ZSJ v ZSK

NCAT Appeal Panel|2020-12-01

on: 04 August 2020 Before: J Claridge, Senior Member (Legal) Dr H Burnet, Senior Member (Professional) L Porter, General Member (Community) File Number(s): 2018/00270969

REASONS FOR DECISION

In August 2018, ZSK (the Subject Person), then 76 years old, moved to an aged care facility (the Facility). A few months later he was formally diagnosed with dementia.
In July 2018, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made a guardianship order under the Guardianship Act 1987 (NSW) (the Act) in respect of the Subject Person, appointing his daughter, the appellant in this appeal (the Appellant), as guardian and his cousin, as alternative guardian. That order gave the Appellant and, in her absence or if she became incapacitated, Subject Person's cousin, power to make decisions about accommodation, health care and to consent to medical and dental treatment on behalf of the Subject Person. In August 2019, after conducting an end-of-term review as required by s 25(2)(b) of the Act, the Tribunal renewed that order for a period of three years (the 2019 Order).

Publication of the names of the parties

The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1) and 65(2) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
In addition, for the reasons explained below, we have decided to prohibit the disclosure of the content of two documents filed by the Appellant in this appeal.
In this appeal, the Registrar assigned pseudonyms to the parties: "ZSJ" (the Appellant), "ZSK" (the Appellant's father and the person the subject of the guardianship order which was the subject of this appeal), "ZSL" (the CEO of the Facility) and "ZSM" (the Subject Person's cousin and the person appointed alternate guardian under the 2019 Order). For ease of reading, in these reasons we will not refer to the parties by pseudonyms. Rather, we will refer to ZSK, ZHK, ZSL and ZSM as "the Appellant", "the Subject Person", "the CEO" and "the Cousin", respectively.

Appointing a guardian: statutory framework

Where the Tribunal decides to make a guardianship order, it must appoint one or more persons aged 18 years or more as guardian(s) of the person under guardianship: s 16(1)(a) of the Act.
Where, as in this case, the Tribunal decides to make a continuing (as opposed to a temporary) guardianship order, s 15(3) of the Act instructs that the Tribunal must not appoint the Public Guardian as guardian for the person who is the subject of that order where another person can be appointed as the guardian.
Before appointing a person to act as 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): 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.
Section 17(1) does not apply to the appointment of the Public Guardian: s 17(2).

The decision under appeal

At [44]-[58] of its reasons for decision (the Reasons), the Tribunal set out the background to the dispute between the Appellant and the CEO. That dispute related to several issues, including the Appellant's alleged reluctance to accept medical advice about the Subject Person being given anti-psychotic medication to manage his aggressive behaviour.
The Tribunal noted at [53] that the relationship between the Appellant and the CEO had broken down to such an extent that they were communicating through lawyers. The Tribunal also noted that the Appellant had lodged a complaint with the Aged Care Quality and Safety Commission about the Facility's actions in charging the Subject Person for the costs of engaging a nurse to provide one-on-one care and a security guard: at [55].
The Tribunal acknowledged that s 17(1) of the Act required it to be satisfied that the Appellant meets each of the matters listed in para (a), (b) and (c) of that provision. At [65] the Tribunal stated that there "is no question" that the Appellant meets the criteria set out in para (a) (to have a personality "generally compatible" with that of the Subject Person) and para (b): (that there be no undue conflict between the Appellant's interests, especially her financial interests, and those of the Subject Person).
However, with respect to para (c) of s 17(1), while satisfied that the Appellant was willing to discharge each of the functions conferred under the 2020 Order, that it was not satisfied that she was "able" to discharge the health care and medical and dental consent functions. At [71] the Tribunal found that the Appellant has "shown at least since August 2019 a reluctance to follow medical advice in a situation where both her father and others have been put at risk".
At [72] the Tribunal noted: "There is now serious conflict between [the Facility] and [the Appellant]. Communication is facilitated by lawyers in relation to [the Subject Person]. We decided on balance, that having an independent decision maker in relation to healthcare and medical treatment is in [the Subject Person's] welfare and interests."
The Tribunal's reservations about the Appellant did not extend to her ability to exercise the services and accommodation functions: [70]. It was satisfied that the Appellant was able to exercise those and appointed her as the Subject Person's guardian in respect of those functions.

