| | | Guardianship Division Case Digest Issue 2 of 2020
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| The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division, NCAT Appeal Panel and the Supreme Court of New South Wales which relate to the current COVID-19 pandemic. |
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| NCAT Guardianship Division |
| UZX [2020] NSWCATGD 3
C Fougere, Principal Member; J L Newman, General Member
Facts This matter was heard 3 April 2020, only days after the NSW Minister for Health made a public health ministerial direction on 30 March 2020 in response to the global COVID-19 pandemic. The Direction, restricted everyone in NSW, except for the homeless, from leaving their place of residence without reasonable excuse, and prohibited gatherings of more than two.
UZX is a 69-year-old Aboriginal woman, living in Housing NSW accommodation in regional NSW. An application for review of her current guardianship order was brought by her primary clinician. The current order was made on 2 August 2019 and appointed the Public Guardian with functions of accommodation and services for 12 months. The applicant sought a variation to the current order to add authority to authorise others to enforce accommodation decisions.
It was reported that UZX, though currently stable as a result of regular treatment with flupenthixol, had a history of paranoid schizophrenia. She was also a smoker, and suffered from respiratory health issues. She was described by the applicant as vulnerable, and at high risk of contracting and potentially spreading COVID-19, because she could sometimes be found wandering the street, allowing strangers into her home, and did not understand the need to self-isolate because she was cognitively impaired. It was reported that UZX struggles with self-care, food preparation and hygiene. In-home support services were withdrawn on 30 March 2020 because the service provider was concerned about the risk of spreading COVID-19 to caregivers and other elderly residents.
The applicant described UZX as resistant to respite or permanent placement, and expressed concern that owing to her incapacity to observe the isolation rules, she may come to the attention of police and not be able to give an adequate explanation for her movements.
NSW Health was represented by the Crown Solicitor and made submissions in the proceedings. The Public Guardian also made submissions.
Issues Should the guardianship order functions be varied to include power to authorise others to enforce accommodation decisions?
Legislation and case law considered
Guardianship Act 1987
Section 4 (the s 4 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.
Section 14(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.
Public Health Act 2010
Section 51(1), Sch 1 (COVID-19 is a Category 4 condition). Section 51(1), Sch 1A (COVID-19 is a contact order condition) Section 62(1), (4), (6):
An authorised medical practitioner may make a public health order in respect of a person if satisfied, on reasonable grounds, that—
(a) the person has a Category 4 or 5 condition and because of the way the person behaves may, as a consequence of that condition, be a risk to public health, or
(b) the person—
(i) has been exposed to a contact order condition, and
(ii) is at risk of developing the contact order condition, and
(iii) because of the way the person behaves, may be a risk to public health.
…
(4) A public health order may authorise the person subject to the order—
(a) to be detained at a specified place for the duration of the order, or
(b) in relation to an order that requires the person to undergo specified treatment at a specified place—to be detained at that place while undergoing the treatment.
…
(6) In deciding whether or not to make a public health order, the authorised medical practitioner must take into account—
(a) the principle that any restriction on the liberty of a person should be imposed only if it is the most effective way to prevent any risk to public health, and
(b) any matters prescribed by the regulations for the purposes of this section.
A public health order made under s 62(1)(b) would, unless said to expire sooner, expire after 14 days (s 62(2)(d) and Sch 1A), subject to extension by NCAT upon application by the authorised medical practitioner before expiration of the order: s 65.
Analysis The tenor of NSW Health’s submissions was that the power under s 62 of the Public Health Act was not available because UZX had neither been confirmed as having COVID-19, or been exposed to a confirmed case: [33]. The submissions also argued that s 62 of the Public Health Act was intended for exceptional circumstances, and that a guardianship order was more appropriate in the circumstances where the primary concern was the risks to the person’s own health: [33].
The Public Guardian’s written submissions were consistent with those of NSW Health, stating that UZX’s circumstances do not meet the criteria to be considered under s 62 of the Public Health Act: [34]. The Public Guardian supported the variation of the order to add a coercive accommodation function: [34]. In oral submissions, the representative of the Public Guardian disagreed with the NSW Health submission that an order under s 62 of the Public Health Act should be reserved for “exceptional circumstances”, but otherwise agreed that the variation to the guardianship order is the more appropriate approach in the present circumstances: [35].
The separate representative for UZX agreed that the variation to the guardianship order was warranted, and agreed with the Public Guardian that there was no need to establish “exceptional circumstances” in order to make an order under s 62 of the Public Health Act: [36].
The Tribunal noted that the application was primarily concerned with UZX’s incapacity to understand the importance of self-isolation and compliance with public health directions. The evidence before the Tribunal was sufficient for it to conclude that UZX’s health was at heightened risk if she were to contract COVID-19, and those risks were compounded by the withdrawal of services by the service provider. The Tribunal stated, at [38]:
The evidence is that without a considerable degree of personal care support on a daily basis, UZX’s general health, hygiene and well-being will deteriorate further.
The Tribunal also accepted that there was a risk that UZX’s non-compliance with public health directions could come to the attention of police, and penalties may apply: [40].
Without determining the issue, the Tribunal noted that it did not appear that “exceptional” or “extreme” circumstances were needed in order for a s 62 order to be made: [43]. The Tribunal also noted that without evidence UZX was exposed to COVID-19, the s 62 power is not engaged: [43]. There was, the Tribunal found, no other practicable way for UZX’s welfare and interests could be promoted in light of her inability to understand the need to self-isolate, and no other practicable way for services to be provided, other than by way of varying the order as requested: [46].
