ZXO v Public Guardian

Publication of names of people involved in the appeal

1. 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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1)(a) and 65(2). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
2. In this appeal, the Registrar assigned pseudonyms to the parties: 1. "ZXP", the Subject Person, the person the subject of the Review Decision 2. "ZXO", the appellant and the Subject Person's spouse.
3. For ease of reading, in these reasons we will not use these pseudonyms but will refer to ZXP and ZXO as "the Subject Person" and "the appellant", respectively. We will refer to the Subject Person's siblings, who were not parties to this appeal, as "the Sister" and "the Brother".

Participants in the appeal

1. The appellant was the only person to play an active role in the appeal. There was no contradictor. The Public Guardian made a submitting appearance.

The appeal is within time

1. A party seeking to make an "internal appeal" against an "internally appealable decision" must lodge a notice of appeal within 28 days from the day on which they were notified of that decision or given reasons for that decision (whichever is the later): Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c). Here, the appellant lodged the notice of appeal on 10 January 2022, three and half months after the Review Decision was made. However, as the appellant was not provided with reasons for that decision until 17 December 2021, and the notice of appeal was lodged within 28 days of the appellant being given reasons, the appeal was within time.

Statutory framework

1. Contained in Div 3 of Pt 3 ("Guardianship orders") of the Guardianship Act, s 14 of that Act gives the Tribunal discretion to make or to decline to make a guardianship order. Section 14(1) permits the Tribunal to make a guardianship order, "if … the Tribunal is satisfied that the person is 'a person in need of a guardian'". A person in need of a guardian is defined by s 3 of the Guardianship Act to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person".
2. Section 14 states: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to - (a) the views (if any) of - (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
3. Div 3 of Pt 3 of the Guardianship Act deals with, among other things, the type of guardianship orders which may be made, continuing or temporary, plenary or limited (s 16), the criteria for appointment of a person as a guardian (s 17), the duration of guardianship orders (s 18) and the authority of a guardian (s 21).

Reviewing a guardianship order

1. Contained in Div 4 of Pt 3 of the Guardianship Act ("Assessment and review of guardianship orders"), s 25(2)(b) requires the Tribunal to review any guardianship order at the expiration of the period for which the order has effect. On reviewing such order, the Tribunal may (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect): Guardianship Act, s 25C(2).

General principles

1. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act: 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.

Tribunal dismisses guardianship application

1. On 5 March 2021, following a hearing, the Tribunal dismissed an application made by the siblings for a guardianship order in respect of the Subject Person. The trigger for that application was the dispute between the siblings and the appellant about "end-of-life decisions". The siblings were of the opinion that the Subject Person was effectively in a "vegetative state", and that the palliative care options recommended by her treating practitioners should be implemented. The appellant, on the other hand, was of the view that the Subject Person should continue to receive medical treatment.
2. The Tribunal decided to dismiss the application, finding that the Subject Person's condition was stable and, as a consequence, in the foreseeable future it was unlikely that decisions about palliative care would need to be made.

Tribunal makes the initial guardianship order

1. Three weeks later, a differently constituted Tribunal conducted an urgent hearing following an application for a guardianship order made by the Sister. The trigger for that application was the Subject Person's admission to hospital because of a blockage in her PEG tube. The treating practitioners had decided to delay replacing the tube, the option favoured by the appellant, until the Tribunal had determined the Sister's application.
2. The medical evidence before the Tribunal was to the effect that "no improvement in [the Subject Person's] condition is anticipated" and while it was possible to replace the PEG tube, the procedure posed significant risks for the Subject Person: Reasons 29/3/2021 at [18], [26], [27], [28]. The gastroenterologist treating the Subject Person told the Tribunal that, given the Subject Person's condition, he could not give a "black or white answer" as to whether the procedure should be conducted and that he would "be comfortable if the decision were made to withdraw treatment and move [the Subject Person] to palliative care": Reasons 29/3/2021 at [19].
3. The Tribunal observed that the position of the parties remained unchanged from the previous hearing with the appellant favouring the replacement of the PEG tube and the siblings favouring palliative care: Reasons 29/3/2021 at [32], [33]. The Tribunal noted that, without a guardianship order, the appellant, acting as the Subject Person's "person responsible", would be likely to consent to the PEG tube being replaced: Reasons 29/3/2021 at [35].
4. The Tribunal commented that the decision to be made was "more nuanced" than whether the PEG tube should or should not be replaced and that a "thorough assessment needs to be taken as to whether treatment is in [the Subject Person's] best interests": Reasons 29/3/2021 at [36]. The Tribunal decided to make an order for a period of six months and gave the guardian authority to make decisions about healthcare and to consent to medical and dental treatment for the Subject Person.
5. The Tribunal decided not to appoint either sibling or the appellant as guardian for the Subject Person, reasoning that it was not satisfied that any were "able" to exercise the functions conferred under the guardianship order as required by s 17(1)(c) of the Guardianship Act. With respect to the appellant, the Tribunal stated at [50]: "We were left with the impression that [the appellant's] grief and his desire for [Subject Person] to get better was overshadowing his ability to act objectively and make decisions that would be in [Subject Person's] best interests."

