Appeal Panel - External CITATION: OE v OF [2009] NSWADTAP 60 APPELLANT OE RESPONDENT 1 OF PARTIES: RESPONDENT 2 Public Guardian (now known as NSW Trustee and Guardian) RESPONDENT 3 Protective Commissioner (now known as NSW Trustee and Guardian) FILE NUMBER: 098005 HEARING DATES: 11 September 2009 SUBMISSIONS CLOSED: 11 September 2009 EXTEMPORE DECISION DATE: 11 September 2009 BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Field B - Non-Judicial Member CATCHWORDS: External appeal-questions of law- no evidence-interpretation of s 3(2) and s 14(2) of Guardianship Act 1987 DECISION UNDER APPEAL: Review of a Guardianship Order FILE NUMBER UNDER APPEAL: C/41121; Matter No. 2009/191 DATE OF DECISION UNDER APPEAL: 04/21/2009 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 CASES CITED: IF v IG & ors [2004] NSWADTAP 3 APPELLANT M MacDiarmid, solicitor FIRST RESPONDENT In person REPRESENTATION: SECOND RESPONDENT E Cho, legal officer THIRD RESPONDENT No appearance ORDERS: 1.The decision of the Guardianship Tribunal is affirmed. REASONS FOR DECISION EX TEMPORE DECISION 1 This is an appeal against a decision of the Guardianship Tribunal. The order that the Tribunal made on 21 April 2009 was that OE be placed under guardianship and that the Public Guardian be appointed as her guardian for a period for twelve months. The order was made in relation to various functions, including accommodation, health care, medical and dental consent and services. OE has appealed to this Tribunal against that decision and has been represented today by Mr MacDiarmid of the Elizabeth Evatt Community Legal Centre. OE's daughter, OF, is also a party to the proceedings as a respondent and the Guardianship Tribunal is represented by Ms Cho. 2 Under s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act), appeals can be made to the Administrative Decisions Tribunal from Guardianship Tribunal decisions. Section 118B says that an appeal can be made as of right on any question of law and by leave of the Appeal Panel on any other ground. This appeal was made on a question of law and leave was sought for the Appeal Panel to extend the appeal to the merits of the Guardianship Tribunal's decision. Mr MacDiarmid indicated that if the Appeal Panel did hear the merits of the application that would have to be done at a later date when OE was available to give evidence and the Appeal Panel could have the benefit of her oral testimony as well as any further documentation in support of the appeal. 3 An appeal on questions of law under s 118B of the ADT Act is quite a confined appeal. It does not authorise us to engage in any fact finding on the merits of the decision and, importantly, even if the Appeal Panel would have come to a different view on the merits, that is not an error of law. It is also important to note that even a perverse finding of fact does not give rise to an error of law. It is only where a decision-maker acts without any evidence or without any probative evidence that an error or law will be made. 4 The Guardianship Tribunal has power to make a guardianship order under s 14 of the Guardianship Act 1987: (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. (Emphasis added.) 5 A 'person in need of a guardian' is defined in s 3 to mean 'a person who, because of a disability, is totally or partially incapable of managing his or her person.' Section 3(2) defines a person who has a disability as a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of the Mental Health Act 2007 , or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation. 6 The Tribunal had a report from OE's general practitioner, Dr Corbett-Jones dated 20 January 2009. that report said, in part: It has been clear to me over time that there has been a gradual deterioration both in the mental and physical state of [OE]. . . . [OE] admitted to me in a recent interview that she was having difficulty looking after herself at home and also looking after her animals. She has admitted to me and has been diagnosed in the past with Depression, but I also feel there may be some evidence here of early cognitive impairment. 7 The Tribunal also had a report from another general practitioner, Dr Thompson who said that she was 'concerned about her paranoid perceptions, her lack of insight and unwillingness to co-operate with ACAT and this is possibly a sign of early cognitive decline.' A third general practitioner, Dr Vallabhaneni, has not observed anything which would indicate that OE is cognitively impaired. Finally, the Tribunal had a report from Dr Vines, a clinical psychologist, who expressed the view that he could see no sign that OE was confused or had impaired judgement, reasoning or attention. Dr Vines also gave oral evidence saying, among other things, that he was treating OE for stress and depression. The Tribunal concluded on the basis of all the evidence that OE was 'a person in need of a guardian' and decided that a guardianship order should be made. 8 The grounds of appeal were that: 1. The Guardianship Tribunal misdirected itself as to the meaning of section 3(2) of the Guardianship Act 1987; 2. The Guardianship Tribunal made a finding of fact, namely that the appellant was a 'person in need of a guardian' with no evidence to support that finding; 3. The Guardianship Tribunal failed to give the appellant adequate opportunity of contradicting material which was put before it; and 4. The Guardianship Tribunal misdirected itself as to the meaning of s 14(2) of the Guardianship Act. 9 Mr MacDiarmid surveyed the evidence on which the Tribunal's finding had been made and said that the evidence of Dr Corbett-Jones, which was that her physical and mental health had deteriorated and that she had been diagnosed with depression previously, was weak evidence and it was also contradicted to some extent by the evidence of Dr Vines. While we agree