| | | Guardianship Division Case Digest Issue 3 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, Supreme Court of New South Wales, and other jurisdictions. |
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| NCAT Guardianship Division |
| VZM [2020] NSWCATGD 25
C Fougere, Principal Member; Dr G Jamieson, Senior Member; Prof P Foreman, General Member
Facts
VZM was a 58 year old woman of Polish descent, living at an aged care facility (“the Aged Care Facility”). 18 years prior, she suffered a subarachnoid brain haemorrhage, resulting in cognitive impairment, and quadriplegia. She was then bed-bound, requiring high-level care 24 hours a day, which was provided largely by the Aged Care Facility.
In June of 2020, VZM’s husband (“LZM”) brought a guardianship application seeking a restrictive practices function for the use of bed rails. VZM’s sister (“BYD”) supported the application.
For many years, bed rails were being used to house cushions on VZM’s bed, allowing her to lie on her side, and also used to prevent her from inadvertently falling from the bed, risking potentially catastrophic injury.
Four months prior to the application, the Aged Care Facility discontinued the use of bed rails, citing Commonwealth Government policy on the authorisation of restrictive practices, and categorisation of bed rails as a restrictive practice which required the consent of a guardian.
Issues Was it practicable for bed rails to be reinstituted for VZM without the making of a guardianship order?
- Should the use of bed rails in VZM’s case be classified as a restraint or a restrictive practice requiring consent of a guardian with an appropriate function?
Legislation and case law considered Guardianship Act 1987 (NSW) (“the Act”)
Section 3(1):
person in need of a guardian means a person who because of a disability is totally or partially incapable of managing his or her person
Section 3(2):
In this Act, a reference to a person who has a disability is 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.
Section 4:
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.
Section 21C:
A decision made, an action taken and a consent given by a guardian under a guardianship order have effect as if:
(a) the decision had been made, the action taken and the consent given by the person under guardianship, and
(b) that person had the legal capacity to do so (if the person would have had that legal capacity but for his or her disability).
Aged Care Act 1997 (Cth)
Section 54‑1 Responsibilities of approved providers:
(1) The responsibilities of an approved provider in relation to the quality of the *aged care that the approved provider provides are as follows:
(a) to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;
…
Quality of Care Principles 2014
Section 4:
chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person’s behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
…
physical restraint means any restraint other than:
(a) a chemical restraint; or
(b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
…
restraint means any practice, device or action that interferes with a consumer’s ability to make a decision or restricts a consumer’s free movement.
Section 5:
(1) Representative, of a consumer, means:
(a) a person nominated by the consumer as a person to be told about matters affecting the consumer; or
(b) a person:
(i) who nominates themselves as a person to be told about matters affecting a consumer; and
(ii) who the relevant organisation is satisfied has a connection with the consumer and is concerned for the safety, health and well‑being of the consumer.
(2) Without limiting subparagraph (1)(b)(ii), a person has a connection with a consumer if:
(a) the person is a partner, close relation or other relative of the consumer; or
(b) the person holds an enduring power of attorney given by the consumer; or
(c) the person has been appointed by a State or Territory guardianship board (however described) to deal with the consumer’s affairs; or
(d) the person represents the consumer in dealings with the organisation.
(3) Nothing in this section is intended to affect the powers of a substitute decision‑maker appointed for a person under a law of a State or Territory.
Section 15E – State and Territory laws continue to apply:
This Part does not affect the operation of any law of a State or Territory in relation to restraint.
Section 15F - Physical restraint to be used only as a last resort:
(1) An approved provider must not use a physical restraint in relation to a consumer unless, in relation to that use of the restraint:
(a) an approved health practitioner who has day‑to‑day knowledge of the consumer has:
(i) assessed the consumer as posing a risk of harm to the consumer or any other person, and as requiring the restraint; and
(ii) documented the assessment, unless the use of the restraint is necessary in an emergency; and
(b) alternatives to restraint have been used for the consumer to the extent possible; and
(c) the alternatives to restraint that have been considered or used have been documented, unless the use of the restraint is necessary in an emergency; and
(d) the restraint is the least restrictive form of restraint possible; and
(e) the approved provider has the informed consent of the consumer or the consumer’s representative to the use of the restraint, unless the use of the restraint is necessary in an emergency.
(2) If an approved provider uses a physical restraint in relation to a consumer, the approved provider must:
(a) if the restraint is used in an emergency—document the matters mentioned in subparagraph (1)(a)(ii) and paragraph (1)(c) as soon as practicable after the restraint starts to be used; and
(b) if the restraint is used without the consent mentioned in paragraph (1)(e)—inform the consumer’s representative as soon as practicable after the restraint starts to be used; and
(c) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following:
(i) the consumer’s behaviours that are relevant to the need for the restraint;
(ii) the alternatives to restraint that have been used (if any);
(iii) the reasons the restraint is necessary;
(iv) the care to be provided to the consumer in relation to the consumer’s behaviour; and
(d) use the restraint for the minimum time necessary; and
(e) while the consumer is subject to the restraint:
(i) regularly monitor the consumer for signs of distress or harm; and
(ii) regularly monitor and review the necessity for the restraint.
Section 15G - Chemical restraint to be used only as a last resort:
(1) An approved provider must not use a chemical restraint in relation to a consumer unless:
(a) a medical practitioner or nurse practitioner has assessed the consumer as requiring the restraint and has prescribed the medication the use of which is, or is involved in, the restraint; and
(b) the practitioner’s decision to use the restraint has been recorded in the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2; and
(c) the consumer’s representative is informed before the restraint is used if it is practicable to do so.
Note 1: Codes of appropriate professional practice for medical practitioners and nurse practitioners provide for the practitioners to obtain informed consent before prescribing medications. Those codes are approved under the Health Practitioner Regulation National Law and are:
(a) for medical practitioners—Good medical practice: a code of conduct for doctors in Australia (which in 2019 could be viewed on the website of the Medical Board of Australia); and
(b) for nurse practitioners—Code of conduct for nurses (which in 2019 could be viewed on the website of the Nursing and Midwifery Board of Australia).
Note 2: State and Territory legislation deals with who can consent to the prescribing of medication for a consumer who cannot consent because of any physical or mental incapacity.
(2) If an approved provider uses a chemical restraint in relation to a consumer, the approved provider must:
(a) if the consumer’s representative has not been informed of the use of the restraint—inform the consumer’s representative as soon as practicable after the restraint starts to be used; and
(b) ensure the care and services plan documented for the consumer in accordance with the Aged Care Quality Standards set out in Schedule 2 identifies the following:
(i) the consumer’s behaviours that are relevant to the need for the restraint;
(ii) the alternatives to restraint that have been used (if any);
(iii) the reasons the restraint is necessary (if known by the approved provider);
(iv) the information (if any) provided to the practitioner that informed the decision to prescribe the medication; and
(c) while the consumer is subject to the restraint—regularly monitor the consumer for signs of distress or harm and provide information to the practitioner regarding use of the restraint.
HZC [2019] NSWCATGD 8 (“HZC”):
[32] It has long been understood that some members of our society, who receive ongoing support in their activities of daily living, may engage in certain behaviours which involve physical or other risks to themselves and others and that responses need to be developed to reduce or remove those risks.
[33] Over time, those behaviours have commonly been described as “challenging behaviours,” or more recently, “behaviours of concern” and the practices used to reduce or prevent them have become known as “restrictive practices”.
[34] The Tribunal has for several years recognised that decision making about the use of restrictive practices is a matter which it should recognise as a specific function which might be assigned to a guardian, so that the guardian’s role in making decisions about such matters is clear and to avoid the use of plenary orders, as required by s 15(4) of the Act.
[35] Similarly, over time, through clinical practice the nature of the restrictive practices which are used have been categorised and grouped in such a way as to allow their consistent description. Whilst there is a very broad range of restrictive practices which are used in the support of people with a disability, commonly used and understood terminology has developed.