Grounds of appeal

A party has a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act.
The Notice of Appeal was prepared by the Appellant. Shortly before the hearing of the appeal, she obtained legal representation.
The Notice of Appeal does not identify any question of law. The grounds of appeal are, in effect, an expression of disagreement with the facts found and the ultimate conclusion reached by the Tribunal that the Appellant did not satisfy the requirement of s 17(1)(c), specifically, being able to exercise the health care and medical consent functions conferred under the 2020 Order.

No error disclosed

The grounds of appeal are a thinly-veiled attempt to re-agitate issues fought and lost in the proceedings before the Tribunal.
The Tribunal went about its role as a fact finder in an entirely orthodox manner. It correctly stated and applied s 17 of the Act to the facts found. The central finding made by the Tribunal that, despite her many positive qualities, the Appellant did not satisfy par (c) of s 17(1) with respect to the health care and medical consent functions was open to the Tribunal on the available material. The Tribunal complied with the obligation imposed by s 62(3) of the NCAT Act and gave cogent and persuasive reasons for the facts found and conclusions reached.
No error of law is established.

Deal with the appeal by way of a new hearing?

Section 80(3) of the NCAT Act states: 80 MAKING OF INTERNAL APPEALS … (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.
Establishing a question of law is not a pre-condition to the exercise of the discretion conferred by s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing and to take into account fresh evidence: see, Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 at [18]; DHQ v DHR [2018] NSWCATAP 128 at [60]. Nonetheless, in our view, where the appeal does not give rise to a question of law, there must be some compelling reason to warrant the exercise of that discretion.
Here, there is evidence of a material change in the Subject Person's circumstances since the making of the decision under appeal. This is relevant to the issue the Appellant seeks to agitate in this appeal, which in turn, is relevant to whether the 2020 Order should be varied. In deciding whether to exercise the discretion to deal with the appeal by way of a new hearing, we have taken into account that if this appeal is dismissed, the Appellant nonetheless is entitled to request the Tribunal to review the decision to appoint the Public Guardian: ss 25(2)(a), 25B. In our view, given the evidence of the change in the Subject Person's circumstances, it is appropriate that the arrangements relating to the appointment of the guardian be reconsidered without delay. That approach gives effect to both the statutory exhortation to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36 of the NCAT Act) and our obligation to give paramount consideration to the Subject Person's welfare and interests: s 4(a) of the Act and cl 5(1) of Sch 6 to the NCAT Act.
Where, as here, the Appeal Panel decides to exercise the discretion to deal with the appeal by way of a new hearing, it is necessary to decide whether to proceed to conduct that hearing on the day the appeal is listed for hearing or at some later date. In adopting the former course, we considered the following factors to be significant. First, apart from the Subject Person, all parties to the 2020 Order, and who would be parties to a review of that order (if requested by the Appellant (ss 3F(2), 3F(3)), were present at the hearing of the appeal. None opposed that course. Nor did the Separate Representative [2] . Second, the Separate Representative had recently met with the Subject Person and was able to provide an update on the Subject Person's circumstances and to comment on his ability to express a view about who should be appointed as his guardian. Third, apart from the documentary evidence filed in the appeal and the oral evidence given by the Appellant, Ms Emma Brock for the Public Guardian, and the Cousin, it was unlikely that an adjournment would result in additional evidence being obtained which might assist us in the task of deciding whether the 2020 Order should be varied. No party suggested otherwise.

New evidence

We decided to exercise the discretion to admit fresh evidence in the new hearing, specifically the affidavit sworn by the Appellant on 26 October 2020; the report dated 11 November 2020 prepared by geriatrician, Dr Hugh Fairfull-Smith, addressed to the Subject Person's GP, Dr Robyn O'Grady, and the oral evidence given in the appeal, which is discussed below.

