Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZYI v Public Guardian [2022] NSWCATAP 286 Hearing dates: 7 July 2022 Date of orders: 5 September 2022 Decision date: 05 September 2022 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member C Fougere, Principal Member M Oxenham, General Member Decision: (1) Pursuant to s 80(3) of the CAT Act the appeal is to be dealt with by way of a new hearing. (2) All evidence and submissions that were before the Tribunal at first instance together with all evidence and submissions filed to date in this appeal will be considered to have been given in the new hearing before the Appeal Panel. (3) By 15 September 2022, parties are to file and serve any additional evidence and submissions. (4) By 15 September 2022, parties are to file and serve any submissions as to whether the Appeal Panel should dispense with a hearing pursuant to s 50(1)(c) of the CAT Act and determine the new hearing "on the papers". (5) By 29 September 2022, parties are to file and serve submissions in response to those of any other party if they wish. (6) The Appeal proceedings are adjourned to a date to be fixed by the Registrar. Catchwords: APPEAL – appeal from proceedings in Guardianship Division - discretion to deal with appeal by way of a new hearing – no question of law raised – material change in circumstances of Subject Person Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 50(1)(c), 65(1), 65(3), 80(2)(b), 80(3), 81(1) Guardianship Act 1987 (NSW), ss 3(2), 4, 4(a), 14, 14(2),17(1), 25B Cases Cited: Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 ZSJ v ZSK [2021] NSWCATAP 144 Texts Cited: None cited Category: Principal judgment Parties: ZYI (Appellant) Public Guardian (First Respondent) ZYJ (Second Respondent, the Subject Person) Representation: QV Law (Appellant) First Respondent (No Appearance) Second Respondent –(No Appearance) File Number(s): 2022/00103453 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 31 March 2022 Before: M Ryan, Senior Member (Legal) M E Burke, Senior Member (Professional) J L Newman, General Member (Community) File Number(s): 2022/00065841 REASONS FOR DECISION 1. By Notice of Appeal filed on 11 April 2022 ZYI (the Appellant) appealed against the order made by the Guardianship Division of the Tribunal on 31 March 2022 pursuant to provisions of the Guardianship Act 1987 (NSW) concerning the Appellant's mother (the Subject Person). The order appointed the Appellant and the Public Guardian "separately as the guardians" of the Subject Person. The Public Guardian was appointed with the functions of deciding where the Subject Person may reside and authorising others, including members of NSW Police and the Ambulance Service of New South Wales, to take the Subject Person to a place approved by the Public Guardian, keep her at that place and return her to that place should she leave it. The Tribunal's orders were expressed to operate for a period of 12 months from the date on which they were made. 2. The Appellant sought that the orders that appointed the Public Guardian as a guardian be set aside and that, in lieu thereof, the function of deciding where the Subject Person may reside be vested in her. 3. The Tribunal's order also provided [5] that the Appellant have the functions with respect to health care, making substitute decisions about proposed minor or major medical or dental treatment and making decisions about the services to be provided to the Subject Person. The Appellant has not appealed against the orders authorising her to exercise those functions. The Public Guardian has not filed a cross appeal seeking to disturb those orders. 4. The Appellant articulated a number of grounds in her Notice of Appeal which asserted errors on a question of law. The Appellant did not seek leave to appeal. The Public Guardian's Reply of 3 May 2022 recorded that the Public Guardian did not "wish to present a case or make submissions in relation to this matter with regard to question [sic] of law" and "the Public Guardian reserves the right to present a case and make submissions should leave be granted to appeal on other grounds". As the Appellant did not seek leave to appeal on other grounds, as foreshadowed by its Reply, the Public Guardian did not participate in the hearing of the appeal. 5. Since the decision under appeal was handed down, the Subject Person's circumstances have materially changed. 6. At the time of the hearing that led to the orders made on 31 March 2022, the Subject Person was a patient of a Sydney hospital in a specialist geriatric ward where she was receiving treatment for behaviours of concern resulting from dementia. This was a ward described in the evidence before the Tribunal below (at [9]) as a specialist secure unit for geriatric and old age psychiatry input. There was disagreement between the Appellant and the Subject Person's treating team at the hospital as to the when the Subject Person should be discharged from hospital so that she could return to her home in the care of the Appellant. The Reasons for Decision of the Tribunal below make clear that it was this decision, namely the issue of timing of the Subject Person's discharge from hospital and where she could safely receive the medical care that she needed, that led to the appointment of the Public Guardian about this specific issue. 