Appeal Panel - External CITATION: WP v Protective Commissioner [2006] NSWADTAP 37 APPELLANT PARTIES: WP RESPONDENT Protective Commissioner FILE NUMBER: 068008 HEARING DATES: 15/06/2006 SUBMISSIONS CLOSED: 06/15/2006 EXTEMPORE DECISION DATE: 06/15/2006 DATE OF DECISION: 08/18/2006 BEFORE: O'Connor K - DCJ (President); Britton A - Judicial Member; Wunsch A - Non Judical Member CATCHWORDS: Parties - Procedural fairness - Protected Estates Act - operation of Section 20 - Protected Estates Order - making of interim order MATTER FOR DECISION: Principal matter DATE OF DECISION UNDER APPEAL: 01/18/2006 Administrative Decisions Tribunal (Interim Rules) 1998 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Guardianship Act 1987 Mental Health Act 1990 Protected Estates Act 1983 VU v Miles [2006] NSWADTAP 19 Moore v Guardianship and Administration Board [1990] VR 902 Kioa v West (1985) 159 CLR 550 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 416-417 CASES CITED: KA v Public Guardian & Ors (No 2) [2004] NSWADTAP 48 TC v Public Guardian & Ors [2006] NSWADTAP 15 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 Carew v Protective Commissioner & ors [2005] NSWADTAP 13 Hess v Public Guardian & ors [2005] NSWADTAP 43 APPELLANT In person (with W Millard) REPRESENTATION: RESPONDENT No appearance SOLICITOR ASSISTING S Morris, solicitor, Crown Solicitor's Office ORDERS: The Appeal Panel orders; 1. that the order made on 18 January 2006 that the appellant's estate be subject to management under the Protected Estates Act 1983 for a period of 12 months be set aside; 2. that this order take effect upon service on the Protective Commissioner REASONS FOR DECISION 1 On 13 January 2006 the appellant was admitted as an involuntary patient to the mental health care unit at the Prince of Wales Hospital (the Hospital). As required by the Mental Health Act 1990 (MHA) s 38, the medical superintendent arranged for her to be brought before a Magistrate to determine under s 51 whether she should continue to be held in detention, or discharged conditionally or unconditionally. 2 Part 3 of the Protected Estates Act 1983 (PEA) governs the present matter. If a s 38 MHA inquiry is required, the medical superintendent must, in addition, give the notice required by PEA, s 15: ' 15 Notice that person's capability to manage affairs will be considered A medical superintendent who intends to bring a person before a Magistrate under section 38 of the Mental Health Act 1990 shall: (a) when giving the information required to be given to the person under section 38 of that Act give to the person the prescribed information with respect to the question of the capability of the person to manage his or her affairs, and (b) when giving the notice required to be given under section 38 of that Act give to each of the persons required to be given that notice the prescribed information with respect to the question of the capability of the person being brought before the Magistrate to manage his or her affairs.' 3 If a mental health order is made under s 51, PEA, s 16 applies: ' 16 Consideration by Magistrate of capability of patients to manage affairs (1) Where, under section 51 of the Mental Health Act 1990, a Magistrate directs the detention of a person in a hospital as a temporary patient the Magistrate shall, except as provided by subsection (2), consider the person's capability to manage his or her affairs and, unless satisfied that the person is capable of managing his or her affairs, shall order that the estate of the person be subject to management under this Act. (2) A Magistrate may refer the question of a person's capability to manage his or her affairs to the MHRT.' 4 The Magistrate's power to make orders is contained in PEA, s 20: ' 20 Interim orders (1) A Magistrate or the MHRT may, if it appears to the Magistrate or MHRT necessary or convenient to do so, make an interim order under this Division for a specified period in respect of a patient pending further consideration of the patient's capability to manage his or her affairs. (lA) (Repealed) (2) Where another order under this Division is not made before the period for which an interim order made expires, the interim order shall be deemed to be revoked on the expiration of that period.' 5 The effect of such an order is that the management of the estate is committed to the management of the Protective Commissioner: s 23, PEA; and the power of a protected person to deal with the estate is suspended: s 23A(1), PEA. 6 The PEA ss 21A, 21B provide, relevantly: ' 21A Appeals to ADT against estate management orders made by Magistrate or MHRT (1) An appeal may be made to the ADT against an order by a Magistrate or the MHRT under this Division that the estate of a person be subject to management under this Act. (2) An appeal to the ADT under this section may be made by: (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. (3) If the person to whom the order relates has appealed to the [Supreme] Court under section 21 against the order, the person may not appeal to the ADT under this section against the same order. However, the person may appeal to the ADT under this section if the appeal under section 21 is withdrawn with the approval