The Tribunal succinctly described its balancing of relevant considerations at [47]:
We were satisfied that UZX’s decision-making impairment is such that it results in her making decisions and engaging in activity which exposes her to self-neglect: NIQ [2014] NSWCATGD 28, [51]. We gave greater weight to the need for UZX to be protected from neglect (s 4(g) of the Guardianship Act) than the principles that require the Tribunal to: restrict as little as possible UZX’s freedom of action and freedom of decision (s 4(b) of the Guardianship Act); take account of UZX’s views as consistently expressed to others (s 4 (d) of the Guardianship Act); and to encourage, as far as possible, UZX to be self-reliant in her personal affairs (s 4(f) of the Guardianship Act).
Conclusion
The Tribunal varied the order to include the power to authorise others to enforce accommodation decisions of the guardian.
Read the decision on the NSW Caselaw website.
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| GZK [2020] NSWCATGD 5
M D Schyvens, Deputy President; J L Newman, General Member
Facts The subject person, GZK, is a 76 year old Aboriginal man, living with his wife in regional NSW. He is a bi-lateral below-knee amputee, and has chronic brittle diabetes and a history of persecutory type delusional disorder. He received a high level of care from a service provider at home, and mobilised in an electric wheelchair.
There were concerns that GZK was ignoring self-isolation requirements in the midst of the COVID-19 global pandemic by continuing to travel in his wheelchair to his local shopping centre, putting himself, his wife, and his carers at risk of contracting COVID-19.The Public Guardian was GZK’s appointed guardian, and requested a review of the guardianship order, seeking additional functions to in relation to restricting GZK’s movement.
Issues Should the guardianship order be varied to include a function to restrict GZK’s movement?
Legislation and case law considered
NVQ [2016] NSWCATGD 38 at [39]:
A guardianship order [made by the Guardianship Division of NCAT] may be plenary or limited: s 16 of the Act. Under a plenary order, the guardian has "custody" of the person and all the functions that a guardian has at law or in equity: s 21(1) of the Act. Subject to any conditions specified in the order made by the Tribunal, a guardian has the power to make the decisions, take the actions, and give the consents (in relation to the functions specified in the order) that could be made, taken, or given by the person under guardianship if he or she had the requisite legal capacity: s 21(2A) of the Act. As noted by an Appeal Panel of the NSW Administrative Decision Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, the areas in which such decisions, actions, and consents can be given have not been exhaustively defined: see also MN v AN (1989) 16 NSWLR 525.
Analysis There was no evidence subsequent to the previous order being made which suggested any change to GZK’s capacity, so the Tribunal found GZK to be a person for whom a guardianship order could be renewed: [20]-[22].
The Tribunal was satisfied, for reasons it said were “similar to those set out in UZX” (see above) that the provisions of the Public Health Act would not likely apply to GZK; the application was concerned primarily with his own safety and welfare, and there was no other way of ensuring his safety than to vary the functions of guardianship granted to GZK’s guardian: [36].
Whilst the Public Guardian sought additional functions in the form of authority to consent to restrictive practices (environmental restraint) so that they could prevent GZK from leaving his home, the Tribunal was of the view that a “restrictive practices function”, in this setting, was not appropriate or consistent with relevant authority, such as HZC ([2019] NSWCATGD 8): [38]-[40]. The subject person was not engaging in “behaviours of concern”, as the term is widely used. In fact, GZK’s behaviours would not have been a concern but for the COVID-19 pandemic: [41].
In light of those considerations, the Tribunal developed a novel guardianship function which would authorise coercive accommodation decisions to be made for the purposes of compliance with Public Health Orders, and only for the duration of time which they are in place: [42]-[43].
The Tribunal made the following comments in relation to new or novel guardianship functions, at [48]:
The functions of guardianship are not defined by legislation. Rather, over the years since the commencement of the Act, the Tribunal (and its predecessor, the Guardianship Tribunal) has issued orders appointing guardians with specific functions to make substitute decisions in certain domains of the person’s life. These functions stem from the foundational parens patriae jurisdiction, which originally gave plenary authority, and have been appropriately adapted for modern needs. For example, decisions about where the person should live (the accommodation function), decisions about what services they should receive (the services function), and decisions about what health care they should receive (the health care function), to name but a few.
GZK’s impairment was such that it exposed him to self-neglect, and the Tribunal was satisfied, on the considerations in s 4 of the Act, that the order should not be disturbed, other than to add to it a “COVID-19 function”: [52]-[53].
The COVID-19 function was in the following terms:
COVID-19
a) To make decisions as to GZK’s accommodation, freedom of movement, and access to the community to protect and promote GZK’s health, welfare and interests specifically as a result of the COVID-19 pandemic; and
b) To ensure that GZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following:
i) take GZK to a place approved by the guardian
ii) keep GZK at that place (which includes authorising the use of physical restraint, environmental restraint or seclusion if required)
iii) return GZK to that place should they leave it.
c) This function of guardianship can only be exercised by the guardian:
i) as a last resort;
ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on when GZK may leave his place of residence (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and
iii) to ensure that GZK complies with such Public Health order.
Conclusion
A COVID-19 function in the terms described above was added to the existing guardianship functions.