7. New evidence provided to us indicates that on or around 3 May 2022, with the consent of the Public Guardian, the Subject Person was discharged from the Sydney hospital back to her own home as her health had improved and she no longer required in-patient care. 8. For the reasons set out below, we decided to exercise the discretion under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) to deal with the appeal by way of a new hearing and permit the provision of fresh evidence. We have made directions to the parties for the provision of any additional evidence or submissions that they may wish to provide so that we can determine the matter. Publication of the names of the parties 1. The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the CAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties by name but will use descriptors. For ease of reading, these descriptors will be as follows: "the Subject Person" for ZYJ and "the Appellant" for ZYI. The reasons for the decision at first instance 1. The Tribunal identified the Subject Person as a 72-year-old woman who was then in a Sydney hospital, where she had been since early February 2022 [1]. The Subject Person has three children, one of whom is the Appellant. The Tribunal recorded that the Appellant had stated that her mother was "estranged from her eldest daughter for 22 years and her son since 2015". 2. On 4 March 2022 the Tribunal made a short-term reviewable order for 30 days appointing the Public Guardian as the Subject Person's guardian, with decision making functions in relation to accommodation, medical and dental consents, services and authorise others and authority to override objections to medical treatment [2]. 3. Following the appointment, on the same date the Public Guardian consented to management of the Subject Person's medication, gave consent to a transfer from a general medical ward to the specialist geriatric ward and gave consent to antipsychotic medication being administered. 4. The Appellant requested a review of the Tribunal's decision made on 4 March 2022 and applied to be appointed her mother's guardian [2]. 5. At a hearing conducted on 31 March 2022, the Tribunal considered the Appellant's requested review of the guardianship order made on 4 March 2022 as well as the end of term review of the guardianship order. The Appellant was granted leave to be legally represented at this hearing, and in the appeal. 6. In the written Reasons for Decision explaining the orders made on 31 March 2022, the Tribunal referred in some detail to the medical evidence of Dr X, a Geriatrician, in a report of 28 March 2022 [7]-[10]. For present purposes, the most significant evidence from Dr X was her oral evidence at the hearing of the proceedings, in which Dr X [14] was recorded as stating that the Subject Person "continues to show agitated behaviour and her discharge is not recommended at this stage. Her cognitive impairment suggests an underlying dementia. [The Subject Person] exhibits ongoing confusion, disorientation, wandering and intrusive behaviours." 7. The Tribunal was satisfied [17] that the Subject Person "continued to have a disability which prevents her from making important life decisions. She is a person for whom the Tribunal could make a further guardianship order." That finding is not controversial for present purposes. The dispute is about who should be the Subject Person's guardian. 8. The Tribunal identified the matters to which it was required to have regard pursuant to s 14(2) of the Guardianship Act 1987 (NSW) before exercising its discretion to make a further guardianship order [18]. The Tribunal recorded [21], that the Appellant and her legal representative "pressed that [the Subject Person's] impairments were medical issues such that she could be cared for at home" and, that the Appellant asserted that her mother's "distress was escalated due to the fact that she was away from her home and that she wanted [the Appellant] to be looking after her". 9. Having decided [22] that, on the evidence before it, a further guardianship order should be made, and that the functions of the guardian should include accommodation, authorise others, services and medical/dental and health care the Tribunal considered "who should be appointed as the guardian" [23]-[36]. The Tribunal considered, by reference to s 17(1) of the Guardianship Act the requirements for appointing a private guardian [24], and further considered [25] the capacity of the Appellant "to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act". 10. A relevant consideration was held [26] to be the ability of the Appellant "to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest". The Tribunal recorded [28] that there were "significant differences of opinion between the treating doctors at the Sydney hospital and [the Appellant]." The Tribunal also recorded that the Appellant had lived on the Gold Coast for the previous two years, and that her mother had been living in a two-bedroom unit in the inner west of Sydney with the Appellant's partner, who works full time and did not appear at the hearing. The Tribunal further recorded that the Appellant had "not visited Sydney for the last two years as she is not vaccinated against Covid-19". 