ZJQ v ZJR

Parties to the appeal and their representatives

1. The appellant and her mother represented themselves, participating in the appeal hearing by telephone. In addition, pursuant to orders made by the Appeal Panel under s 45(4) of the NCAT Act, ZJR was separately represented by solicitor, Linda Rogers. Ms Rogers and ZJR participated in the hearing by telephone.
2. The parties to this appeal are the appellant ZJQ, the subject person ZJR, the appellant's mother ZJS, and the Public Guardian. ZJS supported the appeal. The Public Guardian did not wish to present a case or make submissions in relation to whether there was a question of law.

Background to the decision under appeal

1. At the time the initial decision was made on 10 February 2018 to appoint a guardian ZJR was an inpatient at Bankstown Hospital. He had been admitted to hospital due to behavioural disturbance and confusion, and had assaulted staff.
2. On the end of term review on 9 March 2018 the Tribunal as then constituted noted that ZJR had been diagnosed with mixed dementia predominantly of an Alzheimer's type with moderate to severe impairment, and that he had a lack of insight into his cognitive functioning. The Tribunal noted that he had been separated from his wife ZJS for many years but continued to share a residence due to finances and his need for assistance with the activities of daily living. He had a long behavioural pattern of domestic violence, and had assaulted ZJS on many occasions. There had been ongoing aggression to ZJS which had resulted in an apprehended violence order being made.
3. The Tribunal noted the opinion of the medical staff that ZJR could not return home due to violence issues and his personal care needs. The hospital Social Worker reported that the treating team recommended that ZJR move to residential aged care and should not return home even with services because of his history of aggressive behaviour. ZJS wanted him to return home but it was difficult due to his current behaviours. Her daughter ZJQ could not help care for ZJR as she had an 18 month old baby.
4. The Tribunal was satisfied that there was a need for the order to continue. There was a need for a guardian to make decisions about ZJR's accommodation and the services he received, and a decision needed to be made about whether he returned home with services or was admitted to a residential aged care in a secure dementia specific unit. The medications he had been prescribed constituted "major treatment" and required consent to be administered. The Public Guardian was re-appointed with accommodation and health care and consent for medical and dental treatment functions and to make decisions about services to be provided to ZJR, for a period of 12 months.
5. ZJQ did not participate in the review hearing on 9 March 2018, which she explained in her application for review to have been due to sickness. She lodged her application for review of the order made on 9 March 2018 on 27 April 2018, stating that she was originally guardian, and that her father wanted to live in his own home as did his family and carer.
6. The hearing of ZJQ's request to review the order made on 9 March 2018 was initially listed for 18 May 2018. On that occasion the Tribunal Member noted that some of the documents which ZJQ said she had sent to the Tribunal had not been provided in the material before the Member and the hearing was adjourned.
7. The hearing proceeded on 25 July 2018 before a different Tribunal Member. The decision made on that date is the decision the subject of this appeal. The appeal concerns the decision to continue the appointment of the Public Guardian with the function of accommodation.

Grounds of appeal

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), and an appeal is available as of right on a question of law, or with leave on other grounds.
2. In the Notice of Appeal ZJQ stated as the Grounds of Appeal that the decision is wrong, as she and her mother want ZJR home. They had specified how much they want ZJR home. It is not correct that they do not understand his condition. They understand his condition and the risks involved. They explained that they do not have the finances to pay for a nursing home. While stating that she did not seek leave to appeal, ZJQ stated that the decision is not fair, and was against the weight of evidence.
3. At the appeal hearing ZJQ explained that she and her mother are unhappy that the Public Guardian was appointed, as under s 15(3) of the Guardianship Act 1987 there were family members able and willing to be appointed as guardian and the Public Guardian should not have been appointed.
4. The appellant is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to any other party: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. A failure properly to consider the application of the relevant provisions of the Guardianship Act, in particular ss 15(3) and 17(1)(c), or the making of findings for which there was no evidence, could raise questions of law: see Prendergast at [13].
5. As to whether leave to appeal could be granted on other grounds, Collins v Urban [2014] NSWCATAP 17 at [84] establishes that generally for leave to be granted, an appellant must demonstrate something more than that the decision maker was arguably wrong. Leave to appeal would generally only be appropriate if there are issues of principle, or questions of public importance that might have general application; there is an injustice that is reasonably clear or a plain and readily apparent error central to the decision; there is a factual error that was unreasonably arrived at and clearly mistaken; or if it is in the interests of justice that the fact finding process be reviewed.

