YFP v Public Guardian

Background to decision under appeal

1. In June 2021, the Daughter applied to NCAT seeking guardianship and financial management orders in respect of the Mother. The Daughter claimed that the Mother was no longer able to care for herself, was struggling to cope and was vulnerable to exploitation by the Son. The Daughter alleged that, because of strained relationships between the appellant and other family members, the Mother had little contact with family members and was socially isolated.
2. Following a hearing on 16 July 2021, the Tribunal made a 12-month guardianship order and appointed the NSW Public Guardian as guardian for the Mother with authority to make decisions about the Mother's accommodation, health care, services and to consent to medical and dental treatment on behalf of the Mother (the initial guardianship order).
3. Two months later, the Tribunal made a financial management order and committed the management of the Mother's estate to the NSW Trustee and Guardian.
4. In April 2022, following a hearing to review the initial guardianship order, the Tribunal renewed that order for a period of 12 months and added to the functions conferred by that order, authority to consent to, and to withhold consent to, the use of restrictive practices (the 2022 guardianship order).
5. In the April 2022 review hearing, the appellant urged the Tribunal to appoint him as the Mother's guardian. The Tribunal was not satisfied that the appellant would be able to undertake that role because of his lack of insight into the Mother's high support needs, his rejection of the medical evidence that she now requires assistance with all activities of daily living and his "fixed view" that his mother should return to live with him: Reasons, 29 April 2022 at [64]. In addition, the Tribunal found that the appellant's desire to continue to live in the family home gave rise to a potential conflict between his financial interests and those of the Mother. The Tribunal found that the appellant did not satisfy the statutory criteria for appointment, specifically, that there be "no undue conflict between the interests (particularly, the financial interests) of" the appellant and the Mother and that the appellant be able to exercise the functions conferred by the guardianship order: Guardianship Act 1987 (NSW), ss 17(1)(b) and 17(1)(c): Reasons, 29 April 2022 at [65], [66].
6. On 20 April 2023, the Tribunal (S Pinto, Senior Member (Legal) and Dr H Burnett, Senior Member (Professional)) conducted an end-of-term and requested review of the 2022 guardianship order. The Tribunal decided to renew that order for a period of 24 months and to reappoint the Public Guardian. This is the decision under appeal.
7. The Tribunal rejected the appellant's contention that there was no need for a further guardianship order because he was able to care for and make decisions on behalf of his mother by "informal means". In addition, the Tribunal found that the appellant did not satisfy the statutory criteria for appointment as the Mother's guardian.

Grounds of appeal

1. We understand from the Notice of Appeal and submissions in support of the appeal that the appellant contends that the decision under appeal raises the following purported questions of law: 1. Whether, by failing to view the video recordings he provided, the Tribunal denied him procedural fairness. 2. Whether there was no evidence to support the finding "that there were deficits in her care when [the Mother] was at home". 3. Whether, in appointing the Public Guardian as the Mother's guardian, the Tribunal misapplied ss 15(3) and 17(1) of the Guardianship Act.
2. In addition, the appellant seeks leave to appeal on the ground that the finding that the Mother was "a person in need of a guardian" was against the weight of evidence.

Ground 1: procedural fairness

1. The appellant claims that the Tribunal failed to view the recordings he made using his mobile phone of private conversations with the Mother (the Recordings). He contends that, as a consequence, he was denied procedural fairness.
2. This ground of appeal raises several difficulties, which include: 1. On the available material we could not be satisfied that the recordings contained on the USB stick the appellant tendered in the appeal (the appeal USB stick) are in fact the recordings the appellant gave, or attempted to give, to the Tribunal. The appeal USB stick contains 14 audio-visual recordings of between five to thirty seconds in length. Each recording consists of replies given by the Mother to questions asked by the appellant. The recordings on the appeal USB stick bore dates stamps which post-dated the Tribunal hearing. The appellant conceded that he was unsure whether the appeal USB stick contained the same recordings he gave to, or attempted to give to, the Tribunal. 2. On the available material, it is not possible to determine when the appellant gave, or attempted to give, the recordings to the Tribunal. The appellant failed to tender in the appeal the transcript or sound recording of the hearing before the Tribunal despite being directed to do so if he intended to rely "on what happened at the hearing at first instance": Order 4 made by the Appeal Panel, 14 June 2023. The appellant candidly admitted in the appeal that he cannot remember when he asked the Tribunal to consider the Recordings. He said it was possible that he gave, or attempted to give, the Tribunal the Recordings towards the end of the hearing.

