ZEG v ZEK

The Senior Member's reasons for decision

1. It is unnecessary that we comprehensively review the Senior Member's reasons for decision. Rather, we have focussed on those areas of the reasons which the appellant has sought to challenge in his grounds of appeal.
2. As this was a review application, the Senior Member at [16] summarised the issues arising at the previous review hearing in June 2015 noting that ZEK's decision making capacity was in issue in those proceedings. The Senior Member noted the earlier Tribunal found ZEK's ability to make decisions on her own behalf "was limited by her mental health which made her vulnerable to influence" and that she continued to have, at least, a partial disability preventing her from making important life decisions.
3. At [17] the Senior Member summarised the conflicting medical evidence available to the Tribunal reviewing the guardianship order in August 2016, and explained that the proceedings had been adjourned to enable a neuropsychological report to be prepared.
4. The Senior Member at [18] and [19] summarised the expert evidence of Dr Michael Perdices, a neuropsychologist, in his report of 18 September 2016. Dr Perdices saw ZEK and had her complete assessments with the assistance of a Cantonese interpreter. The Senior Member recorded: Dr Perdices finds that [ZEK's] immediate attention span/memory is unimpaired, but rate and acquisition for verbal and new learning was severely impaired. She had poor learning and recall due to retrieval and encoding deficit. She demonstrated an ability to solve simple practical problems, but her judgment was severely impaired and her ability to formulate abstract verbal concepts was borderline impaired. She had mild-moderate impairment of cognitive flexibility. The results suggest she retains capacity to make relatively simple decisions. Her ability to make decisions regarding complex welfare and financial issues is significantly reduced but not completely nullified.
5. The Senior Member noted that in his second report dated 3 November 2016 Dr Perdices explained that ZEK understood an attorney appointed under a Power of Attorney "has virtually complete control of her finances, if this is explained to her". The Senior Member recorded that Dr Perdices reported that ZEK's preference was for the appellant to be her attorney.
6. The Senior Member recorded that he had obtained "clarifying evidence" from Dr Perdices at the hearing noting that the expert had acknowledged the difficulties that can arise from conducting an assessment with an interpreter. However, the Senior Member noted that "Dr Perdices was able to conclude that [ZEK] 'has cognitive impairments which impact on her decision making ability'".
7. At [21] the Senior Member recorded a number of matters raised by the appellant. These were his assertion that Dr Perdices' conclusions were unreliable or wrong. The Senior Member noted that while Dr Perdices acknowledged he was unaware of the Chinese traditional way of expressing age, Dr Perdices did not resile from his overall impression of ZEK's "significant difficulties in providing information about herself and those around her".
8. The Senior Member concluded at [22] that, in having Dr Perdices' evidence before him, he had the "best and most update to date" evidence of ZEK's decision making capacity. He found that Dr Perdices' opinion had not been seriously challenged. Thus, he concluded ZEK was a person for whom a guardianship order could be made.
9. The Senior Member then considered the factors which supported the making of a guardianship order including ZEK's asserted need for services, the reported failure of appellant to take up a recommendation that ZEK see a neurologist to investigate her symptoms consistent with Parkinson's disease, and ZEK's sometime stated preference to live in an aged care facility. The Senior Member recorded ZEK was said to be deterred from this course by the influence of the appellant.
10. The Senior Member referred to a report prepared by an officer of the Public Guardian and the attendance [by telephone] at the hearing of a representative of the Public Guardian, Ms Amanda Godbold (Ms Godbold). The Senior Member summarised Ms Godbold's submissions in support of continuing the guardianship order with an accommodation and services function and perhaps healthcare. The Senior Member also set out a summary of the evidence of Ms Esther Chan (Ms Chan) of Australian Nursing Home Foundation (ANHF) the organisation that had been providing services to ZEK. He also considered a report from late May 2016 by Ms Rokshana Detheridge (Ms Detheridge), social worker with the Specialist Mental Health Service for Older People at the Ryde Community Mental Health Service. This social worker's report was noted to refer to disputes between the appellant and ZEK's service providers.
11. At [29] the Senior Member comprehensively set out the appellant's rebuttal of the social worker's evidence, and that of Ms Godbold. He then recorded ZEK's stated view that she wished to manage her own affairs with the assistance of the appellant, and that the Public Guardian was doing "bad things" to her.
12. Under the heading "Consideration" the Senior Member found, on the evidence before him, that decisions about ZEK's accommodation, healthcare, medical and dental treatment and service provision remained to be made. He found, due to her cognitive disabilities, ZEK was unable to make those decisions, but nevertheless her views should be carefully considered.
13. The Senior Member accepted the "preponderance" of evidence that the appellant's wishes for his mother, while genuinely held, "did not always lead to the best outcomes for her". He concluded ZEK remained in need of a guardian.
14. Finally, the Senior Member turned to the question of who should be ZEK's guardian. Having referred to relevant authorities, the Senior Member concluded: Given the evidence about [the appellant's] lack of complete understanding of his mother's care needs and the complexity of decision making for her, the Tribunal could not be satisfied on the evidence that her [sic] is able to undertake the necessary responsibilities as guardian for his mother. In the absence of any other suitable person, I have decided to reappoint the PG.

