ZHH v ZHI

NCAT Appeal Panel|2018-03-16

Overview

ZHK is not able to make important decisions such as where she should live and what services she should receive because she has dementia. She lives at home with 24 hour in-home care. In 2013 ZHK appointed two of her adult children, ZHH and ZHL, as her enduring guardians and another daughter ZHJ, as the alternative guardian. Those appointments allowed ZHH and ZHL to make decisions about where ZHK should live, what health care and personal services she should receive and to decide whether to consent to the carrying out of medical or dental treatment.
In 2017 ZHI, another of ZHK's adult children, applied to the Tribunal for a guardianship order to be made and for the Public Guardian to be appointed as ZHK's guardian. One of the grounds for that application was ZHI's view, which was shared by his sister ZHJ (the alternative guardian), that their mother's health was at risk and she should be relocated to a nursing home. ZHH thought that her mother was well looked after at home and should stay there.
Following a hearing, the Tribunal made a guardianship order and appointed the Public Guardian as ZHK's guardian. ZHH has appealed to the Appeal Panel from that decision. In our view, for the reasons which follow, the appeal should be upheld, the Tribunal's decision should be set aside and the matter should be sent back to the Tribunal for it to decide again whether a guardianship order should be made.

Legislative framework

Section 14 of the Guardianship Act gives the Tribunal power to make a guardianship order. In exercising that discretion, the Tribunal must take into account the matters listed in s 14(2). (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. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
When exercising the discretion in s 14, the Tribunal is also obliged to observe the principles in s 4: 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.
If the Tribunal makes a guardianship order, s 16(1)(a) of the Guardianship Act, provides that the Tribunal: (a) shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship.
Where a continuing, as opposed to a temporary guardianship order is made, the Tribunal is not to appoint the Public Guardian where another person can be appointed as the guardian. Section 15(3) provides that: (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.

Tribunal's reasoning

After noting at [25] that there was a "considerable degree of conflict between the family members who attended the hearing", the Tribunal made the observation at [26], that "it is not the role of the Tribunal to mediate or determine those allegations". The Tribunal noted concerns expressed by medical practitioners, as well as by ZHI and ZHJ, about the adequacy of the care currently being provided to ZHK. The Tribunal also recorded ZHH's view that the current care arrangements were adequate and that there were advantages in ZHK continuing to live in her own home.
The Tribunal set out the parties' divergent views as to where ZHK should live. At [31] to [34] the Tribunal found that it was not possible for these decisions to be made on an "informal basis". (We understand the Tribunal to use the expression "decisions made on an informal basis" to mean decisions made with the agreement of ZHK's children, as opposed to decisions made by an appointed substitute decision-maker, with which one or more of ZHK's children disagree.) The Tribunal referred to evidence about the level of health care ZHK was receiving and inferred that it was not adequate. Finally, the Tribunal concluded that because of the conflict between ZHK's children it would be impossible for a medical practitioner to identify who was responsible for deciding whether to consent to medical or dental treatment. Because these findings were the basis for the Tribunal's decision to make a guardianship order, we set out the reasoning in full below. [31] The Tribunal asked the parties whether it is possible for these decisions to be made on an informal basis. It quickly became apparent to the Tribunal that, at the current time, there is unfortunately no prospect of [ZHK's] children being able to speak to each other in a civil and constructive fashion. The Tribunal is, therefore, satisfied that the decisions about where [ZHK] should live and about her access to services cannot be made on an informal basis at the current time and there is a need for a guardian to be appointed to make those decisions. [32] [ZHK's] children are also in dispute about the adequacy of the health care that she is being provided with and how consent has been provided for medical and dental treatment. The Tribunal was provided with photographs showing that [ZHK] has been admitted to hospital with serious pressure sores and has had a number of other medical admissions in recent times. [33] Indeed, such was the conflict, that ZHL declined to participate in the hearing when the Tribunal contacted him by telephone on the morning of the hearing. [34] The Tribunal notes that an ambulance electronic medical record, dated 11 June 2017, shows that [ZHK] was taken to hospital having choked on food and that this is a recurrent risk for [ZHK]. The Tribunal is satisfied that, in view of the conflict between [ZHK's] children, that it would be impossible for a medical practitioner to identify a person responsible who might provide or withhold consent to medical treatment on an informal basis for [ZHK]. This is particularly the case in circumstances where there is an appointment of two enduring guardians.
At [35], on the basis "all of this evidence" the Tribunal decided to make a guardianship order.
The Tribunal then set out the competing views of the parties as to whether an individual or the Public Guardian should be appointed to act as guardian for ZHK and whether there was a suitable individual available. ZHI and ZHJ proposed that the Public Guardian be appointed. ZHH strongly opposed that course and suggested that all four children should be appointed or that ZHK's brother could be appointed. The Tribunal's reason for appointing the Public Guardian appear at [39], [40]: [39] The Tribunal considered [ZHH's] proposal but was not satisfied that there is, at the current time, a suitable private person to appoint. It was very clear to the Tribunal that each of [ZHK's] children has very strong views about where she should live and the nature of the services to which she should have access. The Tribunal felt that to appoint any of her children would preclude the genuine consideration of proposals put by other members of the family. The Tribunal is also of the view that the appointment of an independent guardian will relieve the strain on the relationship between [ZHK's] children which will be of benefit to her. [40] As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