[36] NSW, however, has no legislative definition of restrictive practices or any of the subcategories of restrictive practice which are used in practice. As a result, the decisions of this Tribunal and the former Guardianship Tribunal of NSW have developed alongside clinical practice and have used the descriptions of the various practices that are understood within the disability support sector.
Analysis
The evidence of the extent of VZM’s disability, and her incapability to manage her person, was not in dispute, and the Tribunal was satisfied that she was a person for whom a guardianship order could be made [17]-[21].
At issue was the question of whether the use of bed rails for VZM’s purposes required the consent of a guardian. In arguing that it did, the Aged Care Facility relied upon the NCAT Restrictive Practices Fact Sheet, and particularly a document which was referred to in the fact sheet, titled Decision-Making Tool: Supporting a Restraint Free Environment in Residential Aged Care, dated 2012, found on the website for the Aged Care Quality and Safety Commission, and authored by the Commonwealth Department of Health and Ageing. That document, the Aged Care Facility CEO said, classified the use of bed rails a restrictive practice, and as such, was subject to the regulatory requirements of the Aged Care Act: [34].
Consequently, the Tribunal undertook an examination of the regulations on restraint in residential aged care. In particular focus in the aged care context was the Quality of Care Principles 2014 - specifically s 4 of the Principles, which define “restraint”, “physical restraint”, and chemical restraint”, and also s 15F-15G of the Principles, which provide parameters and limits on the use of physical and chemical restraint: [36]-[44].
The Tribunal then compared that regulatory framework to the legal framework governing the use of restrictive practices in the NSW disability sector, noting in particular the Tribunal’s decision in HZC ([47]-[52]), and acknowledging the complexity created by co-existing regulatory schemes seeking to govern the use of restrictive practices at a federal level: [53]-[54].
Noting the previous decision in HZC which adopted the definition and categories of restrictive practice provided in the NDIS legislation, the Tribunal analysed the definitions of restraint, physical restraint, and chemical restraint provided in the Principles, to determine whether it should, similarly, adopt those definitions for use in the NSW residential aged care context: [57].
The Tribunal acknowledged that it was not bound to do so, however there seemed to be reasons equally sound to those in HZC for doing so, despite the fact that doing so would create a second set of definitions of restrictive practices (the first being those in the NDIS context): [57(1)-(3)].
The definition of “restraint” in s 4 of the Principles was adopted, as it was consistent with the usage of the term by the Tribunal, except for the absence of reference to “rights” of the person: [57(4)].
The definition of “chemical restraint” was adopted, as it was consistent with the Tribunal’s previous usage of the term (e.g. in HZC, [71]-[98]).
The definition of “physical restraint” was characterised as a “catch-all” term, and was considered to “comfortably include a broad range of practices” previously considered restrictive practices, and was therefore adopted: [57(6)].
Some caveats were placed on the adoption of these terms by the Tribunal, in that the Tribunal said the definitions “may not encapsulate all types of restrictive practices previously considered by the Tribunal”, noting environmental restraint in particular: [57(7)]. The Tribunal also noted that the adoption of these definitions of restrictive practices did not operate to close the categories of restrictive practice for which a guardianship order could be sought: [57(8)]. The definitions, it was said, should also be read in light of the context of Part 4A as a whole, including specific conditions which ensure they are used only as a last resort, in their least restrictive form possible, and as part of the broader regulatory framework governing the use of restraint in response to behaviours of concern: [57)(9)-(11)].
Consent
The Tribunal made a number of observations and comments about the consent provisions in the Principles. In sum, the Tribunal made clear that despite any provisions in the Principles in relation to whom is authorised under the Principles to provide consent to the use of restraint on a subject person (such as VZM), the only person able to consent to restrictive practices – be they physical, or chemical, or other – on a subject person in NSW, apart from the person themselves, is a guardian appointed by the Tribunal, with the function of deciding about the use of restrictive practices: [58]-[61].
Did the use of bed rails in VZM’s case constitute a physical restraint?
The Tribunal decided that the use of bed rails in VZM’s circumstances was not a restrictive practice, for the following reasons (at [62]-[64]):
1) VZM had no free movement, due to her quadriplegia, and was therefore not restrained by the bed rails, but by her physical condition;
2) VZM did not engage in behaviours of concern, and the bed rails were used to improve her comfort and lower the risk of her accidentally falling from her bed;
3) It was fictional to suggest VZM’s rights or free movement was restricted, and in fact, the bed rails operated to improve her freedom.
Conclusion
Given VZM was able to be provided with the services she required without the need of a guardianship order, the Tribunal decided it would not be in VZM’s best interests that a guardianship order be made, and therefore decided not to make a guardianship order: [66].
Read the decision on the NSW Caselaw website.
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| CYP-001 [2020] NSWCATGD 17
M D Schyvens, Deputy President; Dr M J Wroth, Senior Member; J L Newman, General Member
Facts
In May 2020, the “first wave” spread of COVID-19 was slowing around Australia, though there was no disease-specific treatment. Efforts by various entities and research groups to find safe and effective treatments, and a vaccine, continued to intensify. The applicants in this matter sought the Tribunal’s approval to conduct a clinical trial of a treatment aimed at improving the lung condition of patients suffering from Acute Respiratory Distress Syndrome (ARDS) associated with COVID-19. Acute Respiratory Distress Syndrome, in laymen’s terms, is where a patient’s lung function falls significantly (below 200 on a PaO2/FiO2 ratio). A reported effect of COVID-19 is Cytokine Storm Syndrome (or rapid hyperinflammation), which leads to progression of the virus, admissions to the ICU, and fatalities.
The Trial Drug was hypothesised to combat the hyperinflammation, and thereby improve the condition of patients with COVID-19 ARDS, by using Mesenchymal Stem Cells which are known for their anti-inflammatory effect,
The application sought approval of the clinical trial, and approval to obtain substitute consent to participate in the trial from a patient’s person responsible, when the patient cannot consent themselves.
Issues
1. Does the trial meet the requirements of s 45AA of the Act?
a. Is CYP-001 intended to cure or alleviate a particular condition from which the patients suffer?
b. Will the Trial involve any known substantial risk to the patients (or, if there are existing treatments for the condition concerned, will not involve material risks greater than the risks associated with those treatments)?
c. Has the development of CYP-001 reached a stage at which safety and ethical considerations make it appropriate that CYP-001 be available to patients who suffer from COVID-19 even if those patients are not able to consent to taking part in the Trial?
d. Having regard to the potential benefits (as well as the potential risks) of participation in the Trial, is it in the best interests of patients who suffer from COVID-19 that they take part in the Trial?
e. Has the Trial been approved by a relevant ethics committee and does it comply with any relevant guidelines issued by the National Health and Medical Research Council?
2. Should consent to treatment as part of the trial be given by the “person responsible”?
a. Do the proposed forms for granting consent and the information available about the Trial provide sufficient information to enable the “persons responsible” to decide whether or not it is appropriate that the patients should take part in the Trial?
Legislation and case law considered Guardianship Act 1987
Section 40 Consents given by persons responsible for patients
(1) Any person may request a person responsible for a patient to whom this Part applies for that person’s consent to the carrying out of medical or dental treatment on the patient.
(2) Such a request 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.
(3) In considering such an application, the person responsible for the patient shall have regard to:
(a) the views (if any) of the patient,
(b) the matters referred to in subsection (2), and
(c) the objects of this Part.
(4) The regulations may make provision for the manner and form in which:
(a) requests under this section shall be made, and
(b) consents under this section shall be given.
Section 45AA - Tribunal may approve clinical trials
(1) The Tribunal may approve, in accordance with this section, a clinical trial as a trial in which patients to whom this Part applies may participate.
