report and the other documents.
Ms Porter for the Public Advocate agreed that there had been a denial of procedural fairness to WIB in this respect at the initial hearing.
However, in Ms Porter's helpful outline of argument, she notes that, in some circumstances, departures from the principles of procedural fairness may be adequately cured by a full review hearing on the merits. For example, in Twist v Randwick Municipal Council[1976] HCA 58; (1977) 51 ALJR 193 per Mason J at 197:
[28]
... if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have 'cured' a defect in natural justice or fairness which occurred at first instance'.
[29]
Ms Porter also referred the Tribunal to Preston v Carmody and Ors[1993] FCA 377; (1993) 44 FCR 1 where Wilcox J determined that whether a procedural fairness was "cured" depended on a full hearing of the evidence with the entitlement to present additional evidence and that the reviewing Tribunal has the power to substitute its decision for that of the original decision maker.
The Public Advocate's counsel submitted that, given the nature of the review under s 70 of the SACAT Act, any failure to provide procedural fairness to the Applicant in the making of the decision was cured on the review.
I agree with Ms Porter's submission in this respect and note that the applicant had an opportunity to provide very detailed written and oral submissions via counsel on the internal review responding to the various criticisms raised by several people about WIB's competence and suitability to be appointed as a guardian.
[30]
The need for a guardianship order- the extent of the order
[31]
The Applicant does not dispute that there is need for a guardianship order pursuant to s 29(1) of the GA Act for RBY but argues that the Public Advocate should not be the appointed guardian.
No-one on the internal review argued that the order should be limited to decisions excluding health decisions apart from Ms Wade. In the absence of a complete rehearing of the evidence with witnesses present it would be inappropriate, in my view, to limit the order in that respect on internal review. That is a matter that is more appropriately considered on a review of the order under s 57 of the GA Act.
[32]
Section 29(4) of the GA Act provides that "The Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if the Tribunal considers that no other order under this section would be appropriate".
The Applicant submitted that the Tribunal Member was wrong to exclude WIB as the appointed guardian. Ms Wade did not offer any alternative position on the internal review but did not point to any errors in the Member's reasoning. The Public Advocate's counsel submits that no other order under the section would be appropriate.
Section 50 of the GA Act sets out the criteria for determining the suitability of a person as a guardian or administrator.
[33]
Section 50(1)(a): whether the potential appointee and the protected person would be incompatible
[34]
The Applicant has submitted that the Applicant and the protected person are compatible because the Applicant was RBY's guardian until he turned 18 years of age. The Applicant has further submitted that she has been involved in all major decisions and has always acted in the best interests of her child.
It is clear that WIB loves her son and has intervened in the past if she had care concerns, but I agree that the evidence supports the fact that WIB has not played an active role in making major care decisions for RBY since he ceased living in her home at the age of 14.
Ms Porter submits that the Tribunal's order appropriately sought to preserve the mother and son relationship between the Applicant and RBY by enabling the decision making to be made outside of that relationship. I agree with the Tribunal Member's observations that RBY:
[35]
would be better served by guardianship [decisions] being made at a distance from the family situation, so I consider there is no other suitable appointment of guardian, for now, than the Public Advocate.
[36]
Section 50(1)(b): whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed
[37]
WIB's counsel submitted that she has been involved in all major decisions and has always acted in the best interests of her child.
[38]
the sanctity of family and the responsibility for caring for one another should be preserved whenever possible. This relationship should only be disrupted in extenuating circumstances where the provision of support cannot overcome the deficiencies. The Applicant submits that the existing family arrangement should have been preserved and not been disturbed. The Applicant being the one to make major legal decision (sic) for her son has worked to date. Intuitively, the Applicant knows what her son needs and has demonstrated that she is capable of taking into consideration all options and making major decision (sic) on behalf of RBY even in times when this could be challenging, whilst always endeavouring to act in his best interests.
[39]
Conversely, the Public Advocate's counsel submitted that the existing informal family arrangement has not been suitable for some time and the appointment of WIB would not be in the best interests of RBY.
[40]
I also note the written submission of the senior social worker at Kudos Services who wrote that:
[41]
While WIB, RBY's mother, has RBY's best interests at heart and intervenes if she has care concerns, I am of the opinion she has not been active in his Guardianship since he started living out of home in 2014
[42]
...having supported RBY since May 2017 I believe it would be in RBY's best interest for him to be placed under the guardianship of the Public Advocate. This would enable WIB to focus her efforts on spending quality time with RBY without having the stress of managing his housing needs, his in-home care, and therapeutic supports.
[43]
The Tribunal considered the existing family arrangement and determined that the relationship between the Applicant and the protected person as mother and son respectively should be preferred and preserved. The Tribunal at first instance relied on a submission from Cara that stated: "we are also of the view that the appointment of Public Advocate would both safeguard RBY but also provide an opportunity to build the mother-son relationship between [WIB] and RBY".
I also observe that the role of a mother is quite different to the role of a guardian. It is often difficult for parents to make the tough, objective decisions for their adult children that are required to be made by a guardian recognising the principles set out in s 5 of the GA Act. I emphasise that there is no suggestion on the evidence before me that WIB does not love her son and that she cares very much about his welfare.