that the evidence from a general practitioner that a client has been or is being treated for depression is not the strongest evidence to found a decision that a person has a disability, the breadth of s 3(2), and in particular the words 'otherwise disabled', satisfies us that the evidence of depression meant that it was open to the Tribunal to come to the view that OE had a disability. There was some contradictory evidence from Dr Vines but he confirmed that he was treating OE for depression. While there was no evidence from a psychiatrist confirming that diagnosis, it was open on the evidence for the Guardianship Tribunal to form that view. It did not make an error of law in doing so. 10 Similarly, the second part of the test in s 3(2), which is that by virtue of a disability the person is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation, was found to have been made out in this case. The Tribunal found, at page 6, that, OE was unable to 'attend to her activities of daily living' (at least in so far as the maintenance of her home, but likely to include her personal care). We agree that there was no evidence for the any finding about personal care apart from Dr Corbett Jones' comment that OE had difficulty looking after herself at home. If that had been the only basis for the Tribunal's view we would have concluded it was made in error because there was no evidence to support it. However, there was uncontroverted evidence about OE's inability to maintain her home and that she was living in squalor. On the basis of that evidence it was open for the Tribunal to come to a view that she was a person in need of a guardian in accordance with s 3(2) of the Guardianship Act. 11 The third ground of appeal was that the Guardianship Tribunal failed to give the appellant an adequate opportunity of contradicting material which was put before it. The essence of this submission was that once the Tribunal formed a preliminary view that it would accept Dr Corbett-Jones' evidence in preference to that of Dr Vines, it should have given OE the opportunity to obtain further medical evidence. We are not aware of any such obligation on the Tribunal. Certainly it had a duty to give notice to OE of the kind of evidence that would be relied on and that was done according to Ms Cho by providing the medical reports at least of Dr Corbett-Jones and Dr Davis to OE. It was conceded that Dr Vines' evidence was not provided to her, but that he gave oral evidence at the hearing to which OE had an opportunity to respond. 12 We do not consider that the Tribunal made an error in failing to offer OE an adjournment to obtain further evidence. She was on notice that her decision making ability and the level of any disability would be an issue in the hearing and had a reasonable opportunity to provide that evidence to the Tribunal. There is no legal principle which suggests that once a Tribunal has formed a preliminary view against a party that it must give that party an adjournment in order to obtain contrary evidence. 13 The final ground of appeal relates to the operation of s 14(2) of the Guardianship Act. The Tribunal set out those provisions at paragraph 8 of its reasons and we agree with the appellant's observations and quote from IF v IG & ors [2004] NSWADTAP 3 at [26] where the Tribunal said: When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. 14 The Guardianship Tribunal set out that provision in its reasons, but Mr MacDiarmid, for the appellant, submitted that the Tribunal had not considered s 14(2)(d) 'the practicability of services being provided to the person without the need for the making of' an order. While the Tribunal did not expressly refer to that requirement, it adverted in several parts of its decision to OE's unwillingness to engage with people who may have been able to assist her. In particular at page 4 of the decision, the Tribunal refers to Dr Corbett-Jones' report where he notes that: 'I have pleaded with her to allow the Aged Care Assessment Team to become involved but she is too embarrassed by the state of the house to be interviewed by them.' In an extract from Dr Thompson's report on the same page of the Tribunal's decision, Dr Thompson says, 'OE requires further mental state and cognitive assessment to define the nature of her disability. I am concerned about her paranoid perceptions, her lack of insight and unwillingness to cooperate with ACAT and this is possibly a sign of early cognitive decline.' 15 While not necessarily endorsing the comments about paranoid perception or cognitive decline, the comment about her unwillingness to cooperate with the ACAT team is evidence going to the question in s 14(d) about the practicability of services being provided which would have avoided the need for an order. While ideally the Tribunal should have addressed each of those criteria, or at the least the ones that were applicable, the reference to evidence relevant to that criteria throughout the decision satisfies us that the Tribunal turned its mind to that provision and we do not consider that it made an error of law in that respect. We note that the appellant does not press any appeal in relation to the financial management order. 16 In relation to the application to extend the appeal to the merits of the Tribunal's decision, we have found no error of law or any other basis on which leave should be granted. Mr MacDiarmid indicated that OE might also re-apply to the Guardianship Tribunal for a review of the order. In all the circumstances, the better course is for the Appeal Panel not to extend the appeal to the merits of the Tribunal's decision. That leaves the way open for Mr MacDiarmid to make the application direct to the Guardianship Tribunal. 17 For those reasons the decision of the Guardianship Tribunal is affirmed. 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.