of the Court for the purpose of enabling the ADT to deal with the matter. (4) An appeal under this section is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997.' '21B Notice of reasons for orders and appeal rights (1) If a Magistrate or the MHRT makes an order under this Division that the estate of a person be subject to management under this Act, the Magistrate or MHRT must, if requested to do so by any party to the proceedings (including the person to whom the order relates), provide the party with formal written reasons for the order as soon as practicable after making the order. (2) In providing those reasons, the Magistrate or MHRT must also advise the party concerned that the order may be appealed against to the ADT under section 21A.' Magistrate's Orders 7 Magistrate T G Forbes held a hearing at the Hospital on 18 January 2006. His Honour made an order under MHA s 51. He considered the question of the appellant's capacity to manage her financial affairs, and decided to make an order placing those affairs under the management of the Protective Commissioner for 12 months (the management order). 8 The appellant was discharged back into the community on 14 February 2006 under a community treatment order made by the Mental Health Review Tribunal (MHRT) requiring adherence for six months to a community treatment plan. The management order was unaffected. Lodgment of Appeal 9 On 4 April 2006 the appellant lodged a notice of appeal against the management order. The scope of an external appeal, and the time for its lodgment, is governed by the Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B, which provides: ' 118B Grounds for external appeals and time and procedure for making appeals (1) An external appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Appeal Panel hearing the appeal, on any other grounds. (2) An external appeal must be made: (a) within 28 days after the decision-maker provides, in accordance with the Act under which the external appeal is made, the party with written reasons for the appealable decision, or (b) within such further time as the Appeal Panel may allow. (3) An external appeal is to be made in the manner prescribed by the rules of the Tribunal. (4) Subject to any interlocutory order made by the Appeal Panel, an external appeal does not affect the operation of the appealable decision or prevent the taking of action to implement the decision.' Ground of Appeal 10 The appellant gave as her ground of appeal 'denial of natural justice', without any further particulars. The question 'Do you wish to apply for leave to appeal on other grounds?' was ticked 'yes'. Parties 11 In the notice of appeal the appellant nominated as the parties to the original proceedings – the Prince of Wales Hospital, Magistrate Forbes, Stan Greaves and Maryanne O'Donnell. Mr Greaves is a social worker at the Hospital. He appeared at the hearing before Magistrate Forbes and provided a written report dealing mainly with the appellant's financial affairs. Dr O'Donnell was the treating psychiatrist and she is also nominated as the treating psychiatrist in the treatment plan that accompanied the discharge. 12 The ADT Act deals in ss 67(2A), (2B) and (2C) with the question of who are parties to an external appeal. They provide: '(2A) The parties to proceedings before the Tribunal for an external appeal are as follows: (a) any person who, being entitled to do so under an Act, has appealed to the Tribunal against the decision concerned (the appellant), (b) any person who has been made a party to the proceedings in accordance with subsection (4) or the rules of the Tribunal, (c) if the Attorney General intervenes in the proceedings under section 69 – the Attorney General, (d) any person specified by or under any other Act as a party to the proceedings. (2B) In the case of an external appeal, the decision-maker is entitled to be a party to the proceedings but cannot (unless the decision-maker agrees) be made a party to any such appeal. (2C) The rules of the Tribunal may, in respect of an external appeal, make provision for the parties to any such appeal (including the designation of a respondent or other person to assist the Tribunal in the proceedings).' 13 Rule 41A of the Tribunal rules (Administrative Decisions Tribunal (Interim Rules) 1998) provide: ' 41A Parties to an external appeal (1) For the purposes of section 67 (2A) (d) of the Act, the persons who were parties to the original proceedings are also parties to an external appeal. (2) For the purposes of section 67 (2C) of the Act, the Tribunal may designate a respondent or other person to assist the Tribunal in external appeal proceedings.' 14 In this instance the Tribunal notified the Magistrate of the appeal, but he declined to be made a party, as permitted by s 67(2B). The Protective Commissioner was named as a respondent to the appeal. The Protective Commissioner declined to make any submissions. A summons was issued to the Hospital for it to supply its medical records relating to the appellant, including information held relating to the appellant's detention and those documents were produced. 