Read the decision on the NSW Caselaw website.
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| GMI [2020] NSWCATGD 6
M D Schyvens, Deputy President; M J Wroth, Senior Member
GMI contracted COVID-19 while working as a crew member on the Ruby Princess cruise ship. After experiencing respiratory distress, he was intubated on the cruise ship, and subsequently transferred to a public hospital in Sydney for treatment.
At the time of the hearing, GMI was sedated in an induced coma to facilitate his intubation. While attempts were made to reduce GMI’s sedation, each time an attempt was made GMI would become distressed and attempt to remove the breathing tube himself. GMI had been ventilated for 30 days.
The hearing was conducted via telephone, with the applicant, Dr BNH, advanced trainee in intensive care at the public hospital, and Mr Z, the General Consul of GMI’s home country, appearing via telephone. The Tribunal was also assisted by Mr Y, a Senior Executive of GMI’s employer, P & O Cruises, who was at the time of the hearing on board the Ruby Princess assisting in its departure from Australia.
Mr Y informed the Tribunal that GMI had a wife in his home country, but she was only able to be contacted via WhatsApp. The Tribunal attempted to make contact with her but was unsuccessful.
The applicant sought the Tribunal’s consent to carry out a percutaneous tracheostomy under general anaesthetic and any other necessary treatment that would normally be provided in association with or directly consequent upon the aforementioned treatment.
The stated reason for the proposed treatment was “to endeavour to liberate the patient from sedation safely and to gradually wean him from ventilation to aid his recovery” and was it was proposed that the treatment, if consented to, would occur within in the subsequent 24-48 hours.
Issues Should the Tribunal consent to the carrying out of major treatment on GMI?
Is it appropriate, given the considerations in s 44(2) of the Act, for the proposed treatment to be carried out?
Legislation and case law considered
Guardianship Act 1987
Section 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.
Section 34 - Application of Part
(1) This Part applies to a patient:
(a) who is of or above the age of 16 years, and
(b) who is incapable of giving consent to the carrying out of medical or dental treatment.
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Section 42 - Applications to the Tribunal
(1) Any person may apply to the Tribunal for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies.
(2) Such an application shall specify:
(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,
(b) the particular condition of the patient that requires treatment,
(c) the alternative courses of treatment that are available in relation to that condition,
(d) the general nature and effect of each of those courses of treatment,
(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and
(f) the reasons for which it is proposed that any particular course of treatment should be carried out.
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Section 44 - Tribunal may give consent
(1) If, after conducting a hearing into an application for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies, the Tribunal is satisfied that it is appropriate for the treatment to be carried out, it may consent to the carrying out of the treatment.
(2) In considering such an application, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the patient,
(ii) the person who is proposing that medical or dental treatment be carried out on the patient,
(iii) any persons responsible for the patient, and
(iv) (Repealed)
(b) the matters referred to in section 42 (2), and
(c) the objects of this Part.
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Section 45 - Restrictions on Tribunal’s power to give consent
(1) The Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.
(2) However, the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary:
(a) to save the patient’s life, or
(b) to prevent serious damage to the patient’s health,
or unless the Tribunal is authorised to give that consent under subsection (3).
…
Analysis The Tribunal accepted uncontradicted evidence that given the length of time under sedation and ventilation, it was advisable and preferable that GMI be safely weaned from it, and the proposed procedure offered the greatest prospect of achieving that result: [16]-[18], [21].
The risks of the procedure were stated as follows ([19]):
As it was a surgical procedure, it has all associated risks such as bleeding and scarring at the site. There was also the possibility with a tracheostomy that there could be narrowing of the airway at the site of insertion which could make any future need for the insertion of an airway difficult. Further, there was the potential for nerve damage to the vocal chords, but the applicant noted this risk was the same for the current airway.
The ongoing risks of continued ventilation in the current manner were evident in the fact that an emergency replacement of the breathing tube the night before the hearing was required because part of it had burst, placing both the patient and the intubators at risk: [20]. There was also a risk to GMI’s life if he was not weaned from this kind of ventilation: [20].
On balance, the Tribunal decided that despite the risks, the proposed treatment was the preferred course in the current circumstances, to promote GMI’s health and well-being: [21]. The Tribunal was satisfied that granting consent in GMI’s current circumstances would promote the objects of Part 5 of the Act: [22].
Conclusion
The Tribunal gave its consent for the treatment to be carried out on GMI.
Read the decision on the NSW Caselaw website.
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| CZC [2020] NSWCATGD 7
M D Schyvens, Deputy President
CZC is a young man of African descent, living in Australia since 2009, who had a diagnosis of schizophrenia described as severe and fluctuating. A previous financial management order appointing the NSW Trustee and Guardian was made in February 2018, and a guardianship order appointing the Public Guardian was made in October 2018. Both orders were due for end-of-term review (“the earlier proceedings”).
As well as the end-of-term reviews, CZC’s uncle, OBM, applied to review both the guardianship and financial management orders. Before those applications could be heard, he made further applications for the financial management and guardianship orders to be set aside (“the set aside applications”) on the grounds that he was a party as carer for CZC, and was not given notice of the proceedings. At the hearing, OMB withdrew his request to review the financial management order.
