ZVQ v ZVR

[2022] NSWCATAP 33

NCAT Appeal Panel|2021-10-14|Before: Armstrong J, Learmont AM

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-10-14

Before

Armstrong J, Learmont AM

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Overview

ZVR is a patient detained in a mental health facility under the Mental Health Act 2007 (NSW) (the MH Act). Following an application made under s 46 of the NSW Trustee and Guardian Act 2009 (NSW) (the TG Act) by the mental health facility where ZVR is detained, the Mental Health Review Tribunal (MHRT) made a financial management order in respect of ZVR's estate. As a consequence of that order, ZVR's finances are now managed by the NSW Trustee and Guardian.
The purported appellant, ZVQ, is the sister of the patient ZVR, and is one of the patient's appointed guardians. ZVQ did not attend the hearing held by the MHRT on 1 July 2021 at which time the MHRT made the financial management order concerning ZVR's finances.
It is not in issue that the MHRT has power to make a financial management order under s 46 of the TG Act. However, ZVQ contends that because she was not informed of the hearing, as was required under the MH Act, she was denied procedural fairness by not having the opportunity to take part in that hearing and to make submissions on the issues for determination. ZVQ submits that, as a consequence, the financial management order made by the MHRT should be quashed under s 79 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
For the reasons that follow, we do not consider that this purported appeal is a competent appeal. We have decided therefore to dismiss the appeal proceedings under s 55(1)(b) of the NCAT Act on the basis that the purported appeal is misconceived.

[2]

Notice of external appeal and submissions

ZVQ's notice of external appeal was lodged with NCAT on 29 July 2021. On 25 August 2021 at a directions hearing, the Appeal Panel (constituted by Principal Member A Suthers) made an order to prohibit publication of the names of the parties, other than the NSW Trustee and Guardian, under s 64(1)(a) of the NCAT Act.
Also on 25 August 2021, ZVQ was granted leave under s 45 of the NCAT Act to appear through a legal representative in these proceedings.
Prior to the hearing, ZVQ provided written submissions in support of her purported appeal, asserting that the decision at first instance resulted in: a denial of procedural fairness by the failure of the MHRT to notify ZVQ of the hearing. In addition, she contends that the MHRT failed to take into account a relevant consideration, and, took into account an irrelevant consideration.
The third respondent, FHC the mental health facility in which ZVR is a patient (the facility)) was the applicant in the MHRT proceedings. Neither the facility, nor its "authorised medical officer", made any written submissions in these appeal proceedings. However, the facility indicated that it "consented" to the external appeal being brought to NCAT, acknowledging that it had failed to notify ZVQ of the MHRT hearing.
At the hearing on 14 October 2021, the Appeal Panel conveyed its preliminary view that ZVQ did not have standing to bring the appeal and invited oral submissions on this issue. In addition, we invited ZVQ to provide us with written submissions on the competency issue by 21 October 2021. That date was extended, at the request of ZVQ, to 28 October 2021, and later to 30 November 2021. On 30 November 2021, ZVQ filed written submissions addressing the competency issue.
None of the persons named as respondents in the notice of external appeal, the facility, the NSW Trustee and Guardian and ZVR, appeared at the hearing on 14 October 2021. Nor did they provide submissions on the competency of this purported appeal.

[3]

