YEB v YEC

Background

1. The background to the proceedings was recorded, accurately it is reasonably apparent, by the Tribunal in its reasons of 30 January 2023. YEB is a 44 year old man who usually resides alone in a rental unit at Lane Cove. As at 30 January 2023, YEB had been an inpatient of the Mental Health Unit at Royal North Shore Hospital (RNSH) since 14 October 2022. On 18 January 2023 YEB was transferred to the Intensive Care Unit of RNSH [1]. YEB was "reported to have schizophrenia and an eating disorder" [2].
2. On 5 December 2022 the Tribunal received an urgent application for the appointment of a guardian and a financial manager for YEB [3]. The applicant for such orders was YEB's treating psychiatrist.
3. The Tribunal recorded that YEB, a medical practitioner on behalf of NSLHD, YEB's mother, YEC, and the Public Guardian as a statutory party, were parties to the guardianship application, the hearing of which was attended by YEB's treating psychiatrist, his mother and carer, his NDIS support coordinator and a psychiatric registrar.
4. The Tribunal recorded that, during the course of the hearing, YEB, the Principal of the Public Guardian and YEB's community care coordinator gave evidence by telephone.

Reasons for the Decision of the Tribunal

1. After recording the background matters to which we have referred, under the hearing "Principles" [8], the Tribunal recorded the terms of s 4 of the Guardianship Act. The Tribunal then considered whether YEB was "someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions". The Tribunal recorded the terms of s 14 of the Guardianship Act, which provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is a "person in need of a guardian". Pursuant to s 3(1) a person in need of a guardian is a "person who because of a disability is totally or partially incapable of managing his or her person". The Guardianship Act defines "disability" to include intellectual, physical, psychological or sensory disability, a mental illness within the meaning of the Mental Health Act 2007 [10]
2. The Tribunal referred [11] to the report of YEB's psychiatrist of 14 December 2022 and an occupational therapy report dated 9 December 2022. The Tribunal recorded [12] that YEB opposed the guardianship application and stated that he had "lost 10 kilograms in weight over the last 3 weeks and has been compliant with tablets to assist him in losing excess fluid". YEB was recorded to have stated that he "does not have a binge eating disorder" which he said could be "verified" by a nutritionist at RNSH who has "known him for 3 years".
3. The Tribunal recorded [13] that YEB became "distressed and angry" during the hearing, in the manner which it recorded. The Tribunal said that it was "required to initially mute [YEB's] video stream" and ultimately "drop" YEB's telephone attendance at the hearing "in order to obtain the evidence required". The Tribunal stated that YEB "continuously attempted to rejoin the virtual meeting room and continued to scream and swear when he did so", to the extent that the Tribunal "continued to drop his attendance from the hearing".
4. During the course of the hearing of his appeal, YEB displayed none of the behaviours to which the Tribunal at first instance referred, appeared to remain calm, and was responsive to the Appeal Panel's questions. At no time did YEB appear to be distressed or angry.
5. The Tribunal [14] "did not accept [YEB's] evidence where it was contradicted by the medical evidence because of his disability". The Tribunal referred [15] to the evidence of YEB's treating psychiatrist that he has had "severe chronic treatment resistant schizophrenia and binge eating disorder for the last 23 years", with "multiple admissions for relapse of his schizophrenia, mostly due to medication non-compliance." The Tribunal set out details of YEB's prior treatment and conditions, including that he "refuses treatment for mental and physical health which comprises his health care".