15 No notice of the appeal was given to the medical superintendent. For the future, we think that the medical superintendent should always be treated as a party in cases of this kind. The medical superintendent is responsible for initiating the process which leads to the making of a management order. There may also be occasions where the Appeal Panel would be assisted in its own determination in having the benefit of any consideration that the Protective Commissioner may have given to early termination of the management order (under PEA s 38). 16 The result was that the appeal did not have the benefit of any alternative view to that put by the appellant. As it has done on some prior occasions, the Tribunal requested external legal assistance pursuant to R 41A(2) of the Tribunal's rules. The Crown Solicitor was approached, agreed to assist and an appointment was made under R 41A(2). 17 Ms Sarah-Jane Morris of the Crown Solicitor's Office provided detailed submissions relating to procedural questions raised by the appeal. The submissions also dealt with any possible grounds of appeal that might be available to the appellant. These submissions were provided to the appellant. 18 At the hearing of the appeal on 15 June 2006, the appellant attended, assisted by a friend, Mr Millard. Ms Morris attended and made submissions as solicitor assisting the Tribunal. Hearing before the Magistrate 19 The appellant was present at the hearing, along with Ms E Lynam (legal officer, Legal Aid Commission, representing the appellant), Mr Greaves and Dr Chandra (one of the treating doctors at the Hospital). All actively participated in the proceedings. The Magistrate is required by MHA s 51 to be 'satisfied that on the balance of probabilities a person is a mentally ill person'. If so, an order is to be made from among those permitted by s 51. In this instance a 'temporary' order was made for the appellant to be detained as an involuntary patient for a further four weeks. The MHA clearly provides for the making of temporary orders. 20 The Magistrate then considered the capability of the appellant to manage her financial affairs; and went on to make the order now under appeal. The transcript shows that the Magistrate was of the view that his order was not appealable. His Honour stated (see transcript pp 3-4) that there was no right of appeal against the order which he described as a 'temporary' order: '… [in this case] I would make another type of order which is called an interim order and I am of the view that this legislation doesn't give the right of appeal in that case because it's only a temporary order.' 21 This passage suggests that the Magistrate did not see himself as engaged in the making of an order under s 20 PEA. Not surprisingly therefore, the appellant was not told of any right of appeal, nor of the right to request written reasons for decision. On the other hand in the course of making the order the Magistrate noted that the order would be deemed to be revoked on its expiration in the absence of any further order (see s 20(2)). He also alluded to the power of the Protective Commissioner to terminate the order before its expiry (PEA s 38). 22 As we interpret the Magistrate's thinking, he may have been of the view that the first stage order that s 20 allows for is not appealable – only the order made when 'further consideration' is given to the matter. As best we understand the Magistrate's reasons, he saw the order made after 'further consideration' as the interim order contemplated by the heading to the section, and the one that triggered the duty to notify the person of appeal rights and the right to request written reasons. Ex Tempore Decision 23 At the close of the appeal hearing on 15 June 2006 we delivered an ex tempore decision allowing the appeal, and setting aside the Magistrate's decision. In our view it would have been unfair to maintain the order in circumstances where the hearing had miscarried in two significant respects: the failure to follow the procedure contemplated by s 20 (initial order followed by timely, further consideration) and failure to notify the appellant of her appeal rights. The appellant, therefore, resumed responsibility for managing her financial affairs. We note that it is always open to a concerned person (who might include the Protective Commissioner) to apply to the Guardianship Tribunal for a fresh estate management order. 24 We will deal first in these reasons with the two major points of concern to us, and then deal with some other matters. Operation of Section 20 25 In our view it is clear from the statutory scheme, outlined earlier in these reasons, that the Magistrate's order-making power is to be found entirely in the terms of s 20. There is no provision for the making of 'temporary' orders. The description 'temporary order' has a particular meaning in the field of mental health law. 26 We agree with observations made in the recent Appeal Panel decision, VU v Miles [2006] NSWADTAP 19 (ex tempore decision 24 April 2006, written reasons published 5 May 2006). It dealt with a similar case involving an order made by the MHRT under s 20. The Appeal Panel said at [13]-[14]: '13 Section 20 states that such an order is to be made "pending further consideration of the patient's capability to manage his or her affairs." This phrase is unhelpfully expressed in the passive voice, but it means that the MHRT should re-list the matter before it to further consider the patient's capability to manage his or her affairs before the time period specified in the order expires. In this case, the MHRT did not make any directions about giving further consideration to VU's capability to manage his affairs. Instead the MHRT made what amounts to a temporary order in anticipation that VU would regain his capacity to manage his financial affairs in six months. 