ZSZ v ZTA

NCAT Appeal Panel|2021-02-17|Before: Boland AM

Introduction

These reasons are in respect of an appeal by Mr ZSZ against orders made in the Guardianship Division of the Tribunal on 3 September 2020. On that occasion the Tribunal did not re-appoint Mr ZSZ as guardian for his mother, Mrs ZTA, but appointed his sister, Mrs ZTB, as guardian.
Mrs ZTA is a 75-year-old widow who currently lives in an aged care facility in an outer western Sydney suburb. Mrs ZTA was born in Pakistan, but lived in England for the majority of her life. In 2013 she travelled to Australia to live with her daughter, Mrs ZTB. In 2016 Mrs ZTA moved into her current accommodation.
In his Notice of Appeal, Mr ZSZ asserts, in summary, that the Tribunal below erred in law in the matters it took into account in respect of the "best interests" of his mother, and that he was denied procedural fairness by the Tribunal. This is, he says, because the Tribunal declined to admit email evidence he sought to tender and also determined, of its own motion, to re-open the proceedings after the close of evidence to "permit witnesses to re-cast their evidence".
Mr ZSZ seeks leave to rely on additional grounds including assertions of factual errors by the Tribunal, findings which are against the weight of the evidence and factual errors which have resulted in injustice, or which are unreasonably arrived at and mistaken, or which have produced an unfair result.
Mr ZSZ lives and works in the United Kingdom (UK). His wife is a doctor who trained in Russia. She is not registered as a medical practitioner in the UK. Due to limitations on "in person" hearings because of COVID-19 restrictions, the appeal was conducted with Mr ZSZ and Mrs ZTB appearing by telephone. Mr ZSZ and Mrs ZTB were both self-represented.

Publication of the parties' names and reference to them in these proceedings

Section 65(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) prohibits the publication or broadcast of the name of any person mentioned, or otherwise involved, in an "internal appeal" against a decision made by the Guardianship Division of the Tribunal. However, that prohibition does not apply to an official report of appeal proceedings (see s 65(3) of the NCAT Act). Notwithstanding s 65(3), given this appeal involves consideration of material that includes medical diagnoses of Mrs ZTA, and touches upon private family matters, we will not refer to the parties by their names.
As is the usual practice in appeals from the Guardianship Division, the Registrar has given pseudonyms to the parties. For ease of understanding of these reasons, we will use the following terminology: 1. Mr ZSZ will be referred to as "the appellant"; 2. Mrs ZTA as the "mother"; 3. Mrs ZTB as "the daughter"; and 4. the aged care facility manager as "the manager".

Background

Some brief details concerning the parties, particularly in respect of the mother, aids in understanding of our decision. The information recorded below is set out in the Tribunal's reasons of 3 September 2020 and in the appellant's statement and was not in dispute before us.
At the date of the hearing below, the mother was aged 75 years. She was noted by the Tribunal to have dementia.
In September 2017 the manager of the aged care facility at which the mother resides applied to the Tribunal for the appointment of a guardian and a financial manager for the mother.
On 18 January 2018 the Tribunal made an order appointing the Public Guardian as the mother's guardian with authority to make decisions about her accommodation. The application for the appointment of a financial manager was adjourned.
On 22 January 2018 the Tribunal appointed the NSW Trustee and Guardian as the mother's financial manager, and ordered a review in six months.
On 20 July 2018 the Tribunal reviewed the guardianship order. The Tribunal joined the appellant as a party to the proceedings, and granted leave for him to be legally represented. On 21 August 2018 the Tribunal renewed the guardianship order for a period of 12 months and again appointed the Public Guardian as guardian with authority to decide where the mother should live.
On 30 October 2018 the financial management order was reviewed and confirmed. The NSW Trustee and Guardian remains as the mother's financial manager.
The appellant lodged an appeal with the Tribunal's internal Appeal Panel against the order appointing the Public Guardian as his mother's guardian. On 22 March 2019 the Appeal Panel allowed the appeal and remitted the review application for reconsideration. The Appeal Panel ordered that the mother should be separately represented at the remitted proceedings.
On 10 May 2019, the Tribunal appointed the appellant as his mother's guardian for a period of 12 months, with authority to make decisions about her accommodation and health care and consent to medical and dental treatment.
In August 2019 the appellant made arrangements for his mother to be repatriated to the UK with a professional repatriation service. The proposed repatriation was thwarted when the airline refused to carry the mother as a result of her condition at the time of proposed boarding of the plane.
On 18 May 2020 the Tribunal adjourned the end of term review of the guardianship order.
On 18 June 2020, following an interlocutory hearing, the Tribunal appointed a separate representative for the mother, granted leave for the appellant to be legally represented and made directions for the remitted hearing. The Tribunal excused the mother's attendance at the hearing.
The remitted hearing commenced on 28 July 2020 but was adjourned because of insufficient time to take evidence from all parties. On 28 July 2020 the Tribunal directed that no further written submissions be filed during the period of the adjournment.
The Tribunal below completed the review application on 3 September 2020. The Tribunal appointed the daughter as her mother's guardian. The guardianship order is for a period of three years. The guardian has the functions of determining where the mother may reside, what health care she may receive, and provides authority to consent to medical and dental treatment where the mother is not capable of giving consent.