Consideration

1. The Tribunal was obliged to afford all parties, including the appellant, procedural fairness: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2). The Tribunal was required to take such measures as are reasonably practicable to ensure each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c).
2. What constitutes a reasonable opportunity to be heard, "the hearing rule", will vary according to the nature of the jurisdiction being exercised by the Tribunal, the decision being made and the circumstances of the particular case. However, it will generally include an opportunity to call evidence, an opportunity to make submissions and the right to have that evidence and submissions given appropriate consideration by the decision maker. The authorities have consistently emphasised that the hearing rule is flexible and will be considered in terms of what is fair in the circumstances of the particular case. Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 615, described the hearing as rule being "chameleon-like".
3. The reasons for decision given by the Tribunal on 24 April 2023 (the Reasons) reveal that during the hearing the appellant referred to the Recordings. At [36], the Tribunal referred to the appellant's claim that he "has numerous video recordings on his phone of his mother asking to return". At [41], the Tribunal stated, "We also accept that [the appellant] has video recordings of his mother saying she wishes to return home."
4. As conceded by the appellant, and confirmed by the hearing report prepared by a NCAT staff member for the 20 April 2023 hearing, the appellant did not give the Tribunal the Recordings before the hearing.
5. However, little else is known about what was said and done during the hearing in relation to the Recordings. Without the sound recording or transcript of the hearing, it is not possible to say whether the appellant tendered or merely referred to the Recordings during the hearing, or, at what point during the hearing he tendered or referred to the Recordings.
6. The question of whether the Tribunal's apparent failure to view the Recordings amounted to a failure to comply with the obligation to take such measures as are reasonably practicable to ensure that the appellant had a reasonable opportunity to be heard, cannot be considered in the abstract. It requires consideration of the circumstances in which the alleged failure occurred. On the available material, it is not possible to evaluate whether the apparent failure of the Tribunal to view the Recordings amounted to a failure to comply with the obligation to take such measures as are reasonably practicable to ensure that the appellant had a reasonable opportunity to be heard.
7. In any event, even if it be accepted that, by failing to view the Recordings, the Tribunal had failed to give the appellant a reasonable opportunity to be heard, it does not follow that the appeal should be allowed. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, French CJ at [37] said the concern of the law in terms of procedural fairness is to "avoid practical injustice". Referring to the notion of "practical injustice", in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, Gageler and Gordon JJ said (footnotes omitted): "[60] Where ... the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given."
8. The Tribunal accepted, as claimed by the appellant, that on the Recordings the Mother said she wanted to return to live at home: Reasons at [41]. However, the Tribunal did not consider those statements to be determinative given its finding that the Mother "has dementia and she is unable to make informed and appropriate decisions in her best interests" including, "an inability to make informed decisions about where she lives and the suitability of accommodation for her high care needs": Reasons at [41].
9. In circumstances where the Tribunal accepted as claimed by the appellant, that the Recordings revealed that the Mother had expressed a wish to return home, it could not be said that the failure to view the Recordings deprived the appellant of "the possibility of a successful outcome".
10. This ground of appeal must be rejected.

Ground 2: finding made without evidence

1. The appellant contends that there was no evidence to support the finding that "there were deficits in [the Mother's] care when she was at home" (the impugned finding): see Reasons, 20 April 2023 at [50]. The appellant argues that finding was based on "speculation" and "black lies from my sister".
2. We are unable to assess the appellant's "no evidence" claim because, as noted above, the appellant failed to provide us with the evidence that was before the Tribunal, the sound recording, or the transcript of the hearing. On that basis alone this ground must be rejected.
3. But, in any event, we note that successive Tribunals in their respective reasons for decision, have referred to the evidence of so-called deficits in the Mother's care while she was living with the appellant. For example: 1. in the proceedings where the initial guardianship order was made, a manager with Hammond Care gave evidence about "concerns about service provision" to the Mother while she living at home and claimed that she was socially isolated and fearful: Reasons, 16 July 2021 at [25]. In those proceedings, the Daughter claimed that while living with the appellant the Mother was struggling and frequently requested assistance from her, did not see family members because of the strained relationships between the appellant and other family members, and was missing out on activities: Reasons, 16 July 2021 at [21], [25]; 2. in the proceedings to review the initial guardianship order, a Restrictive Practices Assessment Form, dated 25 October 2021, before the Tribunal referred to the Mother locking herself inside the family home, being unable to find the keys and requiring police intervention while living with the appellant: Reasons, 29 April 2022 at [40]; 3. in the proceedings to review the 2022 guardianship order, the Daughter claimed that while the Mother was living with the appellant, she observed the family home to be filthy and, because she was doubly incontinent, the Mother's sheets to be soiled: Reasons, 20 April 2023 at [40].
4. The impugned finding was reasonably open to the Tribunal on the available material. The premise on which this ground rests is not established.