(2) The Tribunal may give an approval under this section only if it is satisfied that:
(a) the drugs or techniques being tested in the clinical trial are intended to cure or alleviate a particular condition from which the patients suffer, and
(b) the trial will not involve any known substantial risk to the patients (or, if there are existing treatments for the condition concerned, will not involve material risks greater than the risks associated with those treatments), and
(c) the development of the drugs or techniques has reached a stage at which safety and ethical considerations make it appropriate that the drugs or techniques be available to patients who suffer from that condition even if those patients are not able to consent to taking part in the trial, and
(d) having regard to the potential benefits (as well as the potential risks) of participation in the trial, it is in the best interests of patients who suffer from that condition that they take part in the trial, and
(e) the trial has been approved by a relevant ethics committee and complies with any relevant guidelines issued by the National Health and Medical Research Council.
(3) The fact that a clinical trial will or may involve the giving of placebos to some of the participants in the trial does not prevent the Tribunal from being satisfied that it is in the best interests of patients that they take part in the trial.
(4) The Tribunal's approval of a clinical trial under this section does not operate as a consent to the participation in the trial of any particular patient to whom this Part applies. The appropriate consent must be obtained under Division 3 or 4 before any medical or dental treatment in the course of the trial is carried out on the patient.
(5) In this section: "ethics committee" means:
(a) for so long as there is any relevant Institutional Ethics Committee registered by the Australian Health Ethics Committee established under the National Health and Medical Research Council Act 1992 of the Commonwealth--an Institutional Ethics Committee so registered, or
(b) in the absence of such a committee, an ethics committee established by:
(i) a local health district or a public hospital, or
(ii) a university, being an ethics committee concerned, wholly or partly, with medical research, or
(iii) the National Health and Medical Research Council.
Section 45AB - Consent for participation in clinical trials in individual cases
(1) If the Tribunal is satisfied as to the matters specified in section 45AA (2) in relation to a clinical trial, it may, by order, determine:
(a) that the function of giving or withholding consent for the carrying out of medical or dental treatment on patients in the course of the trial is to be exercised by the persons responsible for the patients (in which case Division 3 applies), or
(b) that the Tribunal is to exercise that function itself (in which case Division 4 applies).
(2) Before making a determination referred to in subsection (1) (a), the Tribunal must be satisfied that the form for granting consent and the information available about the trial provide sufficient information to enable the persons responsible to decide whether or not it is appropriate that the patients should take part in the trial.
Analysis
Part One
1a) Considering the hypothesis of the Trial, and the intended effect of the Trial Drug to improve lung function by combatting inflammation, the Tribunal was satisfied that the Trial drug was intended to alleviate symptoms of COVID-19 ARDS: [28]-[30].
1b) The Tribunal noted the Protocol’s report of the Trial Drug’s safety, and that “all evidence supports that MSCs are very well tolerated, with no significant safety concerns identified”: [31]. There were no serious adverse events considered to be possibly or probably or definitely related to the MSCs: [32]. Given the absence of any disease-specific treatment, with only supportive treatment available involving invasive respiratory support, the Tribunal was satisfied that there was likely no known substantial risks, and to the extent there were any, they were not greater than those posed by current treatment: [33]-[34].
1c) The Trial had been through pre-clinical and Phase I trials, with results reporting the Trial Drug was well-tolerated, and the Tribunal was satisfied on that basis that it was appropriate that CYP-001 be available to patients who suffer from COVID-19, including patients not able to consent to taking part in the trial: [37].
1d) The Tribunal was satisfied that the potential benefit, being improvement in the condition of patients with COVID-19 ARDS, outweighed the potential risks, given the evidence for its safety, and the lack of any disease-specific treatment: [38]-[40].
1e) The Trial had been approved by the Bellberry Human Research Ethics Committee on 7 May 2020.
Conclusion
The Tribunal approved the clinical trial, as it met the criteria in s 45AA of the Act: [42].
Part Two
2) In considering the question of whether consent to participation in the Trial should be given by the person responsible, the Tribunal noted there was no express guidance in the Act as to how this question ought to be determined, but that the principles in s 4 are taken into account in all decisions made by entities operating under the Act: [44]. The Participant Information Sheet/Consent Form (PICF) formulated by the Applicants, was provided to the Tribunal. The Tribunal noted it contained detailed information, in plain-English, on the following:
- the purpose of the trial;
- some background information about COVID-19 and the trial drug;
- the drug’s known effects and the rationale for testing the trial drug as a treatment for COVID-19;
- what the trial involves, including potential benefits, risks and known side-effects; and
- the alternative treatments available (standard care treatment alone).
The PICF, alongside the Telephone Consent Form version, were sufficiently informative to enable a person responsible to carry out their function having regard to the considerations in ss 40(2)-(3) of the Act, and the s 4 Principles: [49]-[50].
No evidence or submissions suggested the power to provide substitute consent to participation in the Trial should be limited to the Tribunal alone, and not to persons responsible for an eligible patient: [51].
Conclusion
The Tribunal granted approval under s 45AB(1)(a) of the Act: [52].
Read the decision on the NSW Caselaw website.
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| QFC (No. 3) [2020] NSWCATGD 24
A D Suthers, Principal Member; Dr B Chenoweth, Senior Member (Professional); R Royer, General Member (Community)
Facts
QFC was 80 years old and lived alone in her own home in regional NSW. TAC, EZC, RBC, BYC, and LXD were her children. QFC appointed EZC and RBC to be her attorneys under an enduring power of attorney in 2010.
TAC initially applied for the appointment of a financial manager for QFC in 2017. Before the substantive hearing, TAC applied for review of the operation and effect of the power of attorney.
At a hearing on 28 May 2018, the Tribunal dismissed the financial management application, and decided to conduct the review of the power of attorney but to make no orders (the first substantive decision): QFC (No 2) [2018] NSWCATGD 49.
TAC then appealed the first substantive decision to the Tribunal’s Appeal Panel, but the appeal was subsequently withdrawn.
TAC now, again, sought review of the operation and effect of the power of attorney. She did on the basis that QFC was, in TAC’s view, subject to inappropriate influence or the provision of incomplete information by EZC and RBC which, in effect, overbore her free will: [64]. She also alleged that EZC and TAC had continued to act on the power of attorney. To support this allegation, TAC relied on the following statement made by QFC ([71]):
[RBC] and [EZC] were my chosen power of attorneys and enduring guardians, they have been a wonderful support to me before, during and will be after this whole sordid mess is finally over…
…I want [RBC] and [EZC] to continue to be my powers of attorney and my enduring guardians.
TAC alleged there had been certain transactions made effecting QFC’s interests, including ([70]):
- To EZC and TAC of the amounts of $11,489.93 and $5,000.00, respectively, referred to above; and
- The transfer of $766,708.00 from QFC’s account on 29 January 2020, apparently initiated from a branch in regional Queensland.
- A transfer of QFC’s shares in the privately operated company (of which EZC was general manager) to EZC and RBC at an apparent undervalue to the amount of $250,000.00.
QFC said the share transfers were a gift in respect of the ‘undervalue’ to reflect QFC’s appreciation for EZC and RBC. QFC reiterated that she was entitled to make whatever decisions she chose in relation to her financial affairs and that she was not left without means: [46], [51].
Issues
Should the Tribunal conduct a review of the power of attorney?
Legislation and case law considered
Guardianship Act 1987
Section 4 - Principles (above)
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, revocation 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, revocation 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.
…
(4) Orders relating to operation and effect of power
A review tribunal may, if 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, make any one or more of the following orders relating to the operation and effect of a power of attorney:
…
(c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, [80]-[81]:
On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what [an attorney] has produced.
Secondly, such an approach is especially justifiable where the principals … have instructed counsel to oppose the application for review and nothing has emerged from the general survey which indicates any maladministration on [the attorney’s] part as her parents’ attorney.