The relevant statutory provisions and legal principles

This appeal is brought under s 80 of the NCAT Act. That section provides as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note - Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (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.
The Appeal Panel's powers on hearing the appeal are found in s 81 as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
As the appellant's principal ground of appeal is directed to asserted error in considering the mother's "best interests", it is relevant that we set out s 4 of the Guardianship Act 1997 (NSW). We do so as it appears to us that it is that section on which the appellant relies in support of his appeal. Section 4 sets out the general principles which inform and guide decision-making under the Guardianship Act. It does not refer to the words "best interests" but rather uses the phrase "the welfare and interests" (of the person the subject of the application). The words "best interests" appear in a number of provisions of the Guardianship Act (s 6K, on reviewing the appointment of an enduring guardian; s 16, in deciding that a guardianship order is not to be reviewed on its expiry; s 21A(2)(b), concerning liability for enforcement of a guardianship order; ss 25G, 25P and 25U when dealing with financial management orders; s 45AA in approving participation in clinical trials; and s 46A in overriding a patient's objection to treatment). Section 4 provides as follows: 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
In determining this appeal, in addition to the general principles referred to in s 4 of the Guardianship Act we also have regard to ss 14 and 17 of that Act.
Section 14 of the Guardianship Act set out the matters the Tribunal must take into account in considering whether or not to make a guardianship order. Relevant criteria include the views of the subject person, in this case, the mother, the importance of preserving cultural and linguistic environments, and the practicality of services being provided to the person without the need for the making of such an order.
Section 17(1) of the Guardianship Act provides that the Tribunal may only appoint a person as guardian if it is satisfied that the proposed guardian has a personality generally compatible with that of the subject person, there is no undue conflict of interest between them, and the proposed guardian is willing and able to undertake the responsibilities of the role.

