Guardianship Division Case Digest Issue 2 of 2021 | 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 features case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and Supreme Court of New South Wales. | | NCAT Guardianship Division | FNX [2021] NSWCATGD 4 C P Fougere, Principal Member; Dr G Jamieson, Senior Member (Professional); Emeritus Professor P J Foreman AM, General Member (Community) – 8 March 2021
In sum: The Tribunal appointed the Public Guardian to make decisions about whether physical restraint should be used to influence the behaviour of an aged care resident. In the circumstances, the Tribunal held that a coded keypad lock system in a facility could constitute the tort of false imprisonment and informed consent was needed for its use. The use of a low lying bed and psychotropic medication (to treat chronic schizophrenia) did not constitute restraint.
Facts: FNX (the Subject Person) is a resident in a secure dementia specific unit of an aged care facility. The Centre Manager of the facility made a Guardianship Application because of the proposed use of physical and chemical restraints under the Quality of Care Principles 2014 (Cth) (the Principles)1, in the form of a low lying bed, coded keypads on doors of the unit and the facility, and psychotropic medication. A guardian was also sought to make decisions about advance care planning.
The Tribunal has received other applications concerning residents of the same and another aged care facility, raising the common issue of the use of a coded keypad on the external doors to the facility.
Issues and outcome: (i) The Tribunal concluded it was unnecessary to appoint a guardian for decision making about the Subject Person’s health care including end-of-life decision making, as the evidence did not indicate specific health issues that would give rise to the need for such decisions ([44]-[45]).
(ii) The Tribunal concluded that the use of the low-lying bed, when on its low-lying setting, does not amount to a physical restraint under the Principles, or otherwise a restrictive practice. Central to this conclusion was that the Subject Person is unable to purposely leave her bed, and requires assistance, on both the low-lying and high setting; and that the purpose of the low-lying bed is to ensure her safety should she accidentally roll out of bed ([51]).
(iii) The Tribunal concluded that the psychotropic medications are not used for the purpose of chemical restraint because they are administered to treat the Subject Person’s chronic schizophrenia, not for behavioural management ([60]-[61]). The Tribunal gave the guardian authority to make decisions about medical treatment, as the lawful administration of the major medications requires informed consent (see Pt 5 of the Guardianship Act 1987 (NSW)).
(iv) The Tribunal concluded that the use of coded keypads on doors of the unit and the facility could constitute the tort of false imprisonment, informed consent is required for its use and the appropriate function to give the guardian is “physical restraint”, rather than accommodation ([76], [82], [90], [91]). The Tribunal noted: The conditions under which the Subject Person resides at the facility involve a total restraint on her freedom of movement as she is unable to unlock the door of the memory support unit or the front door and gate of the facility, and unable to exit unless accompanied by staff. She does not have access to the passcode or swipe card to exit, and would be unable to use them due to her cognitive impairments. The Subject Person is restrained even though she is unaware of being restrained, has not asked or attempted to leave the unit or facility on her own accord, physical force is not required to prevent her from leaving, and the keypads are used for safety purposes. It’s unlikely that the common law defence of necessity is available in relation to the restraint, which involves a situation of long-term residential care in a locked memory support unit within an aged care facility. It would promote the Subject Person’s welfare and interests for a guardian to be appointed to decide the circumstances of her restraint, as she is unable to give or withhold consent to the circumstances in which she is living.
1 The types of restrictive practices under the Aged Care legislative scheme have now been amended so as to largely adopt the definitions in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth) (the NDIS Rules). See TZD [2021] NSWCATGD 14 and NZX [2021] NSWCATGD 16 summarised below. | TZD [2021] NSWCATGD 14 R H Booby, Senior Member (Legal); Dr G Jamieson, Senior Member (Professional); Dr M Spencer, General Member (Community) – 16 July 2021
In sum: The Tribunal appointed a private guardian to make decisions about whether chemical restraint should be used to influence the behaviour of TZD (the Subject Person). The decision explains the relevance of recent amendments to the Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) (the Principles) regarding the use of restrictive practices.
Facts: The Tribunal received an application from a doctor at a public hospital seeking the appointment of a guardian for the Subject Person who has dementia. The applicant notes that medication is being used to manage his behaviour (i.e. chemical restraint) in hospital and there would need to be consent for that treatment in the aged care facility to which he would be discharged.