14 Financial management orders can be continuing or interim. There is no provision in either the PE Act or the Guardianship Act 1987 for the making of temporary financial management orders. Temporary orders and interim orders are both made for a specified period but unlike a temporary order, an interim order under s 20 is made "pending further consideration of the patient's capability to manage his or her affairs". It is only made when it appears "necessary" and "convenient" to do so. An interim order may be necessary where there is an urgent need to make an order because a person's estate is being dissipated or there is a risk of financial exploitation. In that situation if the MHRT does not have sufficient information to be satisfied that the person is capable of managing his or her own affairs, it may make an interim order. If it does so, it should then make directions so that it can reconvene to further consider the patient's capability to manage his or her affairs. If, for whatever reason, another financial management order is not made before the interim order expires, then the interim order is automatically revoked at that time: s 20(2).' 27 Further to the last point, we note that the opening words of sub-s (2) of s 20 also contemplate that ordinarily there will be another order made before the period of the interim order ends. 28 In this case, the Magistrate, in effect, made a final estate management order of fixed duration. The inquiry held as a consequence of the MHA s 38 and PEA s 15 notices is avowedly an urgent procedure designed primarily to ascertain whether the state of the person's mental health is such that he or she should remain in detention; and if not to put in place protective arrangements in respect of their financial affairs (and any other personal affairs requiring attention). 29 While the PEA recognises the possibility that a management order can be expressed to operate for a period that exceeds the period of detention (see, for example, PEA s 38), we have some difficulty in seeing how a financial management order could, as in this case, exceed by a period of 11 months the period of the detention order. 30 This seems to defeat the objective of the provision, which, as we see it, is not to have orders of any great length or finality made at the first stage of inquiry. 31 The two-step approach contemplated by s 20 is one that fits in, as we see it, with the practice evident in both the mental health and guardianship laws of regular review of the appropriateness of orders. In this instance the Magistrate should have ensured that a follow-up inquiry was held – as we see it, either by a Magistrate or, following referral, by the MHRT. Notice of Appeal Rights 32 The only order-making power available to the Magistrate is that conferred by s 20. Section 21A makes the ADT the appeal body from decisions of the MHRT and a Magistrate. Viewed in this framework, we do not think there is any basis for excluding from the right of appeal the initial order made following the making of the mental health order. We accept that if the procedure contemplated by s 20 is followed – a quick order followed by a further order made upon 'further consideration' – it may well be that any appeal lodged in respect of the first order will by the time it gets on in effect become an appeal against any second order. It may well be that if an appeal was lodged against an urgent order a stay would be granted to enable the primary tribunal (possibly the MHRT) to undertake the 'further consideration' of the matter contemplated by s 20. We see no practical reason to exclude the first order from the general appeal right given 8 in s 21A. 33 Nor do we see any textual reason. Section 21A(1) uses the general expression 'order ... under this Division'. We can not discern any indicators in the scheme of the Act which would justify limiting the expression to an order made at the second stage of the process. An interim order may be the only order that is ever made (see s 21A(2)). It would be a strange result if the words of s 21A(1) were to be confined only to those orders that are made following the making of an interim order. Timeliness 34 The appellant was concerned, in light of s 118B(2)(a) of the ADT Act, that her appeal might be out of time and require the leave of the Appeal Panel to proceed. The appeal was lodged 76 days after the decision. The handwritten text in the notice of appeal document is dated 14 March 2006. She said there that she only became aware of the estate management order when it was sent to her a week before. She was not informed of any appeal rights. In our view, in the circumstances the appeal ought not be