The decision under appeal (the review decision)

1. The appellant, the siblings, the Public Guardian and the general manager of the care facility where the Subject Person was then residing attended the hearing in which the review decision was made. The appellant was legally represented. The Sister was assisted by a McKenzie Friend.
2. In Reasons for deciding to renew the initial guardianship order (the Reasons), the Tribunal noted that in the intervening six months since the initial guardianship order was made: 1. the Public Guardian consented to the replacement of the PEG tube after receiving medical advice that it was possible to do so under light sedation, not general sedation as initially advised: Reasons at [22] 2. at the request of the Public Guardian, Dr Jayeshkumar Parikhal had conducted a neurological assessment and reported that the Subject Person's condition had not improved since July 2020 and "meaningful improvement is unlikely": Reasons at [16] 3. "very little had changed" both in terms of the Subject Person's health and the conflict within the family about her ongoing treatment: Reasons at [37]
3. The Tribunal noted that it is likely that decisions will need to be made about whether consent to medical treatment should or should not be given, which will "cause consideration about end-of-life decision making and palliative care": Reasons at [37].
4. The Tribunal found that the Subject Person continued to be a "person in need of a guardian" (s 3 of the Guardianship Act) and the discretion to make a further guardianship order could be exercised: at [17]. The Tribunal went on to consider whether to exercise that discretion. The Tribunal noted that the Public Guardian had submitted that the order should be renewed with the same functions as those under the initial guardianship order (health care and authority to consent to medical and dental treatment): Reasons at [20]-[24]. The Public Guardian pointed out that family opinions continue to differ about the best "health care approach", with the Sister preferring "consideration of palliative care" and the appellant being opposed to that option at this time": Reasons at [24].
5. At [27], the Tribunal detailed the evidence given by the appellant, including his claim that: 1. until COVID-19 restrictions were imposed he visited the Subject Person daily. When unable to visit he rings the nursing home daily 2. the Subject Person "trusts him completely" and if she could speak would say that she wants him to make decisions on her behalf 3. when he explains things to the Subject Person, she nods 4. the Subject Person responds to simple commands, for example, she opens her mouth when asked by nursing staff, and gives him her hand when he asks 5. it is inconceivable that the Subject Person would have confided wishes about her future care to the Sister and not to him. He disputes the Sister's claim that in January 2020, the Subject Person "begged" her "not to ever let her suffer in a nursing home" 6. the Subject Person and Sister have "not had a great relationship for many years". The Subject Person does not trust the Sister.
6. At [28], the Tribunal summarised the submissions made for the appellant: 1. his relationship with the Subject Person is longstanding 2. since the stroke in May 2020, the appellant has made at least 12 "entirely appropriate decisions" for the Subject Person in relation to medical treatment, health care and accommodation 3. there are no pending decisions to be made on behalf of the Subject Person other than occasional medical consents. Therefore, there is no need for a guardianship order, as the appellant can resume his role as "person responsible" 4. the appellant has undertaken to advise the siblings about the Subject Person's health issues and has "mostly done this in the past".
7. At [34]-[35], the Tribunal noted that the siblings supported the initial guardianship order being renewed and the Public Guardian being reappointed. Each stated that it was unlikely that they would reach agreement with the appellant about the Subject Person's medical treatment.
8. At [37]-[42], the Tribunal explained its reason for making a further guardianship order.
9. The Tribunal went on to consider who to appoint as the Subject Person's guardian. On this occasion, the appellant was the only person to nominate to act as the Subject Person's guardian. The siblings supported the reappointment of the Public Guardian. We set out below the reasons given by the Tribunal for deciding not to appoint the appellant and to appoint the Public Guardian.

Grounds of appeal

1. 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: NCAT Act, s 80(2)(b).
2. In an amended notice of appeal lodged on 2 March 2022, the appellant listed 23 grounds of appeal each said to raise a question of law. Many of those grounds do not give rise to a question of law and amount to an expression of disagreement about facts found, or conclusions reached, by the Tribunal.
3. In addition, in the amended grounds of appeal, the appellant sought leave to appeal.