Issues and outcome: (i) The Tribunal referred to HZC [2019] NSWCATGD 8, which adopted the definitions of restrictive practices in the NDIS Rules to promote consistency in NSW. The Tribunal also referred to VZM [2020] NSWCATGD 25, which considered the use of restraint in aged care facilities, which at the time was categorised as “physical restraint” or “chemical restraint”.
(ii) Since the decision of VZM, there have been amendments to the Aged Care Act and the Principles, which must be considered when determining aged care related applications seeking the appointment of a guardian with a restrictive practices function. The Tribunal summarised the amendments and their effect at [35]-[43]: The Act now uses the term “restrictive practices” which is defined in s 54-9. The amendments to the Principles mean that the regulatory regime in aged care now largely adopts the definitions that apply under the NDIS Rules. The amendments include provisions that came into effect on 1 July 2021 and other provisions relating to Behaviour Support Plans to come into effect on 1 September 2021. “Whilst also being largely consistent with the definitions used under the NDIS Rules, these new definitions also provide greater specificity about the categorisation of restrictive practices that may be used in relation to a care recipient. In our view this is important from the point of accuracy and consistency when considering the prospect of restrictions being imposed on a person’s rights and freedoms.” If the care recipient is unable to give their own informed consent to the use of a practice, s 15FA(1)(f)(ii) of the amended Principles now provides that consent must be provided by a “restrictive practices substitute decision-maker” (defined in s 4).
(iii) When referring to VZM and the recent amendments, the Tribunal noted “it is likely that under the new definitions we would have considered [the use of bed rails] through the prism of mechanical restraint” ([38]).
(iv) In considering whether the proposed use of the medication was a form of chemical restraint, the Tribunal accepted the doctor’s view that its use should be characterised differently depending on the circumstances. Consent to its use as medical treatment to treat an underlying condition can be provided by the “person responsible”, without an order ([24]-[26]).
(v) The Tribunal was satisfied that on the occasions where the primary purpose of the medication is behavioural control, rather than to treat symptoms resulting from a diagnosed condition, it is a form of chemical restraint. Due to his cognitive impairment, the Subject Person is not able to consent to the use of the medication and there is a need for substitute consent. The Tribunal held that while it is not bound by the Aged Care Act, appointing a guardian to consider consent to the use of chemical restraint is consistent with the Principles, and it is in the best interests of the Subject Person that the aged care facility abides by those Principles ([45]-[46]).
(vi) The Tribunal imposed conditions on the ability of the guardian to consent to chemical restraint which are consistent with those set out in the amended Principles, as they provide important safeguards to the Subject Person’s welfare and best interests ([47]). | NZX [2021] NSWCATGD 16 J Moir, Senior Member (Legal); M A Oxenham, General Member (Community) – 15 September 2021
In sum: The Tribunal appointed a private guardian to make decisions on the use of chemical restraint to influence the behaviour of NZX (the Subject Person). The decision explains the recent amendments in the Quality of Care Principles 2014 (Cth) (the Principles) on the requirements of behaviour support plans for aged care recipients who require behavioural support; and necessary conditions on a guardian’s restrictive practices function.
Facts: The Subject Person is a 76 year old woman with dementia who is a permanent resident of an aged care facility. This decision is the end of term review of a guardianship order, which appointed her daughter as her guardian when she was in hospital and required full-time care. The Subject Person was prescribed an antipsychotic medication while in hospital, and is now prescribed the medication as needed to assist in managing her behavioural symptoms, including sundowning.
Issues and outcome: (i) The Tribunal found that the order no longer required functions previously given. The daughter indicated that her mother is well-settled in the facility and there are no further decisions to be made on her accommodation or services. The Tribunal was satisfied that the daughter, as personal responsible, can make decisions about her mother’s medical and dental treatment, regardless of whether the authority is included in a guardianship order ([18]-[20]).
(ii) In considering the proposed use of medication to control the Subject Person’s behaviour, the Tribunal referred to the recent amendments to the Aged Care Act 1997 (Cth) and the Principles, as well as the overview of those amendments in TZD [2021] NSWCATGD 14. The Tribunal referred specifically to the amendments to Part 4A of the Principles which came into effect from 1 September 2021 noting that: The amended Principles specify the responsibilities of approved care providers to prepare, review and revise a behaviour support plan for care recipients who require behaviour support; and the matters which must be included in a behaviour support plan ([41]-[46]). The Tribunal has no regulatory role to play in relation to approved providers’ compliance with their obligations under these principles. However, the Tribunal’s focus on the welfare and interests of a Subject person includes ensuring that any decisions which are made regarding their support, care or treatment are made by an appropriately authorised person ([36]).