The decision the subject of the appeal

The Tribunal set out the background information recorded above. The Tribunal noted that there was general agreement between the parties that there was a need for an ongoing guardianship order. It also noted that the appellant indicated that, if it was in his mother's best interests, he would like her to return to live with him in London. The daughter was noted to oppose her mother's return to London, and said that she would like the mother to remain in her current aged care facility.
At [26] of its reasons the Tribunal referred to the mother's medical conditions as follows: [The mother] has a range of complex medical conditions diagnosed as anxiety with depression, delusions, paranoid personality disorder, hypertension, hypothyroidism, amyloidosis and dementia which are actively managed by her general practitioner and geriatrician. A substitute decision make[r] is required to make decisions around her health care and to consent to medical and dental treatment on her behalf.
The Tribunal next recorded at [28] that both the appellant and the daughter sought to be appointed as their mother's guardian. The Tribunal also noted that, on the material before them, there was considerable conflict between the appellant and the daughter.
At [29]-[33] the Tribunal set out the provisions of the Guardianship Act and case law relevant to the appointment of a guardian. There is no challenge in this appeal to the correctness of the principles as espoused by the Tribunal which refer to the relevant law.
At [34]-[35] the Tribunal set out parts of the appellant's evidence about actions taken by him following his appointment as his mother's guardian. That evidence included obtaining his mother's medical records from her general practitioner in the UK which he asserted established that she did not have a history of a delusional disorder or schizophrenia. The appellant's evidence was that he investigated appropriate pain relief for his mother and expedited appointments for assessment by a neurologist, ENT and amyloidosis specialists. The reasons note that the appellant had also arranged for his mother to have a dental review and to consult an ophthalmologist. The appellant was also noted to have moved his mother to a "more modern room" at the aged care facility and for her to be provided with a larger bed with "a crash mattress to better manage her falls from bed".
The reasons record at [35] the attempt made by the appellant, in August 2019, to repatriate his mother to the UK "in accordance with her wishes and his cultural duty as a son to care for his mother". The Tribunal's reasons record that, notwithstanding the arrangements made with a specialised repatriation service, the repatriation was unsuccessful, with the airline refusing to permit the mother to board the flight when she had an anxiety attack prior to boarding.
At [36] the Tribunal explains that, in determining whether the appellant should be re-appointed as his mother's guardian, it considered "the manner in which he has approached decision making for his mother" and that working across time zones and geographical locations had presented some challenges. The Tribunal recorded "he usually has to communicate with doctors and care staff by telephone and email".
At [37]-[39] the Tribunal set out a summary of events from a Guardianship Plan Event Log prepared by the appellant. This log is noted to include emails between the appellant and care staff at the aged care facility, as well as with the mother's treating doctors. The reasons note that after he obtained his mother's medical records, and based on his wife's review of those records, the appellant had requested that certain medications (Risperdal and haloperidol) be ceased. Further, after speaking to his wife and conducting research, he also requested cessation of escitalopram. The reasons further record that the appellant spoke to his mother's treating geriatrician. On 4 September 2019 the geriatrician withdrew from the care of, and ceased to provide treatment for, the mother.
The Tribunal set out details of the appellant's request to his mother's treating general medical practitioner to review "the use of Endone" and his direction "that injections of Prolia for the treatment of osteoporosis should not be commenced". The reasons also note that the appellant requested the treating doctor to provide copies of his mother's medical records and medication charts. Thereafter, the Tribunal states that, on 23 September 2019, this doctor also withdrew his services and advised he would cease treating the mother once a new doctor could be located.
The reasons explain that, after the appellant contacted the nursing staff at the aged care facility, the manager requested that all email correspondence from the appellant be directed to her so that she could co-ordinate the team's response to his requests.
At [41] the Tribunal explains that the evidence from the manager was that there were difficulties taking the mother to medical appointments if the accompanying person was not known to her, and a close family member was needed to carry out this role. The Tribunal recorded the evidence was that, prior to the appellant being appointed as guardian, the daughter had accompanied her mother to appointments. After his appointment, the guardian requested a professional escort for his mother to every appointment and "[the appellant's] attempt to organise another family member was unsuccessful".
The reasons then address the appellant's evidence about why he had not provided information to the daughter about their mother. The Tribunal states: [The appellant] has refused to provide information to [the daughter] about their mother's medical conditions, in direct contravention to the undertaking which he gave at the hearing on 10 May 2019 when he stated that he would undertake to seek [the daughter's] views (subparagraph 66(1) of the Reasons for Decision).
The Tribunal explains that, by the 3 September 2020 hearing, the appellant's evidence was "he would not consult his sister about his mother's care and treatment because he asserted that she misinforms doctors and staff about her mother's condition".
The Tribunal then addresses the evidence of the mother's treating doctors when she was reviewed for assessment of her suitability to be repatriated to the UK. The reasons record the geriatrician's opinion that, given her comorbidities, the mother "was at risk of medical complications and death while flying". The Tribunal noted the geriatrician also opined the mother was at risk of getting delirium due to her dementia.
The Tribunal at [49] notes that the appellant's log records that the geriatrician referred to moderate risk of "medical complications" but not of death.
At [50] the reasons canvas the appellant's evidence about the steps he undertook and relied on to repatriate his mother, as well as his explanation that he did not have the necessary funds to accompany his mother and that the NSW Trustee and Guardian had declined to pay the costs of the repatriation. The appellant's evidence that, if it was safe to do so, he would again try to return his mother to the UK was noted.
At [51]-[53] the Tribunal summarised the evidence of the manager, including her evidence of difficulties which arose because of the appellant's directions about medical treatment, and that the general practitioner had sought to withdraw from the mother's care, as had the geriatric outreach team from Liverpool Hospital. The Tribunal also set out the manager's evidence which was to the effect that doctors feel directed by the appellant in the treatment they can recommend and prescribe to the mother.
The manager's evidence about why a local family member would be preferable to the appellant as guardian is recorded, including the ability to attend at medical appointments, attend the facility and to settle the mother when distressed, and in the event of the mother needing palliative care, by providing emotional support. The manager's evidence that she had no personal experience of the daughter misinforming doctors and staff about the mother's conditions is recorded. The manager is also recorded as explaining "[the daughter] is always there when needed and is supportive of her mother".
After setting out the submissions made by counsel for the appellant, the Tribunal summarised the submissions of the separate representative. The separate representative gave evidence that the mother said "that she wanted to be with her son". In considering the mother's best interests, the separate representative supported the appointment of the daughter as the mother's guardian.
From [57]-[71] the Tribunal explains, by reference to s 17 of the Guardianship Act, why it determined to make the order appointing the daughter as the guardian.
Although the Tribunal was satisfied that the appellant continued to be willing to make decisions for his mother, that his personality is compatible with his mother's and that she continued to express a desire to live with him, it found that "some of the decisions which [the appellant] has made have not been in his mother's best interests". Matters noted included not adopting a consultative approach in dealing with his mother's treating specialist and general practitioner, and while appreciating the difficulties of dealing with these doctors by email, the Tribunal concluded that the effect of his relationships with the doctors was their withdrawal from the mother's treatment, which was not in her best interests.
The Tribunal found the manager's evidence was deserving of considerable weight and that she had a "full understanding" of the mother's care requirements.
The Tribunal also concluded that the appellant's decision to preclude the daughter from taking her mother to medical appointments was not in the mother's best interests and was contrary to the advice of the manager.
At [64] the Tribunal was critical of the appellant's decision to rely on and prefer the advice of the medical repatriation team concerning his mother's suitability to return to the UK to that of her treating doctors. The Tribunal found the apparent failure to consider the risk of his mother's death to be of great concern, as was the appellant's failure to follow the geriatrician's advice that his mother be accompanied by a family member. The Tribunal concluded that his judgment was "not fully informed by her best interests".
The Tribunal also made findings critical of the appellant because of his failure to provide the daughter with information about their mother's care. It determined this failure was not in the mother's best interests in circumstances where the daughter had been called on from time to time by the facility to assist in her mother's care.
Although the Tribunal concluded the appellant had diligently made some decisions about his mother's medical care and treatment, it concluded that some decisions, including alienating her treating doctors, had not been in her best interests. The Tribunal also noted that, notwithstanding the undertaking given in 2019, the appellant had refused to advise the daughter about their mother's treatment and care. The Tribunal also found that the appellant's refusal to permit the daughter to accompany their mother to medical appointments had resulted in unnecessary stress to their mother and incurred additional costs to her to pay for a professional escort.
As a result of its findings, the Tribunal concluded at [67], because of the nature and effect of some of his decisions, "that [the appellant] is not able to exercise the functions of the guardianship order in his mother's best interests".
The Tribunal then considered the evidence relevant to the daughter's application to be appointed as her mother's guardian. The Tribunal set out the actions taken by the daughter both before and during the lockdown imposed as a result of COVID-19. The Tribunal noted that the manager observed a "mother-daughter" relationship between the mother and daughter and that the daughter "tries everything she can to assist her mother".
The Tribunal also noted the evidence of the daughter about how she would facilitate her mother's relationships with extended family members and concluded that the daughter's personality was generally compatible with her mother's.
The Tribunal made a finding that, although there was evidence of conflict between the daughter and her mother in about May 2019, there was no current conflict.
The Tribunal found a number of matters which supported the appointment of the daughter as guardian. These included her undertaking to communicate with the appellant on a regular basis about their mother's care and treatment, her proximity to the aged care facility, her ability to accompany her mother to appointments and settle her to ensure appointments are not aborted, her ability to speak to her mother in her own language, and to promote the mother's relationships with other family members.
The Tribunal then concluded the guardianship order should be for a period of three years because the mother's condition is unlikely to improve and because she has been stressed by hearings.