The mandatory consideration grounds

1. By grounds 1, 3, 4 and 5, the appellant contends that in exercising the discretion to make or not to make a guardianship order, the Tribunal failed, as required by the Guardianship Act, to have regard to the views of the Subject Person (s 14(2)(a)(i)), the views of the appellant (ss 14(2)(a)(ii) and 14(2)(a)(iii)), and "the practicability of services being provided to the [Subject Person] without the need for the making of such an order" (s 14(2)(d)).
2. Where, as here, the Tribunal is conducting an end-of-term review of a guardianship order, as required by s 25(2)(b) of the Guardianship Act, in determining which of its powers in s 25C(2) of that Act to exercise (to renew, to renew and vary, or to allow the guardianship order to lapse) the Tribunal must have regard to the mandatory considerations listed in s 14(2) of that Act and the general principles set out in s 4 of that Act: IF v IG [2004] NSWADTAP 3 at [20].
3. In IF v IG, an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decision Tribunal (ADT), explained at [20] that the decision to make or to decline to make a guardianship order under s 14 of the Guardianship Act is a discretionary one informed by the mandatory considerations listed in s 14(2) and the general principles set out in s 4 of that Act. See also, EB & Ors v Guardianship Tribunal [2011] NSWSC 767 at [113]-[115]; ZHH v ZHI [2018] NSWCATAP 107 at [38]; ZJJ v ZJK [2019] NSWCATAP 126 at [34].
4. In IF v IG, the Appeal Panel explained: "(1) each of the factors listed in s 14(2) is a mandatory consideration - the factors have no hierarchy or weighting; (2) the Tribunal must engage in a process of evaluation which requires more than simply adverting to the factors; (3) there will be differing amounts of evidence about the various factors in s 14(2) and, in some cases, there may be no evidence about one, or more, of them; (4) where there is no evidence of one or more of the factors it may be prudent for the Tribunal to record that fact; (5) as well as the matters listed in s 14(2), the Tribunal is entitled to identify and be influenced by any other relevant matters when making its decision; (6) if there is evidence for and against the making of an order, the Tribunal may need to undertake a balancing exercise; (7) when undertaking such a balancing exercise the Tribunal must observe the general principles set out in s 4 of the Guardianship Act."

Nature of the obligation to "have regard to"

1. The matters listed in s 14(2) of the Guardianship Act "the Tribunal shall have regard to" are commonly referred to as "relevant" or "mandatory" considerations": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J); Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at [9] (Basten JA).
2. In the administrative law context, different formulations have been used to describe the nature of the obligation to have regard to mandatory considerations: to give "proper, genuine and realistic consideration" [1] , to address the consideration "in a real and conscientious way" [2] ; to "adequately address" the consideration [3] , and, to engage in an "active intellectual process directed at that … criteria" [4] . While different formulations have been used to describe the nature of that obligation, the authorities make clear that "simple advertence to" [5] , or "mere lip service" [6] to the considerations does not suffice.
3. Determining whether a decision maker has complied with the obligation "to consider" a particular matter involves an evaluative process based exclusively on what the decision-maker has said or written: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58]. In undertaking that task, the reasons given by the decision maker must be assessed without "an eye finely attuned to the perception of error" (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [37]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [43].

The views of the Subject Person

1. The appellant contends that in deciding which of its powers in s 25C(2) of the Guardianship Act to exercise, the Tribunal failed to consider the views of the Subject Person. The appellant identifies the following material, which was before the Tribunal, which he asserts contains evidence of the views of the Subject Person: 1. The appellant's statement dated 23 September 2021 at [25]-[26], in which he wrote: "[The subject person] trusts me completely. If [the Subject Person] could speak, I know she would tell the Tribunal that she would want me to make decisions on her behalf." 1. The email sent by the Sister to the Tribunal on 23 September 2021, in which she stated that in January 2020 the Subject Person "begged me not to let her suffer in a nursing home". 2. The appellant's response to the Sister's claim: that conversation "could not possible have happened" as the Subject Person and the Sister "were never particularly close" and, in any event, it was "simply inconceivable that [the Subject Person] would confide wishes about her future care to [the Sister] not me": appellant's statement, 23 September 2021 at [58], [59].