(iii) The Tribunal noted that issues of restraint and substitute consent in aged care have been considered in previous cases and stated at [50]: ““Restrictive practices substitute decision-maker” was not specifically considered in the decisions referred to above because it has been included in the Principles since those decisions were made. However, the Tribunal is satisfied that the introduction of this term provides no basis to depart from the view that an authorised guardian is required to provide substitute consent to the use of restrictive practices.”
(iv) The Tribunal stated that, when appointing a guardian to authorise the use of restrictive practices, it has traditionally imposed conditions on the guardian’s authority to do so. In considering the nature of conditions for the order, the Tribunal had regard to the new, detailed safeguarding requirements contained in the amended Principles. The Tribunal stated at [53]: “The conditions we have imposed seek to ensure that the guardian takes reasonable steps to satisfy themselves that appropriate professional input is sought and proper consideration is given on an ongoing basis, to the least restrictive means of addressing NZX’s behaviours of concern and that these considerations are documented, as required, in a behaviour support plan. In addition, the conditions seek to reflect the intersection between the Principles and the general principles set out in s 4 of the Act that require that NZX’s freedoms are restricted as little as possible whilst protecting her from neglect, abuse and exploitation.”
(v) The Tribunal decided on the basis of the evidence that a further guardianship order should be made, and the guardian (her daughter) given authority to make decisions about the use of restrictive practices – chemical restraint, subject to the conditions set out in the order: “a) Standard Condition: In exercising this role the guardian shall take all reasonable steps to bring NZX to an understanding of the issues and to obtain and consider their views before making significant decisions. b) Restrictive Practices Condition: The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence NZX’s behaviour: (i) as a last resort to prevent NZX harming herself or others; (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to NZX or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on NZX; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to NZX’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in NZX’s circumstances.” | LZN [2021] NSWCATGD 12 A D Suthers, Principal Member; W E Blaxland, Senior Member (Professional); E A Pickering, General Member (Community) – 12 April 2021
In sum: The Tribunal appointed the Public Guardian to make decisions regarding medical treatment, including the COVID-19 vaccine, and other issues. The Tribunal found that it will not usually be necessary for a guardian to be appointed so that someone who is unable to give their own informed consent can be vaccinated against COVID-19.
Facts: LZN (the Subject Person) is a 76 year old woman who is a permanent resident of an aged care facility. One of the Subject Person’s daughters lodged a guardianship application, alleging there is a dispute between the applicant and her sister as to whether their mother should receive the COVID-19 vaccination. The applicant expressed the view that a guardian was required to resolve the vaccination issue, and make decisions about her mother’s medical treatment. There is evidence that the mother objects to receiving the vaccination, and is frequently non-compliant with her other medications.
Issues and outcome: The Tribunal was satisfied that the Subject Person was unable to make some decisions about her health care. The Tribunal appointed a guardian for the Subject Person because of her objection to being vaccinated and the competing views of her daughters about the vaccination, who could both be considered her person responsible under the Guardianship Act 1987 (NSW) (the Act). The Tribunal summarised the relevant principles for decisions concerning the COVID-19 vaccine at [7]-[17]:
(i) Part 5 of the Guardianship Act is engaged if a medical practitioner believes that a patient is not capable of giving informed consent to a COVID-19 vaccination (which is a prophylactic, and therefore “medical treatment” under the Act, s 33(1)).
(ii) For most people, a COVID-19 vaccination will be “minor treatment” under the Act and consent can be given by a person responsible, so long as the patient does not object.
(iii) If the patient does not have a person responsible, or that person is unable or unwilling to make the decision, a patient can still be vaccinated against COVID-19 if: the vaccination is minor treatment in the patient’s circumstances; the patient does not object; and the medical practitioner, or the person giving the vaccine under their supervision, is satisfied the vaccination is necessary to promote the patient’s health and well-being. (The medical practitioner must note these factors on the person’s record.)