Relevant legislative framework

The decision which is the subject of this appeal was made under s 46 of the TG Act, which provides: 46 Other orders by MHRT (cf PE Act, s 19) (1) The MHRT may, on application, consider a patient's capability to manage his or her affairs and, if satisfied that the patient is not capable of managing his or her affairs, must order that the estate of the person be subject to management under this Act. (2) An application under this section may be made by any person who has, in the opinion of the MHRT, a sufficient interest in the matter. …
Part 4.3 of the TG Act relates to orders for the management of the affairs of patients. Such orders can be made and reviewed by the MHRT in various circumstances; see Division 1 ss 44, 45, 46, 47 and 48 of the TG Act. Patient is defined in the MH Act to mean: "a person who is admitted to a mental health facility in accordance with this Act and who is in the facility following the person's admission…".
Under s 78(1)(h) of the MH Act, an authorised medical officer of a mental health facility must take "all reasonably practicable steps" to notify any "designated carer" of a patient if the patient has any matter before the MHRT. Under s 71(1)(a), the "designated carer" of a patient includes the guardian of the patient.
On 22 April 2021, NCAT made orders under the Guardianship Act 1987 (NSW) appointing ZVQ and the NSW Public Guardian as separate guardians of ZVR. NCAT gave ZVQ power to make decisions on behalf of ZVR in relation to legal services and "electronic content" about ZVR. NCAT gave the Public Guardian power to make decisions on behalf of ZVR in relation to access, accommodation, health care, services and restrictive practices and to consent to medical and dental treatment.
As a consequence of being a guardian for ZVR, ZVQ is deemed to be a "designated carer" for ZVR: s 71 of the MH Act. Division 2 of Ch 4 of the MH Act deals with notifications and information sharing, and includes obligations on an authorised medical officer of a mental health facility to provide information about the patient's medication, on request (s 73), as well as other types of information. Section 78 is included in Div 2 and is headed "Notification to designated carers and principal care providers or events affecting patients or detained persons". Under s 78(1)(h), the authorised medical officer must take all reasonably practicable steps to notify any designated carer if the patient has any matter before the MHRT.
Under s 78(2), the authorised medical officer must give the notice "as soon as practicable after becoming aware the event has occurred". Given that it was the facility itself which applied to the MHRT for a financial management order to be made in respect of ZVR, presumably the obligation under s 78(1)(h) on the authorised medical officer to take all reasonably practicable steps to notify ZVQ arose "as soon as practicable" on the making of the application to the MHRT.
Other than the notification provision in relation to designated carers in s 78(1)(h), there is no other statutory provision of which we are aware that imposes any further obligation, or otherwise deals with, any rights (however described) of a designated carer to participate in "the matter" before the MHRT. A designated carer would appear to have no statutory right to appear and be heard in the MHRT proceedings. We can find no statutory provision dealing with joinder of a person (such as a designated carer) as a party in the MHRT proceedings.
It is common ground that the notification contemplated by s 78(1)(h) of the MH Act was not given to ZVQ of the proceedings concerning ZVR in the MHRT and the hearing held on 1 July 2021. The authorised medical officer took no steps, and certainly not "all reasonably practicable steps", to notify ZVQ as required by s 78(1)(h) of the MH Act.
The circumstances in which an appeal can be made from a decision of the MHRT to NCAT are regulated by s 50 of the TG Act which provides: 50 Appeals to NCAT against estate management orders made by MHRT (cf PE Act, s 21A) (1) An appeal may be made by the following persons to the Civil and Administrative Tribunal against an order by the MHRT that the estate of a person be subject to management under this Act: (a) the person to whom the order relates, or (b) any other person who was a party to the proceedings in which the order was made. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Tribunal, on any other grounds.
Consequently, where there is an entitlement to appeal under s 50 of the TG Act, the appeal is as of right on any question of law, and otherwise by leave of the Tribunal.
The MHRT is an external decision-maker because it is a decision-maker who is external to NCAT: see definition in NCAT Act, s 4. Consequently, appeals pursuant to s 50 of the TG Act are external appeals to NCAT because the decision is an appealable external decision over which NCAT has external appeal jurisdiction: see NCAT Act, s 31. Section 31(1) provides that NCAT has "external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to NCAT against any such decision (or class of decisions).
By s 26(6)(b) NCAT Act an appeal under s 50 of the TG Act is a "designated external appeal". Accordingly, NCAT is to be constituted as an Appeal Panel in determining such an appeal: see ss 27(1)(a) and 27(6)(b) of the NCAT Act.
An external appeal to NCAT is to be determined in accordance with the provisions of s 79 of the NCAT Act. This section provides: 79 Making and determination of external appeals (1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or (b) in any other case - 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: (i) the appeal to be allowed or dismissed, (ii) the decision under appeal to be confirmed, affirmed or varied, (iii) the decision under appeal to be quashed or set aside, (iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.
As there is no specification in the TG Act (the enabling legislation) concerning the powers of an Appeal Panel of NCAT to determine the appeal, s 79(2)(b) of the NCAT Act defines the powers of the Appeal Panel in determining the external appeal. These powers will be available in circumstances where the appeal proceedings are brought by a person entitled to bring the appeal to NCAT.