Analysis
Application for an adjournment
Due to the COVID-19 pandemic, the hearing was conducted at the outset by telephone. TAC sought an adjournment on the morning of the hearing, to a date when an in-person hearing could be conducted, on the grounds of procedural fairness and her concern of a risk that QFC would be subject to inappropriate influence by EZC and RBC: [20]. QFC was in a separate location to EZC and RBC. The Tribunal refused the application for an adjournment, as it was not satisfied there was any material risk of inappropriate influence from the other parties, and the allegation that only an in-person hearing could be procedurally fair was incompatible with the interests of the due administration of justice and inconsistent with the objects of the Act: [24]-[27].
Whether the Tribunal should conduct a review of the enduring power of attorney
The Tribunal described the s 4 principles as “relevant, although not mandatory, considerations” in exercise of its discretion under s 36 of the Powers of Attorney Act to decide whether or not to review the enduring power of attorney: [57]-[59].
Three main issues framed the Tribunal’s consideration as to whether to exercise its discretion ([61]):
1) Was there evidence to rebut the presumption that QFC was cognitively able to make decisions about her own financial affairs? – to recognise the presumption that an adult should be presumed to have capacity for all legal acts unless that presumption is rebutted by cogent evidence; 2) Was there evidence that QFC was exposed to exploitation or loss, through inappropriate influence or otherwise, particularly in the operation and effect of the power of attorney? –to engage with the concerns outlined by TAC and the principle contained in s 4(g) of the Guardianship Act;
3) How should those findings be considered in favour of the exercise of our discretion to review the power of attorney, where doing so:
a) Would impact upon QFC’s decision not to involve TAC in her financial affairs, even to the extent of engaging in a review of financial decisions QFC has made? – referable to the principles contained in ss 4(b) and 4(d) of the Guardianship Act;
b) Would be contrary to QFC’s clearly expressed view that we should not? – referable to the principles contained in ss 4(b) and 4(d) of the Guardianship Act; and
c) Does not appear likely, despite TAC’s expressed wish referred to at [13] above, to promote the preservation of QFC’s family relationships – referable to the principle contained in s 4(e) of the Guardianship Act.
1) There was no evidence or contention that QFC’s cognition had declined further since the first substantive decision in 2018: [63].
2) The Tribunal found nothing in evidence to support the assertion that QFC’s relationship with EZC had changed since the first substantive decision, acknowledging it remained one where QFC relied heavily on EZC’s advice, but did not involve operation of the power of attorney: [69]. The Tribunal further found no evidence to support a finding that the impugned transactions either ([75]):
- Took place without QFC’s express authority and approval; or
- Were the result of EZC or RBC operating on the power of attorney, such as to warrant a review of the power of attorney.
The direct evidence of the power of attorney being operational was, the Tribunal said, “equivocal at best”: [76].
In relation to the share transfers, the Tribunal acknowledged QFC had sold at a significant loss in light of the imminent and significant increase in value of the shares after that transfer occurred, occasioned by the sale of the company – an event about which EZC would have known: [77].
Nevertheless, there was nothing to indicate EZC or RBC played any role in QFC deciding to transfer those shares to them – either as advisors, or by the power of attorney: [78]. The Tribunal also acknowledged the facts that QFC was able to freely decide on the nature of gifts she wished to make; she indicated that she did in fact make the gift freely and voluntarily; that she stood by the gift even with the benefit of legal advice in hindsight; and she was not without means, and the gift should be considered against the backdrop of her whole financial position: [78].
The Tribunal found, on balance, there to be no inappropriate influence on QFC by EZC or RBC and no evidence of a nexus between the transactions and the operation and effect of the power of attorney, such as to warrant a review of the power of attorney: [79].
Conclusion
The Tribunal decided not to review the power of attorney: [81].
Read the decision on the NSW Caselaw website.
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| | ZOB v ZOC [2020] NSWCATAP 130
C P Fougere, Principal Member; L Pearson, Principal Member; B McPhee, Senior Member
Facts
The decision under appeal in this matter was a decision by the Guardianship Division in September 2019 to revoke the appellant’s appointment as her mother’s financial manager, and to instead appoint the NSW Trustee and Guardian. The initial decision to appoint the appellant was made in September 2018.
The subject person, ZOC, was an 86 year old woman living in an aged care facility, who had two daughters, ZOB (the appellant) and ZOD (the second respondent), and one daughter in-law (the third respondent).
The appellant appealed the decision to revoke her as her mother’s financial manager on the following grounds, all of which required leave to appeal as they did not identify questions of law ([24]):
1. The “Conflict of Interest” Ground: The Tribunal erred in finding that the appellant’s interests as ZOC’s private financial manager were in conflict with those of ZOC because:
(a) All of the matters found at the 13 September 2019 hearing to constitute a conflict of interest had already been considered at the 28 September 2018 hearing when the appellant was first appointed as ZOC’s private financial manager. Any conflicts of interest were addressed by the Tribunal on 28 September 2018 when it stated in its Reasons for Decision that the “oversight of the NSW Trustee and Guardian provides sufficient protection against any further breaches of fiduciary duty of the type that we have found to have been made by [the appellant]” (at [79]); and
(b) In any event, no conflict of interest existed in relation to the appellant’s rent free occupation of ZOC’s regional NSW property. ZOC had requested that the appellant and her family move into ZOC’s regional NSW premises; had never asked them to leave the property and had never asked the appellant to pay rent
2. The “Oversight” Ground: The Tribunal failed to give sufficient weight to the evidence that the appellant had advised the NSW Trustee and Guardian that she and her family were continuing to live at the regional NSW premises and to the evidence that the NSW Trustee and Guardian had not provided any advice that this was inappropriate
3. The “Unfairness” Ground: The decision to appoint the NSW Trustee and Guardian as ZOC’s financial manager was unfair to ZOC because the Tribunal did not inform ZOC of the significant costs associated with having the NSW Trustee and Guardian appointed and her views on the issue were not canvassed
4. The “Undue Influence and Coercion” Ground: The Tribunal did not have proper regard to the evidence that ZOC was subject to undue influence and coercion by the daughter and daughter-in-law. This influenced the views expressed by ZOC at the hearing including her statements that she did not want the appellant to be her financial manager
Issues
Should leave to appeal on grounds other than questions of law be granted?
Legislation and case law considered
Civil and Administrative Tribunal Act 2013
Section 80 - Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
(2) Any internal appeal may be made—
(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
(3) The Appeal Panel may—
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
Collins v Urban [2014] NSWCATAP 17, [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.
C v W [2015] NSWSC 1774, [44]:
Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court’s protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].
Analysis
The Conflict of Interest Ground
The appellant (at [33]) referred to two instances where conflicts of interest had been raised, and addressed at a previous hearing in 2018:
1) Her and her family living rent-free at her mother’s property;
2) Her use of her mother’s motor vehicle.
She said, essentially, that this meant the Tribunal was wrong to find she was unsuitable to be appointed as financial manager on account of the alleged conflicts of interest, as they had been ventilated at the previous hearing.
The Appeal Panel said the Tribunal was entitled to find a conflict of interest arose on the sole basis that the appellant had used her mother’s money to pay for utility bills arising from the appellant’s occupation of her mother’s property since being appointed financial manager in the 2018 decision: [49]-[51].
In relation to the rent-free occupation of the property, and the use of ZOC’s motor vehicle, the Appeal Panel said that the Tribunal found that the circumstances around those arrangements had changed, as ZOC no longer wished ZOB to be her financial manager, and now opposed the arrangements that were of benefit to ZOB: [55]-[56]. It was therefore appropriate, given the distress ZOC said the current arrangements were causing her, including the continued appointment of ZOB as her financial manager: [57]. Those arrangements were therefore, on balance, not in ZOC’s best interests, and the Appeal Panel found no error in the Tribunal’s decision or any relevant question which merited a grant of leave to appeal: [58]-[61].
Leave to appeal on this ground was refused: [61].