The grounds asserting findings not available on the evidence before the member, the taking into account of an irrelevant consideration or failing to take into account a relevant consideration, and that the decision was so unreasonable that no reasonable decision maker could have made it.

The evidence before the member

1. As noted above, during the course of the hearing before us, we were able to identify all of the material which was before the Senior Member including a number of earlier medical reports not provided by the appellant as part of his appeal documents.
2. The appellant is critical of the Senior Member for not relying on the opinion of ZEK's general medical practitioner, Dr Alan Wong, and that of Dr Jenson Mak (Dr Mak), a geriatrician. He submits in his submissions in support of his appeal filed on 20 April 2017 and in his submissions filed on 29 September 2017 that Dr Perdices' opinion of ZEK's cognitive capacity is unreliable because he misunderstood her evidence about her age, was mistaken about ZEK's correct address and her lack of knowledge of her telephone number as no landline was, at the time of the assessment, installed in ZEK's accommodation. He submits that the assessment took over three hours without a break, inferring it was thus unfair and/or unreliable.
3. ZEK's general practitioner, Dr A Wong (Dr Wong), provided a report to the Tribunal dated 29 June 2016. In that letter Dr Wong stated ZEK has a disability, that she suffered depression with psychotic symptoms, cataract, diabetes and impaired mobility. However, he went on to explain "It has not been established that she has dementia". He noted that ZEK was able to make her own "life decisions and financial affairs", but required minor help in activities of daily living and needed assistance in showering and medications.
4. In a report dated 2 November 2016 Dr Wong opined: I understand that [ZEK] has been seen by Dr Michael Perdices, neuropsychologist. I understand that he is of the opinion that she has the ability to make simple decisions such as who she would appoint as her financial advisor and power of attorney. This is in line with my view point, as I have written in my reports in the past: I believe she can be given the opportunity to nominate her son to be the person making such decisions & look after her financial matters. It is unnecessary at present for the Guardianship Board to takeover authority to manage her finance and other decisions. I believe it is in [ZEK's] and her family's best interests that the involvement of the Guardianship Board ceases.
5. Although the Senior Member did not discuss Dr Wong's report, or the reports of the other treating professionals referred to in the appellant's submissions, it is clear from [8] of his reasons that the Senior Member was conscious of the conflicting evidence about ZEK's cognitive capacity which was clearly and fully set out in the Tribunal's reasons on the two adjournment applications. Those reports included the report of Dr Mak dated 17 March 2017. These reasons highlighted the deficiencies in Dr Mak's brief report, the mental health issues experience by ZEK subsequent to the report, and the need to obtain an up to date neuropsychological assessment.
6. Accordingly, we are satisfied that the focus in the Senior Member's reasons on Dr Perdices' report was appropriate. Further, Dr Wong, ZEK's general practitioner refers to Dr Perdices' views in his report of 3 November 2016 with approval. However, Dr Wong misunderstands the nature of the proceedings before the Guardianship Division of the Tribunal as including financial management issues. We pause at this point to note that much of the appellant's material is also directed to matters relating to his mother's finances and his dealings with the NSW Trustee. As the Senior Member pointed out at the hearing, financial issues were not matters the subject of the application before him and for this reason he found Dr Perdices' second report was not relevant to the application before him.
7. It is apparent to us from the appellant's material he misunderstood the nature of the decision to be made by the Senior Member on the review application, and asserts on this appeal many matters which would be relevant if the Member had been dealing with the review of the appointment of the financial manager.