The set aside applications were made out of time, however a differently constituted panel decided to extend time for OBM to make those applications, saying in its reasons (at [19]):
[OBM]’s evidence certainly suggests that he should have been included in the guardianship and financial management hearings as a carer party. There is some support for this proposition in the evidence recited in the October 2018 reasons. It may be that the original applicants have arguments to the contrary and, if so, they can be considered by the Tribunal. However, we were clear that we should extend the time for [OBM] to make his clause 9 set aside applications.
The hearing of the set-aside application proceeded on the day of the end-of-term and requested reviews.
In relation to guardianship, the main issue was the question of who should be appointed as guardian, and OBM sought appointment in the event the order was not set-aside.
OBM had initially sought appointment as CZC’s financial manager, however at the hearing withdrew his application and submissions seeking appointment in this role. The end-of-term review proceeded, and the main issue was whether it was in CZC’s best interests that the financial management order be revoked.
Issues Should the existing guardianship and financial management orders be set aside?
Should the guardianship order continue, and if so, should the appointed guardian be replaced?
Should the financial management order continue, and if so, should the financial manager be replaced?
Legislation and case law considered
Guardianship Act 1987
Section 3D(1) - Circumstances in which a person has the care of another person
(1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis:
(a) provides domestic services and support to the other person, or
(b) arranges for the other person to be provided with such services and support.
Section 4 Principles (see above)
Civil and Administrative Tribunal Regulation 2013
Clause 9(1)(b):
In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
…
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.
Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, at [63]-[65]:
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Accordingly, before the Tribunal’s power to set aside a decision that determines proceedings arises, the Tribunal must be satisfied that:
(1) The decision was made in the absence of a party; and
(2) That absence resulted in the party’s case not being adequately put to the Tribunal.
If those two requirements are satisfied, the Tribunal then has discretion to set aside or vary the decision. This follows from:
(1) The use of the word “may” in the chapeau to cl 9(1);
(2) The terms of s 53(3) of the Act, having regard to the reasoning of Basten JA in Atkinson v Crowley [2011] NSWCA 194 at [12]-[13] in relation to a similar provision in the legislation which applied to the Consumer Trader and Tenancy Tribunal, before it was abolished; and
(3) The fact that cl 9(1)(b) applies in situations extending beyond those in which it might be held that the proceedings are a nullity (see, for example, Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 294 and the authorities there cited).
Analysis
Set aside
The Tribunal first dealt with the set aside application. On the basis of evidence from OBM which was uncontested by other parties, the Tribunal found that he was either providing domestic services and support for his nephew, or arranging for others to do so, and as such was a party to the earlier proceedings: [29]-[30]. The Tribunal was also satisfied that OBM was deprived of the ability to put his views to the Tribunal in the earlier proceedings: [31].
However, the Tribunal still had a discretion whether or not to set aside the decisions to make guardianship and financial management orders: [31]. To that end, it was necessary for the Tribunal to consider the s 4 principles, and whether setting aside those decisions would be in CZC’s best interests: [35]. Ms Z, who was CZC’s occupational therapist and a representative from South Western Local Health District, said setting aside the decisions would not be in CZC’s best interests: [34]. CZC’s separate representative – Ms Udagama – agreed, saying CZC had made significant improvements in his life since the orders were made, his current arrangements were supportive, and no benefit would be gained from setting the decisions aside: [34].
The Tribunal concluded that setting aside the decisions would not be in CZC’s best interests, because CZC’s life and circumstances had changed since the orders were made, and setting those decisions aside would not change any of the decisions made by NSWTAG or the Public Guardian in the meantime: [38]. In the Tribunal’s view, the reviews currently at hand were able to achieve the desired result of an examination of CZC’s current decision-making capacity and life circumstances: [38].
The application to set aside was dismissed.
Guardianship
There was broad agreement that CZC had a disability, namely schizophrenia; no party contended that a guardianship order did not need to be continued, and no party sought functions to be added to the order: [44], [49], [55].
Specifically, the Tribunal heard from CZC when he spoke in the hearing in relation to his accommodation, expressing his view that he did not want to live with OBM, saying “I don’t want to live in the garage”: [60].
The Public Guardian submitted that the health care and medical and dental consent functions of guardianship should be allowed to lapse at that point in time, because that was the least restrictive available option: [62]. The Tribunal rejected this argument, saying, at [66]-[67]:
…It was clear that CZC does in fact have a limited understanding of his mental health issues and the impact this has on his cognition. In those circumstances, it is appropriate that he have a substitute decision-maker who has general responsibility for decision making for his health care management and to provide substitute consent to treatment in the event he is deemed unable to do so.
I reject the submission of the Public Guardian that to allow the order to lapse would promote the “least restrictive” alternative. I understood this argument to be that if these functions were to be permitted to lapse and CZC was deemed unable to give his own consent to treatment on a particular occasion, then individual, discrete applications to the Tribunal to provide consent would be preferable to continuing the current functions in question. The Tribunal has previously rejected this stated position of the Public Guardian in like circumstances: see ZGV v ZGT [2018] NSWCATAP 55 at [22] to [23] and DTX [2019] NSWCATGD 11 at [30] to [36].
At [82], the Tribunal records OBM describing the appointment of the Public Guardian as “an insult to his community and to his education” and that it had affected the entire family, saying:
To appoint the Public Guardian says that [OBM] is uneducated, is irresponsible, is nobody.