The “Oversight” Ground
The Appeal Panel rejected this ground, because the Tribunal appeared to accept the evidence that as far as the appellant was aware, she was acting in accordance with oversight from NSW Trustee and Guardian – the Tribunal rather gave more weight to ZOC’s welfare and interests, and in particular, the conflict of interest, and the distress caused to ZOC: [63]-[67].
Leave to appeal on this ground was refused: [68]-[69].
The “Unfairness” Ground
The Appeal Panel rejected this ground, because owing to the findings it made on the suitability of other proposed financial managers, the Tribunal was left with no choice but to appoint the NSW Trustee and Guardian: [74].
Leave to appeal on this ground was refused: [76]-[77].
The “Undue Influence and Coercion” Ground
The Appeal Panel pointed to multiple examples in the reasons of the Tribunal which indicated the Tribunal was cognisant of the appellant’s argument that ZOC had been influenced by ZOD and ZOE, and recognising ZOC’s general vulnerability: [81]-[82]. Reading the Tribunal’s reasons as a whole, including taking into account the reasons why the Tribunal did not appoint ZOD and/or ZOE, the Appeal Panel did not accept that the Tribunal gave insufficient weight to the appellant’s assertions about influence or coercion by ZOD and ZOE: [79]-[83].
The Appeal Panel refused leave to appeal on this ground: [83].
Conclusion
Leave to appeal was refused: [85].
Read the decision on the NSW Caselaw website.
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| ZOU v ZOV [2020] NSWCATAP 148
Boland J AM ADCJ, Deputy President; A Suthers, Principal Member; Dr G Jamieson, Senior Member
Facts
This appeal was brought by ZOU (“the appellant”), a daughter of ZOV, the subject person in this matter. ZOV was an 80 year old woman of Greek heritage living in an aged care facility, who was most recently subject of an order confirming the appointment of the NSW Trustee and Guardian as her financial manager. It was not in dispute that ZOV had a diagnosis of Alzheimer’s Dementia.
The appellant appealed the order of the Tribunal which dismissed the application to revoke the financial management order previously made for her mother.
As the appellant was not represented at the hearing, the Tribunal assisted her in framing the grounds of appeal. The questions of law she raised were as follows:
1) that the Tribunal below had failed to consider a mandatory consideration, namely, the best interests of her mother; and/or
2) that the decision was so unreasonable that no reasonable decision maker could have made it.
Additional grounds of appeal the appellant sought to raise were:
1) a lack of procedural fairness;
2) a failure to take into account a relevant consideration;
3) a lack of adequate reasons;
4) no evidence to support a finding of fact.
Issues
Did the Tribunal fail to consider s 4(a) of the Act? (Ground 1)
Was the decision not to revoke the NSW Trustee’s appointment as financial manager so unreasonable that no Tribunal could have reached it? (Ground 2)
Should leave to appeal on other grounds be granted?
Legislation and case law considered
Civil and Administrative Tribunal Act 2013
Section 80 (above)
Section 81 - Determination of internal appeals
(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following—
(a) the appeal to be allowed or dismissed,
(b) the decision under appeal to be confirmed, affirmed or varied,
(c) the decision under appeal to be quashed or set aside,
(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
John Prendergrast and Vanesa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13]:
[“questions of law” include]:
1) A failure to give adequate reasons for a decision;
2) Whether the Tribunal has identified the wrong issue or asked the wrong question;
3) Whether a wrong principle of law has been applied;
4) Whether there was a failure to afford procedural fairness;
5) Whether the Tribunal failed to take into account a relevant (mandatory) consideration;
6) Whether the Tribunal took into account an irrelevant consideration;
7) Whether there was no evidence to support a finding of fact; and
8) Whether the decision is so unreasonable that no reasonable decision maker could have made it.
Analysis
Did the Tribunal fail to consider s 4(a) of the Act? (Ground 1)
The Appeal Panel undertook a detailed examination of the Tribunal’s reasons (at [54]-[67]), noting the existence of some ongoing concern about the NSW Trustee and Guardian’s management of the estate, and in particular, concern about the proposed sale of ZOV’s house if her family did not contribute to their mother’s expenses at the aged care facility. The Appeal Panel noted that one of the subject person’s daughters, ZOW, continued to live in ZOV’s house, rent-free, while her mother’s aged care facility fees were being rapidly incurred: [59]-[63]. The Tribunal made findings that it was in the subject person’s best interests that an independent financial manager be appointed so as to ensure she can derive maximum benefit from her assets: [63].
On balance, the Appeal Panel found the Tribunal’s reasons disclosed careful assessment of matters relevant to the subject person’s best interests: [66]-[67].
Did the Tribunal fail to afford procedural fairness; were the Tribunal’s reasons adequate; was the order so unreasonable that no Tribunal could reasonable have made the order?
The Appeal Panel dealt with these questions together. The appellant argued that the Tribunal Member was biased, as they and the representative of the NSW Trustee and Guardian exhibited signs of “working together as a team”, in instances where the Tribunal Member would prefer evidence of the representative: [73]-[74]. Having reviewed the sound recording, the Appeal Panel found these allegations to be “completely unsupported”: [75]. Other similar allegations of procedural unfairness were brought on this ground of appeal, which the Appeal Panel, on review of the sound recording, again found were unsupported and completely lacking in probative evidence: [76]-[78].
The Appeal Panel saw no basis to the ground of a lack of reasons: [80]. The reasons spelled out the background information, relevant law to be applied, and made relevant findings of fact, while exposing its reasoning: [80]. This ground failed.
On the question of unreasonableness, the Appeal Panel found this ground to be without merit: [94]. The Tribunal was aware and properly considered the consequence of revoking the financial management order (being the reinstatement of one of the subject person’s daughters as attorney), and it was not unreasonable in those circumstances, for the Tribunal to determine that revoking the order was not in her best interests: [88]-[89].
The Appeal Panel also concluded that it was not unreasonable given the weight of evidence, taken as a whole, for the Tribunal to decide not to revoke the financial management order: [93]. Enumerating eight examples of evidence before the Tribunal (at [92], which was unchallenged by the appellant, the Appeal Panel found there was “ample evidence…which supported the conclusion reached by the Tribunal in the exercise of its discretion” and that “[t]he decision was not arbitrary, capricious or so unreasonable that no decision maker could have made it.”: [93]
Did the Tribunal fail to take into account a relevant consideration?
The appellant’s submission on this ground was that the Tribunal failed to take into account NSW Trustee’s decision not to take out funeral insurance for Mrs ZOV will leave her without insurance at her death: [97]. This Appeal Panel determined this ground to be without merit: [98]. The Tribunal accepted the NSW Trustee and Guardian’s evidence on this point, and accepted that ZOV did not have funds to pay funeral insurance premiums: [98].
Another asserted failure was that the NSW Trustee (not the Tribunal) failed to consider ZOU’s concern that her mother’s house would be sold at undervalue: [100]. The Appeal Panel found there was no evidence before the Tribunal to support that assertion, and the Tribunal had not failed to take into account a relevant consideration in the exercise of its discretion: [102].
Conclusion
The appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167
Armstrong J, President; M D Schyvens, Deputy President; L Porter, General Member (Community)
Facts
ZOF, the appellant and subject person, was a 59 year old Ngarbal man, and survivor of the Stolen Generations. ZOF had a diagnosis of Schizophrenia, which he acknowledged. Evidence from a psychologist, Mr X, reported that ZOF received a fortnightly depot injection, which he was usually compliant with, and also used Marijuana.
In 2018, ZOF received a payment of $75,000.00 from the NSW Government’s Stolen Generations Reparations Scheme, and subsequently disbursed those funds largely to the benefit of family and friends.
In early 2019, ZOF’s cousin, ZOG, made an application for a financial management order, in anticipation that a further lump sum payment from the reparations scheme was expected soon, and ZOG was concerned that the second payment, like the first, would be taken from ZOF by other people in his life.