11. The Tribunal referred [29] to a difference of opinion which emerged between Dr X and the Appellant during the hearing, and to Dr X's description of the Subject Person's behaviour in the medical ward, prior to her transfer to the specialist geriatric ward, a number of examples of which behaviour Dr X had provided. 12. The Tribunal recorded [30] that Dr X "reiterated several times that [the Subject Person's] cognitive impairment and the underlying causes needed to be better understood and stabilised prior to a decision about discharge", and her view that the Subject Person "requires constant supervision at present". The Appellant's "only response" to that opinion was recorded as being "to press to know when [the Subject Person] would be discharged home". 13. The Tribunal recorded [32] the Appellant's plans for her mother's care if she were appointed her guardian and found that the Appellant "showed limited insight into [the Subject Person's] need for constant care or the implications arising from the cognitive impairment that had been diagnosed by the treating team". For the reasons which it recorded, the Tribunal was not satisfied that the Appellant "heard" the advice of the treating doctors that it was not safe to discharge her mother at this stage or that she appreciated the need for a substantial plan for her mother's care in the event that the hospital discharged her into the Appellant's care [33]. 14. The Tribunal reiterated the opinion of Dr X that the Subject Person's "cognitive impairment and the underlying causes needed to be better understood and stabilised prior to a decision about discharge to her home or elsewhere" [34]. The Tribunal accepted the evidence before it that "whilst [the Appellant] loves and cares for her mother and wishes to have a substantial input into decisions affecting [the Subject Person], she is not best placed to make objective decisions as to her mother's accommodation needs in her mother's best interests". 15. For the reasons to which we have referred, the Tribunal appointed the Public Guardian to be the guardian for the Subject Person "in terms of accommodation and authorising others to implement accommodation decisions". Events subsequent to the decision made on 31 March 2022 1. Subsequent to the filing of the Appellant's appeal on 11 April 2022, on 29 April 2022 the Sydney Local Health District emailed a copy of a report of Dr X dated 28 April 2022 ("Dr X's new report") to the Tribunal. It became apparent during the hearing of the appeal that the Appellant's lawyer had not previously seen Dr X's new report. 2. In her report, Dr X recorded that the Subject Person "greatly improved during her stay on [the specialist geriatric ward] with no further "code black" calls (emergency security calls for severe behavioural disturbance) and no longer requires psychotropic medication". Dr X further recorded that "The medical and multidisciplinary team agree that the Subject Person should be discharged home to the care of her daughter when medically stable." 3. Significantly for present purposes, Dr X further recorded that "The medical team applied to the Public Guardian by telephone 12th April and in writing on 11th to discharge [the Subject Person] home to her daughter's care. We understand the Public Guardian is finalising their decision." 4. Finally, Dr X recorded: "Now that [the Subject Person] is substantially improved, she no longer requires inpatient management and her medical conditions, including the dementia, can be managed as an outpatient. [The Subject Person], [the Appellant] and the medical team agree that [the Subject Person] can be discharged home to her daughter's care". 1. As confirmed by the Appellant's solicitor in the appeal hearing, the Subject Person was discharged into the care of her daughter and returned to her home in early May 2022. Grounds of appeal – no error disclosed 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: CAT Act, s 80(2)(b). 2. The Notice of Appeal sets out six grounds of appeal, some of which overlap. They were supplemented by the Appellant's written submissions. The grounds did not expressly identify any question of law and the Appellant did not seek leave to appeal the decision at first instance. 3. The grounds focus on the Appellant's dissatisfaction with the appointment of the Public Guardian as the guardian in relation to accommodation decisions for the Subject Person and her strong desire, and that of the Subject Person, to have the Subject person return to live in her home with the support of the Appellant and the Appellant's partner. 4. At the appeal hearing, we asked the Appellant's legal representative whether the Appellant wished to proceed with the appeal given that, in effect, the outcomes sought by the appeal, to have the Subject Person return to live in her home in the care of her family members, had already eventuated. The Appellant's legal representative acknowledged that although that part of the order relating to accommodation decisions may be otiose, the Appellant wished to proceed with the appeal given that the Public Guardian remained the decision maker in relation to the accommodation functions. 