The grounds of appeal

In his Notice of Appeal dated 21 October 2020, the appellant sets out a single ground of appeal, namely that the Tribunal "erred in law in applying the correct legal test wrongly, by: (i) In considering the "best interests" of Mrs [ZTA] (the person) the Tribunal elevated considerations regarding the practical reality of transporting Mrs [ZTA] (the person) to medical appointments to be central factors considered in determining her "best interests"; (ii) In considering the "best interests" of Mrs [ZTA] (the person) the Tribunal elevated the evidence of the employed staff of the nursing home and their evidence regarding the practical reality of transporting Mrs [ZTA] (the person) to medical appointments to be central factors considered in determining her "best interests"; (iii) In considering the "best interests" of Mrs [ZTA] (the person) the Tribunal failed to consider that the medical practitioners who have resigned from her care were administering inappropriate and unnecessary medicines based on an incorrect diagnosis; (iv) In considering the "best interests" of Mrs [ZTA] (the person) the Tribunal failed to consider that the medical practitioners who have resigned from her care were administering inappropriate and unnecessary medicines based on an incorrect diagnosis, and that diagnosis was reached while Mrs [ZTA] (the person) was effectively in the care of, and medical decisions were made under the direction of, Mrs [ZTB] (the now appointed guardian) and the care home where she continues to reside; (v) In denying procedural fairness to Mr [ZSZ] when: (A) They declined to allow an application to tender email correspondence that showed that the care home directed Mr [ZSZ] to communicate in writing; and (B) When the Tribunal, following the close of evidence and the commencement of submissions, reopened the evidence, of their own motion, to allow witnesses to recast their evidence.
As noted earlier, the appellant also seeks leave to rely on a challenge to findings of fact under s 80 (2)(b), namely "any other grounds".
The appellant sought that we should grant leave to appeal, permit reliance on fresh evidence, allow the appeal, hear the matter by way of a new hearing and appoint the appellant as his mother's guardian.