Should the decision under appeal be confirmed, varied, quashed or set aside?

We find the Subject Person remains "a person in need of a guardian" within the meaning of s 3(2) of the Act. In addition, for the reasons given by the Tribunal, we are satisfied that the power to make a guardianship order under s 14 of the Act can and should be exercised: see Reasons at [41]-[58].
On 7 August 2020, four days after the decision under appeal was handed down, the Subject Person was admitted to hospital. On 21 October 2020 he was discharged to a different aged care facility (the New Facility) where he continues to reside.
In a report dated 11 November 2020, Dr Fairfull-Smith commented on the treatment received by the Subject Person before his admission to hospital. He noted that for several weeks, the Subject Person had been taking a low dose of the anti-psychotic drug Risperidone and had "became profoundly extra-pyramidally rigid, becoming completely immobile, flexed and drooling and needing assistance with eating".
Dr Fairfull-Smith recommended that, given his underlying Lewy Body Dementia, the Subject Person should not be prescribed "any anti-psychotics other than perhaps Quetiapine which is used for people with Parkinson's disease who are delusional". Dr Fairfull-Smith suggested a number of alternative medications including Benzodiazepines. He stated that the restlessness and pacing which has been a long-term feature of the Subject Person's dementia, generally "does not respond well to medication". In Dr Fairfull-Smith's opinion, the best management option for the Subject Person is "an environmental one that allows him to move in a safe and secure manner". He stated that the proposed trial of CBD oil is worth pursuing notwithstanding at this stage, its role is "unknown" but appears to be without significant side-effects.
In oral evidence, Ms Brock reported that since the appointment of the Public Guardian, she has consulted regularly with the Appellant about treatment options for the Subject Person. She stated that she had no concerns with the Appellant's ability and willingness to give proper consideration to the advice given by medical practitioners. Ms Brock stated that neither the hospital to which the Subject Person was admitted in August 2020 nor the New Facility reported any concerns about the Appellant's role in relation to the Subject Person's health care and treatment. Ms Brock stated that if in the future the Subject Person's care needs were to change and the medical advice was that those needs would be best met in a specialist facility, she was confident that the Appellant would heed that advice.
The Separate Representative reported that when he visited him in the week before the appeal, the Subject Person was unable to express a view about who should be appointed as his guardian. He pointed out that in mid-2020 the Subject Person stated that he wished the Appellant to be appointed as his guardian and the Cousin and the Subject Person's brother supported the Appellant's appointment.
The Separate Representative met with the Care Manager of the New Facility who stated that the Subject Person appeared settled, and she held no concerns for his well-being. Nor did she report any concerns about the Appellant's involvement in matters relating to the Subject Person's care and treatment.
Commenting on the finding made by the Tribunal that, for reasons unclear, the Appellant had refused to consider the recommendations made by medical practitioners about the Subject Person (at [67]) and appeared to be unable to work with care staff of the Facility (at [68]), the Separate Representative submitted at that time the Appellant was probably seeking to minimise the Subject Person's aggressive behaviour toward care staff and other residents. He stated that this should be seen in the context of the unusual circumstances prevailing at that time: the Appellant's strained relationship with the CEO together with her inability to observe first-hand the escalating behaviour reported by staff of the Facility because of the visitor restrictions imposed throughout the early stages of the COVID-19 pandemic. The Separate Representative submitted that, removed from the difficult relationship with the Facility, the Appellant is likely to open to the opinions given by medical practitioners about treatment options for the Appellant.
Describing her as "brilliant", the Cousin stated that the Appellant provided her with regular updates about the Subject Person's health. In her opinion, the Appellant was both able and willing to weigh up and evaluate conflicting medical opinions. She rejected the proposition that the Appellant held fixed views about the Subject Person's medical treatment and was unable to give proper consideration to advice given by medical practitioners. She urged us to remove the Public Guardian as the Subject Person's guardian and to give the Appellant health care and medical consent functions. The Subject Person's brother, who attended the hearing, endorsed the Cousin's views.
The CEO made no submissions about whether the Appellant was now able to exercise the health care and medical consent functions.