(iv) For some people, a COVID-19 vaccination may be “major treatment” under the Act if it poses a substantial risk to the patient of certain health consequences. This is a clinical decision for the medical practitioner. In these cases, the practitioner must seek consent from the person responsible or the Tribunal, by making an application for consent to medical treatment.
(v) Where a patient objects to receiving the vaccine, only the Tribunal or a guardian who has the authority to override the patient’s objection to treatment can give effective consent; unless the patient has minimal or no understanding of what the vaccination entails and it will either cause the patient no distress or tolerable and transitory distress (the Act, s 46(4)).
(vi) An appointed guardian making decisions about a COVID-19 vaccine needs to be willing and able to take information from different sources, such as the person’s treating medical practitioners, and consider the relevant and available information before reaching a decision. They also need to consider the subject person’s views, into account: the Act, s 4 (see [76]). | UZM [2021] NSWCATGD 15 J D’Arcy, Senior Member (Legal); Dr I L Beale, Senior Member (Professional); I Ferreira, General Member (Community) – 9 September 2021
In sum: The Tribunal consented to a full course of vaccination with the Pfizer or AstraZeneca COVID-19 vaccine, with consent being effective despite objection by UZM (the Subject Person). The Tribunal did not disregard his objection due to his distress in four previous attempts at vaccination.
Facts: The Subject Person is 39 years old with autism spectrum disorder. A manager at the Subject Person’s disability service provider made a medical treatment consent application seeking the Tribunal’s consent to the COVID-19 vaccination. The Subject Person is refusing the vaccination due to his fear of needles and plans are in place for him to receive sedation prior to the vaccination.
Issues and outcome: (i) Where a patient objects to receiving a COVID-19 vaccination, only the Tribunal, or the guardian who has the authority to override the patient’s objections to treatment, will be able to consent to the vaccination. However, the person’s objection can be disregarded under s 46(4) of the Guardianship Act 1987 (NSW) if: the person has minimal or no understanding of what the vaccination entails; and either the treatment will cause the person no distress or, if it causes some distress, that distress is likely to be reasonably tolerable and transitory ([12]-[13]).
(ii) The Tribunal was satisfied that due to his diagnosis of autism spectrum disorder, the Subject Person is incapable of giving consent to the vaccination. His father, and person responsible, had consented to the vaccination and his general practitioner had signed the relevant consent form. The Tribunal accepted the applicant’s evidence that the Subject Person had no medical conditions which would pose any health risks if he received the COVID-19 vaccination ([16]-[18]).
(iii) The Tribunal was also satisfied that the vaccination was being provided to the Subject Person to promote and maintain his health and well-being and to ensure he can take advantage of the freedoms afforded to fully vaccinated people once the current lockdown ends ([24]). | KZF [2020] NSWCATGD 61 B L Adamovich, Senior Member (Legal); W E Blaxland, Senior Member (Professional); J V Le Breton, General Member (Community) – 9 November 2020
In sum: The Tribunal appointed the mother of KZF (the Subject Person) as guardian, to make decisions about whether chemical restraint should be used to influence her daughter’s behaviour. The Tribunal also conferred an “Other Function” on the mother to make decisions concerning video surveillance inside her daughter’s unit, subject to meeting a special condition.
Facts: The Subject Person’s mother lodged a guardianship application due to her understanding that a guardian needs to be appointed to provide consent to restrictive practices, if they are to be implemented by the disability service provider in her daughter’s unit. The Behaviour Support Plan includes PRN (as needed) medication used as a chemical restraint. It also refers to the use of a surveillance camera situated in the unit in the living/dining area as an environmental restraint ([22]).
Issues and outcome: (i) The Tribunal found that a guardian needed to be appointed to consent to the use of chemical restraint. The Tribunal was satisfied that the administration of PRN medication is primarily used for the purpose of influencing the Subject Person’s behaviour, in the absence of a report indicating otherwise from the prescribing psychiatrist.
(ii) The Tribunal was told that the surveillance camera is a helpful tool for the disability support staff. The camera is used as the Subject Person is protective of her privacy in her unit and does not like too many people in her space, the camera is helpful for training new staff without having them physically present, and due to safety concerns when she displays aggression.