6. The Tribunal was accordingly [17] satisfied that YEB had a disability which prevents him from making important life decisions and is accordingly a person for whom the Tribunal could make a guardianship order.
7. Under the heading "Should the Tribunal make a guardianship order and what order should be made" the Tribunal considered the mandatory relevant considerations articulated in s 14(2) of the Guardianship Act [18]. The Tribunal stated [19] that those matters had no "hierarchy or weighting and each is a mandatory consideration", the determination of the application involving a "balancing exercise" by the Tribunal with respect to the matters referred to in s 14(2) of the Guardianship Act. That task was said to be "guided" by the principles set out in s 4 of the Guardianship Act, as explained in IF v IG [2004] NSWADTAP 3.
8. The Tribunal referred to the evidence of YEB's treating psychiatrist that his "current accommodation is unsuitable in the short to medium term", and that he needed "more suitable supported accommodation". YEB's treating psychiatrist gave evidence that he was "not ready for discharge and remains in ICU because he developed sepsis from cellulitis in his legs. He initially refused treatment and required intubation to receive intravenous antibiotics". At the date of the hearing of his appeal YEB remained in RNSH.
9. The Tribunal referred [21] to evidence from YEB's NDIS Support Coordinator with respect to issues relating to the facilities in YEB's unit and the opinion that YEB "requires an occupational therapy assessment of his home and will require a new shower". YEB informed the Tribunal, and the Tribunal acknowledged [22], that he "wished to remain in his unit on discharge from the hospital". The Tribunal was satisfied [23] that a guardian with an accommodation function should be appointed by reason of YEB's "lack of insight and anticipated objection to any accommodation decision other than returning to his unit".
10. The Tribunal recorded that it had been informed that [YEB] remains an involuntary patient until March under orders pursuant to the Mental Health Act" and that YEB, and that his mother "did not like the decisions" which were made regarding YEB's "health care and medical and dental consent".
11. The Tribunal referred [25] to the evidence of YEB's treating psychiatrist that the "Mental Health Act order meant that [YEB's] mental health medication and treatment cold be provided to him despite his objections, however, his physical health needs were unable to be met due to [YEB's] objection to medical treatment".
12. The Tribunal recorded the evidence of YEB's psychiatrist with respect to his refusal of treatment and the wish of the treating team to "prescribe diabetic and anticoagulant medication for [YEB] despite his objections to those treatment(s)".
13. The Tribunal recorded [26] the consent of the Public Guardian to the making of an order pursuant to s 46A of the Guardianship Act. The Tribunal referred [27] to the evidence with respect to YEB's need for "additional services on discharge from hospital regardless of what accommodation decisions (were) made for him".
14. The Tribunal decided [28] "on the basis of all of this evidence that a guardianship order should be made with accommodation, authorise others, health care, medical and dental consent, override objections to medical treatment and services functions". As there was found [30] to be "no private person available to be appointed as guardian" for YEB, the Tribunal appointed the Public Guardian.