Grounds of appeal

ZHH relied on eight grounds of appeal. We set them out below. 1.1 Did the exercise of the Tribunal's discretion under s 14 of the Guardianship Act 1987 to make a guardianship order miscarry because the Tribunal failed to take into account relevant matters under s 14(2). Those matters were: a) [ZHK's] views, as expressed by the appointment of ZHH and her brother ZHL as enduring guardians; b) that [ZHK's] cultural and linguistic environment would be best preserved by allowing the enduring guardians to continue in their roles, in view of their commitment to facilitating [ZHK] living in her own home and close to her extended family; c) that [ZHK's] existing family relationships had been preserved by the arrangements preceding the making of a guardianship order; d) that [ZHK's] need for services was being met without a guardianship order. 2.1 The Tribunal found a guardianship order should be made because: a) the existence of disputes between family members prevented decisions being made on an informal basis; b) the appointment of two persons as enduring guardians prevented a medical practitioner from identifying a person responsible who could provide or withhold consent for medical treatment. 2.1.1 There was no finding of conflict or dispute between the jointly appointed enduring guardians, ZHH and ZHL, regarding decisions to be made and no evidence that other family members were preventing decisions being made. 2.2 There was no reason why the enduring guardians could not be regarded as the person responsible to give or withhold consent to medical treatment, in accordance with s 33A of the Guardianship Act 1987. 2.3 The finding of conflict between the enduring guardians and other family members was not relevant to the discretion to make a guardianship order and should not have been taken into account. 2.4 Did the Tribunal err in finding, contrary to the evidence, that the existence of disputes between family members prevented decisions being made, and in taking 2.1(a) and (b) into account in their decision to make a guardianship order?
Ground 3 was that in determining to make a guardianship order and to appoint the Public Guardian, the Tribunal failed to take into account the opinions of various medical providers. ZHH then quoted extracts from the reports of two medical practitioners and a speech pathologist.
Grounds 4, 5 and 6 are the main grounds relating to the question of whether an individual or the Public Guardian should be appointed as guardian. Ground 4 was that: 4.1 The Tribunal appointed the Public Guardian having found that: (a) The appointment of a family member would preclude genuine consideration of proposals put by other members of the family; and (b) The appointment of an independent person would relieve strain on the relationship between [ZHK] and her children. 4.2 The finding in (a) was not relevant because the obligations of the enduring guardians were to [ZHK] and not to other family members. Alternatively, to the extent that the finding in (a) might be relevant, there was no evidentiary basis for the finding that the appointment of a family member had, or would, preclude genuine consideration of proposals put by other members of the family. 4.3 There was no evidence of strain on the relationship between [ZHK] and her children, and no basis for the assumption that strain on the relationship between [ZHK] and her children, if it existed, would be brought to an end by the appointment of a Public Guardian. 4.4 Did the Tribunal err in deciding to appoint the Public Guardian rather than another person?
Ground 5 was expressed as follows: 5.1 In determining to make a guardianship order and to appoint the Public Guardian the Tribunal relied predominantly on the existence of conflict between [ZHK's] children. 5.2 Was the existence of conflict between [ZHK's] children a sufficient or relevant reason to make a guardianship order and to appoint the Public Guardian?
Ground 6 was that: 6.1 The Tribunal appointed the Public Guardian having found that: (a) [ZHK's] children were in dispute about the adequacy of the health care provided and how consent is being provided for medical and dental treatment (b) that [ZHK] had been admitted to hospital with serious pressure sores. 6.2 The finding in 6.1(a) was not relevant because the obligations of the enduring guardians were to [ZHK] and not to resolve disputes with other family members. 6.3 The finding in (b) was not open on the evidence as the photograph on which it was based depicts a bruise sustained while [ZHK] was an inpatient at Canterbury Hospital. 6.4 Did the Tribunal err in making findings for which there was no evidence, and in relying on findings that were irrelevant to the exercise of discretion under s 14 of the Guardianship Act?
We have assumed that ZHH also meant to refer in ground 6.4, to the power in s 16(1)(a) to appoint a guardian.
Grounds 7 and 8 relate to the adequacy of the Tribunal's reasons. Ground 8 referred to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which requires the Tribunal to set out in any written statement of reasons, the findings on material questions of fact, the Tribunal's understanding of the applicable law and the reasoning process that lead the Tribunal to the conclusions it made.