[11]

Context

ZVQ submits that it is significant that an authorised medical officer of the facility was required to give her notice of the proceedings before the MHRT in which the decision to make the challenged order was made. Section 78 of the MH Act requires that a designated carer and principal care provider be given notice if an event listed in s 78 occurs. Those events include that "the patient or person has any matter before the Tribunal the patient or person has any matter before the Tribunal": 78 Notifications to designated carers and principal care providers of events affecting patients or detained persons (1) An authorised medical officer of a mental health facility must take all reasonably practicable steps to notify any designated carer and the principal care provider (if the principal care provider is not a designated carer) of a patient or person detained in the facility if any of the following events occurs - (a) the patient or person is absent from the facility without permission or fails to return at the end of a period of leave, (b) it is proposed to transfer the patient or person, or the patient or person is transferred, to another mental health facility or other facility, (c) the patient or person is discharged from the mental health facility, (d) the patient or person is re-classified as a voluntary patient, (e) it is proposed to apply to the Tribunal for an ECT inquiry under Part 2 or to ascertain whether the patient or person is capable of giving informed consent to electro convulsive therapy, (f) a surgical operation is performed on the patient or person under Part 3, (g) it is proposed to apply to the Secretary or the Tribunal for consent to a surgical operation or special medical treatment under Part 3, (h) the patient or person has any matter before the Tribunal. (2) The authorised medical officer must give the notice as soon as practicable after becoming aware that the event has occurred. (3) In the case of a proposed transfer, the notice must be given before the relevant order or arrangement is made, except in an emergency. (emphasis added)
Section 78(1)(h) was introduced by the Health Legislation Amendment Act (No 2) 2018 (NSW) and commenced on 1 July 2018. It was one of several amendments made to the MH Act. Neither the Explanatory Note, the second reading speech nor the accompanying parliamentary debate refer to, or provide any guidance about, the reasons for introducing s 78(1)(h) of the MH Act. It may be that that provision related to the amendments to the MH Act introduced at the same time, which enabled the MHRT to "hear reviews and electro convulsive therapy inquiries in the absence of a patient or person in certain circumstances if the patient or person refuses to attend or is too unwell to attend". However, s 78(1)(h) requires that designated carers and principal care providers be given notice of "any matter before the Tribunal", not only hearings into reviews and electro convulsive therapy inquiries, conducted in the absence of the patient or person. This suggests that the amendment introducing s 78(1)(h) was not aimed solely at hearings into reviews and electro convulsive therapy inquiries, conducted in the absence of the patient or person.
The evident intent of s 78(1) of the MH Act is to ensure that designated carers and principal care providers receive notice of key events, relating to a patient or person while that person is admitted to a mental health facility. However, there would appear to be no contextual indicators within s 78(1)(h) or the provision as a whole, which support the submission advanced by ZVQ, that the term "party to the proceedings" in s 50 of the TG Act, should be read to include principal care providers (and/or designated carers).