The submissions of the appellant and the Guardian ad Litem

The appellant's submissions

1. The appellant provided further submissions on 29 September 2017. The submissions repeat many of the matters raised in his earlier submissions including reference to Dr Perdices' opinion on ZEK's capacity to make a decision about the appointment of a power of attorney to manage her financial affairs, the asserted unreliability of Dr Perdices' first report because of misunderstanding about matters such ZEK's age, residential phone number and that the Senior Member "denied him the opportunity to clarify the above points resulting in an underestimation of [ZEK's] cognitive capacity".
2. The appellant asserts that Ms Godbold asserted that he had refused services for ZEK but says it is "ZEK's own decision to refuse services".
3. The appellant is also critical of the Senior Member for not testing the evidence of Ms Chan of ANHF that ZEK cannot answer a complex question.
4. It is asserted by the appellant that the Senior Member did not allow him to raise [presumably by way of testing the evidence of Ms Godbold] the "past attempt to take ZEK's daughter away from her to a group home without their consent, thus breaking up the family".
5. The appellant is critical of the Senior Member asserting he was unable to raise the issue of the provision of a landline telephone for ZEK, although he notes that the Public Guardian had approved the installation of a landline on 15 December 2015 and attributes the delay in installation to a dispute between the Public Guardian and ANHF.
6. The appellant states: The member is under the impression that I have been neglecting [ZEK's] health and ignoring her hand tremor. She has in fact been seen about this and Dr Yates, psychiatrist from Ryde Mental Health and Dr Lord, neurologist from Concord Hospital both stated that [ZEK] should not be taking antiParkinsonian [sic] medications. There is no report concluding that she actually suffers Parkinson's disease.
7. The appellant concludes his submissions referring to Ms Chan's opinion in her report "that he [the appellant] had improved". He questions her opinion. He also refers to Ms Barry's submission, which we discuss below, about ZEK's future accommodation needs and decision making asserting that he could assist his mother "just as well, if not better than PG".

The Guardian ad Litem's submissions

1. Ms Barry's submissions reveal that she first received all the documents including some of the medical reports, initially relied on by the appellant some two weeks after her appointment and had then interviewed ZEK about her understanding of the appeal. In Ms Barry's submissions she notes ZEK told her that the case was about money. Ms Barry also notes that ZEK reported that she was happy with the services being provided to her and her present accommodation. ZEK is recorded as telling Ms Barry that she trusts the appellant and that she "is very happy for him to make decisions for her". This evidence is consistent with ZEK's position before the Senior Member.
2. In her submissions dealing with the hearing before the Senior Member, Ms Barry recorded she had listened to the sound recording after it was provided to her following the appeal hearing. She expressed concern that "that there was insufficient translation for ZEK to be properly informed about what was being decided and for her to properly express her wishes". She does, however, note that the Senior Member summarised Dr Perdices' oral evidence to the Tribunal.
3. At [26] of her submissions Ms Barry said: Because not everything was interpreted for [ZEK] I am concerned that she may not understand that people are concerned about the future accommodation needs of herself and her daughter, rather than the current accommodation needs. In my conversations with [ZEK], she was not able to tell me how she would plan for the future and could not seem to envisage a time when her situation might change.
4. Ms Barry acknowledged that if ZEK and her daughter need different accommodation in the future, it was her view that ZEK would need assistance with planning. We infer she means planning to determine appropriate accommodation. She also submitted that ZEK has expressed a "clear preference" for her son to assist her with decision making, but notes that because of conflicts with ZEK's service providers this would be difficult.
5. Ms Barry concludes her submissions noting that ZEK has indicated that she is happy with the current level of service provision.