(iii) The Tribunal was not satisfied that the use of the camera constitutes environmental restraint, or any other restrictive practice defined in the NDIS Rules because of the following:
(iv) The Tribunal considered it was still appropriate to confer an “Other Function” in relation to consent to surveillance due to the intrusion upon her privacy ([27]). The Tribunal decided that in making such decisions, the guardian must meet the special condition attached to the order: “In making decisions concerning video surveillance in KZF’s home, the guardian shall seek to ensure the protection of her privacy and dignity, and to ensure that any intrusions are reasonably necessary for the protection of herself (and / or other persons in her home) and proportionate to the risks being guarded against.” | BGT [2021] NSWCATGD 9 J Toohey, Senior Member (Legal); Dr H Burnet, Senior Member (Professional); M A Oxenham, General Member (Community) – 1 April 2021
In sum: The Tribunal appointed the sister of BGT (the Subject Person) as guardian, to make decisions about whether environmental restraint should be used to influence her brother’s behaviour. The Tribunal also gave the guardian an “Other Function” to make decisions concerning the use of a GPS sole tracker. The function was subject only to the Standard Condition.
Facts: The Subject Person’s sister lodged an application with the Tribunal proposing that she be appointed as his guardian to consent to environmental restraints. As detailed in an Interim Behaviour Support Plan, the restraints comprise locked doors and a GPS sole tracker, and are aimed at ensuring the Subject Person does not leave his group home unaccompanied by support staff. The rationale for the restraints is a history of taking off down the street alone, and a lack of safety awareness ([20]).
Issues and outcome: (i) The Tribunal was satisfied that the use of locked doors to restrict the Subject Person’s free access to the outdoors constitutes environmental restraint, and that consent of a guardian is required for its use ([23]).
(ii) The Tribunal were not persuaded by the evidence that the use of the GPS sole tracker constitutes an environmental restraint within the meaning of the NDIS Rules, noting the following at [25]: although the tracker raises issues of interference with the Subject Person’s right of free access to his environment, it “does not of itself hinder or prevent his free access to his environment” rather, the tracker “enables staff and others to locate him and bring him home if the environmental restraint [locked doors] fails for any reason”.
(iii) Nevertheless, the Tribunal decided that a guardian is needed to give or withhold consent to the use of a GPS sole tracker. This was because of the express prohibition in s 9 of the Surveillance Devices Act 2007 (NSW) against the installation, use and maintenance of a tracking device to determine the geographical location of a person without his or her express or implied consent ([26]-[27]). | EZG [2021] NSWCATGD 6 A D Suthers, Principal Member; Associate Professor C Willcox, Senior Member (Professional); A D Wannan, General Member (Community) – 20 May 2021
In sum: The Tribunal approved the attorney of EZG conferring a benefit on the principal’s former de factor partner and current close friend, in the form of a no-interest loan to purchase a property. The application concerns the first formal application made to the Tribunal under s 38 of the Powers of Attorney Act 2003 (NSW) (the Act), seeking approval of a proposed action.
Facts: EZG appointed his attorney under an enduring power of attorney. EZG lives in a dementia care unit at a residential aged care facility. Upon his admission to the facility, his former partner took up residence in his apartment to care for his two dogs. The attorney lodged an application seeking the advice of the Tribunal under s 38 of the Act about whether it would be appropriate, and consistent with his duties, to loan a portion of the principal’s estate to his former partner for the purchase of a property.
Issues and outcome: (iv) Section 38 of the Act provides for an attorney to seek the advice or direction of the Tribunal, or the Supreme Court (as is commonly done), about the scope of the attorney’s appointment or the exercise of any function. An attorney may seek such advice as long as the power of attorney is a reviewable power of attorney, defined as an enduring power of attorney, or a document which purports to be one: the Act, ss 33(1), (2) and (4). An attorney who acts within the bounds of the decision of that review body is immune from suit in acting or omitting to act, in good faith, in compliance with the decision: s 38(3).
(v) The power of attorney in this matter was in the prescribed form. The Tribunal noted that the effect of this “is that the extent of the powers given to the attorney are clarified (the Act, s 9) and certain implied limitations take effect, including a prohibition on conferring a benefit on third parties, unless the power of attorney contains express authority to do so, in terms set out in the Act: the Act, ss 10-13 and Sch 3 cls 1-3” ([30]).