However, CZC’s current guardian, current service providers (represented by Ms Z), and Ms Udagama, all argued against the appointment of OBM as guardian and each provided examples of incidents to support their position: [85]-[87], [90]. These incidents reflected a lack of insight into CZC’s cognitive impairment, and an unwillingness of OBM to work collaboratively and objectively with service providers: [101]. The Tribunal’s decision not to appoint OBM as CZC’s guardian was “reinforced” by instances of OBM’s behaviour at the hearing: [101], [14]-[16]. The Tribunal stated, at [89]:
[W]hilst he was clearly willing to perform the role of guardian, I was not satisfied, to the requisite standard, that OBM would be able to perform the role of guardian for his nephew in compliance with the principles of s 4 of the Act.
Alive to the manifest importance of maintaining CZC’s family relationships and cultural and linguistic environments, the Tribunal heard from OBM, the Public Guardian and Ms Udagama, about the need to promote this aspect of CZC’s life: [102]-[106]. On balance, however, the Tribunal found that the Public Guardian’s appointment would not negatively affect this aspect of CZC’s life: [108].
The guardianship order was renewed for two years.
Financial Management
CZC’s incapability of managing his own affairs was not in dispute. Evidence before the Tribunal indicated that as a result of his mental illness, CZC had a poor understanding of “needs” v “wants”, had limited awareness of expenses and debts, including a debt to state revenue of $9,000.00 largely due to travel fines for failing to “tap on and off”, and was impulsive and unable to prioritise: [121]-[124], [130]-[131].
No party argued that it was in CZC’s best interests that the order be revoked, however OMB argued that if the NSWTAG was to continue in their appointment, that CZC should have access to his any funds he wants: [132]. To allow CZC any less access was, in OBM’s view, contrary to CZC’s human rights, and discriminatory: [132].
The Tribunal rejected this submission, concluding that the continuation of the order would be in CZC’s best interests and in accordance with the s 4 principles, stating at [133]:
An ongoing order is necessary to promote and protect his welfare and interests (s 4(a) of the Act) and protect him from self-neglect (s 4(g) of the Act). Stable management of his financial affairs is essential to ensuring CZC has ongoing appropriate accommodation, something which is vital to his mental health and general well-being. An order also remains in CZC’s best interests due to the fact that he has an ongoing debt of approximately $9,000 which might hopefully be reduced or extinguished through the intervention of an ongoing appointed manager.
The Tribunal determined that due to CZC’s age, and the fact that his circumstances were stabilising, it was appropriate that CZC may be able to manage some or all of his estate in future, and so it was appropriate that the order be reviewed in two years: [139].
The Tribunal renewed the financial management order for two years.
Conclusion
The Tribunal dismissed the application to set aside the previously made guardianship and financial management orders, and renewed the guardianship and financial management orders for two years.
Read the decision on the NSW Caselaw website.
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| STC3141 – An Open Label, Multi-Centre Study to Determine the Safety and Efficacy of STC3141 Administered as an Infusion for up to 5 Days in Subjects with COVID-19 Respiratory Distress Syndrome Requiring Intensive Care [2020] NSWCATGD 16
24 April 2020 - M D Schyvens, Deputy President; Dr M J Wroth, Senior Member; J L Newman, General Member
The Tribunal approved a clinical trial involving new medication for the treatment of COVID-19 Acute Respiratory Distress Syndrome (ARDS). This trial was to be conducted at Liverpool Hospital and involve 160 adult ICU patients with confirmed COVID-19 infection and ARDS ([15]).
STC3141 is a new medication designed by researchers at the Australian National University as a potential treatment for patients with ARDS ([16]). It is not intended to cure COVID-19, but to improve respiratory function in patients experiencing ARDS as a result of COVID-19 ([30]).
The Tribunal emphasised the “the public interest in conducting clinical trials to developing a greater understanding of this virus, its prevention and treatment” ([6]).
The Tribunal found that the clinical trial met the criteria in s 45AA of the Guardianship Act 1987, and thus exercised its discretion to approve the trial ([47]). It was satisfied that: - STC3141 is intended to alleviate symptoms of COVID-19 ([32]);
- the clinical trial does not involve any substantial risk to patients ([35]);
- the drug has reached a stage at which safety and ethical considerations make it appropriate that it be made available to patients suffering from COVID-19 even though they are unable to consent to taking part in the trial ([41]); and
- on balance, it is in the best interests of patients who suffer from COVID-19 and meet the clinical trial criteria to be able to take part in the trial ([45]).
Read the decision on the NSW Caselaw website.
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| | ZMQ v ZMR [2020] NSWCATAP 25
A Britton, Principal Member; L Dive, Senior Member; S Johnston, General Member
The decision subject to the appeal was a decision by the Guardianship Division after review of the Subject Person’s enduring power of attorney (EPoA). The Applicant (Appellant) was the Subject Person’s son, and made an application to the Tribunal after the Attorney had made a decision to sell a quarry owned by the Subject Person.
The application sought an order for the Attorney to be removed from office, and an order for production by the Attorney of records and accounts relating to the exercise of his powers under the EPoA. The Tribunal dismissed the application.
The Appellant filed a notice of appeal of that decision and, after withdrawing several grounds of appeal at the hearing, proceeded on the following grounds:
1) the Tribunal failed to consider and determine the Appellant’s request for orders requiring the Attorney to produce records and accounts relating to the exercise of his power under the EPoA;
2) in the alternative, the Tribunal failed to give adequate reasons for declining to exercise its power;
3) the Tribunal had regard to an “irrelevant consideration”, namely, the Appellant’s motivation for making the initiating application and/or the likelihood of the requested financial information being used in foreshadowed proceedings in the NSW Supreme Court to “reverse the sale”;
4) the Tribunal failed to take into account the “timing of when liabilities of the [Subject Person] would fall due”.