YEB's submissions

1. Although YEB's grounds of appeal summarised the basis of his appeal, YEB did not file any outline of submissions in accordance with the Tribunal's directions. No other party to the proceedings filed submissions in the appeal.
2. Other than to the extent indicated by his grounds of appeal, YEB struggled to further articulate the basis on which he contended that the decision of the Tribunal should be disturbed. We do not criticise YEB for that. In his oral submissions, YEB referred to notes which he said he had made from which he may have read. Rather than attempt to do so rally, the Appeal Panel offered YEB the opportunity to provide the notes which he considered supported his appeal. YEB accepted that offer and, on or about 24 July 2023, provided the Appeal Panel with those notes. Reproduced below without amendment are parts of YEB's notes.
3. The notes recorded: "Main argument: 2 hours may be 2 long to save my life if that is your main concern as you say. Forcible treatment and transport done in 2020 and other times. Forcible treatment done this time successfully at drs decision. Was paranoid because timing of haldol injection and onset of infection (believed to be food poisoning now). This order is to stop me refusing physical health measures as is my right that may expose hospital to lawsuit even if I refuse them as admitted by Dr Smithson particularly clexane which I have read can cause reverse stroke if taken for 6 months or longer have been on now for 6 months. NZ guidelines say only take it for 14 days max"
4. YEB made a number of submissions with respect to his diet, recording that since the writing of the doctor's report which was before the Tribunal he had lost "30kg" and had been "cleared of mrsa in ICU since then". YEB said that he had been: "cleared of cellulitis by high risk foot clinic. Treatment resistant not initially when moved to icu lost time came to delirious sitting in Chair was sedated with so much morphine slept for a week And had to be intubated they claimed I was in coma. Illness coincided with haldol injection that I was getting Bad side effects from at time and was probably caused by Take away food poisoning not properly treated not mrsa Or cellulitis cleared of both of these just after and before icu. Futur [sic] treatment resistant should not be dealt with by a doctor Not have to worry wait up to 2 hours for guardian to approve treatment."
5. Under the heading "Further arguments" YEB stated that his treating psychiatrist "claims to have seen me twice a week for last 2 years this is the first time I've met her". YEB added "tell Tribunal was on psychiatrist prescribed antibiotics pre this admission can cause hallucinations". YEB further said: "Federal guidelines say can't be discriminated against if mentally I'll [sic] except for administration of meds if a danger to self or others (intent of Act) this does and shouldn't extend to physical meds due to side effects (I had refused Psych meds due to side effects successfully before). Blood tests should clear up need for antibiotic. Metformin replaced by Lingliptin. Water weight may come back (other possible cause of cellulitis open to restarting this again). Blood test results should confirm if have soft tissue infection as a result of cellulitis. Cleared of meds in ICU condition of being allowed back on ward."
6. YEB added that "Mental health patients can be discriminated against legally in nsw."
7. YEB reiterated a number of his earlier contentions, including that the "police and Health Team already have powers to transfer [YEB] and enforce medical treatment" and that "other measures on the order are restrictive". YEB submitted that his "delusional beliefs have been either acknowledged or refuted". YEB made a number of comments about the Tribunal's findings and the evidence upon which it was based. With respect to YEB, those contentions do not advance his appeal. YEB, who has no relevant qualifications, disputed the medical evidence on which the Tribunal relied. YEB submitted that "schizophrenic symptoms have resolved as of last 2 weeks due to reversing of certain drug Affirmations and ceasing penicillin. Having functioned and survived in community for 18 plus years in my own unit. 15 plus financially independent, have been classified as high functioning case by former case manager".
8. YEB asserted that "RNSH has provided no evidence of times they claim I have refused to engage with mental health team or medical interventions or said when this was life threatening. Do not feel psych drugs initial cause of comorbidities i.e. weight gain in particular even though They have caused me excessive hunger in past. In initial weight gain due to depression when being treated by another hospital". YEB added that "I rightfully and legally fired my last ndis driver after he watched me have a seizure in my lounge room then went and sat in his car for 10 minutes despite claiming on his credentials he was an epilepsy expert."
9. YEB also submitted "I did it [sic] refuse antibiotics or treatment on mental health ward when I initially felt sick. Refused Haldol as I was having side effect issues from it which have now resolved and I am not happy with Haldol. I became delirious due to illness and was hard to treat at that point after losing time on trip from ward to icu it was blood poisoning cause of delirium not mental health reasons. Due to untested food poisoning not cellulitis which I had been clear of and not mrsa which I was aware of in icu before returning to mental health ward". YEB reiterated that he had been "forcibly transported to and from hospital before several times before on guardianship order therefore not needed for this".
10. YEB concluded his submissions by saying that he was "happy to negotiate with team as done in part [sic] so as to other socorro's for physical as well as psych meds to minister side effects and find medication mix best for me. Side effects of meds now clear happy to take them at least for insomnia which is ongoing. Incontinence caused by benzos used for insomnia. Recalibration of medication mix needed".

