Appeal Panel - External CITATION: PV v Public Guardian [2009] NSWADTAP 68 APPELLANT PV FIRST RESPONDENT Public Guardian PARTIES: SECOND RESPONDENT PW THIRD RESPONDENT Teresa Gibbs FILE NUMBER: 098012 HEARING DATES: 20 October 2009 SUBMISSIONS CLOSED: 24 November 2009 DATE OF DECISION: 25 November 2009 BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: External appeal, procedural fairness, reasonable opportunity to be heard DECISION UNDER APPEAL: Review of a Guardianship Order FILE NUMBER UNDER APPEAL: C/33264; Matter No. 2009/1156 DATE OF DECISION UNDER APPEAL: 11/24/2009 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 CASES CITED: KA v Public Guardian & Ors [2004] NSWADTAP 25 LA v Protective Commissioner & Ors [2004] NSWADTAP 39 R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 APPELLANT In person FIRST RESPONDENT REPRESENTATION: No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance 1. The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside ORDERS: 2. The matter is remitted to the Guardianship Tribunal to re-determine the application 3. The decision does not come into effect for 28 days after the date of these reasons. REASONS FOR DECISION Introduction 1 PW is a 92 year old woman who lives in a nursing home. She has three sons, including PV. On 12 June 2009, the Guardianship Tribunal reviewed the guardianship order that had been made in relation to PW and varied that order to give the Public Guardian extra functions. The extra functions were to make decisions about PW's health care and to give medical and dental consents. PV has appealed against that decision. He says that he should continue to be the 'person responsible' for making those decisions as defined in the Guardianship Act 1987 (Guardianship Act), s 33A. 2 The application for the review of the guardianship order was originally made by the Nursing Unit Manager at the home in which PW resides. The Acting Nursing Unit Manager was substituted as the applicant. The matter was listed for hearing before the Guardianship Tribunal on 9 March 2009 but was adjourned to enable PV to obtain a specialist medical report in relation to his mother. The appeal is against the decision made by the Guardianship Tribunal on 12 June 2009, three months after the adjourned hearing. 3 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal's decision: Guardianship Act, s 67A. An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1). PV indicated that he wished to appeal both on questions of law and against the merits of the Guardianship Tribunal's decision. Parties and Representation before the Appeal Panel 4 PV was self-represented. The Acting Director of Nursing, who was the applicant for review before the Guardianship Tribunal, did not appear and nor did PW as she lacks the capacity to do so. The Public Guardian did not wish to be present or make submissions in relation to the matter. The Guardianship Tribunal said that it wished to have a role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal's practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal. Consequently PV was the only party to appear before the Tribunal. Guardianship Tribunal's decision 5 The only issue for the Tribunal was whether, in addition to making decisions about where PW should live (the accommodation function), the Public Guardian should be given the functions of making substitute decisions about PW's health care and whether she should consent to medical and dental treatment. If the Guardianship Tribunal is satisfied that a guardian should be appointed, a decision needs to be made as to who that person should be. Section 17 sets out the matters about which the Guardianship Tribunal must be satisfied before appointing a person other than the Public Guardian as the guardian. Those matters are 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.' 6 There was no dispute that PW has a significant cognitive disability or that PV was the person currently responsible for making decisions about whether to consent to medical and dental treatment. The Tribunal gave the Public Guardian the extra functions of health care and medical and dental consent as a consequence of its finding that there had been a breakdown in communication between PW and the staff at the Nursing Home. The Tribunal concluded that: 'The breakdown in communication between [PV] and the nursing home was evident when [PV] told the Tribunal that he did not inform the nursing home about [PW's] attending an appointment with the cardiologist, as suggested by the Tribunal at the previous hearing. [PV] stated to the Tribunal that he did not want to communicate with the nursing home in relation to [PW's] appointment with the cardiologist because of the application for a review and the way it had made him feel. The Tribunal was told about the grave concerns the Public Guardian had over the contentious communication between PV and the nursing home and the lack of communication between PV and the Public Guardian in respect of overnight visits. PW is an elderly, frail