Consideration

1. At [18] of the Reasons, the Tribunal correctly acknowledged that "it must consider all the … matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order". However, in explaining its decision to renew the initial guardianship order, the Tribunal made no mention of the views of the Subject Person.
2. Before addressing the appellant's submission, we make the following observations about the nature and scope of the obligation imposed by s 14(2)(a)(i) of the Guardianship Act: 1. There is nothing in its text or context to suggest that the obligation imposed by s 14(2)(a)(i) of the Guardianship Act to consider "the views (if any) of the person" should be read down to mean the current views of the person. That obligation extends to any views previously expressed by the person. 2. The opening words of the chapeau to s 14(2) of the Guardianship Act - "in considering whether or not to make a guardianship order in respect of a person …" indicates that the type of views of the person the Tribunal is obliged to consider are those relating to the exercise of the Tribunal's discretion to make or not to make a guardianship order, not the views of the person at large. 3. The use of the expression "the views (if any)" (emphasis added) in s 14(2)(a)(i) of the Guardianship Act, indicates that it is contemplated that there may be circumstances where the person has not expressed a relevant view.
3. Adopting that interpretation, the question posed is whether the material before the Tribunal on which the appellant relies could be said to be evidence of current or previously expressed views of the Subject Person about whether, in circumstances where she has been found to be "a person in need of a guardian", a decision to make a guardianship order should or should not be made. The Subject Person did not participate in the hearing and at the time of the hearing was unable to communicate because of her disability.
4. The appellant's claim that the Subject Person "trusts me completely" and "if she could speak, she would tell the Tribunal that she would want me to make decisions on her behalf" at its highest amounts to an opinion held by the appellant about what the Subject Person's views might have been had she turned her mind to the issue. The Tribunal is not bound by the rules of evidence and is entitled to inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). Nonetheless, as explained by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-3, the Tribunal must base its findings or conclusions on material that has "rational probative force". Without more, the appellant's bald opinion about the views of the subject person could not be said to have rational probative force.
5. The disputed conversation between the Sister and the Subject Person relates to the views said to have been expressed by the Subject Person about end-of-life care. That is a different and distinct issue to the views about the exercise of the discretion to make or not to make a guardianship order.
6. The premise on which this ground rests, that there was material before the Tribunal about the views of the Subject Person, is not established.

The practicability of services being provided to the person without the need for the making of such an order

1. The appellant contends that the Tribunal failed to consider, as required by s 14(2)(d) of the Guardianship Act, the "practicability of services being provided to the [Subject Person] without the need for the making of [a guardianship] order". He contends that the Tribunal failed to engage with his central submission that there was no need for a guardianship order because: 1. decisions about services, in particular health services, could, and in fact had been, made by him on an informal basis 2. if the initial guardianship order was not renewed, he would resume his role as "person responsible" and be authorised to consent to medical and dental treatment on behalf of the Subject Person 3. over the past 16 months he had made 12 "entirely appropriate" decisions on behalf of the Subject Person. Each decision was appropriate and made "after weighing up the medical advice".

Scope and operation of Part 5 of the Guardianship Act

1. Before considering the appellant's submission, it is necessary to consider the demarcation between a so-called "health care" function and "medical /dental treatment consent" function.
2. In Shehabi v Attorney General (NSW) [2016] NSWCATAP 137, an Appeal Panel of NCAT explained at [40]: "At the most general level, Pt 5 … of the Guardianship Act deals with when consent to medical or dental treatment is required, and how it may be obtained in respect of adults with impaired decision-making capacity."
3. The objects of Pt 5 are stated in s 32 of the Guardianship Act: 32 Objects The objects of this Part are: (a) to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and (b) to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.
4. Pt 5 of the Guardianship Act applies to a patient who is of or above the age of 16 years, and who is incapable of giving consent to the carrying out of medical or dental treatment: Guardianship Act, s 34(1).
5. Section 33 of the Guardianship Act defines "medical … treatment" to include: 33 Definitions … (a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, …
6. Section 35 of the Guardianship Act makes it an offence for a person to carry out medical treatment on a patient to whom Pt 5 of that Act applies unless: 35 Offences … (a) consent for the treatment has been given in accordance with this Part, or (b) the carrying out of the treatment is authorised by this Part without any such consent, or (c) the treatment is carried out in accordance with an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons.
7. A "person responsible" may consent to the carrying out of medical treatment for a patient to whom Pt 5 applies: Guardianship Act, s 35. Section 33A of the Guardianship Act specifies who is the "person responsible". Section 33A(4) of the Guardianship Act creates a hierarchy of "persons responsible" for a patient to whom Pt 5 of that Act applies (other than children or persons in the care of the Secretary). In descending order that hierarchy is: 33A Person responsible … (a) the person's guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person, (b) the spouse of the person, if any, if: (i) the relationship between the person and the spouse is close and continuing, and (ii) the spouse is not a person under guardianship, (c) a person who has the care of the person, (d) a close friend or relative of the person. …