5) the Tribunal placed “inordinate weight” on the Subject Person’s expression of support for the actions of the Attorney, specifically his decision to sell the Quarry.
Issues Did the Tribunal fail to consider and determine the Appellant’s request for orders requiring the Attorney to produce records and accounts relating to the exercise of his power under the EPoA?
In the alternative, did the Tribunal fail to give adequate reasons for declining to exercise its power to make the orders?
Did the Tribunal have regard to an “irrelevant consideration”, namely, the Appellant’s motivation for making the initiating application and/or the likelihood of the requested financial information being used in foreshadowed proceedings in the NSW Supreme Court to “reverse the sale”?
Did the Tribunal fail to take into account the “timing of when liabilities of the [Subject Person] would fall due”?
Did the Tribunal place “inordinate weight” on the Subject Person’s expression of support for the actions of the Attorney, specifically his decision to sell the Quarry?
Legislation and case law considered
Powers of Attorney Act 2003
Section 36 - Interested persons may apply for review
(1) Tribunal may review making or operation and effect of power
A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.
(2) As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, [42], [109]-[110]:
[42] The Court as a "review tribunal" has a two-step discretion under Powers of Attorney Act, s 36(1) and (2). The Court may first exercise a discretion under Powers of Attorney Act, s 36 to "decide to review" the making, operation or effect of a reviewable power of attorney or "not to carry out such review": s 36(1). After deciding in the affirmative to review the making or operation and effect of a reviewable power of attorney, the review tribunal may further exercise its discretion, "whether or not to make an order under" s 36.
…
[109] The first discretionary question for the Court is whether it should review the operation and effect of these two powers of attorney under Powers of Attorney Act, s 36(1). Then, if the Court embarks on a s 36(1) review the Court must then decide in the further exercise of its Powers of Attorney Act, s 36(2) discretion, whether as a consequence to make any form of s 36 order.
[110] The Court has some guidance from Powers of Attorney Act, s 36(4) about the considerations relevant to the exercise of these two successive discretions. The preamble to that subsection indicates that any one or more of the orders provided for may be made if the review tribunal is satisfied that "it would be in the best interests of the principal to do so" or that "it would better reflect the wishes of the principal". Not surprisingly, these types of consideration are particularly apposite to a situation where the principal has lost capacity and cannot assist the Court with information about the principal's own interests or wishes, a situation which Courts will often face in the exercise of s 36 powers.
Civil and Administrative Tribunal Act 2013
Section 62 - Tribunal to give notice of decision and provide written reasons on request
…
(3) A written statement of reasons for the purposes of this section must set out the following:
(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,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
Schedule 6, Clause 11 - Written reasons are generally to be provided
(1) Subject to subclause (2), the Tribunal (however constituted) must give each party to proceedings for the exercise of a Division function a written statement of reasons for any decision it makes in the proceedings.
…
(3) A statement of reasons for the purposes of this clause must set out the matters referred to in section 62(3) of this Act.
New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, [66], [76]-[77] (citations omitted)
[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. The standard is not one of perfection.
…
[76] What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context.
[77] These principles include the following:
(i) “Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”;
(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related;
(iii) the reasons must be read fairly and as a whole:
(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error;
(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips.
Analysis
Ground 1
The Appeal Panel rejected this ground for three reasons (at [29]-[33]):
1. The primary reason advanced by the Appellant for disturbing the EPoA was the contention that the sale of the Quarry was both unnecessary and contrary to the Subject Person’s interests. However, the Tribunal had rejected that contention, saying the decision to sell the Quarry was reasonable, and made so as to avoid the auction of the Subject Person’s whole property to satisfy a property settlement with the subject person’s wife. The Tribunal found the Attorney had “extensive knowledge of [the Subject Person’s] assets and liabilities over many years”;
2. It was apparent from the reasons read as a whole, particularly from the favourable findings made by the Tribunal about the manner in which the Attorney (who was a chartered accountant) had discharged the duties of his role, and the Subject Person’s expressed strong support for the Attorney, that the Tribunal was not satisfied that either of the pre-conditions to the exercise of the discretion to make orders under s 36(4) (explained in Susan Elizabeth Parker above) were met. It was therefore not open to the Tribunal to proceed to make orders under s 36(4), including to require the Attorney to produce financial documents;
3. There was, contrary to submissions from the Appellant, an expressed consideration of the request for production of financial documents, noted by the Appeal Panel (at [32]) as follows:
Read in context, the statement made by the Tribunal at [64] ─ “any outcome that would result in a review of all of [the Subject Person’s] decisions and transactions and result in action in the Supreme Court” ─ is plainly a reference to the Appellant’s request for orders under s 36(4)(e) and not to his primary application for the removal of the Attorney. This paragraph indicates that the Tribunal considered that application and concluded, that acceding to the request for production of financial document may result in the foreshadowed Supreme Court proceedings to “reverse the sale” of the Quarry. The Tribunal reasoned at [64] that such action would “not only create further conflict and distress for [the Subject Person] but would result in significant costs to [the Subject Person], without any potential benefit to him during his lifetime”.
This ground was rejected.