The application was contested by the subject person, and there was a degree of conflict in the proceedings between six family members in attendance, who made allegations about each other financially benefiting excessively and inappropriately from ZOF, and gave conflicting views about the cultural appropriateness of the financial gifts given by ZOF.
After hearing of the application, the Guardianship Division made a financial management order.
The primary issue in the application was whether ZOF was incapable of managing his financial affairs. Mr X said that a financial management order was not required because, despite his diagnosis, ZOF appeared able to make informed decisions, albeit with a limited scope and his own priorities, and that ZOF was able to identify previous occasions where he had spent money on family, and was able to reason why he chose specific members of his family, and retrospectively state he was content with those decisions.
The Tribunal said that, whilst it accepted the evidence of Mr X, it was of little assistance insofar as it went to address the ultimate issues for consideration by the Tribunal.
The Tribunal also said:
"We excluded from our consideration of this issue whether [the appellant]’s decisions to spend the first reparation payment he received on others was ‘culturally appropriate’ or could be considered ‘objectively sound’ as we had conflicting evidence from members of his family about these issues and no independent expert evidence to assist us."
Much of the hearing, according to the reasons, was spent giving ZOF the opportunity to demonstrate that he was capable of managing his financial affairs. Three main factors led the Tribunal to find that he did not:
1) The appellant’s inability to recall his Centrelink income and ongoing expenses, and explain apparent disparities between the two;
2) The appellant could only explain how he spent a small portion of the reparations payment he received, totalling no more than $25,000.00.
3) The appellant’s purchase of a European car for a family member, without test driving the vehicle or having it inspected mechanically, which indicated to the Tribunal that the appellant was unable to consider the non-immediate consequences of his decisions.
The appellant, through his solicitor Linda Rogers, appealed the order on four grounds which constituted questions of law, and sought leave to appeal on other grounds, including that the matter raised issues of public importance.
The questions of law, in sum, were as follows:
1) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;
2) whether a wrong principle of law had been applied;
3) whether the Tribunal took into account an irrelevant consideration.
Issues
Did the Tribunal fail to take into account mandatory considerations? Namely:
- Section 4(a) of the Act; and
- Section 4(e) of the Act.
Did the Tribunal apply the wrong principle of law?
Did the Tribunal take into account an irrelevant consideration?
Should the Tribunal grant leave to appeal on grounds other than a question of law?
Legislation and case law considered
Guardianship Act 1987
Sections 4(a), (e) (above)
ZGM v ZGN [2018] NSWCATAP 101, [37]-[39]:
The authorities make clear that a failure to take into account a relevant consideration will only constitute an error of law if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the nature of the power to be exercised and the construction of the statute conferring that power. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452; Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27].
Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13] (above)
Collins v Urban [2014] NSWCATAP 17, [84] (above)
P v NSW Trustee and Guardian [2015] NSWSC 579, [308]
In considering whether a person is or is not capable of managing his or her own affairs, the Court should be mindful not to divert attention away from the question by any elaborative gloss. Nevertheless, a focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, [15]:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
Analysis
Did the Tribunal fail to take into account s 4(e) of the Act? (Ground 2)
The Appeal Panel dealt with this ground first. It was alleged that the Tribunal failed to properly consider the importance of preserving ZOF’s “family relationships and … cultural and linguistic environment”. In support of this ground, the appellant relied upon paragraph [38] of the Tribunal’s reasons, in which it said:
"We excluded from our consideration of this issue whether [the appellant]’s decisions to spend the first reparation payment he received on others was ‘culturally appropriate’ or could be considered ‘objectively sound’ as we had conflicting evidence from members of his family about these issues and no independent expert evidence to assist us."
The Appeal Panel noted that whilst the Tribunal was alive to the requirement to consider s 4(e), there appeared to be no consideration of those factors other than in relation to the question of whether ZOF was capable of managing his affairs: [58]. The evidence and submissions on those considerations was also minimal, and it was, in the Appeal Panel’s view, “incumbent” on the Tribunal to take steps to obtain further and better evidence, especially where the question was of such significance, and where the minimal evidence available was in conflict, rather than excluding the available evidence from consideration as it did: [59]-[61].
The Appeal Panel noted two concerns it had with how the Tribunal dealt with consideration of the appellant’s Aboriginality:
1) The Tribunal appeared to conflate the question of whether “sharing and caring” was a part of Aboriginal culture, on the one hand, with, on the other hand, the question of the degree to which the appellant’s dissipation of funds could be attributed to that aspect of Aboriginal culture, or alternatively, to exploitation. On review of the recording, there appeared to be no dispute that sharing and caring was in fact a part of Aboriginal culture whereas the reasons of the Tribunal suggest that this was in fact in dispute between the parties: [63].
2) The Tribunal appeared to decide that, because no independent expert report was available on the subject, it was unable to take into account the appellant’s Aboriginal cultural norms, despite the various legislative measures empowering and obligating the Tribunal to be as inquisitive as appropriate to obtain the necessary evidence on relevant matters: [64].
The Appeal Panel also found a lack of consideration of the s 4(e) factors in the Tribunal’s determination of subsequent issues – for example, in the question of whether an order would be in ZOF’s best interests, and in its determination to appoint the NSW Trustee and Guardian as ZOF’s financial manager: [65]-[67].
The Appeal Panel was satisfied that the Tribunal not only failed to take s 4(e) into account, but that in the circumstances of the case, those considerations were not so insignificant that failure to take them into account could not have materially affected the decision: [72]-[73].
Did the Tribunal fail to take into account s 4(a) of the Act? (Ground 1)
This ground was framed in such a way as to duplicate ground two – the appellant’s submission was that by not taking into account his cultural background and family values, the Tribunal failed to take into account his best interests. The Appeal Panel referred to its reasons in Ground 2 in addressing this ground: [74]-[76].
Did the Tribunal err in its application of the relevant “test” for incapacity? (Grounds 3 & 5)
These grounds stated that 1) the Tribunal required the appellant to account for his spending as a test for incapacity, rather than the test in P v NSW Trustee and Guardian (at [308]); and 2) misapplied the “test” for incapacity in P v NSW Trustee and Guardian, by failing to have due regard to the wants and needs of family and friends as part of his cultural background.
The Appeal Panel rejected these grounds on the basis that they mischaracterised the obiter comments of Lindsay J in P v NSW Trustee and Guardian, elevating them to a “test”, where in fact the statutory test for incapacity is found in s 25G(a) of the Act: [79]-[81]. A failure by the Tribunal to apply or refer to P v NSW Trustee and Guardian was not error of law, and in any event did not mean the Tribunal failed to consider the matters raised in P v NSW Trustee and Guardian or those required by s 25G(a): [81]. The Appeal Panel found that a fair reading of the reasons reveal the Tribunal did in fact apply the right test: [82]-[84].
Did the Tribunal fail to afford procedural fairness to the appellant? (Ground 4)
The appellant alleged that the Tribunal failed to afford procedural fairness to the appellant, by not offering or affording the appellant an opportunity to obtain further evidence as to relevant Aboriginal cultural norms and practices, where that evidence was material to the Tribunal’s consideration. However, the Appeal Panel rejected this ground, on the basis that he was represented in the proceedings, and that his representative was on notice about the relevant matters raised in the application, including the relevance of the appellant’s cultural norms and practices to the Tribunal’s consideration, and that this was also self-evidently relevant because those cultural norms and practices were foundational to the reasoning he gave for the way he spent the reparations payment: [85]-[87]. It was not suggested by the appellant’s representative at the time that further evidence could be made available if further time was allowed, the appellant’s representative never asked for an adjournment, and the Tribunal was under no duty to offer one in circumstances where he was represented: [89].