FI v Public Guardian [2008] NSWADT 263

1. In FI v Public Guardian [2008] NSWADT 263, the ADT considered whether the NSW Public Guardian, acting as guardian for DFI, had power to approve an advance care or palliative care plan that permitted life-sustaining treatment to be withdrawn. Under a guardianship order made by the then NSW Guardianship Tribunal the Public Guardian was given a health care function together with authority to consent to medical or dental treatment for DFI under Pt 5 of the Guardianship Act.
2. The central question considered by the ADT in FI v Public Guardian - whether a guardian has power to consent to the withdrawal of life-sustaining treatment - is not relevant to this appeal. FI v Public Guardian is only relevant to this appeal because it considered the scope of the authority conferred by Pt 5 of the Guardianship Act on a "person responsible".
3. At [40], the Tribunal observed that "advance care plans (or palliative care plans) will often have a mix of proactive treatment elements and elements involving cessation of medical treatments in particular circumstances". The Tribunal stated that the provisions of Pt 5 are "directed to proactive medical interventions" and where a "medical practitioner proposes not to treat a patient (having formed a clinical judgment that it is not appropriate to provide certain treatment), then no occasion arises for the operation of Part 5": at [40], [54].
4. The Tribunal noted at [44] that the Guardianship Act makes no attempt to define the 'functions of a guardian' and that the object of guardianship is "to enable the making of decisions that the subject would have been able to make had he or she had legal capacity to do so". Applying that analysis, the Tribunal concluded at [53] that "a guardian invested with the authority to perform health care functions on behalf of a protected person is not prevented by the Guardianship Act or the general law from making decisions that involve the withdrawal of life-sustaining treatment".

Consideration

1. The appellant contends that the Tribunal failed, as required by s 14(2)(d) of the Guardianship Act, to consider the practicability of health services being provided to the Subject Person in the absence of a guardianship order. He contends that the evidence before the Tribunal established that there was no need to make a guardianship order because without such order: 1. by the operation of s 33A(4) of the Guardianship Act, he would be deemed to be the person responsible and authorised to consent to medical treatment on behalf of the Subject Person; and 2. he would be able to make any health care and associated decisions that might need to be made on an "informal basis", as he had been doing before the initial guardianship order.
2. We accept the appellant's implicit submission that the word "services" in s 14 of the Guardianship Act should not be read narrowly and includes services relating to health care. See ZJJ v ZJK [2019] NSWCATAP 126 at [60]-[61].
3. The submissions made by the appellant in support of this ground conflates two issues: 1. whether, as required by s 14(2)(d) of the Guardianship Act the Tribunal failed to consider "the practicability of [health] services being provided to the person without the need for the making of [a guardianship order]"; and 2. the merits of the decision made by the Tribunal to make a further guardianship order.
4. At [39], the Tribunal acknowledged that in the circumstances of this case a decision to consent to medical treatment "cannot be separated from decisions related to end-of-life considerations": "Hypothetically, and to illustrate the connection of medical consent decisions and end of life planning, medical consent decisions for a person in [the Subject Person's] condition might include whether to replace the PEG feeding tube, treat aspiration, administer antibiotics or undertake cardiopulmonary resuscitation."
5. At [40] the Tribunal went on to reject the appellant's claim that he would communicate with the Subject Person's siblings and seek their views about health care decisions, referring to his "strong and fixed views about protecting [the Subject Person] and sustaining her life". It is apparent that that statement refers to the appellant's submission that no further guardianship order was needed because he would be able to make health care decisions on behalf of the Subject Person on an informal basis, and, as person responsible to consent to medical treatment on her behalf.
6. At [41], the Tribunal went on to expressly consider the practicality of health care decisions being made on behalf of the Subject Person without a guardianship order: "I am not satisfied that the person responsible regime for medical treatment decisions is feasible or that it would be practicable for health care decisions to be made informally without an appointed guardian." (emphasis added)
7. The contention that the Tribunal failed to consider the practicability of health services being provided to the Subject Person without the need for the making of a guardianship order is rejected.

The views of the appellant

1. The appellant contends that the Tribunal failed to consider his views, as required by ss 14(2)(a)(ii) and 14(2)(a)(iii) of the Guardianship Act. In the proceedings below there was no dispute that the relationship between the appellant and the Subject Person was "close and continuing" and he was the person "who has care of the [Subject Person]" within the meaning of s 3D of the Guardianship Act. As such, by ss 14(2)(a)(ii) and 14(2)(a)(iii) of the Guardianship Act, the Tribunal was required to have regard to the appellant's views.
2. The contention on which this ground rests raises much the same question as the Tribunal's purported failure to consider the "practicability of services being provided to the person without the need for the making of such an order", as discussed above. At [25]-[33], the Tribunal summarised the evidence given, and the submissions made, by the appellant. At [39]-[41] the Tribunal addressed and rejected the appellant's central submission that there was no need for a guardianship order because "only occasional medical decisions are required, and he should resume the role of person responsible".
3. The contention that the Tribunal failed to have regard to the views of the appellant must be rejected.