Reply to the appeal

The daughter filed a Reply to the appeal in 11 November 2020. The daughter sought an order that leave to appeal be refused. Before us the daughter sought that the appeal be dismissed.

The appellant's submissions

The appellant provided two volumes of material in support of the appeal together with a document entitled "Statement in Reply of [appellant's name]" received by the Tribunal on 2 February 2021.
We commence by noting that the appellant did not obtain a transcript of the hearing in the Tribunal below, nor did he provide us with a CD recording of the proceedings. He did provide typed extracts from portions of the transcript which he asserts support his ground of appeal. We also note that a considerable amount of the material provided is material from earlier proceedings, including documents relevant to the financial management application.
In his submissions the appellant notes in support of his appeal that he relies on his statement prepared for the hearing dated 6 July 2020, his submissions in reply and typed extracts of recordings from the hearings conducted on 3 September 2020, 28 July 2020 and 10 May 2019.
In the event leave is granted, the appellant also seeks to rely on various emails, including his emails to the manager concerning treating medical practitioners and various emails relating to his mother's repatriation.
The appellant commences his submissions noting that there is no challenge to the finding that his mother is a person in respect of whom a guardianship order could be made. He acknowledges that the principles set out by the Tribunal below at [30]-[33] are correct.
The appellant challenges the weight given by the Tribunal to the evidence of the manager at [62] of the reasons. He also asserts that, in considering his mother's best interests, the Tribunal "elevated" evidence of the "employed staff" of the aged care facility and that "[his decisions] had been made against the advice of the facility manager".
The appellant also asserts that in considering his mother's best interests, the Tribunal failed to consider that the medical practitioners who have resigned from her care "were administering inappropriate and unnecessary medicines based on an incorrect diagnosis". The appellant further submits that the wrong diagnosis of his mother's condition was made while she was "effectively" in the care of the daughter and that medical decisions were made under the daughter's directions.
At page 9 of his submissions, the appellant repeats his procedural fairness grounds.

The respondent's (the daughter's) submissions

The daughter sets out her submissions in her Reply document. She denies a lack of procedural fairness to the appellant by reason of the Tribunal refusing to admit email correspondence and notes that the appellant, who was legally represented, had a period of six weeks between the first hearing date and the adjourned hearing to submit material, but did not provide any material to the Tribunal. She also relies on the Tribunal's direction that no further material was to be filed and served during the adjournment period.
In dealing with the second aspect of the procedural fairness challenge, the daughter notes that objection was taken at the relevant time by the appellant's counsel, and she refers us to the transcript. As earlier noted, we did not have the benefit of the audio recording of the hearing, nor did we have a transcript of all of the evidence.
The daughter refers to her mother's medication prescribed whilst in her care, and states that this medication (citalopram) was prescribed in 2011/2012 by her mother's then treating specialist in the UK.
The daughter submits that refusing to allow her to accompany her mother to medical appointments was not in her mother's best interests. She also submits that the appellant alienated their mother's treating specialist, and since her appointment as guardian the "medical team is back on board".
The daughter refers to the failed repatriation attempt and the fact the appellant ignored medical advice that their mother would be placed at moderate risk of death by travelling to the UK.

That the Tribunal erred in law in applying the correct legal test wrongly in considering the "best interests" of the mother by (i) elevating considerations regarding the practical reality of transporting [the mother] to medical appointments to be central factors considered in determining her "best interests" and (ii) elevating the evidence of the employed staff of the nursing home and their evidence regarding the practical reality of transporting [the mother] to medical appointments to be central factors considered in determining her "best interests"