5. The Appellant's legal representative did not, however, expand on the grounds of appeal in the appeal hearing. 6. An examination of the Reasons for Decision reveals no basis for finding any errors of law. Despite the Appellant's assertions to the contrary, the Tribunal took account of the Subject Person's views and objection to having a "stranger", the Public Guardian, involved in her life. The Tribunal correctly applied the statutory criteria in s 17(1) of the Guardianship Act when determining the suitability of the Appellant to be appointed as the Subject Person's guardian and set out in detail why it found that she was not suitable to be so appointed in relation to accommodation decisions, but otherwise met the requirements in s 17(1) of that Act in relation to the other functions contained in the order. 7. No error of law is established. Appeal dealt with by way of a new hearing and fresh evidence permitted 1. Section 80(3) of the CAT Act states: 80 Making of internal appeals … (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. We considered whether to exercise the discretion to deal with the appeal by way of a new hearing and permit fresh evidence to be given in the new hearing. Whilst it is not necessary that we find that the Tribunal below has made an error of law before we can exercise the discretion to deal with an appeal by way of a new hearing, we must decide whether those grounds warrant a new hearing (Sheehy v NSW Police Force; Rapisarda v NSW Police Force; Housego v NSW Police Force [2018] NSWCATAP 307 ("Sheehy v NSW Police Force"), [18]). This may involve an examination of the nature and strength of the grounds (Sheehy v NSW Police Force, [18]). Put another way, there must be some compelling reason to warrant the exercise of that discretion (ZSJ v ZSK [2021] NSWCATAP 144, [29]). 2. In the particular circumstances of this case, we decided that we should exercise our discretion to deal with the internal appeal by way of a new hearing. In our view, the evidence of the material change in the Subject Person's circumstances since the making of the decision under appeal was a significant factor in favour of exercising our discretion in this manner. The change in circumstance, namely, her discharge from hospital to her home in early May 2022, was directly relevant to the issues raised in the Appellant's grounds od appeal, albeit that those grounds did not establish any error of law. The Tribunal in its Reasons identified a need for objective decision making about the appropriateness and timing of the Subject Person's discharge from hospital back to her home and appointed the Public Guardian for this purpose. That need has now passed. We also had regard to the Appellant's entitlement, if we were to dismiss this appeal, to request a review of the guardianship order pursuant to s 25B of the Guardianship Act and thereby seek essentially the same practical outcome as is sought in these appeal proceedings, namely the removal of the Public Guardian as a decision maker for the Subject Person. 3. In our view, the exercise of our discretion to deal with the appeal by way of a new hearing gives paramountcy to the Subject Person's welfare and interests (s 4(a) of the Act) as it will enable the timely resolution of issues concerning decision making on her behalf, reduces the likelihood of additional review hearings in the Guardianship Division at the request of concerned family members that may require the Subject Person's involvement, and promotes the "just, quick and cheap resolution of the real issues in the proceedings" (s 36 of the CAT Act). 4. We were not in a position to deal with the new hearing at the same time as the appeal hearing as the only participant was the legal representative for the Appellant. Apart from Dr X's new report we had no further information about the Subject Person's circumstances other than she has returned to live at home. We have therefore made directions for the parties to provide any evidence in addition to the evidence received by the Tribunal at first instance that they wish to rely on, submissions as to the orders the Appeal Panel should make and whether the new hearing should be held "on the papers" and without the parties attending a further hearing. Order 1. The Tribunal orders: 1. Pursuant to s 80(3) of the CAT Act the appeal is to be dealt with by way of a new hearing. 2. All evidence and submissions that were before the Tribunal at first instance together with all evidence and submissions filed to date in this appeal will be considered to have been given in the new hearing before the Appeal Panel. 3. By 15 September 2022, parties are to file and serve any additional evidence and submissions. 4. By 15 September 2022, parties are to file and serve any submissions as to whether the Appeal Panel should dispense with a hearing pursuant to s 50(1)(c) of the CAT Act and determine the new hearing "on the papers". 5. By 29 September 2022, parties are to file and serve submissions in response to those of any other party if they wish. 6. The Appeal proceedings are adjourned to a date to be fixed by the Registrar. ********** 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 September 2022