person that requires care and medical attention in an environment that enables her to have a very good quality of the remaining life. Professional and proper care requires cooperation and communication and it is in [PW's] welfare and interests that her professional carers and family communicate in an appropriate and open manner. (Emphasis added.)' Grounds of Appeal 7 PV identified the following grounds of appeal: '1. The Tribunal did not follow 'the due process of law' or natural justice or procedural fairness including the need to be heard and the need for a fair hearing, necessity of notice and preparedness; failure to give reasonable opportunity to speak or refuse evidence against them, reliance on false statements and bias. 2. The Tribunal did not read, understand or rely on the Tribunal's review orders dated 28 March 2008 causing them to make errors of ruling and errors of judgement on page 5 (para 7), page 6 (para 1) and page 7 (para 6). 3. The Tribunal did not consider my letter dated 11 February 2009 or Dr Joseph's letter and advice, or my letter dated 29 May 2009 headed 'Errors and Omissions'. 4. The Tribunal did not assess the applicability of s 4 (a) to (g). 5. The Tribunal did not assess the applicability of section 14(2). 6. The Tribunal relied on some statements which were, in fact, untrue. If this was recognised, accepted and understood, necessary action could be taken that deals with the matter.' Procedural fairness 8 The hearing. The Acting Nursing Unit Manager wrote a 3 page letter to the Guardianship Tribunal dated 11 June 2009 setting out several allegations against PV. The letter also attached two documents: a report from the dietician at the Nursing Home and a copy of some clinical notes relating to conversations with PV and nursing staff. The letter stated in part, that: 'I have on several occasions interacted with PV over the past few months. I have had discussions with numerous other staff members and read extensively information available to me regarding [PV]. I have found [PV] to be illusive (sic) manipulative and untruthful. This has led me to have concerns regarding the management of [PW]'s personal care and medical care arrangements. . . During all our conversations, it is evident that [PV] tries to play one staff member off against another. Example, 'he said/she said/they said'. However, when I have suggested that we speak with the person named by [PV] he is quick to decline becoming visibly agitated. It is my opinion, that [PV] extracts from conversations only what he wants to hear. [PV] exhibits resistiveness (sic) to any objective and rational idea or suggestion.' The letter goes on to give several examples of PV's alleged conduct. 9 The Presiding Member read the letter and part of one of the attachments out loud at the hearing. PV says that he had no prior notice of the content of the letter or the attachments, was not given a copy of any of those documents prior to the hearing and was only given a copy of the clinical notes at the hearing. He said that because the clinical notes were handwritten he was unable to read them. PV was given the opportunity to question the Acting Nursing Unit Manager, who appeared by telephone, about the content of the document but says that after asking two or three questions, she made further allegations against him which were then explored by the Presiding Member. PV says that he did not come prepared to ask the Acting Nursing Unit Manager questions about the letter or to respond in detail to the allegations. He said he was in a state of shock when he heard the letter being read out by the Presiding Member. 10 Relevant principles. The principles of procedural fairness in relation to Guardianship Tribunal hearings have been set out by the Appeal Panel on many occasions including in GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 at [29] - [41]. The Appeal Panel has discussed the issue of cross-examination in Guardianship Tribunal proceedings in Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 at [29] to [34]. We adopt those principles in relation to these proceedings. In KA v Public Guardian & Ors [2004] NSWADTAP 25, the Appeal Panel summarised the relevant principles of the "hearing rule" of procedural fairness. In the light of those principles, the following questions arise: (a) Whether PV had a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal's decision? (b) Whether the information in the documents was "credible, relevant and significant" material adverse to PV? (c) Whether the substance of the material was put to PV in circumstances where he had a reasonable opportunity to respond? (d) Whether there were any exceptional circumstances which mean that the document should not be disclosed? 