regarded as out of time, as time does not commence to run under s 118(2)(b) until the 'decision-maker provides … with written reasons for the appealable decision'. As it happened the reasons were supplied in a written form upon provision of the transcript when the Magistrate was notified of the appeal. In this case the appellant did not have the written reasons in advance of lodgment of her appeal through no fault of hers. 35 Finally, we refer briefly to some other points considered by Ms Morris in her submissions. Substantive Hearing 36 We agree with Ms Morris that the Magistrate approached the substantive question that he was required to consider in relation to the appellant's capability on the correct basis. His Honour well understood that the task he was engaged in was one at variance with the normal presumption of guardianship law. The normal presumption is that a person is to be considered capable of managing his or her affairs unless the decision-maker is reasonably satisfied to the contrary (see PEA, s 13). 37 In an inquiry of the present kind the starting assumption is that the person, having been found mentally ill within the meaning of the MHA, is not capable of managing his or her affairs, and a management order is to be made. In this instance the decision-maker must be satisfied to the contrary if no order is to be made (see s 16 – 'unless satisfied that the person is capable of managing … her affairs'). The Magistrate approached the matter on that basis. Giving of Section 15 Notice 38 We have reviewed the Hospital records and the transcript of the hearing before the Magistrate. It is not clear from the Hospital records whether the appellant received a PEA s 15 notice. The matter is not mentioned in the information sheet given to mental health patients on admission; but the sheet does refer to the requirement that there be a mental health inquiry procedure by a Magistrate (see the summonsed hospital records). Aspects of Procedure at Hearing 39 Procedural fairness applies to these proceedings, especially as they may deprive a person of the 'important civil liberty to administer her own affairs' (Moore v Guardianship and Administration Board [1990] VR 902 at 913 per Gobbo J). The person should be given the opportunity to respond to adverse information that is 'credible, relevant and significant to the decision to be made' (Kioa v West (1985) 159 CLR 550 per Brennan J at 629). This assessment must be made before the final decision is reached, and is to be understood as 'referring to information that cannot be dismissed from further consideration unless the information is not credible, not relevant, or of little or no significance to the decision that is to be made' (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 416-417). 40 Other factors which support the conclusion that procedural fairness is to be accorded include: the protective nature of the jurisdiction; the burden borne by the subject to satisfy the Magistrate that he or she has the required capability to manage his or her affairs; the consequences of such an order; and the emphasis in the MHA, particularly, and, to a lesser extent, the PEA (see s 15) on the giving of notice. 41 While in litigation generally it is usual for parties to see any document which is likely to be relied upon in advance of a hearing (as to which, see KA v Public Guardian & Ors (No 2) [2004] NSWADTAP 48 at [22], TC v Public Guardian & Ors [2006] NSWADTAP 15), proceedings of this kind are held on an urgent basis (see further KA No 2 at [24]). 42 Ms Morris examined the transcript. She drew attention to passages in the transcript which indicate that the report of Mr Greaves was handed up during the hearing; as were certain records of the Department of Housing. She noted that the Magistrate did not raise the possibility of an adjournment; and that considerations of procedural fairness often will require that step to be taken (see generally, EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 at [43] per Young J); Carew v Protective Commissioner & ors [2005] NSWADTAP 13); and Hess v Public Guardian & ors [2005] NSWADTAP 43). 43 This type of hearing necessarily takes place in rushed circumstances. As is appropriate, it was held within two days of the medical superintendent's request, and five days after the appellant was brought into care. The other interested parties (including hospital staff such as Mr Greaves) prepared their reports under these time pressures. As we read the transcript (though it is not entirely clear) the Magistrate did make the documents available for examination and submissions. The Magistrate drew Ms Lynam's attention to the documents. Ms Lynam took no objection to the procedure followed by the Magistrate. We are satisfied that the appellant was accorded procedural fairness in relation to the handling of the reports. 44 The necessarily-rushed environment of these initial proceedings itself highlights the desirability of the management order being given 'further consideration' in a timely way, by which point the protected person will have had a greater opportunity to consider and respond to any reports that have been relied upon. 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.