(vi) The power of the Tribunal to give advice to an attorney under s 38 is a discretionary power. The Tribunal noted that the power does not explicitly enliven the requirement to take into account the principles contained in s 4 of the Guardianship Act 1987 (NSW). Nevertheless, in the Tribunal’s view, the s 4 principles may appropriately guide the inquiry of how the attorney might best act in the principal’s best interests ([35]). This is consistent with the Tribunal’s practice in the past when exercising functions under the Act: see for example, QFC (No 3) [2020] NSWCATGD 24 ([34]).
(vii) The Tribunal discussed the provisions of the Act relevant to conferring a benefit on a third party (see s 13 and Sch 3, cl 3). The Tribunal considered whether the benefit would be reasonable having regard to the circumstances, the principal’s financial circumstances and the size of the principal’s estate. In finding that the proposed loan would be a reasonable benefit, the Tribunal considered several factors including: the principal’s indication in his power of attorney to provide benefits to his former partner; as well as their ongoing friendship how the property would be secured and repaid as necessary to the principal’s estate the principal’s relatively modest ongoing expenses and his significant assets that are capable of generating an income to meet those expenses ([54]-[57]).
(viii) The Tribunal also discussed a defect in the prescribed wording used in the power of attorney to confer benefits on third parties. The Tribunal found that the minor variation was not fatal to the attorney’s authority, and, in the alternative, the defect could be remedied by ss 38(2)(c) and 36(4)(a) of the Act ([43]-[44]). | | ZSJ v ZSK [2021] NSWCATAP 144 A Britton, Principal Member; R Booby, Senior Member; M Bolt, General Member
In sum: The Appeal Panel allowed the appeal and ordered an appeal by way of new hearing despite there being no error of law in the decision of the Guardianship Division being appealed, because the circumstances of the parties had changed. The Appeal Panel varied the decision being appealed, by substituting the appellant as guardian of her father, rather than the Public Guardian.
Facts: The appellant is the daughter of the respondent (the Subject Person) and was previously appointed as his guardian by the Tribunal. The appellant and the aged care facility (the Facility) in which the Subject Person resided had a long-running dispute regarding the Subject Person’s care, including the appellant’s refusal to consent to medication and medical treatment for her father’s alleged aggressive behaviour, other than medical cannabis.
Upon application by the Facility, the Tribunal removed the appellant as guardian and appointed the Public Guardian in 2020. The appellant appealed from the Tribunal’s decision that she was not “able” to exercise the functions conferred by the guardianship order, under s 17(1)(c) of the Guardianship Act 1987 (NSW), due to her reluctance to follow medical advice in a situation where both her father and others were put at risk ([1]-[3], [19]). The Subject Person has now moved to a new facility.
Held (ordering an appeal by way of new hearing and refusing the costs application): (i) There was no error of law on the part of the Tribunal, which provided cogent and persuasive reasons, and the appellant’s grounds of appeal were a thinly-veiled attempt to relitigate issues. However, exercise of the discretionary power under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to deal with an appeal by way of a new hearing, and take into account fresh evidence, is not pre-conditioned on establishing a question of law. Nevertheless, there must be some compelling reason to warrant the exercise of that discretion ([24]-[27], [29]).
(ii) If the appeal is dismissed, the appellant is entitled under ss 25(2) and 25B of the Guardianship Act to seek review by the Tribunal of the decision to appoint the Public Guardian. Considering the material changes to the Subject Person’s facility and an apparent end to the challenging behaviour, it is appropriate to reconsider the 2020 orders without delay. This approach gives effect to the Tribunal’s guiding principle under s 36 of the NCAT Act, and its obligation to give paramount consideration to the Subject Person’s welfare and interests: s 4(a) of the Guardianship Act and cl 5(1) of Sch 6 to the NCAT Act ([7], [30]-[31]).
(iii) The Tribunal was correct to find, in the 2020 decision, that the appellant lacked the requisite objectivity to give proper consideration to medical opinions. However, it is likely that this inability arose from the circumstances at the time (including a strained relationship with the CEO of the Facility, and her inability to observe escalating behaviour due to visitor limitations), rather than an immutable aspect of her personality. This was evidenced by the appellant’s recent behaviour in demonstrating her preparedness, and ability to work with and properly consider the opinions of medical practitioners. The Appeal Panel also noted: the Public Guardian’s representative’s testimony that she consulted regularly with the appellant and had no concerns with her ability to give proper consideration to medical advice the Subject Person’s cousin, and former alternative guardian, supported the appellant’s reappointment there were no concerns raised by the new care facility ([37]-[42], [45]-[46]).