Discussion - guardian ad Litem's submissions

1. It is clear from our reading of Ms Barry's submissions that she has carefully recorded the views of ZEK, and although she does not canvass the medical evidence, submits that ZEK would require assistance in determining her accommodation needs in the future. She also notes the conflict between the appellant and ZEK's service providers.
2. Although Ms Barry's submissions do not address the appeal grounds we identified with the appellant during the course of the hearing and which we have summarised in [4] of these reasons, the general thrust of the submissions does not suggest the Senior Member's decision was not open to him on the evidence. Rather, the submissions support the Senior Member's determination that ZEK needs a decision maker to determine the complex issues around her long term accommodation needs, and that she needs services. Further, Ms Barry's submissions infer the need for an independent decision maker about services given the conflict between the service providers and the appellant.

Relevant legal principles

1. We have earlier identified as one of the recognised categories of error of law the circumstance where a decision maker makes a factual finding not open on the evidence before that decision maker, although it must be noted that not every factual error will comprise an error of law. (see Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77)
2. The failure to take into account a relevant factor, or to give inappropriate weight to an irrelevant matter must be considered within the limits of appellate interference in the making of a discretionary decision. This is well explained in House v King (1936) 55 CLR 499; [1936] HCA 40 as follows: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. I

Discussion and conclusions

1. As we have noted above, we are satisfied that the Senior Member's reasons disclose that he had considered the adjournment decisions which reviewed and discussed the deficiencies in the earlier medical reports, and concluded that a neuropsychological assessment of ZEK was required to determine her capacity to make life-style decisions free from undue influence.
2. We are also satisfied the Senior Member was well aware of the difficulties encountered by Dr Perdices in conducting his assessment of ZEK because of her age, and need for an interpreter. While Dr Perdices may have been mistaken in conclusions about ZEK's stated age, home address and lack of a telephone number, his overall conclusions about ZEK's cognitive capacity were found at the hearing by the Senior Member not to have been impugned. That conclusion was open to the Senior Member who had the benefit of hearing from Dr Perdices' answers when challenged by the appellant.
3. It is important to note that Dr Perdices did not suggest that ZEK's capacity to make simple decisions was compromised, rather he focussed on the nuanced decision making likely to confront her in making complex life-style choices such as her accommodation needs. In his oral evidence Dr Perdices described ZEK's capacity to make life-style decisions as a "bit hit and miss". This evidence was referred to by the Senior Member in his reasons.
4. We also note that the appellant had the opportunity to and did raise the issue of the ZEK's age in accordance with Chinese tradition, and her address with Dr Perdices. Notwithstanding these matters, Dr Perdices did not resile from his primary conclusion in his first report. It was on this evidence reviewed against the background of Ms Chan, Ms Detheridge and Ms Godbold's reports of the difficult relationship between the appellant and the service providers that the Senior Member determined to re-appoint the Public Guardian.
5. We are satisfied that it was open to the Senior Member to accept and rely on Dr Perdices' evidence and no error is demonstrated in him so doing.
6. We are also satisfied that although the decision was not in accordance with the expressed wishes of the appellant, or in accordance with some of the views expressed by ZEK, it was not so unreasonable that no reasonable decision maker could have made it. This was because the Senior Member, balancing all the evidence before him, determined the continuation of the Public Guardian with functions of accommodation and services was in ZEK's best interests.
7. Accordingly we find no merit in these grounds.