Ground 2
The following passage of the Tribunal’s reasons, in particular, formed the basis of this ground for the Appellant:
Having carefully considered all of the evidence about the operation and effect of the enduring power of attorney, the Tribunal decided not to make an order under section 36.
The Appellant argued that it constituted the “sum total” of the Tribunal’s reasons for deciding not to exercise the power to make orders under s 36(4)(e) of the Powers of Attorney Act: [42].
The Appeal Panel rejected this ground, because the interpretive approach the Appellant asked the Appeal Panel to adopt was inconsistent with the authorities: [43]. Specifically, the Appeal Panel made reference to the requirement for an appellate body, such as the Appeal Panel, to refrain from reading passages of reasons in isolation from others, to read the reasons fairly and as a whole, and to not read the reasons with an “eye keenly attuned to error”, whilst also not being “so blinkered as to avoid discerning an absence of reasons”: [43].
The Appeal Panel was satisfied that, read fairly, in context, and as a whole, the reasons exposed the reasoning process which led the Tribunal to their decision: [44].
This ground was rejected.
Ground 3
The Appellant argued that the Tribunal had regard to “irrelevant considerations”, being a possible financial motivation behind his application (an interest in preserving his and his brother’s inheritance) and the reason for seeking the production of financial documents (for alleged use in proceedings in the NSW Supreme Court): [47].
Whilst conceding that s 36 did not prohibit the Tribunal from taking into account those considerations, the Appellant maintained his contention that the Tribunal erred in having regard to the possibility that the documents in question might be used in future Supreme Court proceedings, and that the Tribunal, in doing so, created a “straw man” because those proceedings were only a “mere possibility”: [48].
The Appeal Panel disagreed, saying that the reasons reveal that the Tribunal considered the Appellant’s self-interest as one possible motivation, among others: [49]. The Appeal Panel also said, in relation to the possible Supreme Court proceedings, that the Tribunal was required to consider the Subject Person’s current and future interests, and was not limited to anticipating events that were only reasonably certain: [50]. The Appeal Panel rejected the argument that where Supreme Court proceedings were raised squarely by the Appellant, the Tribunal was not allowed to consider those proceedings a possibility: [50].
This ground was rejected.
Ground 4
In oral submissions, the Appellant apparently re-characterised this ground to instead purport an error in the Tribunal’s finding of fact – that given the nature of the Subject Person’s debt the only feasible alternative available to the Attorney was the sale of the Quarry — for which there was no, or insufficient reliable evidence: [55].
The Appeal Panel rejected the notion that the Attorney had to demonstrate that the only option available to him in the circumstances was to sell the quarry, or that the Tribunal was required to be satisfied that it was his only option. Instead, the Appeal Panel noted, a variety of options were reasonably available to him (at [57]):
The Attorney was not obliged to preserve the Subject Person’s assets at all costs but rather to manage the estate in a competent and diligent manner having regard to the Subject Person’s current and future needs for income. Similarly, the role of the Tribunal was not to decide for itself whether the sale of the property was the only or the preferable decision, but rather to evaluate whether the sale of the Quarry evidenced that the Attorney was not acting in a manner consistent with the duties he owed to the Subject Person and/or was not likely to do so in the future. It goes without saying that reasonable minds may differ about the best way to manage a person’s estate. Generally, a range of decisions will be available to an attorney to discharge the responsibilities of their role in a manner consistent with the duties owed to the principal.
The Appeal Panel rejected the notion that there was no evidence as to the facts underpinning the Attorney’s decision to sell the Quarry. There was advice from the Subject Person’s lawyers, and a statement from the Attorney about the Subject Person’s tax liabilities, among other things: [58]. The weight given to that material was a matter for the Tribunal: [59].
This ground was rejected.
Ground 5
The Appeal Panel noted the complaint in this ground did not appear to be that the Subject Person’s views were not taken into account, but that his expressed support for the Attorney and the Attorney’s actions was given more weight than his expressed desire to retain the whole of the property: [66]. With consideration of multiple factors, including the Subject Person’s expressed views, it was open for the Tribunal to take into account his expressed support for the Attorney and the Attorney’s actions, even though the decision to sell the Quarry was only reluctantly endorsed by the Subject Person: [67]-[68].
This ground was rejected.
Conclusion
The appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| ZNX v ZNY [2020] NSWCATAP 41
A Suthers, Principal Member; J Moir, Senior Member; J Le Brereton, General Member
Facts The Tribunal appointed the NSW Trustee and Guardian as the Subject Person’s financial manager in this matter, despite the Subject Person’s mother, ZNY, proposing herself for the role. The Subject Person lived in regional NSW, and ZNY lived close by, but just across state border in Victoria.
ZNY appealed the decision on the sole issue of the Tribunal’s appointment of the NSW Trustee and Guardian, and not her, as the Subject Person’s financial manager. The ground stated in the notice of appeal was as follows:
The Tribunal gave undue weight to [ZNX’s] previous bankruptcies and the allegations that she may use some of ZNY's money to buy a new car.
Issues Should the Appeal Panel grant leave to appeal on grounds other than a question of law?
Legislation and case law considered
Civil and Administrative Tribunal Rules 2014
Clause 25 - External and internal appeals
…
(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged—
…
(c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
Collins v Urban [2014] NSWCATAP 17, [82]-[84] (relevant factors which, if established and raised in an appeal, might indicate that a grant of leave is warranted):
(1) issues of principle;
(2) questions of public importance or matters of administration or policy which might have general application; or
(3) 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;
(4) a factual error that was unreasonably arrived at and clearly mistaken; or
(5) 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.