As there is considerable overlap in these two sub-grounds of appeal it is convenient we deal with them together.
In his oral submissions at the appeal hearing, the appellant placed significant weight on these purported errors by the Tribunal below. The appellant asserted that another relative could accompany his mother to medical appointments.
It is relevant to consider the following authorities in determining this ground of appeal and the other sub-grounds which assert error by the Tribunal in determining matters relevant to the mother's welfare and interests.
First, it is to be remembered that in conducting its assessment the Tribunal is engaged in exercising a wide discretion in its evaluative exercise. It is not in doubt that discretion must be exercised judicially "according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion" (see House v The King (1936) 55 CLR 499; [1936] HCA 40 per Starke J) Central to consideration of the five sub-grounds of appeal is the question of whether the Tribunal erred in its consideration of factors relevant to the making of the order appointing the daughter as the mother's guardian and did not observe or follow the principles in s 4 of the Guardianship Act, namely the welfare and interests of the subject person.
Secondly, although the words "best interests" are not found in the provisions relevant to the making of a guardianship order (as distinct from a financial management order and other provisions of the Guardianship Act) the Tribunal, in making a guardianship order, is exercising a statutory protective jurisdiction derived from the inherent parens patriae of the Courts of Westminster. Thus, in its evaluative deliberations, the Tribunal must weigh and balance the evidence relevant to the provisions of the Guardianship Act, in this case ss 14 and 17, guided by the general principles in s 4.
Thirdly, because the Tribunal is exercising a broad discretion, in determining this and other appeals, the well-known principles espoused in House v The King are apposite. The plurality explained at 504-505: 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.
Before discussing the enunciated ground of appeal, it is relevant that we note the daughter and the appellant in his statement in reply have addressed a number of financial matters which are not the subject of the grounds of appeal. Accordingly, we do not discuss these aspects of the submissions.
It is apparent from the Tribunal's reasons that a number of matters were taken into account in determining to appoint the daughter as her mother's guardian. Those matters included the Tribunal's finding that the manager's evidence was deserving of considerable weight. That evidence included the fact the care manager had endeavoured to act as an intermediary between the appellant and his mother's treating doctors. Significantly, the Tribunal accepted, as it was entitled to do, the manager's recommendation that a close family member should accompany the mother to her medical appointments to alleviate the mother's anxiety and to settle her. The Tribunal took into account the fact that medical appointments were aborted in circumstances where other arrangements were made on the appellant's instructions.
Other relevant matters taken into consideration were the appellant's decision to repatriate his mother in circumstances where medical advice was that there was a moderate risk of death, and his failure to provide information to the daughter about their mother's care. This, the Tribunal found, was detrimental to the mother's best interests because the daughter has been called upon by the facility at times to attend upon her mother. A further factor taken into account by the Tribunal below was that although the appellant had been diligent in some decisions about his mother's medical care and treatment, not all had been in her best interests because of the alienation of her treating doctors and the failure to advise the daughter about their mother's medical treatment and care.
The appellant directed us to the transcript and evidence given before the Tribunal on 10 May 2019 when he was appointed as guardian. He pointed out that he had not given an undertaking to keep the daughter informed about matters relevant to their mother's health. We accept the portion of the transcript supplied to us does not disclose a formal undertaking by the appellant, but the reasons of that Tribunal do refer to "an undertaking".
It is important to consider the weight to be given to an undertaking and any breach of such an undertaking, when used in the strictly legal sense. The importance placed on an undertaking given by a legal practitioner is demonstrated in the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), rule 6, which provides as follows: 6 Undertakings 6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction. 6.2 A solicitor must not seek from another solicitor, or that solicitor's employee, associate, or agent, undertakings in respect of a matter, that would require the co-operation of a third party who is not party to the undertaking.
Also relevant are authorities under the Legal Profession Uniform Law (NSW) and its predecessor legislation. The authorities make it clear that breach of an undertaking by a legal practitioner may be regarded as professional misconduct (see Legal Profession Complaints Committee v Detata [2012] WASCA 214). An undertaking given by a party to a court is enforceable as an order of the court. Hence, it is important that an undertaking given by a lawyer or a client must be clear and unambiguous as to the obligation to be performed.
In some guardianship matters parties, particularly those who are self-represented, may use the word "undertaking" in accordance with its dictionary meaning (the act of someone who undertakes any task or responsibility) but without an understanding of the strict consequences which may flow from a breach. We think it is important that, if a party is asked to give an undertaking to the Tribunal or to another party to the proceedings, the terms of the undertaking given should be carefully recorded, and the obligations imposed by the undertaking are clear and unambiguous to the relevant parties and the Tribunal. Doing so will avoid uncertainty in circumstances which may occur, as in this matter, when a guardianship order is to be reviewed.
In this case we accept, relying on the transcript extract of the hearing on 10 May 2019, that the appellant did not at that hearing give an undertaking in the sense that word is used by a legal practitioner. However, is clear that the Tribunal below referred to and relied on [66] of the Tribunal decision of 10 May 2019, which referred to an undertaking. Thus, the Tribunal's recording accurately reflects the earlier Tribunal's reasons, but not the transcript of the earlier hearing. However, we are not satisfied that the Tribunal's discretion overall miscarried in dealing with the issue of communication between the appellant and the daughter about their mother's care. There was clearly a failure by the appellant to inform the daughter about arrangements for their mother and the daughter was precluded, because of the appellant's instructions, from accompanying their mother to medical appointments. The Tribunal's finding was based substantially on the evidence of the manager about instructions she received from the appellant.
We are not satisfied that the appellant has established ground (a)(i) or (ii). It is clear that the issue of transport to medical appointments was one of many factors that the Tribunal took into account in reaching its decision. That factor was not elevated or given undue prominence over other relevant factors as an overall reading of the decision demonstrates.
Further, it is clear that the Tribunal found, as it was entitled to do, that the manager's evidence should be afforded considerable weight. The manager's evidence was not limited to transport arrangements, but included evidence of her attempts to facilitate communication between the appellant and his mother's treating doctors and the detriment to the mother when those doctors withdrew their services. We pause to note that not only was the Tribunal entitled to give considerable weight to the manager's evidence in circumstances where she was involved in the supervision of the mother's day-to-day care, but the separate representative for the mother also advocated for the daughter to be appointed as guardian notwithstanding that representative was well aware the mother said she wanted to live with the appellant.
In reaching this conclusion, we are conscious of the structured exercise task to be undertaken by a Tribunal as explained by Hallen AsJ (as his Honour then was) in EB v Guardianship Tribunal [2011] NSWSC 767 at [113]. There his Honour said: In IF v IG, at [26], it was stated that the factors in s 14(2) are mandatory considerations and all must be considered in making the Tribunal's determination, there being no hierarchy or weighting of any of the factors referred to. It was said: "26. [T]he Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. 27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision. 28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987".
We find no error in the evaluative process undertaken by the Tribunal in taking into account transport arrangements and giving weight to the manager's evidence.