Irrelevant consideration/weight grounds

1. The appellant contended that the Tribunal had regard to matters "outside the scope of s 14(2)" (Ground 6); failed to determine whether one or more of the matters listed in s 14(2) of the Guardianship Act "will be given greater weight than others" (Grounds 7, 8); gave significant weight to matters outside the scope of s 14(2) … and insufficient weight or no weight to matters within s 14(2) (Ground 9).
2. We understood that the appellant withdrew these grounds in the hearing of the appeal. In the interest of completeness, we note that, as the Appeal Panel explained in IF v IG at [27], in exercising the discretion to make or not to make a guardianship order, the Tribunal is not limited to considering the matters listed in s 14(2) of the Guardianship Act and is entitled to identify and be influenced by other relevant matters. Further, in conducting the balancing exercise required by s 14(2), it is for the Tribunal to decide the weight to be given to each of the matters listed in s 14(2), which have no hierarchy or weighting: IF v IG at [26], [34].
3. These grounds must be rejected.

Grounds relating to decision not to appoint the appellant and to appoint the Public Guardian

1. Grounds 10 - 23 each relate to the decision to appoint the Public Guardian as guardian for the Subject Person. There is significant overlap between these grounds. Several do not raise a question of law.
2. Those grounds which raise a question of law are to be resolved by reference to the following questions: 1. whether there was "no evidence" for the findings made by the Tribunal: 1. that the "appellant would not facilitate open communication with the appellant's siblings" 2. that the appellant would not afford due consideration to the views of the Subject Person's siblings 3. that the appellant would be unable to give sufficient impartial consideration to information from medical practitioners. 1. whether the Tribunal misapplied ss 17 and/or 15(3) of the Guardianship Act 2. whether, in deciding that the appellant was not "able to exercise the functions conferred by … the guardianship order", the Tribunal failed to have regard to the principles in s 4 of the Guardianship Act 3. whether the Tribunal failed to give adequate reasons for its decision not to appoint the appellant as the Subject Person's guardian.

Appointing a guardian: statutory framework

1. Where the Tribunal decides to make a guardianship order, it must appoint one or more persons aged 18 years or over as the guardian(s) of the person under guardianship: s 16(1)(a) of the Guardianship Act.
2. Where, as in this case, the Tribunal decides to make a continuing guardianship order, s 15(3) of the Guardianship Act instructs to not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on Tribunal's power to make guardianship Order … (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. …
3. Before appointing a person to act as the 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) of the Guardianship Act: 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.
4. Section 17(1) does not apply to the appointment of the Public Guardian: Guardianship Act, s 17(2).

Tribunal's reasons for not appointing the appellant as the Subject Person's guardian

1. Having decided to make a guardianship order, the Tribunal went on to consider whether, as required by s 17(1)(c) of the Guardianship Act, it was satisfied that the appellant would be able the exercise the functions conferred by the guardianship order, namely, to consent to medical treatment on behalf of the Subject Person and to make decisions in relation to her health care. The Tribunal noted at [48] that the appellant had indicated that he was "willing to make end of life decisions for [the Subject Person] and that he is aware she will never recover". However, the Tribunal stated at [49]-[50] that some of the appellant's evidence about the Subject Person's responses to him contradicted the medical evidence and "seem over optimistic", noting that, that observation was consistent with the findings of previous Tribunals.
2. The Tribunal stated: "[50] [The appellant's] responses to questioning about medical treatment and consideration of palliative care options indicate some inflexible views with a strong focus on sustaining [the Subject Person's] life. It is possible that withholding treatment may be in [the Subject Person's] best interest. [the appellant] [the appellant's] love and affection for [the Subject Person] is not in doubt nor his devotion to her, and the difficulty of the circumstances are clear. Despite this, I was not convinced he would be able to make a decision to withhold treatment, either as a planned end of life approach or in the circumstance of an unexpected medical condition arising requiring an immediate decision. [The appellant's] statement indicating that palliative care is effectively euthanasia and that he is opposed to euthanasia combined with his focus on his role to protect [the Subject Person] supports this finding. [51] Furthermore, I am not satisfied that [the appellant] would facilitate open communication with [the Subject Person's] 's siblings and afford due consideration to their views. Frustration about conflicting approaches was apparent in the hearing. Due to his devotion to [the Subject Person], his past approach and his oral evidence relating to palliative care and his wife's condition, I am not persuaded [the appellant] would be able to give sufficient impartial consideration to information from medical practitioners either."
3. At [53], the Tribunal noted that as no other person had nominated to act as the Subject Person's guardian, it was required to reappoint the Public Guardian.