Ground 3: misapplication of ss 15(3) and 17(1) of the Guardianship Act

1. The appellant contends that, by appointing the Public Guardian in circumstances where he was willing to be appointed as guardian and the Mother supported his appointment, the Tribunal misapplied s 15(3) of the Guardianship Act. The appellant argues that the Tribunal took the approach of "shipping [the Mother] off to the Public Guardian" because of the dispute between himself and the Daughter.

Statutory framework

1. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is aged 18 years or more as the guardian of the person under guardianship: Guardianship Act, s 16(1)(a).
2. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary, guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on Tribunal's power to make guardianship orders ... (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
3. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
4. Section 17(1) does not apply to the appointment of the Public Guardian: Guardianship Act, s 17(2).
5. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
6. In ZKF v ZKG [2019] NSWCATAP 64 at [31], the Appeal Panel considered the operation of s 17(1)(c) of the Guardianship Act and said that that provision required the Tribunal to make an evaluative judgement about whether the proposed guardian was "able" to exercise the function(s) conferred by the guardianship order, in that case, an accommodation function. The Appeal Panel said that that task required the Tribunal to consider not only whether the proposed guardian "possessed the necessary skill and experience to be able to exercise [the accommodation function] (or, put another way, to make decisions about his mother's accommodation on her behalf) but also whether he had the personal attributes, such as judgement and integrity, required to exercise that function". In addition, the Appeal Panel said that, in evaluating whether the proposed guardian was able to exercise the conferred functions, the Tribunal was required to consider whether the proposed guardian "was able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act": W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (Lindsay J).

Consideration

1. At [48]-[51] under the heading, "Who should be appointed as the guardian?", the Tribunal set out its reasons for appointing the Public Guardian. The Tribunal commenced by stating that the test to be applied was whether the appellant "is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act": Reasons at [48].
2. At [50], the Tribunal said it was not satisfied that the appellant should be appointed guardian for "the reasons outlined above", namely, the reasons given for exercising the discretion to make a guardianship order. The Tribunal went on to say: "[50] We are not satisfied that he has sufficient insight into his mother's high care needs, and we consider that there is evidence indicating that there were deficits in her care when she was at home. We have found that whilst [the appellant] is committed to his mother he is placing his own emotional needs above those of his mother. We are not satisfied that [the appellant] is able to make sound and appropriate decisions in his mother's best interests and we have reappointed the Public Guardian."
3. At [41]-[47], the Tribunal explained its reasons for rejecting the appellant's claim that he "can make decisions informally without [a guardianship] order". At [42] the Tribunal said: "[42] We accept that [the appellant] is committed to his mother and genuinely believes he can care for her in their home. However, we are not satisfied that [the appellant] should make decisions for his mother on an informal basis. We are not satisfied that [the appellant] has an appropriate level of insight into his mother's high care needs or that he has adequately considered how he will care for his mother at home. We formed the impression that [the appellant] was placing his emotional needs above objective evidence showing that his mother is settled and well cared for, and has high care needs due to the debilitating effects of dementia."
4. By the combined operation of ss 15(3) and 17(1) of the Guardianship Act, if satisfied that the appellant (the only individual to nominate to act as the Mother's guardian) met the criteria for appointment listed in s 17(1) of that Act, the Tribunal was precluded from appointing the Public Guardian as guardian of the Mother. The reasons reveal that the Tribunal considered whether the appellant was "able" to exercise the function(s) conferred by the guardianship order, specifically, the accommodation function. The Tribunal was not satisfied that the appellant would be able to exercise that function in a manner which conforms with the obligation to give "paramount consideration" to the welfare and interests of the Mother: Guardianship Act, s 4. That finding was one open to the Tribunal on the available evidence.
5. As the appellant points out, the Tribunal referred in the Reasons to the relationship between the appellant and the Daughter as being estranged and their dispute about various matters, including whether the Mother should continue to reside in residential aged care: see Reasons at [22], [43]-[44]. However, the contention that this was the basis for the Tribunal's decision to appoint the Public Guardian misstates the Reasons. The Reasons reveal that central to the Tribunal's decision to appoint the Public Guardian was its finding that the appellant would be unable to make decisions on behalf of the Mother concerning her accommodation. The Tribunal found that the appellant's stated intention to bring the Mother home to live with him demonstrated a lack of insight into the Mother's high care needs and a tendency to place his emotional needs over the Mother's interests. Not being satisfied that the appellant would be able to make decisions about the Mother's accommodation in a manner which conformed with the obligation to give paramount consideration to her welfare and interests, the Tribunal was compelled to appoint the Public Guardian.
6. This ground of appeal must be rejected.