[12]

MHRT proceedings

We have also considered the statutory scheme and the procedure which govern proceedings conducted by the MHRT to determine whether they might assist in determining the proper meaning of the term "party to the proceedings" in s 50(1) of the TG Act.
Part 2 of Chapter 6 of the MH Act provides for the procedure in proceedings before the MHRT under that Act or any other Act: s 149. Proceedings before the MHRT are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the MH Act and the proper consideration of the matters before the Tribunal permit: s 151(1). The MHRT is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Tribunal permits: s 151(2). Unless otherwise ordered by the Tribunal the proceedings of the Tribunal are to be open to the public: ss 151(3), 151(4).
Headed "Rights of appearance and representation" s 154 states that a patient may be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice: s 154(3). Section 154 does not give a right of appearance or representation to any person, apart from the subject patient or person.
Unless otherwise determined by the Tribunal, a patient or person having any matter before the Tribunal is entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the patient or person: s 156(1). The MH Act does not give any other person the right to inspect or have access to any medical records relating to the subject patient or person.
The statutory scheme and the procedures of the MHRT could not be said to indicate that a designated carer and/or a principal care provider, is "a party to the proceedings" in which a financial management order is made. Contrary to the submissions made by ZVQ, the MH Act does not give her the right to participate in, or be represented in, proceedings before the MHRT. Although family members and carers often participate in MHRT hearings, they do so as witnesses or as persons providing support to patients. The MHRT has no powers under its legislation to issue orders or directions to family members or carers as such. The powers of the MHRT are directed towards mentally ill or cognitively impaired patients and the powers of those who detain and/or provide mental health services to such patients in mental health facilities and in the community pursuant to orders made by the Tribunal.
Because of their social connection with patients, and because of the important roles they play in caring for patients, families and guardians have an obvious 'interest' in the proceedings, broadly defined. There is no indication in the legislation, however, that this familial or guardianship connection has crystallised into a legal interest separate from that of the patient.

[14]

Consideration

As stated above, ss 50 and 51 of the TG Act contemplate that where an order is made under s 46 of that Act, the person to whom the order relates is not the only party to the proceedings in which that order was made. While a powerful indicator that another person or persons are parties to those proceedings, in our view, having regard to the text, context and purpose of the TG Act and the MH Act, the term "party to the proceedings" cannot be read to include a designated carer or principal care provider. While it is not necessary to decide, it is arguable that the person who made the initiating application for an order under s 46 of the TG Act is a "party to the proceedings".
Whether the purported appeal commenced by ZVQ is competent depends on whether ZVQ was a party in the MHRT proceedings below, and thus a person who has standing to bring an external appeal against the MHRT's 1 July 2021 decision under s 79 of the NCAT Act.
As earlier noted, under s 79(1) of the NCAT Act, an external appeal may be made to NCAT by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. "Enabling legislation" is defined in s 4 of the NCAT Act as, relevantly, "legislation (other than this Act or any statutory rules made under this Act) that (a) provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters".
Under s 50(1) of the TG Act, an external appeal to NCAT may be made by the person to whom the financial management order relates, or any other person who was a party to the proceedings in which that order was made. We do not consider that ZVQ can properly be characterised as a party to the MHRT proceedings below for the purposes of NCAT external appeal rights under s 50(1) of the TG Act. ZVQ was not a party in the MHRT proceedings. We further note that there is nothing to suggest that she had a statutory right to party status at the MHRT; all she had was a right to be informed of the matter before the MHRT. While regrettable that the authorised medical officer of the facility failed as required by the MH Act to notify ZVQ of the MHRT proceedings, that failure does not provide a basis on which ZVQ has standing to bring an external appeal to NCAT.
It is noted that ZVQ is appointed guardian to her sister ZVR in relation to legal services. However, ZVQ does not contend that she brought the external appeal to NCAT on behalf of her sister (as her sister's guardian). No such contention was made at any stage during these appeal proceedings, nor is there anything in the written material before us which suggests that ZVQ intended to bring the appeal on her sister's behalf. We note that ZVQ is legally represented in these appeal proceedings, and has been in receipt of legal advice both as to the institution and continuation of the appeal proceedings.

ZVQ v ZVR

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