Relevant legal principles

1. It is not in doubt that the Tribunal is bound to ensure hearings are conducted in a procedurally fair manner, in accordance with well-established principles of natural justice. This means the proceedings must be determined by a fair and impartial decision maker, and includes the requirement that a party to the proceedings has a reasonable opportunity to put his or her case, and to be heard at hearing. So much is clear from the authorities on this topic (see Kioa v West (1985) 159 CLR 550; [1985] HCA 81; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [61] per Basten JA).

The sound recording

1. We did not have the benefit of the transcript of the hearing, but we were provided with the sound recording and had careful regard to those portions of the sound recording identified by the appellant in his 29 September 2017 submissions.

The submissions of the appellant and the Guardian ad Litem on procedural fairness

The appellant

1. In his initial submissions in support of his appeal the appellant stated "I was not given the opportunity to express my views". He submitted that "it was thought he was rejecting recommended services for his mother, resulting in sub-optimal services being provided for her and hence not in her best interest".
2. At the hearing before us the appellant expressed concern that he was unable to express his views at the hearing before the Senior Member. We provided an opportunity for the appellant to provide written submissions setting out his allegations. As earlier noted, an extension of time was sought by the appellant and granted by us to 29 September 2017 to file his submissions.
3. The appellant's submissions received on 29 September 2017 on the procedural fairness ground relate first, to his assertion he was unable to clarify Dr Perdices' errors, that the member "appeared impatient" when he questioned Dr Perdices about his conclusions and "let Dr Perdices hang up the phone".
4. As noted when recording the appellant's submissions on the first three identified grounds of appeal above, the appellant states he was not afforded sufficient opportunity to present evidence to support his assertion the Public Guardian made decision's which were not in ZEK's best interests.

The Guardian ad Litem

1. Ms Barry's submissions are focussed on her concern that ZEK may not have properly understood all that was said at the hearing by reason of lack of translation of all of the proceedings. We note that this issue is not raised as a ground of appeal.