That the Tribunal erred in law in applying the correct legal test wrongly in considering the "best interests" of the mother by (i) failing to consider that the medical practitioners who have resigned from her care were administering inappropriate and unnecessary medicines based on an incorrect diagnosis and (ii) failing to consider that the medical practitioners who have resigned from her care were administering inappropriate and unnecessary medicines based on an incorrect diagnosis, and that diagnosis was reached while the mother was effectively in the care of, and medical decisions were made under the direction of, the daughter and the care home where she continues to reside

The appellant refers to evidence given by his wife, a doctor, who is registered in Russia but not registered in the UK where she lives. He submits that, at a hearing in 2018, a social worker referred to his mother having schizophrenia for a period of 10 years, and this diagnosis was not corrected by the daughter for a period of 3 years.
The Tribunal dealt with a number of aspects relevant to the mother's medical treatment. It is clear from the Tribunal's reasons that the appellant sought to engage registered nurses in the care of his mother to review her prescription of citalopram and cease the use of statins.
The reality of the mother's medical treatment, or lack thereof when her specialist ceased providing services, was given considerable weight by the Tribunal. The Tribunal was aware that the mother had been in Australia since 2013, that she had been receiving medical treatment from registered medical practitioners including a specialist geriatrician, and that there were difficulties, because of distance and timing, for the appellant to properly engage with the treating doctors. It was not the Tribunal's role at the review hearing to determine what medications should or should not be prescribed for the mother. It is relevant that we note that notwithstanding the appellant's criticisms of his mother's treating geriatrician, that when his mother was assessed by Dr Nicola Rendina, Consultant Psychiatrist, South Western Sydney Local Health District on 5 June 2019, this specialist recorded: We noted that Risperidone was started in March at 1mg nocte. This seems to have resulted in significant improvement. At our second visit, staff reported noticing much less emotional distress, less hostility and less preoccupation with her delusional ideas. … It is encouraging that she has responded to the medications, so I suggest continuing the Risperidone at 1mg nocte and increasing the Cipramil from 20 to 30mg mane which may help some of her mood symptoms. (see Appeal Book Vol 1 at pp 290-291).
Dr Rendina's report discloses that as well as having a conversation with the daughter, she "had an opportunity to review the notes on eMR".
It is also relevant to note that in his report (undated but prepared following an assessment of the mother's ability to travel to the UK), her general practitioner, Dr Tek Sehgal explained that the mother "does not have any acute symptoms of schizophrenia" (see Appeal Book Vol 2 p 502).
We also note that citalopram was prescribed by the mother's then treating physician prior to 2012 (see Appeal Book Vol 2 p 578). We are not satisfied any error is disclosed in the Tribunal's consideration of medical issues including prescribing of medications. The Tribunal relied on, as it was entitled to do, the medical reports before it and the opinions expressed in those reports.
We find no merit in these sub-grounds.