Questions of law

ZHH has appealed on a "question of law": NCAT Act, s 80(2)(b). For the appeal to be upheld, she must point to a legal error which the Tribunal has made when deciding whether to make a guardianship order: EB v Guardianship Tribunal [2011] NSWSC 767 at [181]-[189]; SAB v SEM [2013] NSWSC 253 at [4]-[7]. In C v W [2015] NSWSC 1774 Lindsay J noted at [45] that "... given the broad evaluative or discretionary content of a decision to make, or to decline to make, a financial management order, appellate interference with such a decision will generally require identification of an error of principle or the like: House v R (1936) 55 CLR 499 at 504-505". The same observation applies to the exercise of the discretionary power in s 14 to make or to decline to make a guardianship order.
The principles in House v R were summarised by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14]. The Tribunal will have made a legal error if it: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or give insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

Errors of legal principle

Although none of the grounds of appeal were expressly framed as errors of legal principle, in our view there is no procedural unfairness in the Appeal Panel characterising them in that way. The respondents were on notice as to the ways in which it was alleged that the Tribunal had erred and it does not matter in this case, what label is used.
One of the mandatory considerations that the Tribunal was bound to take into account when deciding whether or not to make a guardianship order was "the practicability of services being provided to the person without the need for the making of" a guardianship order: Guardianship Act, s 14(2)(d). When considering this issue, the Tribunal found that it was not possible for decisions to be made about: where ZHK should live; what health care she should receive; or who should consent to medical and dental treatment on an "informal basis". (See [31]-[34]).
That reasoning involved an error of legal principle because ZHK had previously appointed ZHH and ZHL to make those decisions on her behalf. The legal effect of that appointment was that ZHH and ZHL could make decisions about certain matters without consulting or obtaining the agreement of ZHI or ZHJ. There was no challenge to the appointment of ZHH and ZHL and no indication of any differences of opinion between them. The Tribunal mistakenly assumed that ZHH and ZHL needed to seek the agreement of ZHI and ZHJ when making certain decisions about their mother.
The second error of legal principle relates to the Tribunal's finding at [34] that, in view of the conflict between ZHK's children, it would be impossible for a medical practitioner to identify a "person responsible" who might provide or withhold consent for medical treatment on an informal basis for ZHK. The Tribunal added that this was particularly the case in circumstances where there is an appointment of two enduring guardians and an alternative guardian.
A "person responsible" is a person who can consent to medical or dental treatment on behalf of a person who is incapable of giving consent to the carrying out of that treatment: s 34(1). The Guardianship Act establishes a hierarchy of persons for whom the person responsible is to be ascertained: s 33A. First in that hierarchy is the subject person's guardian but only if the order or instrument of appointment confers on the guardian the function of giving consent to the carrying out of medical treatment: s 33A(4)(a). The instrument appointing ZHH and ZHL as enduring guardians gave them the power to consent to the carrying out of medical or dental treatment on behalf of ZHK. In those circumstances there was no basis for the Tribunal's conclusion that a medical practitioner would find it impossible to identify a "person responsible". In that respect, the Tribunal made an error of legal principle.
The third error of legal principle is related to the second. When considering whether an order could be made appointing a person other than the Public Guardian as the guardian, the Tribunal was not satisfied that there was a suitable individual to appoint. The Tribunal reasoned that the appointment of any of ZHK's children would "preclude the genuine consideration of proposals put by other members of the family". In circumstances where ZHK had appointed ZHH and ZHL to make those decisions, this was not a case where decisions needed to be made on an informal basis.