(iv) The Tribunal’s procedural flexibility does not give a party, including a self-represented party, licence to use proceedings to make scandalous allegations against an opponent. Considering the appellant’s allegations made in the course of the appeal, the Tribunal agreed to the CEO’s request for orders under s 64 of the NCAT Act prohibiting the disclosure and publication of the appellant’s affidavit and written submissions. However, “special circumstances” did not exist for the purposes of a s 60 costs order, due to the concession made by the appellant’s legal representative as to the scandalous nature of the allegations, noting the appellant’s lack of knowledge and experience in the proper conduct of legal proceedings ([55]-[57]). | ZUR v ZUS [2021] NSWCATAP 175 A D Suthers, Principal Member; J Moir, Senior Member (Legal); J V Le Breton, General Member (Community)
In sum: The Appeal Panel allowed the appeal of the appellant, who sought to be reappointed to hold enduring power of attorney for his father, the respondent. The Appeal Panel found that given the lack of any reference to certain issues in the Tribunal below’s reasons, the Tribunal either failed to properly engage with the appellant’s case or failed to give sufficient reasons for its decision.
Facts: In July 2017 the respondent, an elderly man who suffers from cognitive impairments, appointed the appellant and the appellant’s sister as guardians and enduring attorneys. In November 2017, the respondent appointed the appellant’s sister and brother-in-law as enduring attorneys, and subsequently in January 2018 revoked the appellant’s appointment. In February 2018, the Tribunal appointed the appellant’s sister and brother-in-law as joint financial managers for the respondent.
In November 2018, the Tribunal heard applications to revoke the financial management order made in February and to review the revocation of the appellant’s appointment as attorney. The decision being appealed is the Tribunal’s determination to carry out a review of the purported revocation of the enduring power of attorney but not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW). The Tribunal also revoked the financial management order.
The appellant and the appellant’s sister and brother-in-law have made allegations against each other of financial abuse, misuse of powers of attorney and neglect of the respondent. The appellant sought further review, and questioned the appellant’s sister and brother-in-law’s assertions that the respondent had made certain decisions, including selling his own home, making investments, reimbursing the appellant’s sister and brother-in-law for various expenses allegedly incurred on his behalf, and making gifts to their children. The appellant’s sister and brother-in-law claim that they do not substitute financial decisions for the respondent, but rather facilitate his decisions ([1]-[9], [22]).
Held (allowing the appeal): (i) The Tribunal’s reasons are notable not for what they contain, but for what they do not. It is an error on a question of law for the Tribunal to fail to properly engage with a party’s clearly articulated case. The error may be described as a failure to afford procedural fairness or a constructive failure to exercise jurisdiction ([19], [26]).
(ii) There were factors that made it critical for the Tribunal to engage with the question of the respondent’s capacity to make his own financial decisions, including the medical evidence, the competing views of the parties, and the fact that the power of attorney being reviewed gave no power to the attorneys to benefit themselves or others, nor to give gifts ([27]).
(iii) At common law, and under s 25P of the Guardianship Act 1987 (NSW), there is a rebuttable presumption that once a person is found to be incapable of managing their own financial affairs, that state continues until a court or tribunal is satisfied otherwise, on the basis of equally probative and cogent evidence as that on which the first decision was made ([28]).
(iv) If the respondent cannot manage his financial affairs, as the Tribunal previously found, then the appellant’s sister and brother-in-law’s operation on the power of attorney may have been inappropriate to the extent that they benefitted themselves and others or conferred gifts. Even if they say they were unaware that they were doing more than implementing decisions made by the respondent, the question arises as to the bona fides of that position and the extent of any obligation on them to be able to demonstrate that they are correct or to have investigated the issue to meet their duty to the respondent ([29]).
(v) In the circumstances of the case, the Tribunal’s lack of any reference to the above-mentioned issues suggests that it either: (a) failed to properly engage with the case put by the appellant; or (b) failed to give sufficient reason for its decision. The appeal was therefore allowed and remitted to the Guardianship Division for determination ([30]-[31]). | Supreme Court of New South Wales | AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889 Robb J, 22 July 2021
In sum: The Supreme Court dismissed an appeal from the NCAT Appeal Panel regarding a guardianship order made by the Tribunal. There was no error of law on the part of the Tribunal in its appointment of the Public Guardian as a guardian of AS (the Subject Person), rather than appointing her mother, and the Tribunal complied with the statutory requirements and considerations set out in the Guardianship Act 1987 (NSW).