The procedural fairness ground

The appellant agitates this ground on the basis that the Tribunal rejected an application to tender email correspondence which showed the aged care facility directed him to communicate in writing, and after the close of evidence and commencement of submissions allowed, of its own motion, "witnesses to recast their evidence".
Although the Tribunal in hearing applications under the provisions of the Guardianship Act is not bound by the rules of evidence, it must afford the parties procedural fairness. The principles of natural justice and procedural fairness are well known and guide procedure in tribunals, including administrative tribunals. The relevant principles are enunciated in Kioa v West (1985) 159 CLR 550; [1985] HCA 81.
A comprehensive discussion of procedural fairness in the context of decision-making under the Guardianship Act is found in EB v Guardianship Tribunal [2011] NSWSC 767 commencing at [156]-[170]. Hallen AsJ (as his Honour then was) notes, by reference to authority, that the core principles relevant to a hearing in the Tribunal includes the right of a party to have the nature of the case which may be brought against that party identified, an understanding of what needs to be established for an order to be made, and a reasonable opportunity being afforded to a party to address the case brought against him or her.
Relevant to this appeal is his Honour's discussion at [166]: A person who might be affected by an adverse finding should be given the opportunity to adduce evidence, or make submissions, rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821). However, what constitutes an opportunity to be heard may be informed by the conduct of the parties prior to, or during, a hearing: MH6 v Mental Health Review Board (2009) 25 VR 382 at [30].
It appears to us that the appellant asserts a lack of procedural fairness because the Tribunal refused to admit into evidence email correspondence on the basis that it had made a direction that no further material should be filed when the matter was adjourned part-heard when there was insufficient time to complete the evidence.
The Tribunal, however, recorded in its reasons at [40] that the manager requested that all email correspondence be sent to her so she could co-ordinate the appellant's requests directly with the care team.
We find no procedural unfairness to the appellant in the refusal of the Tribunal to admit the email correspondence. First, the Tribunal was conscious that there had been a number of hearings concerning the mother, with the filing of significant material. Secondly, the Tribunal wished to ensure the matter was completed in a timely manner and finally and importantly it was aware, as recorded in its reasons, that the manager had requested the appellant make requests about his mother's care in writing so she could co-ordinate the teams' approach to his mother's care.
The second procedural fairness challenge is made to the Tribunal's re-opening of the proceedings on its own motion after the conclusion of the evidence and commencement of submissions.
At the directions hearing for the conduct of this appeal, the appellant was directed to provide a sound recording of the hearing. No recording was provided to us and we only had the benefit of limited typed-up extracts from the hearing, provided by the appellant.
The appellant's submissions, at par 35, referred us to parts of the transcript from 3 September 2020. The portion of the typed-up transcript provided to us indicates that the Tribunal re-opened the proceedings to endeavour to establish with precision the mother's views about where she wished to live and whether or not she expressed a view about living with the appellant.
We find no procedural unfairness to the appellant in circumstances where the Tribunal sought to clarify this aspect of the evidence. We note that at the relevant time the appellant was represented by counsel who could have sought leave to cross-examine if new material adverse to the appellant was raised. Doing the best we can, it appears the Tribunal, having questioned the separate representative about the mother's wishes, afforded the appellant's counsel the opportunity to clarify the evidence. Further, at [55] the Tribunal recorded that, on the second occasion she interviewed the mother, the separate representative "had been able to elicit from her that she wanted to be with her son". However, as we have earlier noted, notwithstanding the views expressed by the mother, the separate representative supported the appointment of the daughter as guardian, not the appellant. Nor was it in dispute before the Tribunal that the repatriation attempt had been unsuccessful and there was, at the time of the hearing, no realistic likelihood of the mother returning to the UK in the foreseeable future.
In conclusion, we do not find the two matters the appellant agitates in his procedural fairness ground are established.

Grounds sought to be agitated with leave

We have earlier in these reasons referred to the provisions of s 80 of the NCAT Act.
The authorities on the circumstances in which the Tribunal will grant leave to determine an appeal on the merits are referred to by Slattery J in The Husband v The Public Guardian [2016] NSWSC 1720. The general principles have been regularly applied by the Appeal Panel of this Tribunal (see Collins v Urban [2014] NSWCATAP 17). The decisions establish that leave will not be granted unless the appeal raises something more than an arguable matter, raises an issue of principle, an error in fact-finding, or issues of general public importance.
In P v NSW Trustee and Guardian [2015] NSWSC 579 Lindsay J explained that, given the protective nature of the jurisdiction being exercised in guardianship matters, particularly in appeals to the Supreme Court exercising its wide protective jurisdiction, strict adherence to the general principles relevant to leave may require wider or more beneficial consideration to take into account the general principles in s 4 of the Guardianship Act.
In this case, however, we are satisfied that, first, no issue of principle or general public importance is raised which would warrant the granting of leave. Secondly, the matters the appellant wishes to agitate with leave do not involve an incorrect or an unorthodox approach to fact-finding by the Tribunal. The matters involved the exercise of an evaluative discretion by the Tribunal. For the reasons we have earlier enunciated, we are not satisfied that the appellant has demonstrated any material error of fact or law by the Tribunal in the exercise of its discretion in determining the review application. In these circumstances it is not appropriate or necessary that we grant leave to re-examine the decision of the Tribunal in determining the review application on its merits.

Orders 1. The appeal is dismissed. 2. The application for leave to 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: 23 April 2021

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