11 Interests affected? In a protective jurisdiction such as exists under the Guardianship Act, the "welfare and interests" of the subject person "should be given paramount consideration": s 4(a). The subject person is often not present at the hearing and, in most cases, lacks the capacity to manage his or her personal and/or financial affairs. In those circumstances it is crucial that that person's interests be identified and protected. That is achieved under the Guardianship Act by allowing a person with "a genuine concern for the welfare of the person" to make applications to the Tribunal and for others who are also concerned for the person's welfare to be parties to the proceedings: Guardianship Act, s 3F(2) and s 57A. Once that person satisfies the Guardianship Tribunal that he or she is such a person, his or her legal interests are at stake. The entitlement to procedural fairness flows directly from PV's designation as a party. Alternatively, as the person who was lawfully making certain decisions on behalf of his mother, PV has an interest in continuing to do so. 12 Adverse material. The letter of 11 June 2009 was written by the Acting Nursing Unit Manager and was credible, relevant and significant. The letter makes highly prejudicial allegations against PV which were directly relevant to the issue the Tribunal had to determine, namely whether PV should continue to have responsibility for making decisions about his mother's health care and medical and dental treatment or whether those decisions should be made by the Public Guardian. 13 Reasonable opportunity to respond. The Presiding Member read the three page letter out loud at the hearing. PV was then given an opportunity to ask the Acting Nursing Unit Manager some questions and to give his version of events. However, having listened to the audio tape recording of the proceedings, we have concluded that the opportunity given to PV was not reasonable in all the circumstances. We accept PV's evidence that he was shocked to hear that he had been accused of being manipulative and untruthful. It would have been very difficult for him to take in all the detail of the various allegations in the hearing environment. It was unreasonable to expect him to respond to the allegations straight away or to question the person who had made them. The Presiding Member attempted to assist him by putting certain questions to the Acting Nursing Unit Manager on his behalf. However fairness required that he be given a reasonable time to review the allegations and respond to them. 14 Exceptional circumstances. There were no exceptional circumstances which meant that the documents should not have been disclosed in full prior to or at the hearing. There was no issue of confidentiality or any threat to safety which would justify the failure to disclose the documents in full. 15 Conclusion. We appreciate that it can be difficult to conduct a hearing which adequately complies with the rules of procedural fairness when documents are provided at the eleventh hour and parties are permitted to appear by phone. However, despite the Presiding Member's attempts to apprise PV of the contents of the letter and her efforts to assist PV to test that evidence, the process, in this case, was not adequate. Rather than reading out loud a highly critical three page letter, it was necessary in the circumstances of this case to give PV a copy of the letter and the attachments before the hearing or, if that was not feasible, to adjourn the proceedings so that he could read the documents in his own time. If he felt unable to respond to the allegations within a relatively short period of time, the proceedings should have been adjourned to a later date. When the hearing resumed, procedural fairness and the Tribunal's duty to self-represented parties required the Tribunal to give PV a reasonable opportunity to explain his version of events in relation to each allegation and to question the author about those allegations. 16 Having come to that conclusion, the Guardianship Tribunal's decision must be set aside and the matter remitted to be re-determined in accordance with these reasons. We deal briefly below with PV's other grounds of appeal. Mistake of fact 17 When reviewing the guardianship order on 28 March 2008 (14 months before the order currently under appeal) the Tribunal varied the order and gave the Public Guardian the following function in relation to accommodation: 'To determine where [PW] may reside (not including decisions about stays of up to one week away from [PW's] residence). The Guardian also has authority to obtain professional assessments needed to inform accommodation decisions.' 18 PV submitted that when reviewing the guardianship order on 12 June 2009, the Guardianship Tribunal did not realise that it was not necessary for him to obtain permission from the Public Guardian before his mother could stay with him for up to a week. When Ms Hunt, an officer of the Public Guardian, raised an issue about PV failing to advise them that his mother would be staying with him, PV insisted that he had only taken his mother out for 6 days and was entitled to do so under the terms of the previous order. 