The decision under appeal

1. The Member identified the requirements for renewal of a guardianship order, being that the Tribunal is satisfied that ZJR continues to have a disability that restricts him in one or more major life activities and is totally or partially incapable of managing his person; and that the Tribunal should make a guardianship order, noting the general principles. The Member referred to the requirement that all relevant factors including those in s 14(2) of the Guardianship Act be considered by the Tribunal before exercising its discretion.
2. The Tribunal Member posed as the relevant questions the following: Is [ZJR] someone for whom the Tribunal could make a further order because he continues to have a disability which restricts him in one or more major life activities to the relevant extent and is totally or partially incapable of managing his person and should the Tribunal make a further guardianship order? If so, should the nature of the order or the appointed guardian change?
3. The Member referred to the further medical evidence before him in the form of a behaviour management plan based on an assessment in April 2018 prepared by two Neuropsychologists who appeared at the hearing. That evidence was that ZJR's dementia affects his ability to create new memories and consistently understand and learn things, that he has slowed thinking, difficulty concentrating, difficulty organising and managing himself, and that there were issues regarding his physical outbursts and challenging behaviours. While ZJQ and ZJS felt that ZJR could make his own decisions, ZJR himself acknowledged difficulties with his memory and that he could not explain or clearly recall issues surrounding the physical outbursts he had exhibited in recent times. The Member was satisfied that ZJR remains a person for whom the Tribunal could make a guardianship order.
4. The Member then considered whether there was a need to continue a guardianship order. He considered the fact that ZJR had in the previous year appointed ZJQ as his enduring guardian, noting that in many circumstances that may be sufficient to ensure that ZJR's needs for substitute decision making were met. He then turned to the issue in dispute between ZJQ and the hospital treating team about decisions to be made in relation to where ZJR might live, noting that the treating team were concerned that ZJQ displayed a lack of insight into the extent of ZJR's disability and the effect it might have on his safety and the safety of others were he to return home.
5. The Member records that he asked ZJQ about that, and she was dismissive of any suggestion there would be difficulties managing ZJR at home, expressing no concern that his physical outbursts may cause harm to himself or to ZJS. The Member records that he asked ZJQ about support services, and ZJQ said she had made inquiries in that regard and put proposals to the Public Guardian. On clarifying, the Member recorded that ZJQ had found out what services existed in the local area but had not taken steps towards investigating the suitability or availability of those services to ZJR. ZJQ was unaware of the aged care assessment process. ZJQ was clear in her concern that residential aged care for ZJR was not affordable and would place an unacceptable burden on ZJR's financial affairs and those of ZJS who was relying on the dual income coming into the household to maintain herself and ZJR.
6. The Member records that he asked ZJS about the proposal for ZJR to return home, and while initially indicating no concerns, she acknowledged the previous incident in which she had been assaulted by ZJR resulting in her engaging with NSW Police and a court mediation process. ZJS stated that that was the only time that happened and she had no concerns as to how she would manage ZJR at home, and that if necessary her daughter could come and visit.
7. The Member concluded that the accommodation function should remain with the Public Guardian, stating his reasons: 27. It is clear that a decision needs to be made about [ZJR]'s accommodation. Whilst his family have an understandable desire to see him return home, I was not satisfied that they were in a position to appropriately weigh all of the factors necessary to ensure that the decision which is made would best promote [ZJR]'s well-being. I was satisfied that other issues, such as the potential expense of [ZJR] entering residential aged care and the impact that may have on [ZJS]'s finances, were likely to cloud [ZJQ]'s ability to make such decisions in accordance with the principles set out in section 4 of the Guardianship Act 1987 (NSW).
8. The Member did not continue the coercive authority conferred in the orders made on 9 March 2018, noting that there was no evidence that ZJR would refuse a residential aged care placement if that were decided upon by a guardian or attempt to leave such a placement. The Member noted the consistent evidence that ZJQ had remained supportive of ZJR's health treatment and need for medications, with ongoing discussions about those issues. In those circumstances and where ZJR had previously appointed ZJQ as enduring guardian, the Member was satisfied that she should be appointed with the functions of making health care decisions and giving medical and dental consents. The Member considered whether a formal order was needed relating to services, and decided that it was not, noting that if a decision is made that ZJR should move home his family could at that stage investigate the services available and include that in any proposal to relocate ZJR home.
9. The Member continued the order for 12 months, given the short operation of the previous order.