Did the Tribunal take into account an irrelevant consideration? (Ground 6)
This ground of appeal alleged the Tribunal took into account the appellant’s apparent reluctance to participate in the hearing in its determination of whether the appellant was incapable of managing his own affairs. The Appeal Panel rejected this ground, because the appellant failed to establish that this was something which the Act prohibited the Tribunal from taking into account, and further, the Appeal Panel was not persuaded by the language and context of the reasons that this factor was given any consideration in determining the issue: [91]-97].
Should the Tribunal grant leave to appeal?
The Appeal Panel decided it was unnecessary to determine whether leave to appeal on other grounds should be granted, as the appeal had been made out on Ground Two: [98].
Should the appeal be dealt with by way of a new hearing?
The Tribunal decided it was the most appropriate course of action to deal with the appeal by way of a new hearing, including the consideration of new evidence which was not available to the Guardianship Division, so that greater consideration of the relevance of the appellant’s cultural background in relation to the order, and to also examine evidence which appeared to raise doubt as to the quantum of a further anticipated reparations payment: [103]-[106].
Conclusion
The Appeal Panel decided to deal with the appeal by way of a new hearing.
Read the decision on the NSW Caselaw website.
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| ZOZ v ZPA [2020] NSWCATAP 121
N Hennessy ADCJ, Deputy President; J Currie, Senior Member; M Bolt, General Member
Facts
Mrs X, the subject person, lived in an aged care facility, and was subject to guardianship and financial management orders, each suspending previous enduring instruments which appointed her daughter, ZOZ, as her enduring guardian and enduring attorney respectively.
Another daughter, ZPB, was also previously appointed as enduring guardian, and enduring attorney, but resigned the attorney position after she became bankrupt.
The decisions subject to the appeal were made by the Tribunal at a hearing of two applications: an application brought by ZOZ to review the guardianship order previously made, and a fresh application for a financial management order brought by the Facility Service Manager of the aged care facility at which Mrs X resided.
In sum, ZOZ appealed the guardianship order on the following grounds as questions of law:
1. The Tribunal was biased against her;
2. The Tribunal did not take sufficient account of Mrs X’s view that Mrs X wanted ZOZ to be her guardian;
3. The Tribunal should have relied upon all evidence given by parties to previous Tribunal hearings involving Mrs X;
4. It was in the interests of natural justice that Mrs X have the opportunity to receive medical treatment;
5. The Appeal Panel should refer all instances of information being withheld or omitted to the Director of Public Prosecutions;
The appellant also challenged a number of factual findings made by the Tribunal, and sought leave to appeal on those grounds.
The appellant appealed the financial management order on the following grounds, stated to be questions of law:
1. The Tribunal erred by failing to enforce ZOZ’s right to obtain from the aged care facility details of costs, deductions and receipts for Mrs X’s care.
2. The Tribunal erred by failing to require ZPA (care facility manager) to provide evidence of her communications with ZOZ and thereby comply with the Australian Charter of Healthcare Rights.
The appellant also challenged the finding that her evidence was inconsistent or confused, and sought leave to appeal on that ground.
Issues
Did the Tribunal breach the rule against bias?
Did the other purported questions of law disclose alleged errors of law?
Should leave to appeal on grounds other than a question of law be granted?
Legislation and case law considered
Civil and Administrative Tribunal Act 2013
Section 80(2) (above)
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Analysis
Ground 1
ZOZ alleged in the notice of appeal that “the atmosphere at the hearing by Tribunal members was not impartial and at times responded with hostility towards both [me]…”, and in submissions, added ([20]):
“Tribunal Members . . . showed little impartiality towards (me) during the hearing and the audio recording of the hearing shows a growing distain (sic) from (the presiding) Tribunal Member in the way she chose to speak and respond to ZOZ.
The Appeal Panel, having reviewed the recording of the hearing, found no apprehension of bias as described by the High Court in Ebner: [21].
This ground was rejected: [21].
Ground 2
The Appeal Panel rejected the notion that the Tribunal did not take adequate account of Mrs X’s view, citing passages from the reasons, and noting the Tribunal was not bound by Mrs X’s view in any event: [22].
Ground 3
This ground was rejected on the basis that the Tribunal did take into account findings of fact of the previous tribunal, however doing so was not the Tribunal’s role, and the Tribunal ‘s role was to determine issues in relation to the state of affairs as at the hearing date: [26].
Ground 4
This ground was rejected on the basis that procedural fairness does not require the Tribunal to enforce the principles such as those in the Australian Charter of Healthcare Rights, but is limited to determining the relevant issues at the hearing: [28].
Ground 5
This ground was rejected because it did not identify a question of law, and the Tribunal did not have the power alleged: [29]
Other grounds
A number of other grounds of appeal were alleged in relation to the Tribunal’s findings about ZOZ’s suitability to be appointed as Mrs X’s guardian.
The appellant challenged the Tribunal’s finding Mrs X “Lack[ed] regard for the views of Associate Professor Brennan”. The Appeal Panel found that the Tribunal’s finding was an accurate shorthand way of saying ZOZ was critical of it in many respects: [36]. This finding was open to the Tribunal, and leave to appeal on this ground was refused: [36].
The appellant challenged the Tribunal’s finding that she failed to bring to the notice of the Tribunal that convened on 20 June 2019, the report of Associate Professor Brennan. ZOZ attempted to produce fresh evidence to the Appeal Panel on this point, but the Appeal Panel decided not to admit it, saying even if it was admitted it would be unlikely to produce a different result: [43]-[44]. The Appeal Panel found that even without the impugned finding, the Tribunal had made other findings which would have been sufficient, in any event, to support its ultimate finding that ZOZ lacked objectivity: [44].
The appellant challenged the Tribunal’s finding that she had refused to attend an appointment with A/Prof Brennan. The Appeal Panel refused leave to appeal on this ground, as the Tribunal’s finding – correct or not – had no bearing on the decision: [45]-[47].
The appellant challenged the Tribunal’s finding that she failed to request review of Public Guardian’s decisions, and therefore lacked objectivity. Upon further questioning, she acknowledged she had not requested an administrative review, and was unable to produce a copy of any document as evidence of her assertion – so the Appeal Panel refused leave to appeal on this ground: [48].
The Financial Management appeal
The Appeal Panel found no error of law in the Tribunal’s finding that the appellant had not turned her mind to consider the relative benefits of paying the refundable accommodation deposit or the daily accommodation payment: [58]. Her entitlement to disclosure of costs was irrelevant to the finding on that question, and no error of law was identified: [58].
For reasons given in relation to similar grounds argued on appeal of the guardianship order, no question of law was identified in this ground: [58].
The Appeal Panel acknowledge the Tribunal was apparently incorrect to suggest that ZAP’s evidence was that she had met with ZOZ face to face about the payment of the RAD and the DAP, where in fact they had met about care issues: [62]. However the Tribunal had otherwise accurately summarised ZAP’s oral evidence, and even if the mistake had not been made, it would not have affected the conclusion: [62]. The Tribunal found the appellant’s evidence to be unreliable, and the Appeal Panel refused to grant leave to appeal upon the appellant’s challenge to that finding: [66].
Conclusion
Leave to appeal was refused; the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| | Supreme Court of New South Wales |
| G v G (No. 2) [2020] NSWSC 818
Lindsay J
In this matter, the Court was asked to deal with the issue of whether a financial manager can invest the estate of the subject person in a superannuation fund, and make a binding death benefit nomination. Ultimately, the Court decided in the affirmative on the first question and in the negative on the second: [76].
Whilst this matter has limited relevance to the jurisdiction of the Guardianship Division, His Honour Justice Lindsay made some comments in obiter which may be of interest in the ongoing extrajudicial discourse on “substitute decision-making” versus “supported decision-making” or “assisted decision-making”, at [57]-[61]:
Terminology: “Substitute” and “Assisted” Decision Making
[57] In making this point, and in distinguishing the office of a protected estate manager from that of a trustee, the Report of the NSW Trustee characterises a protected estate manager (itself or a private manager) as “a substitute decision maker”.