Discussion and conclusions

1. Notwithstanding the lack of translation to ZEK of all of the proceedings is raised by Ms Barry we not are satisfied there was a lack of procedural fairness. Our examination of the sound recording discloses that Dr Perdices' evidence was accurately summarised (with the summary translated by the interpreter to ZEK and the appellant) by the Senior Member. Further ZEK was afforded the opportunity to and did present her views to the Senior Member. Her views and that of the appellant are recorded and taken into account by the Senior Member. It is important to note that s 4 (d) of the Guardianship Act requires that the views of the person the subject of the proceedings, in this case ZEK, should be "taken into consideration". But if the welfare and interests of a person such as ZEK dictate another outcome as being in the person's best interests, orders ultimately may not be in accordance with the expressed views (see s 4 (1) (a) of the Guardianship Act).
2. The sound recording discloses that the appellant was afforded a reasonable opportunity, by directing questions through the Senior Member to Dr Perdices, to challenge his findings and opinions set out in his first report. We pause to record that Dr Perdices' second report was specifically directed to financial issues and not relevant to the proceedings before the Senior Member. The appellant put to Dr Peridices that he had made errors in his report about ZEK's age, and her address impugning the accuracy of his conclusions. He attributed his mother's error in reporting the age of her daughter as an interpreter's error or mistake. However the latter assertion was not made to the Senior Member nor did the appellant challenge Dr Perdices on this issue.
3. The sound recording also discloses that the Senior Member, when requested by the appellant to translate Dr Perdices' response to his allegations because it was "too long", did so succinctly and accurately. We are satisfied that although all of what Dr Perdices said was not translated to ZEK or the appellant, there was no procedural fairness occasioned either to ZEK or the appellant because of the Senior Member's summary.
4. The appellant voiced his concerns that, based on Dr Perdices' evidence ZEK and his sister would be pushed into accommodation that "is not suitable or good for them". He had the opportunity to and did express criticisms of the care workers providing services to ZEK. He disputed his mother needed services, including physiotherapy. He was also able to pose questions to Ms Godbold from the Public Guardian's office about provision of a landline telephone service for ZEK. The appellant agreed a telephone had been installed at ZEK's unit by the hearing.
5. The appellant gave somewhat confusing evidence at the hearing that ZEK was unable to take medicine for Parkinson's disease as it interfered with her psychotic medications. When this evidence was explored by the Senior Member asking if ZEK had seen a neurologist, the appellant replied "No" but said that "they" [presumably ZEK's doctors] were not going to prescribe medication because "it was not achieving anything". As a result of the appellant's evidence about ZEK's healthcare, the Senior Member explained that the Public Guardian was not seeking a healthcare function. Ultimately the Senior Member did not include a healthcare function but rather left this responsibility with the appellant as ZEK's person responsible. Thus, we are satisfied there was no procedural unfairness caused to the appellant on this issue. We take this opportunity to record that the appellant's evidence before the Senior Member did not include the information now set in his submissions on this topic.
6. The appellant asserted the Public Guardian was wrong in asserting he had refused services for ZEK. The Senior Member summarised the evidence of Ms Godbold which was to the effect that there was some conflict about the services ZEK should receive including physiotherapy, and some meal preparation assistance. Ms Godbold explained that ZEK had the necessary funds to pay for the suggested services. We note before us the appellant expressed criticism of the service providers because a budget ANHS had prepared would use all of ZEK's available funds.
7. The appellant had the opportunity to and did refute the assertions made by Ms Godbold.
8. Although we note the appellant's submission that the Public Guardian proposed separating ZEK and her daughter that assertion does not fully take into account all of the evidence before the Senior Member. In a report dated 30 May 2016 the Public Guardian said: Both Ms Detheridge and Ms Chan have separately expressed their concerns about [ZEK's] current accommodation arrangement. [ZEK] requires assistance with mobilising and her current NSW Housing unit requires her to walk up one flight of stairs. A recent discussion was held between [ZEK] and the Australian Nursing Home Foundation, who raised the possibility of [ZEK] and her daughter, [Ms L] relocating to a Chinese specific independent living unit. However, Ms L was found ineligible for this accommodation due to her age. This discussion raised further issues between [the appellant] and [ZEK's] service providers.
9. The evidence before the member disclosed the Public Guardian wrote to ZEK by letter dated 11 July 2016 and advised a decision had been made to consent to ANHF transporting ZEK to view accommodation in the following circumstances: We received a proposal from Jo Quarrell, Service Manager at Sunnyfield, for [ZEK's daughter] to move into the above accommodation. We made the decision [to provide transportation] to provide [ZEK] with the opportunity to give an informed view of the accommodation proposed for her daughter.
10. The appellant had the opportunity to challenge the evidence of the Public Guardian and Ms Detheridge about the Public Guardian's actions in respect of proposed accommodation and its effect on ZEK. The appellant told the Senior Member it had been necessary for him to stay at his mother's home for a period of one month because she was upset, that the care workers "just make trouble" and the Ryde Community Mental Health team ignored him.
11. ZEK had the opportunity to put her views about the continuation of the guardianship order. She explained that she wished to make decisions with the assistance of the appellant about life-style and financial matters.
12. The Senior Member did bring the proceedings to a conclusion after hearing from ZEK. However, the sound recording discloses that the position of the appellant and ZEK was robustly put to the Senior Member and that the appellant was afforded an adequate opportunity to challenge and rebut, not only Dr Perdices' evidence, but that of the Public Guardian, the social worker and Ms Chan.
13. In these circumstances, we are satisfied that the appellant had a reasonable opportunity to be heard and that he has not established a denial of procedural fairness.

Leave to appeal

1. The appeal disclosed none of the indicia referred to in Collins v Urban that would merit leave being granted to appeal and/or for us to conduct a rehearing. Accordingly the appellant's application for leave to appeal is refused.

Extension of time to appeal

1. Given our conclusions that the Senior Member's decision discloses no appealable error, we are satisfied that the interests of justice do not dictate that we grant an extension of time to appeal.

ORDERS 1. The application for an extension of time to appeal is refused. 2. The application for leave to appeal is refused. 3. The appeal is 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: 19 October 2017