[44]
Section 50(1)(c): whether the potential appointee would be competent to discharge the functions of guardian or administrator under the order and would do so in accordance with the principles stated by this Act
[45]
The Applicant has submitted that she is competent to discharge the functions of a guardian. The Public Advocate's counsel submits that at this stage the Applicant is not yet appropriately able to discharge the functions of a guardian as RBY's needs are complex and WIB lacks the understanding of her role as a guardian.
The evidence before the Tribunal from third parties is also relevant to the question of WIB's competence to undertake the role:
44.1 The Cara Supported Independent Living service manager reported to the Tribunal that Cara experienced "significant challenges to engage with [WIB] in relation to important aspects of RBY's care including but not limited to restrictive practices, consent arrangements, service agreement and medical care".
44.2 The Department for Human Services Exceptional Needs Unit senior practitioner stated "I believe that WIB has difficulty in understanding her role as guardian in terms of managing his affairs and finances and therefore recommend consideration of guardianship and public trustee to manage his finances".
In the statement of reasons, the Tribunal Member noted that:
[46]
My observations of WIB at the hearing lead me to concur [with the service providers] - she is a strong advocate for her son, is concerned for his safety and happiness in the short and long term, and knows in a practical sense what he needs, such as stability of accommodation, suitable financial arrangements, protection from effects of his behaviour. However, she does not appear to understand the role of a guardian in weighing up potential courses of action, monitoring broadly the actions of service providers, and making the best decision for the person under guardianship when all the possible courses are less than ideal. At a time when major decisions need to be made for RBY, I am not satisfied that WIB is able to consistently make decisions that are in his best interests.
[47]
The principles of the GA Act require that consideration be given to the wishes of the person if they were not mentally incapacitated so far as there is reasonably ascertainable evidence on which to base such an opinion. One of the service providers expressed concerns about WIB's capacity to focus on RBY's wishes, will and preference.
Other relevant factors at the time the original decision was made (which are also relevant to the question of competence) related to RBY's complex accommodation needs and the need to negotiate a plan with the National Disability Insurance Scheme (NDIS).
As submitted by Mr Ferraro, I am aware that communicating with the NDIS about the plan can be done informally by a plan nominee, but, as the Public Advocate submitted, when there is a complex plan to be negotiated (and when it is tied up closely with accommodation issues) there may be a good reason to appoint a guardian who is capable of attending to those complex issues. In this case the evidence suggests that, even with support, WIB would have difficulties in negotiating and organising a suitable plan for RBY.
48.1 With respect to RBY's housing, the s 28 Report provided by the Respondent noted that: "Whilst WIB's long term goal for RBY seems sensible, it appears that she may not be understanding the current accommodation limitations and creating unnecessary barriers and stressors in progressing his immediate accommodation needs based on the options available".
48.2 The Public Advocate recommended in the s 28 report that the Public Advocate be appointed as a full guardian "for a term of 12 months to assist RBY with decision making processes until he is well settled in his new accommodation and NDIS funded services and NDIS processes are put in place".
[48]
Section 50(1)(d): whether the potential appointee would be readily available for discharging those functions
[49]
The Applicant has submitted that she is now ready, available and prepared to be appointed as the protected person's legal guardian. Her counsel argued that some instances in the past when she was unavailable can be explained by her parenting responsibilities regarding RBY's siblings.
The Public Advocate's counsel submits that the material before the Tribunal indicates that the Applicant's readiness, availability and preparation continue to be an issue and has caused significant difficulties in the past. I prefer the evidence from service providers to that put forward by WIB. It may be that this situation will change in the future, but currently the concerns about this issue are significant and recent.
50.1 With respect to the Applicant's availability, Cara reported that it was "very difficult to contact [WIB] on occasions of up to 6 weeks to respond. On multiple occasions when staff arrived at [WIB]'s to drop RBY, [WIB] is not at the property as arranged".
50.2 Ms Stone-Wigg reported that she has "ongoing difficulty getting hold of WIB; she rarely answers her telephone but will usually respond to an SMS. She also requires SMS reminders about all meeting (sic) involving RBY's care".
50.3 The s 28 Report stated that "there was a consensus between the service providers that [WIB] was difficult to contact at times when decisions were needed. This lack of responsiveness to attend to decision making has led to crisis situations in the past."
[50]
Section 50(1)(e): whether any conflict of interest would arise from the appointment
[51]
Section 50(2) of the GA Act provides that the fact that a proposed guardian is related to the person by blood or marriage will not of itself give rise to a conflict of interest. This consideration is not determinative of the appointee issue in this case.
[52]
The case on the internal review was arguable as there was a procedural fairness point to be considered; leave is granted to bring the review (s 70(1a) of the SACAT Act). Those errors were cured on the internal review.
For the reasons expressed above, having considered all of the evidence that was before the Tribunal at the original hearing, together with WIB's detailed response on review about the concerns raised by others regarding her competence to be appointed as a guardian, I consider that currently the decision to appoint the Public Advocate as RBY's full guardian is the correct decision. I do not consider that any other decision on the evidence before me is preferable to that decision.
It may be that at the time of the automatic review of the guardianship order under s 57 of the GA Act, WIB's situation may have changed and the major, complex decisions for RBY will already have been made. I would encourage WIB to seek to appear at the s 57 review hearing and argue for a variation of the appointed guardian at that time.