The Appeal

1. In support of the appeal ZJQ provided three statements signed by herself and her mother. In summary, ZJQ and ZJS state that they do understand ZJR's disability and how they can manage it, and that with assistance from community health services they can manage the physical outbursts that take place from time to time. They record their contact with the community Mental Health Centre to try to arrange support for ZJR.
2. At the appeal hearing ZJQ stated that she disputes the conclusion that she and her mother lacked insight into ZJR's condition or that they did not understand his disability. She has been in contact with the Older Person Mental Health support service and has an appointment with a psychiatrist in December 2018. ZJR has been in a nursing home for two months now, and he has been home every day on day leave for nearly a month. He is not happy in the nursing home. ZJR has three people who could be appointed guardian rather than the Public Guardian, that is herself, her mother ZJS and her brother. The order should not have been made for 12 months because ZJR is not happy in the nursing home and she and her mother want him home. ZJQ agreed there had been a risk to her mother's safety, however that was one incident and ZJR had been drinking, and there is no alcohol in the house now.
3. ZJS stated that she and her daughter are able and willing to be guardian.
4. ZJR agreed with his daughter that she can make decisions about him.
5. Ms Rogers, as separate representative for ZJR, confirmed that ZJR and ZJS had previously been separated and under the same roof, and that ZJR agrees with his daughter that he can move home. She noted that the Member had taken into account the views of ZJR and the previous appointment of ZJQ as enduring guardian, and it would be open to the Tribunal to review the understanding of the family of ZJR's disability and their engagement with service options. The Member had made a factual finding about the suitability of ZJQ. Ms Rogers had no view on the length of the appointment, noting that it would take some time to determine the accommodation decision.

Statutory framework

1. The general principles as stated in s 4 of the Guardianship Act are: 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.
2. On a requested review under s 25(2)(a) of the Guardianship Act of the order previously made, the Tribunal may under s 25C(1): (a) vary the order, or (b) suspend or revoke the order, or (c) confirm the order, or (d) renew, or renew and vary the order.
3. Section 14 deals with the making of a guardianship order and provides: 14 Tribunal may make guardianship orders (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.
4. The phrase a "person in need of a guardian" as used in s 14(1), is defined in s 3 of the Act to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". Section 3(2) of the Act, defines a "person who has a disability" in the following terms: In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or (d) who is otherwise disabled, and who, 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.
5. As explained by an Appeal Panel of one of this Tribunal's predecessor Tribunals, the Administrative Decisions Tribunal, in IF v IG & Ors [2004] NSWADTAP 3 at [30], before exercising the discretionary power to make, and renew a guardianship order, as a first step the Tribunal must first be satisfied that the subject person is a person in need of a guardian.
6. The relevant provisions for determining who should be appointed guardian are sections 15 and 17. Section 17(1) provides: (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.
7. Section 15(3) provides: 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.