Principles governing the Appeal

1. The principles governing the appeal are not in doubt. Pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (CAT Act), save with respect to interlocutory decisions, the appellants may appeal as of right on any question of law or, with leave of the Appeal Panel, on any other grounds. The Appellant did not seek leave to appeal on any other grounds.
2. What may constitute a question of law is also not in doubt. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13] the Appeal Panel recorded a non-exclusive list of "questions of law", being: "(i) whether there has been a failure to provide proper reasons; (ii) whether the Tribunal identified the wrong issue or asked the wrong question; (iii) whether a wrong principle of law has been applied; (iv) whether there was a failure to afford procedural fairness; (v) whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations; (vi) whether the Tribunal took into account irrelevant considerations; (vii) whether there was no evidence to support a finding of fact; and (viii) whether the decision was so unreasonable that no reasonable decision maker would have made it."
3. It is difficult to know what, if any, question of law the Appellant's grounds of appeal purported to raise. In substance, the Appellant's grounds asserted that there was no need for the guardianship orders made by the Tribunal and/or the order providing that specific functions vest in the Appellant's guardian.
4. Consistent with decisions of the Appeal Panel (Ros v Commissioner of Police [2020] NSWCATAP 70) we do not apply an overly legalistic approach to the articulation of grounds of appeal in an appeal by a self-represented litigant with no legal qualifications or experience. That is particularly so in cases involving the exercise of the protective jurisdiction of the Tribunal. The Appeal Panel considers whether it can discern any questions of law as grounds of appeal from the Appellant's Notice of Appeal, his oral and written submissions in support of the appeal, and the reasons for the first instance decision (Ros at [21]).
5. The Appeal Panel endeavoured to explain to the Appellant the nature of the proceedings before it, and the fact that the appeal was not a rehearing of the first instance proceedings, or, a "second go". The Appeal Panel also explained that persuading us that, had the Members of the Appeal Panel constituted the Tribunal at first instance, we may have come to a different decision to that of the Tribunal does not mean that the decision of the Tribunal was wrong in law. It is in the nature of an evaluative determination, such as that made by the Tribunal at first instance, that minds may reasonably differ on the same set of facts without erring on a question of law.

Consideration

1. Nothing to which the Appellant has referred the Appeal Panel establishes that the Tribunal at first instance failed to provide proper reasons for its decision (New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231). Why the Tribunal at first instance made the decision it did was clearly and logically explained. The Appeal Panel is not persuaded that, in determining the proceedings before it, the Tribunal at first instance identified the wrong issue, or asked the wrong question. Nor did the Tribunal at first instance apply a wrong principle of law.
2. The duty to afford procedural fairness has been described as "undoubtedly a central element of the rule of law" which is "concerned, not so much with the process of decision making, as with the institutional process." (Williams, Editor Key Issues in Judicial Review, Federation Press 2014, p41).
3. The Tribunal at first instance afforded the Appellant procedural fairness. As the authorities make clear, procedural fairness is the opportunity to be heard in proceedings. It is not an absolute right and, as occurred in this matter at first instance, there may be circumstances where the right to participate in the hearing of proceedings concerning a person may be constrained by the conduct of that person during the hearing. Nothing to which the Appeal Panel has been referred, or discovered for itself, establishes that the Appellant was improperly or erroneously silenced during the hearing at first instance.
4. Not insignificantly, despite the conduct exhibited by the Appellant during the hearing at first instance, in reaching its decision, fairly, the Tribunal did not take that into account to the detriment of the Appellant. Having regard to the Appellant's submissions in the appeal, and, to the extent that the Appellant's participation at times during the hearing at first instance was limited, nothing which the Appeal Panel has discovered suggests that such limitation caused or contributed to any error on a question of law on the part of the Tribunal. The Tribunal expressly referred to and evaluated the mandatory relevant considerations in a manner which accords with the law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
5. Nothing to which the Appeal Panel has been referred suggests that the Tribunal took into account irrelevant considerations.
6. The Appellant has not produced a transcript of the hearing, or referred the Tribunal to any documentary evidence which was before the Tribunal at first instance or provided the Appeal Panel with any documentary evidence which was before it. There is no basis for inferring that there was no evidence to support any material finding of fact made by the Tribunal at first instance.
7. The decision of the Tribunal at first instance was, as its reasons confirm, reached by a process of logical reasoning which accords with the law. On the evidence before it, it could not be successfully suggested that the decision of the Tribunal at first instance was so unreasonable that no reasonable decision maker would make it.

Conclusion

1. The Appellant not having made out a ground of appeal, his appeal will be dismissed. The orders of the Tribunal of 30 January 2023 operate for a period of twelve months and are reviewable after 30 January 2024, which is now a little over six months hence. If, as the Appellant maintained during the appeal, he is able to manage without a guardian, or demonstrate that he does not continue to need a guardian to perform some or all of the functions provided by the orders of 30 January 2023, those are matters which he can raise after 30 January 2024.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2023