Failure to make findings on material questions of fact

When addressing the mandatory consideration as to the practicability of services being provided without the need to make a guardianship order, the Tribunal referred to evidence about the services ZHK was receiving. For example, the Tribunal recorded evidence about the qualifications and suitability of ZHK's carers. At [32] the Tribunal relied on photographic and other evidence to conclude that ZHK "has been admitted to hospital with serious pressure sores". ZHH disputed that evidence, saying that the photograph on which it was based reveals a bruise sustained while [ZHK] was an inpatient at Canterbury Hospital.
The Tribunal also referred to medical records that ZHK was taken to hospital having choked on food. Appeal ground 3 asserts that the Tribunal failed to take into account the opinions of ZHK's treating doctors when deciding to make a guardianship order. ZHH highlighted specific opinions expressed by Professor Smerdely, Dr Koumoulas and a speech pathologist, Ms Brassel. These opinions are all relevant to the question of whether ZHK was receiving all necessary services without a guardianship order being made: Guardianship Act, s 14(2)(d).
The Tribunal noted that there was a dispute about the adequacy of health care being provided but did not refer expressly to the views of medical practitioners. ZHI submitted that the Tribunal noted his concerns and the concerns of medical practitioners and properly took those concerns into account. According to ZHI, the Tribunal discussed Professor Smerdley's report at length, referred to Dr Koumoulos' report and was cognisant of ZHK's issues with swallowing and choking.
Reciting the evidence or being cognisant of the evidence is not sufficient. If there is disagreement about a material question of fact, such as the adequacy of services being provided, the Tribunal should make findings of fact about those issues. The Tribunal referred to some of the evidence but failed to make any findings in relation to the sub-stratum of facts which were relevant to its consideration of whether the current services being provided to ZHK were adequate. Instead of determining questions of fact relevant to that issue, the Tribunal merely referred to the conflicting evidence about the adequacy of those services.

Legal principles

Several of ZHH's grounds of appeal related to what is known as the 'relevancy grounds': Aronson Groves and Weeks, Judicial Review of Administrative Action, (6th ed, 2017, Law Book Company) at 5.20. When exercising a discretion as to whether to make a guardianship order, a decision maker must take into account mandatory considerations, that is considerations that he or she is "bound to take into account in making that decision": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. Conversely, a decision maker must not take into account forbidden considerations. If the decision maker does either of those things, the decision will be invalid.
These principles have been expressed in similar terms in the context of the considerations in s 14(2) of the Guardianship Act. Drawing on IF v IG [2004] NSWADTAP 3 and other cases, the Supreme Court summarised the approach the Tribunal should take when deciding whether or not to make a guardianship order in EB & Ors v Guardianship Tribunal [2011] NSWSC 767, at [113]-[115]. The following principles can be extracted from those paragraphs: 1. each of the factors listed in s 14(2) is a mandatory consideration - the factors have no hierarchy or weighting; 2. the Tribunal must engage in a process of evaluation which requires more than simply adverting to the factors; 3. there will be differing amounts of evidence about the various factors in s 14(2) and, in some cases, there may be no evidence about one, or more, of them; 4. where there is no evidence of one or more of the factors it may be prudent for the Tribunal to record that fact; 5. as well as the matters listed in s 14(2), the Tribunal is entitled to identify and be influenced by any other relevant matters when making its decision; 6. if there is evidence for and against the making of an order, the Tribunal may need to undertake a balancing exercise; 7. when undertaking such a balancing exercise the Tribunal must observe the general principles set out in s 4 of the Guardianship Act: NCAT Act, Sch 6, cl 5.