The impugned conclusion

1. At the core of these grounds is the proposition that in concluding that it was not satisfied that the appellant was "able to exercise the functions conferred by … the guardianship order" (the impugned conclusion), the Tribunal failed to consider the evidence which the appellant contends supported his claim that he was able to do so.
2. The impugned conclusion rested on two key findings, namely that the Tribunal was not satisfied that: 1. the appellant would give "sufficient impartial consideration to information from medical practitioners" and give consideration to palliative care options (the palliative care finding); and 2. the appellant would facilitate open communication with the Subject Person's siblings and afford due consideration to their views about medical treatment and palliative care options (the family relationships finding).
3. In respect of the first of these findings, the appellant argued that the Tribunal failed to have regard to, or give sufficient weight to, the evidence which supported his claim that he was able to exercise the functions of the guardianship order, including that throughout the period between the Subject Person's suffering her first stroke and the appointment of the Public Guardian (25/5/2020 to 29/3/21): 1. he had always listened to the advice given by the Subject Person's treating practitioners 2. he had made a series of "palliative care" decisions, including on the Subject Person's admission to hospital in October 2020, to consent to a "resuscitation plan", which directed that the Subject Person not be given cardiopulmonary resuscitation, intubation, ventilation, or any other form of intervention 3. after considering the medical advice, he made 12 "entirely appropriate decisions" for the Subject Person.
4. The appellant contends that in making the palliative care finding, the Tribunal gave undue weight to, and took out of context, the comment he made in the proceedings below that "palliative care is euthanasia decorated in different words" and that "he is opposed to euthanasia": Reasons at [31], [50].
5. In respect of the family relationships finding, the appellant contends that the Tribunal failed to consider: 1. that he notified the Sister when the Subject Person was admitted to hospital in May 2020 2. that the reason he did not notify the Sister when the Subject Person was admitted to hospital in June 2021, was that he mistakenly assumed that the Public Guardian had done so 3. that in the proceedings below he undertook to notify the siblings "if anything happens to the Subject Person"
6. Section 17(1)(c) required the Tribunal to decide whether it could be positively satisfied that throughout the term of the guardianship order the appellant would be able to exercise the functions conferred by that order. In ZKF v ZKG [2019] NSWCATAP 64 at [31], an Appeal Panel of NCAT explained that s 17(1)(c) of the Guardianship Act required the Tribunal to make an evaluative judgement and decide not only whether the proposed guardian possessed the necessary skill and experience to be able to exercise the conferred functions but, in addition, whether the proposed guardian would be able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship 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).
7. It is implicit from the Reasons that the Tribunal considered that in the circumstances of this case the paramountcy principle (s 4(a) of the Guardianship Act), required the guardian to give genuine consideration to any medical advice received and to bring an open mind to any palliative care recommendations made by the Subject Person's treating practitioners. Before the Tribunal was evidence of the appellant's past actions of heeding medical advice and making "palliative care decisions". That evidence arguably supported a conclusion that, exercising the functions conferred by the guardianship order he would observe the paramountcy principle in the manner characterised by the Tribunal.
8. However, in addition to that evidence was evidence which weighed against that conclusion, including the statements made by the appellant during the hearing, that "palliative care is effectively euthanasia and that he is opposed to euthanasia" and what the Tribunal characterised as the appellant's "over-optimistic" assessment of the Subject Person's condition.
9. Similarly, with respect to the question of whether the appellant was able to make health care and treatment consent decisions in a manner which observed the principle of the "importance of preserving family relationships" (s 4(d) of the Guardianship Act), there was evidence which supported the appellant's argument that he would communicate with and consult with the siblings, in the exercise of the functions as guardian. Nonetheless, there was also evidence which tended against that finding, including the history to the review and the conflicting opinions of the siblings and the appellant about medical treatment and palliative care options for the Subject Person.
10. In this case, the task posed by s 17(1)(c) of the Guardianship Act was not an easy one. That task required the Tribunal to make an evaluative judgement about whether the appellant was able to consent to medical treatment on behalf of, and to make health care decisions for, the Subject Person in a manner which observed the s 4 principles, in particular, those identified by the Tribunal as being especially relevant, ss 4(a) and 4(d). That task did not lend itself to a simple arithmetic formula and was inevitably impressionistic. Compounding the difficulty posed by that task was the self-evident proposition that reasonable minds may differ on what observing the s 4 principles will require in any particular case. The equivocal opinion expressed by the gastroenterologist about whether to recommend the replacement of the PEG, referred to at [18], highlights the difficulty confronted by a guardian in observing the s 4 principles, where a proposed treatment might prolong the person's life but at the same time carries a risk of resulting in a diminution in the quality of the person's health and life.
11. The assessment of whether the Tribunal failed to consider the appellant's submissions and supporting evidence, requires the Reasons to be read fairly and as a whole and not approached with an "eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272. The Reasons reveal that the Tribunal considered but ultimately rejected the appellant's submission that he was able to exercise the functions conferred by the renewed guardianship order in a manner which observed the s 4 principles. It is apparent that the statements made by the appellant in the proceedings below about palliative care options and the appellant's condition, together with the history to the renewed order, including the conflict between the appellant and the siblings, raised a real doubt in the Tribunal's mind about the appellant's ability to exercise the functions conferred by the renewed order. While the ultimate finding was not the only finding available, it was one open to the Tribunal on the available material.
12. The contention that the Tribunal failed to consider the argument made by the appellant that he was able to exercise the functions conferred by the renewed guardianship order, and his evidence in support of that argument, is rejected.
13. Having concluded that it was not satisfied that the appellant was able to exercise the functions conferred by the guardianship order, by the combined operation of ss 15(3) and 17(1) of the Guardianship Act, the Tribunal was required to appoint the Public Guardian as guardian for the Subject Person. The contention that the Tribunal misapplied those provisions is rejected.