Leave to appeal

1. The appellant seeks leave to appeal and contends that the finding that the Mother is a "person in need of a guardian" is against the weight of evidence. He contends that information he obtained from Dementia Australia indicates that people with dementia may still have the capacity to make decisions. That information together with the Recordings indicate that his Mother has "capacity for decision making".
2. In Collins v Urban [2014] NSWCATAP 17 at [84], an Appeal Panel of NCAT stated that there must be a "sound basis" for granting leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel said that an appellant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact.

"Person in need of a guardian"

1. If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person: Guardianship Act, s 14(1). A "person in need of a guardian" is defined as a "person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A "person who has a disability" is defined to include a person who is of advanced age, intellectually, physically, psychologically or sensorily disabled and, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (support to live in the community)": Guardianship Act, s 3(2).

Consideration

1. Determining whether to grant leave to appeal on the basis that the finding that the Mother was a "person in need of a guardian" was against the weight of evidence raises much the same problem as discussed in Ground 2: the absence of the material that was before the Tribunal. Our consideration must therefore be confined to the reasons given for the decision under appeal and the reasons given by previous Tribunals.
2. At [11]-[16], the Tribunal considered whether the discretion to renew the 2022 guardianship order could be exercised. At [11], the Tribunal stated that to exercise that discretion, it was required to be satisfied that the Mother is "a person in need of a guardian".
3. At [13], [14], the Tribunal referred to the evidence before the Tribunal which made the 2022 guardianship order that the Mother: 1. had a severe cognitive impairment with short-term and long-term memory loss and confusion; 2. was disoriented as to time and place; 3. was unable to recall her name and left the hearing soon after its commencement.
4. At [15], the Tribunal said: "[15] During the most recent hearing, [the appellant] said he believes his mother has only a mild cognitive impairment. He said he does not agree that it is a significant cognitive impairment, and she can make decisions for herself. He referred to Dementia.org and some material he had read on that website."
5. At [16], the Tribunal noted that previous Tribunals had found that the Mother "has a disability, dementia which means she is totally or partially incapable of managing her person". The Tribunal said that while it had regard to the appellant's views it had "no information which contradicts the findings of the previous Tribunal". The Tribunal found that the Mother "remains a person for whom we could renew the guardianship order because of a disability which prevents her from being able to make important life decisions": Reasons at [16].
6. In its reasons for making the initial guardianship order, the Tribunal considered the medical evidence which included the report prepared by geriatrician Professor Potter dated 7 April 2021. In that report, Professor Potter recorded that the Mother has Alzheimer's disease with severe anxiety; on testing using the Mini-Mental State Examination, a screening test for cognitive impairment, in May 2018 the Mother scored 22/30 and in October 2019, 14/30; and, the Mother does not recognise the family home and sometimes her son: Reasons, 16 July 2021 at [15]. The Tribunal noted that the "medical and allied health reports about [the Mother's] disability was consistent and accepted that evidence as persuasive and reliable" Reasons, 16 July 2021 at [15].
7. In addition, the Tribunal noted that the Daughter and the appellant agreed that the Mother is unable to make decisions in her own best interest: Reasons, 16 July 2021 at [17], [18]. Each told the Tribunal that at times the Mother was unable to recognise them: Reasons, 16 July 2021 at [17], [18].
8. We accept, as stated by the appellant, that a diagnosis of dementia is not determinative of whether the appellant is a "person in need of a guardian". That is evident from the text of the definition of that term, which required the Tribunal to be satisfied: 1. by virtue of having dementia, the appellant "is restricted in one or more major life activities to such an extent that she requires supervision or social habilitation"; and 2. because of that disability, the appellant "was totally or partially incapable of managing her person".
9. There was evidence before previous Tribunals to support each of the above elements. As noted by the Tribunal, apart from the opinion of the appellant, there was no material which contradicted the finding that the Mother is a "person in need of a guardian". The contention that that finding was against the weight of evidence is rejected.
10. Leave to appeal is refused.

Orders 1. Leave to appeal is refused. 2. Appeal dismissed.

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: 22 December 2023