ZHK's views

ZHH submitted that the Tribunal did not take into account the fact that ZHK had expressed her views as to who should make decisions on her behalf when she appointed ZHH and ZHL as her enduring guardians in 2013. In its reasons for decision involving the same parties relating to an application for a financial management order, the Tribunal expressly took this evidence into account at [58]: The Tribunal takes [ZHK's] views into account to the extent that it is able to do so. These views were expressed when she appointed her daughter, ZHH, and son, ZHL, jointly and severally as her attorneys.
ZHH submitted that the appointment of ZHH and ZHL as joint enduring guardians in March 2013 does not constitute an expression of ZHK's views for the purposes of the application for a guardianship order. In any case, even if it did, the Tribunal was aware of that appointment because it referred to it at [4] of its reasons.
ZHK's view as to whether a guardianship order should be made is one of the mandatory considerations listed in s 14(2). The parties agreed that ZHK was not able to participate in the hearing because she would not be able to understand the issues that were being raised, even with an interpreter. Our understanding is that there was no evidence of her current views. But because she appointed ZHH and ZHL as her enduring guardians in 2013 and ZHJ as her alternate guardian, it may be inferred that she wanted those people to make certain decisions for her if she did not have the capacity to do so. We accept ZHI's submission that the Tribunal was aware of those appointments.
ZHK had appointed ZHH and ZHL as her enduring guardians in 2013. That was evidence relevant to ZHK's view at the time as to whether a guardianship order was necessary. As Hallen AsJ noted in EB & Ors v Guardianship Tribunal [2011] NSWSC 767, at [115], "there will be differing amounts of evidence about the different factors in s 14(2) and, in some cases, there may be no evidence about one, or more, of them". If there is some evidence about a factor, there must be "a process of evaluation (that) requires more than simply adverting to the factors, before it can be said that the Tribunal has fulfilled its statutory obligation": EB & Ors v Guardianship Tribunal [2011] NSWSC 767 at [114].
In this case the Tribunal did not advert to ZHK's views, refer to evidence about her views or make any relevant finding of fact about those views when considering whether to make a guardianship order. Its failure to do so constitutes a legal error.

Inadequate reasons

Grounds 7 and 8 were that the Tribunal's reasons did not adequately set out the matters in s 62(3) of the NCAT Act and that the reasons were otherwise inadequate. No relevant particulars were provided of these grounds in addition to the matters that have been dealt with. This ground of appeal is rejected.

Admission of fresh evidence

ZHI and ZHJ applied for an affidavit of ZHI dated 5 March 2018, to be taken into account by the Appeal Panel. If that evidence were to be considered then ZHH sought to rely on further evidence from ZHK's younger brother dated 24 February 2018 and from Dr Mittal dated 9 February 2018.
ZHI's affidavit made allegations about ZHH's treatment of her mother after the Tribunal had made its decision. There is no need to repeat those allegations in these reasons. In submissions in reply ZHH concedes that she lost sight of her mother's best interests but maintains that she is a suitable person to make decisions on her behalf.
The Appeal Panel has power to take into account fresh evidence if it considers that the grounds of appeal warrant a new hearing. Section 80(3) of the NCAT Act provides that: (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
It follows from this provision that, before determining whether to take into account fresh evidence, we must decide whether to deal with the appeal by way of a new hearing.

Disposition

We have concluded that the Tribunal made errors of law when exercising its discretion under s 14(2) of the Guardianship Act. Those conclusions mean that the decision should be set aside and we should either send the case back to the Guardianship Division or re-determine the merits of the application ourselves: NCAT Act, 81(1). We have decided to send the matter back to the Guardianship Division. The fresh evidence that the parties filed is relevant to material questions of fact that need to be re-determined. The Tribunal at first instance is in the best position to re-determine those matters on the basis of that evidence and any other relevant evidence that the parties provide. For that reason, we have decided not to take into account ZHI's evidence, ZHH's response, the evidence from ZHK's brother or the updated medical evidence. That evidence all relates to events and circumstances which took place after the Tribunal made its decision.

Procedural matters

The Public Guardian was a party but did not wish to present a case or make submissions in relation to the appeal on a question of law. However, the Public Guardian reserved the right to present a case and make submissions if the Appeal Panel granted leave to appeal on other grounds. Leave to appeal on other grounds has not been sought in this case.
ZHH relied on the amended grounds of appeal lodged on dated 7 February 2018 and on written submissions of the same date. The parties provided the Appeal Panel with copies of some of the evidence which had been before the Tribunal.
We have not taken into account any of the evidence or submissions that were filed in relation to a stay application.

Orders 1. Leave is given to ZHH to be represented by an Australian Legal Practitioner. 2. The decision under appeal is set aside. 3. The whole case is to be reconsidered by the Tribunal with further evidence.

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

Amendments 14 May 2018 - Typographical error [ZHH] amended to [ZHK] Para 20, subpar 4.1 (b), 4.2 and 4.3 Para 21, subpar 5.1 and 5.2 Para 22, subpar 6.1 (a) and (b), 6.2 and 6.3 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 May 2018

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (2)

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