19 The Tribunal referred to evidence from Ms Hunt and said: 'The Public Guardian told the Tribunal that as the Public Guardian had the accommodation function, it was essential that [PV] inform the Public Guardian when [PW] left the nursing home for overnight visits to [PV's] as overnight stays came under the domain of the accommodation function that the public Guardian exercised in respect of [PW].' 20 It appears from the Tribunal's reasons for decision that it did not appreciate the qualification to the accommodation function and/or misunderstood Ms Hunt's evidence. That is a matter which can be addressed when the Guardianship Tribunal hears the application again. Failure to consider Dr Joseph's letter and a letter of complaint 21 PV wrote a letter to the Manager of the Nursing Home on 11 February 2009. That letter sets out his understanding of his mother's medical issues and the views of his mother's general practitioner, Dr Joseph. He said that the Tribunal should have referred to that letter and taken Dr Joseph's opinion into account. In our view, Dr Joseph's opinion was relevant and should have been taken into account because it supported PV's view as to the treatment his mother should be receiving. When determining whether the Public Guardian or PV was the most suitable person to be making substitute decisions about PW's health and medical treatment, it was relevant for the Guardianship Tribunal to consider whether PV's previous decisions had been in his mother's best interests. Again, that is a matter which can be addressed when the Guardianship Tribunal hears the application again. 22 PV also submitted that a letter he wrote to the Guardianship Tribunal on 29 May 2009 was not listed as one of the documents the Tribunal took into account at the hearing, nor was it mentioned in the reasons. That document is a response to the Tribunal's reasons for decision in March 2009. PV did not appeal against that decision and any failure to refer to the letter by the Tribunal as constituted in June 2009 is not an error of law. Failure to refer to principles in s 4 23 PV submitted that the Tribunal made an error of law by failing to refer to the principles set out in s 4 of the Guardianship Act. That provision states that: '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, (Emphasis added.)' 24 The Tribunal discussed the effect of this provision in LA v Protective Commissioner & Ors [2004] NSWADTAP 39 at [27] to [38] and concluded that: '. . . the principles in s 4 are intended as an aid to interpreting and applying the Act as a whole and as a guide to the considerations the Guardianship Tribunal should observe when exercising its discretionary powers. The relevance and applicability of those principles will depend on all the circumstances of the case. . . . non-observance of principles would constitute an error of law where the principle is specifically mentioned in the substantive provision.' 25 In the circumstances of this case, the Guardianship Tribunal's failure to expressly mention the principles in s 4 does not mean that it did not have regard to those principles. We can detect no error of law in relation to this ground of appeal. Failure to apply s 14(2) 26 Section 14(2) states that: '(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.' 27 The issue in this case was not whether to make a guardianship order but whether or not to give the Public Guardian functions which she did not previously have. PV did not make any oral submissions on this ground of appeal during the hearing and we can detect no error of law in the Tribunal's reasons for decision. Reliance on untrue statements 28 PV disagreed with some of the evidence given and the submissions made by parties and witnesses at the Guardianship Tribunal's hearing. It was the Tribunal's role to make findings of fact based on the evidence. Apart from breaching procedural fairness, the Tribunal made no error of law in the way it went about that task. Conclusion 29 PW has a cognitive disability and lives in a nursing home. Her son, PV, was legally responsible for making decisions about whether she should consent to medical and dental treatment. Following a break down in the relationship between PV and the staff at the nursing home, the manager applied to the Guardianship Tribunal for the functions of health care and consent to medical and dental treatments to be given to the Public Guardian. PV opposed the application. At the hearing, the Presiding Member of the Tribunal read out a letter, written the previous day by the manager of the Nursing Home, alleging that PV had been manipulative and untruthful. We have found that the Guardianship Tribunal breached procedural fairness by failing to give PV a copy of that letter and the attachments prior to or at the hearing and by failing to give PV an adequate period of time to read and respond to that material. Orders 1. The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside. 2. The matter is remitted to the Guardianship Tribunal to re-determine the application. 3. The decision does not come into effect for 28 days after the date of these reasons. 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.