Consideration

As explained by the Appeal Panel in ZKF v ZKG [2019] NSWCATAP 64 at [31], s 17(1)(c) requires us to make an evaluative judgement about whether the Appellant is "able" to exercise the functions conferred under the 2020 Order, specifically health care and medical consent functions. This requires us to consider not only whether the Appellant possesses the necessary skill and experience to be able to exercise those functions but also has the necessary personal attributes, including judgement and integrity. In addition, it requires us to consider whether the Appellant is able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J).
Given the history of this case, of particular relevance in evaluating whether the Appellant is able to exercise the health care and medical consent functions is the question whether she possesses and is likely to exercise the judgement necessary to do so. In particular, we must consider whether she is likely to be willing to obtain the opinions of suitably qualified and experienced health practitioners about treatment options for the Subject Person, to give proper and genuine consideration to those opinions, and to make decisions in a manner consistent with the obligation imposed by s 4 of the Act to give paramount consideration to the Subject Person's welfare and interests. The background to this appeal raises concerns that, at times, the Appellant's judgement may be clouded by her own strongly held views and unable to give genuine consideration to medical advice about treatment options for her father. It also raises a concern that she may lack the ability to work with others involved in the care and treatment of her father, especially if they hold views different to her own.
The Appellant's reluctance to consent to her father being given antipsychotic medication appears to have been vindicated by the opinion of Dr Fairfull-Smith. However, that this does not necessarily demonstrate that the Appellant is now able to exercise the health care and medical consent functions. The weight of available medical opinion is that in the six months before the 2020 Order was made, the Subject Person's condition had deteriorated to such an extent that it had become necessary to trial different types of treatment to manage his aggressive behaviour. In our view, the Tribunal was correct to find, when it made the 2020 Order, that the Appellant appeared to lack the objectivity necessary to be able to give proper consideration to those opinions. It is likely, as the Separate Representative suggests, that by that time she had become so entangled in the protracted dispute with the Facility that she was unwilling or unable to accept the reports of staff about the escalation in the Subject Person's "challenging behaviours".
Nonetheless, we are satisfied that the Appellant is now able to exercise the health and medical consent functions. First, as submitted by the Separate Representative, we think it likely that the Appellant's apparent unwillingness to give consideration to the prevailing medical opinion was largely the result of the circumstances prevailing at that time rather than an immutable feature of her personality. Second, since the decision under appeal was made the Appellant has demonstrated a preparedness and ability to work with medical practitioners and to give proper and genuine consideration to their opinions.
Finally, on the basis of the observations made by the Public Guardian, the Cousin and the Subject Person's brother, we think it likely that the breakdown in the relationship with the CEO was probably attributable to the particular circumstances prevailing at the time and a clash in personalities and does not evidence the Appellant inherent inability to work collaboratively with people involved in the care and treatment of the Subject Person.
For these reasons, we are satisfied that the Appellant is willing and able to exercise the health care and medical consent functions conferred under the 2020 Order. There is no evidence to suggest that the Appellant is not willing and able to exercise the balance of functions conferred under that order. She otherwise satisfies s 17(1) of the Act. It follows that by the operation of s 15(3) of the Act, we cannot appoint the Public Guardian as guardian for the Subject Person. There being no other person nominated to act as the Subject Person's guardian, we appoint the Appellant as the Subject Person's sole guardian.
We vary the order made by the Tribunal on 4 August 2020 to appoint the NSW Public Guardian as guardian for the Subject Person with health care and medical/dental consent functions by substituting the Appellant as guardian for the Subject Person with those functions.

Should the Appellant be required to pay the CEO's cost of the appeal?