P v NSW Trustee and Guardian [2015] NSWSC 579, [191] (five qualifications to the comments of Wright J in Collins v Urban, four of which are relevant to the Appeal Panel):
(1) There is a need to take section 4 of the Act specifically into account, which was recognised in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34];
(2) In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute;
(3) Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King; and
(4) In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division’s discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal’s jurisdiction.
EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199] (relevance of the observations in Slinko v Guardian and Administration Tribunal [2006] QSC 39; at [10] to [16]):
(a) It is clearly not intended that there be a re-hearing in the Supreme Court [here the Appeal Panel], on the facts, simply for the asking. ...
(b) To warrant a grant [of] leave, an applicant must demonstrate an arguable case of error in a finding, central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand...
(c) The suggested factual error, or errors, must rest in the adoption of a factual position beyond the realms of reasonableness, or one that is clearly mistaken…
(d) The factual error, or errors, should be plainly and readily apparent. The Court ought not embark on a comprehensive re-examination of all of the evidence to identify the error or errors. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [40]:
It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising [a discretionary] statutory power.
Application by AMAM; Re SAM [2011] NSWSC 503, [34] (re: the exercise of discretion under s 25M of the Guardianship Act):
It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.
Analysis Although the appeal was lodged out of time, the Appeal Panel allowed it to proceed for the reason that the Appeal Panel was concerned with ZNY’s welfare and interests, and there was no objection or suggestion of prejudice in the granting of an extension: [21]-[23].
The Appellant sought to rely upon new evidence in relation to the discharge of her second bankruptcy, and a statement explaining the circumstances around that bankruptcy: [24]. The Appeal Panel allowed the new evidence on the basis that it “might at least be said to have possibly” led the Tribunal below to a different result: [25]. It was also the Appeal Panel’s view that allowing the new evidence would, in the circumstances of a non-adversarial hearing, allow the Appeal Panel to consider whether, in hindsight, a serious injustice has or will result from the Tribunal’s exercise of discretion: [25].
The Appeal Panel adopted a liberal approach to the task of interpreting the stated appeal, but could not identify any question of law, and on that basis, the appeal required a granting of leave: [29]-[33].
Applying the relevant authorities on granting leave (stated above), the Appeal Panel noted that the Tribunal did consider ZNX’s bankruptcies and plans for managing ZNY’s finances, but the new evidence regarding the correct date for discharge of ZNX’s second bankruptcy would not have changed the outcome: [42]-[43]. The proposal by ZNX to borrow a significant amount of money from ZNY if she was appointed ZNY’s financial manager was a part of the Tribunal’s broader consideration of whether it was satisfied that ZNX was willing and able to properly manage ZNY’s estate: [43]. The Appeal Panel found nothing raised in in the appeal warranted a grant of leave to appeal the Tribunal’s decision.
Conclusion
Leave was refused, and the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| Supreme Court of New South Wales
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| Roach v Malsave Pty Ltd [2020] NSWSC 364
Adamson J
This case involved an application for an adjournment by the plaintiff in negligence proceedings, wherein it was alleged that negligence of the defendant construction company led to injury to the plaintiff’s vocal chords, because the noise from renovations directly below the plaintiff’s classroom required her to raise her voice so that her students could hear.
The hearing of the matter was listed to commence on 6 April 2020 but the plaintiff sought an adjournment of proceedings.
Counsel for the plaintiff submitted that it was on the one hand unreasonable in the context of the pandemic to expect him to relocate to Wollongong to be closer to the plaintiff, and on the other hand, undesirable that the plaintiff and her solicitor would have to participate in the hearing from Wollongong, when he and his junior would be in Sydney, as this would make it more difficult for him to give the plaintiff advice and obtain her instructions: [35].
Counsel also submitted that damage to the plaintiff’s vocal chords, which was the subject of the proceedings, and which compromises the plaintiff’s ability to speak for any period without fatigue, would exacerbate these issues: [35].
Finally, it was contended that in the circumstances where the plaintiff’s credibility was in issue, she had little to gain and much to lose by having to give her evidence by audio-visual link (AVL) rather than in person in the witness box: [36].
Issues Should the Court adjourn the proceedings?
Legislation and case law considered Insert
Analysis Adamson J rejected the argument in relation to the issues of the plaintiff’s voice exacerbating the circumstances, saying they would remain in whatever circumstances the hearing takes place: [42].
Although it was accepted that it would be more convenient for the plaintiff, her solicitor and counsel to be in the same place for the hearing, it was also observed that the plaintiff will be able to go home at night, given she will not be required to relocate to Sydney for an in-person hearing: [42]. The Court also accepted that it would be unreasonable to expect Counsel for the plaintiff to relocate to Wollongong in the midst of the pandemic: [42].
Adamson J did not accept that the plaintiff would be disadvantaged by giving evidence by AVL: [44].
Her Honour accepted that, if there were insurmountable technological difficulties in the course of the hearing, it might become necessary to revisit the question of an adjournment. However, prior to the hearing, there was reason to believe that it could proceed with the available technology: [45].
Conclusion
The Court refused the application for an adjournment.
Read the decision on the NSW Caselaw website.
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