[58] In the context of this Report, there may be no harm in the use of such terminology. However, in broader debates about management of a protected estate the expression “substitute decision-making” is contrasted, problematically, with the idea of “assisted decision-making”.
[59] Such labels are not always helpful. Their simplistic, binary form fails to capture the more subtle essence of decision-making in management of a protected estate. The expression “substitute decision making” could be taken, incorrectly, as condoning a process of decision making that excludes consultation (where consultation is possible) with a protected person. The expression “assisted decision making” could be taken, equally incorrectly, as condoning a process of decision making in which the manager of a protected estate disclaims responsibility for making decisions and takes cover behind a protected person under his or her influence.
[60] Use of the expressions “substitute” and “assisted” decision making introduces a rigid, false dichotomy in the management of protected estates. Both under the general law and under the NSW Trustee and Guardian Act, an obligation on the part of a protected estate manager to consult the views of a protected person and his or her “significant others” is given primacy in the management of an estate: NSW Trustee and Guardian Act, sections 39, 72 and 102; Holt v Protective Commissioner (1993) 31 NSWLR 227 at 240.
[61] The protective jurisdiction exists to enable care to be taken of those who are not able to take care of themselves (Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 38 ER 236 at 243; 2 Russ 1 at 20), not to impose a decision on a person who is capable of self-management. What is required of a protected estate manager, vis a vis the person whose estate is under management, depends on the nature and extent of the protected person’s capacity.
Read the decision on the NSW Caselaw website.
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| KJ v SJ [2020] NSWSC 932
Williams J
The subject person in this case, KJ, was a 29 year old married woman with three children. She lived with her husband and children, and worked part-time at an aged care facility.
KJ suffered a traumatic brain injury from a car accident as a child. She received a significant sum of money in compensation through District Court proceedings in mid-2013. In July 2013, KJ’s mother, SJ, applied to the Court for an order declaring KJ incapable of managing her affairs (declaratory order), and an order that her estate was to be managed by a private Trust Company (financial management order). In August 2013, the Court made the orders sought.
In the present proceedings, KJ sought revocation of the declaratory order, and the order that her estate be managed by the Private Company (the assets and liabilities of which had been transferred to another company at this stage).
SJ’s managed estate was valued at $2,593,965.37, comprised of cash, managed investments, and the property in which she resides with her husband and children.
Issues
Should the Court revoke the declaratory order and the financial management order?
- Is KJ capable of managing her affairs?
Legislation and case law considered (some materials omitted; see judgment for full list)
NSW Trustee and Guardian Act 2009
Section 39 - General principles applicable to Chapter
It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients 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.
Section 86 - Revocation of orders by Supreme Court
(1) The Supreme Court, on application by a protected person and if the Court is satisfied that the protected person is capable of managing his or her affairs, may—
(a) revoke any declaration made that the person is incapable of managing his or her affairs, and
(b) revoke the order that the estate of the person be subject to management under this Act, and
(c) make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.
(2) For the purposes of this section—
(a) evidence of a person’s capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and
(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and
(c) the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit.
Re X [2016] NSWSC 275 at [31], [35] (some paragraphs omitted; see judgment for complete excerpt):
(a) The Court’s protective jurisdiction is, generally, purposive in character, directed towards the care of those who are not able to take care of themselves.
…
(c) Whether or not a person is “capable of managing his or her affairs” within the meaning of section 41 (and related provisions) of the NSW Trustee and Guardian Act is a question to be considered in the context of the particular person’s personal, subjective circumstances, including particular business to be transacted by him or her, and the purpose of the law served by an inquiry into his or her capacity.
…
(h) Any decision made affecting the welfare or interests of a person in need of protection must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of that person
…
The fact that the plaintiff suffers a physical disability may underpin a finding of incapacity for self-management, but the primary focus of attention is on her want of functional capacity for management of her own affairs, not her disability.
Analysis
The Court found, in essence, that the nature of KJ’s portfolio required decision-making which was beyond KJ’s capability: [226]-[233].
Even with expert financial advice, it would still be necessary for KJ to make decisions based on that advice, including weighing up the potential risks and benefits of various investment options in real property, shares, managed funds, and interest bearing accounts: [229]-[230].
Based on the evidence before it, the Court found SJ to have a poor memory, difficulty managing household finances (even where most are paid by a financial manager), and a readiness to change her mind in the witness box about what she would do with her estate if she managed it herself: [233].
While SJ and her husband, LJ, believed that she was capable of managing her affairs, the Court accepted the expert evidence that SJ suffered from executive dysfunction, including difficulty inhibiting inappropriate responses, difficulty in initiating activities, difficulty in breaking down information into smaller chunks and becoming overwhelmed with large amounts of information: [234]-[235].
The Court concluded that SJ would struggle to manage her own affairs, even with professional advice, and her estate would be at real risk of dissipation if the order was revoked. Given that revoking the order would therefore be contrary to her welfare and best interests, the Court dismissed the application: [237]-[238].
Conclusion
Application dismissed.
Read the decision on the NSW Caselaw website.
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| | NLX (Guardianship) [2020] TASGAB 21
Mr R. Grueber (Member); Mr S. Nicholson (Member); Ms A. McKenzie (Member)
Disclaimer: This case involves consideration of legislation which differs substantively from NSW law and therefore may not be applicable in NSW.
Facts
NLX was 52 year old person living in supported residential care. She had diagnoses of Down Syndrome and early onset dementia.
An application for guardianship in relation to NLX was made by the services manager of Li-Ve, NLX’s residential services provider. The application sought the appointment of NLX’s brother, UX, as NLX’s guardian.
The application was triggered by the provision of a tracking device to NLX, from her residential services provider. The tracking device was in the form of a watch. NLX did not know it operated as a tracking device. NLX could remove it, and did in fact remove it when she wanted to.
NLZ was previously able to access the community independently, however by reason of her early onset dementia, became unable to do so safely because she be easily disoriented and confused, and was unable to follow road safety rules.
A protocol implemented by Li-Ve now meant a disability support worker would monitor NLX’s whereabouts every 15 minutes, and if she was unable to be located, staff could log into an app to locate her using the GPS tracking function in the watch.
If NLX left the premises, for example to visit a nearby shop, staff could locate her with the GPS device, and accompany her to assist or return her to the accommodation, according to her wishes. If there was no purpose for her journey, or if it was inappropriate for her to be outside, staff would ask her to return and she would invariably accompany them back to the facility.
Issues
Does the use of a GPS surveillance device amount to a restrictive intervention under the Disability Services Act 2011 (Tas) (“the DS Act”)?
Legislation and case law considered
Disability Services Act 2011
Section 4 - Interpretation
Restrictive intervention means any action that is taken to restrict the rights or freedom of movement of a person with disability for the primary purpose of the behavioural control of the person…
Guardianship and Administration Act 1995 (‘the Act’)
Section 20 - Guardianship order
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made–
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian–
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.
(5) Where the Board makes an order appointing a limited guardian in respect of a person the order to be made is that which is least restrictive of that person's freedom of decision and action as is possible in the circumstances.
Analysis
The Board found, uncontroversially, that NLX was a person with a disability as described in s 20(1)(a) of the Act, and was unable to make reasonable judgments in her persona circumstances: s 20(1)(b).
However, the Board decided not to appoint a guardian, because there was no need for a guardian’s consent to the use of the GPS tracking device: [25].
The Board found the device did not meet the definition of a restrictive intervention in s 4 of the DS Act, because it did not, itself, restrict her liberty of movement. It did not prevent her leaving the facility, her freedom to go wherever she pleases is not restricted, and when it is used to locate her she is not the subject of any coercion or restriction and her wishes are facilitated and supported by the provider: [22]-[23], [25].
Conclusion
The Board dismissed the application for a guardianship order.
Read the decision on the AustLII website.
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| | DISCLAIMER: This publication has been prepared for information purposes only. The Guardianship Division Case Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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