Discussion and findings

1. As clarified in the course of the appeal hearing, the central issue in the appeal is whether the Member erred in his interpretation and application of the relevant provisions of the Guardianship Act, in particular whether he erred in appointing the Public Guardian with an accommodation function rather than ZJQ.
2. There was no issue taken in the appeal with the Member's finding that ZJR remains a person in need of a guardian for whom the Tribunal could make a guardianship order, or with the evidence on which that finding was based. The central issue was the dispute between ZJQ and the hospital treating team about the decisions that needed to be made in relation to where ZJR should live. It was not the role of the Tribunal to decide whether ZJR should move to an aged care facility, or return to his home. The Member correctly identified the task as being to consider, having determined that a decision needed to be made and that ZJR was not able to make it himself, whether a substitute decision maker was needed to make it, and if so, who that should be.
3. As required by s 14(2), the Member considered the views of ZJR and ZJS, and ZJQ, and the importance of preserving ZJR's existing family relationships. The Member acknowledged the general principles in s 4, noting that the importance of freedom of action, self-determination and independence needed to be balanced against protection from neglect, abuse and exploitation.
4. In considering whether there was a need to continue a guardianship order, the Member acknowledged that ZJR had appointed ZJQ as his enduring guardian, noting that in many circumstances that might be sufficient to ensure that ZJR's needs to substitute decision making were met. As the Member acknowledged at paragraph [31] if the guardianship order were renewed that would override the functions conferred on ZJQ as the enduring guardian appointed by ZJR.
5. The enduring guardian appointment dated 9 October 2017, which included authorising ZJQ to make decisions about where ZJR lives, was in evidence before the Tribunal. The Member had previously noted that it was apparently validly completed and witnessed, and went on to say: 7.Notwithstanding that, the treating medical team at the hospital where [ZJR] is an inpatient, retain concerns that [ZJQ] and other members of [ZJR]'s family are not in a position to beneficially assist him as substitute decision makers. They cite what they describe as a lack of insight amongst those members of [ZJR]'s family into his current care needs. They are also concerned about [ZJR]'s family's plan for him to return home, which they say is contraindicated for [ZJR] due to episodic physical outbursts he has demonstrated whilst previously living with [ZJS] and at the hospital. 8.The consistent view of the multidisciplinary treating team is that [ZJR] requires full-time residential supported aged care. …
6. The Member approached the question of whether the order should be continued by considering whether ZJQ would be able to appropriately weigh all the factors necessary to ensure that the decision that was made as to ZJR's accommodation would best promote his well-being. Having concluded that he was not satisfied that ZJQ would be able to make that decision in accordance with the principles in s 4 of the Guardianship Act, it followed that a further guardianship order should be made. The Member concluded that the function of making accommodation decisions should remain with the Public Guardian.
7. No error has been established in the Member's approach. He was required by s 17(1)(c) to be satisfied that the proposed guardian be both willing and able to exercise the functions conferred by the proposed guardianship order. The Member was satisfied, for the reasons he gave at paragraphs [30] and [31] of his decision, that ZJQ was both willing and able to exercise the functions of health care and providing medical and dental consent. He was not satisfied, for the reasons he gave at paragraph [27], that she was able to make decisions about ZJR's accommodation in accordance with the principles in s 4 of the Guardianship Act.
8. The proper approach to s 15(3) of the Guardianship Act was stated by Windeyer J in W v G [2003] NSWSC 1170 in the following terms: 25. …[T]he proper meaning to be given to [s 15(3)] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. … 26. …Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s15(3).
9. The Member did not fail properly to apply s 15(3) of the Guardianship Act, and there was no error of law in his decision to continue the appointment of the Public Guardian with an accommodation function.
10. To the extent that the grounds of appeal may raise an issue as to whether the Member made findings for which there was no evidence, the reasons indicate that there was evidence before the Member including from ZJQ and ZJS, and confirmed in the reports of the treating medical team, as to the challenges posed by ZJR's disability including his physical outbursts. There was evidence before the Member from ZJQ and ZJS as to their understanding of those challenges and the steps they had taken to access available support services. The Member considered and evaluated that evidence. There was accordingly no error of law in his finding on the basis of that evidence that he was not satisfied that ZJQ was able to make decisions about ZJR's accommodation in accordance with the principles in s 4 of the Guardianship Act.
11. ZJQ disputed the extension of the period of the guardianship order for a further 12 months. Section 18(1)(b) of the Guardianship Act confers a discretion as to the period for which a continuing guardianship order can be renewed, specifying a maximum of three years. The Member provided his reason for the continuation for 12 months. ZJR's separate representative acknowledged that an accommodation decision could take time. No error in the exercise by the Member of the discretion, for example that he acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect his decision, or was mistaken as to the facts, or had failed to take into account some material consideration, has been established: House v The King [1936] HCA 40; (1936) 55 CLR 499.

Conclusion

1. No error of law has been demonstrated in the decision under appeal. While ZJQ and her mother are unhappy with the decision to continue the appointment of the Public Guardian with an accommodation function, there is no basis on which it would, in accordance with the principles in Collins v Urban, be appropriate to grant leave to appeal on any other ground. The appeal should be dismissed.
2. The orders of the Appeal Panel are: 1. 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: 21 January 2019