Adequacy of reasons

1. The appellant contends that the Tribunal failed to give adequate reasons for its decision not to appoint him as the Subject Person's guardian, in particular the conclusion that it was not satisfied that he was able to exercise the functions conferred by the guardianship order. The appellant did not elaborate on this contention.

Statutory framework and principles

1. Section 62(3) of the NCAT Act provides that a written statement of reasons, given on request by a party under s 62(2) of that Act, must set out: 62 Tribunal to give notice of decision and provide written reasons on request … (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
2. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as His Honour then was) in considering the nature of the Tribunal's obligation to give reasons, stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring at [67] to the statement made by Basten JA in that decision at [48], that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
3. At [70] Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. The President stated at [72] that while s 62(3) provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".

Consideration

1. The structure of the Reasons makes apparent that the section headed "Who should be appointed as the Guardian?" ([43]-[53]) does not represent the entirety of the Tribunal's consideration of the question of whether the appellant was able to exercise the functions conferred by the guardianship order. Threads of the Tribunal's reasoning can be found at [37]-[42], where the Tribunal considered the question of whether to exercise the discretion to make a guardianship order.
2. The Reasons make apparent that the Tribunal based its ultimate finding that it was not satisfied that the appellant satisfied the criterion in s 17(1)(c) of the Guardianship Act on the palliative care and family relationships findings. While the reasons given for each of those findings are brief, they nonetheless disclose the Tribunal's reasoning processes. They make clear that the Tribunal sympathetically and respectfully considered the evidence adduced by and submissions made by the appellant. The argument made by the appellant before us concerns, in essence, the merits of the ultimate conclusion. The contention that the reasons were inadequate is rejected.

Leave grounds

1. The appellant urges the Appeal Panel to grant leave to appeal and contends that: 1. "the decision was not fair and equitable as it was against the weight of evidence" 2. "the manner of reasoning of the Tribunal … was likely to, and did, produce an unfair result, such as that it is in the interests of justice for it to be reviewed".
2. In support of leave being granted, the appellant relied on 19 grounds, which largely reflect those said to give rise to questions of law.

Consideration

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed," (Citations omitted)
2. In SAB v SEM and Ors [2013] NSWSC 253 at [7]-[10], White J emphasised the need to take account of the protective character of the jurisdiction when exercising the power to grant or withhold leave to appeal from a decision of one of NCAT's predecessor Tribunals, the Guardianship Tribunal of NSW, emphasising that the welfare and interests of the person with disabilities must be given "paramount consideration".
3. The arguments advanced by the appellant in support of his application for leave to appeal focused on the decision by the Tribunal to exercise the discretion to make a guardianship order, and the subsequent decision that it was not satisfied that the appellant satisfied the criterion in s 17(1)(c) of the Guardianship Act. We are not persuaded that either decision was against the weight of evidence, or that the manner of reasoning employed by the Tribunal produced an unfair result.
4. None of the factors listed in Collins, which might warrant granting leave, apply to the decision under appeal. While the decision under appeal is of great importance to the appellant, it raises no issue of general principle or importance and is confined to the specific facts of the case.
5. Leave to appeal is refused.

Orders 1. The appeal is dismissed. 2. Leave to appeal is refused.

Endnotes

1. Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [25] (Gummow J); Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [9] (Mason P)
2. Mendoza v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 405 at [420] (Einfeld J)
3. LEK v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 493; (1993) 117 ALR 455 at [472] (Wilcox J)
4. Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]-[54] (Lindgren, Rares and Foster JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45] (Griffiths, White, Bromwich JJ)
5. Weal v Bathurst City Council [2000] NSWCA 88 at [13] (Mason P)
6. Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], [2008] NSWCA 337; (2008) 251 ALR 633 at [651] Tobias JA (Spigelman CJ and Macfarlan JA agreeing); Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] Basten JA (Santow and Ipp JJA agreeing). 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: 05 August 2022