The CEO seeks an order that the Appellant pay his costs of the appeal. He contends that "special circumstances" are established and asserts that the Appellant conducted the proceedings in a way that unnecessarily disadvantaged him by making scandalous allegations about the Facility and, when requested, failing to withdraw those allegations. He states that the Facility had no interest in the outcome of the appeal but, nonetheless, was forced to participate to protect itself against those allegations.
The CEO asserted that the material filed by the Appellant in the appeal contained allegations which are factually inaccurate, are serious in nature, were not raised in the proceedings at first instance and would cause detriment to the Facility. He pointed out that two days before the hearing of the appeal, the Appellant posted a "scandalous and untrue review" of the Facility on its website. In addition, he points out that much of the material relied upon by the Appellant in the appeal was filed late, denying him the opportunity to respond.
Mr Swivel, the solicitor for the Appellant, states that he was brought into the appeal at the eleventh hour. He submits that the complaints made by the CEO about the Appellant's conduct are attributable to her lack of legal knowledge and experience.

Power to award costs

Section 60 of the NCAT Act creates the general rule that each party to proceedings is to pay their own costs: s 60(1). An Appeal Panel may only order costs "if satisfied that there are special circumstances warranting an award of costs (emphasis added)": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that may be considered in deciding whether there are special circumstances warranting an award of costs and includes: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
The term "special circumstances" is not defined by the NCAT Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See ZKS v ZKT [2019] NSWCATAP 72 at [12]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].)

Consideration

We agree with the contention advanced by the CEO that several allegations made by the Appellant in the course of the appeal can fairly be characterised as scandalous. The Appellant's actions in posting a review on the Facility's website on the eve of the appeal hearing is especially concerning. We understand the solicitor for the Appellant Mr Swivel does not contest these contentions.
For those reasons, we acceded to the CEO's request to make orders under s 64 of the NCAT Act, prohibiting the disclosure and publication of the affidavit made by the Appellant on 23 November 2020 and her written submissions filed in the appeal. The procedural flexibility afforded to the Appeal Panel as a consequence of not being bound by the rules of evidence and being required to act with as little formality as the circumstances of the case permit without regard to technicalities or legal forms (s 38(2), 38(4) of the NCAT Act) does not give a party, including a self-represented party, licence to use NCAT's proceedings to make scandalous allegations against an opponent.
We find that the Appellant's conduct of the appeal unnecessarily disadvantaged the CEO. Her conduct in the appeal, before she obtained legal representation, arguably amounted to an abuse of process. Were it not for the concession properly made on her behalf by Mr Swivel, we would have been inclined to the view that the discretion to award costs should be exercised. While the considerations are finely balanced, we have decided not to award costs. In reaching that conclusion we have taken into account the Appellant's lack of knowledge and experience about the proper conduct of legal proceedings.

Orders 1. Pursuant to s 80(3) of the Civil and Administrative Act 2013 (NSW) the appeal is to be dealt with by way of a new hearing. 2. Pursuant to s 81(1) of the Civil and Administrative Act 2013 (NSW) the decision made by the Tribunal on 4 August 2020 to appoint the NSW Public Guardian as guardian for ZSK with health care and medical/dental consent functions, is varied by substituting ZSJ as guardian for ZSK with health care and medical/dental consent functions. The Appeal Panel notes that this order does not disturb Order 1 made by the Tribunal on 17 September 2020, to consent to special medical treatment (Spectrum Blue Cannabis Oil) being provided to ZSK. 1. The application made by ZSL for the costs of the appeal is refused.

Endnotes

On 17 September 2020, a differently constituted Tribunal made orders under s 45 of the Act consenting to the Subject Person being given "Spectrum Blue Cannabis". The Tribunal found that Spectrum Blue Cannabis is "special treatment", specifically "new treatment" within the definition of "special treatment" in s 33 of the Act.
The Appeal Panel appointed a separate representative for the Subject Person under s 45(4) of the NCAT Act. 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 29 June 2021 - Amended Footnote 1 29 June 2021 - Amended footnote 1 under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) 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: 29 June 2021

Civil and Administrative Act 2013(NSW)

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