Facts: The Tribunal previously appointed the Subject Person’s sister as guardian and her mother as alternate guardian. In November 2020, the Tribunal reviewed the guardianship order and appointed the Public Guardian for four months. The mother sought review of that decision, but the Tribunal declined to review the order; an appeal to the Appeal Panel was also dismissed. In March 2021, the Tribunal reviewed the order on the basis of applications by the mother and the NDIS Specialist Support Group, and appointed the Public Guardian for a further 12 months. In the current appeal by the sister, the only question is whether the Tribunal wrongly appointed the Public Guardian when it ought to have appointed the mother ([14], [25]).
Held (refusing leave to appeal and dismissing the summons): (i) The plaintiff’s complaints alleged that the Tribunal failed to give proper weight to some alleged fact or the evidence. The complaints do not go so far as to say there was no evidence to support a particular finding of fact or that the particular finding of fact was so unreasonable that no reasonable decision-maker could make it, these being two possible questions of law described in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]. These examples of errors of law are demonstrable of how relatively extreme the flaw in the fact-finding process must be before it will be treated as an error of law ([30]).
(ii) The Tribunal must not appoint the Public Guardian if there is a person who can be appointed as a private guardian: Guardianship Act 1987 (NSW), s 15(3). The sister complained that the Tribunal failed to consider the evidence to properly apply this provision. The Tribunal’s reasons show that it referred to ss 15(3) and 17(1) and correctly directed itself as to the mandatory legal test it had to apply, and the sister’s submissions indicate that she seeks to challenge the decision made by the Tribunal on the facts ([32]-[33], [35]-[36], [42]).
(iii) The Tribunal assessed the mother’s ability under s 17(1)(c), and found a person must be able to exercise the functions in accordance with the principles in s 4 of the Guardianship Act, and demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. The Tribunal must be satisfied the appointment will result in the policy considerations and principles in the Act being given effect. The expression “able” requires more than mere physical ability; it requires that the proposed guardian can carry out all the functions of guardianship according to the letter and policy of the Guardianship Act ([37]-[38]).
(iv) The sister’s ground of appeal that the Tribunal appointed the Public Guardian because of an unfounded suggested conflict between the Subject Person and her mother is misconceived, the Tribunal having made no finding of such conflict. To the extent that the Tribunal found there was a deficiency in the mother’s ability to act as guardian, it arose out of her lack of insight and inability to acknowledge any shortcomings in the way she had previously dealt with differences in opinion or concerns about her daughter’s care and support ([43]-[46]).
(v) Leave to appeal on a ground other than a question of law was refused; if leave is to be granted, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or the decision-making process under review. The conclusions that the Tribunal reached were entirely justifiable; the Tribunal was entitled, on the evidence before it, so far as that evidence was disclosed in the present proceedings, to make the findings and orders that it made ([57]-[61], [64]). | Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 Sackar J – 22 October 2021
In sum: The Supreme Court found no error of law on the part of the Tribunal in decisions relating to guardianship and financial management orders concerning the plaintiff’s parents. Sackar J rejected the plaintiff's argument that he had been denied procedural fairness by the Tribunal's actions in imposing time limits on presenting submissions in the hearing, refusing an application for an adjournment, and refusing to admit late documents.
Facts: The plaintiff appealed decisions of the Guardianship Division of the Tribunal to reappoint the Public Guardian as the guardian of his parents. He also appealed decisions of the Tribunal to dismiss his application to revoke financial management orders, committing the management of his parents’ estates to the NSW Trustee and Guardian (NSWTG). In his Summons, the plaintiff raised several questions of law in respect of the guardianship and financial management decisions.
Held: (i) There was no denial of procedural fairness before either Tribunal, and, considering the Tribunal gave the plaintiff ample opportunity to be heard and his attitude in both cases, a further hearing would amount to a futility ([165]). Further, “both Tribunal members acted with consummate professionalism… The plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings" ([164]).
(ii) The Tribunal’s rejection of the plaintiff’s request for an adjournment was not a breach of the rules of procedural fairness. The Tribunal gave comprehensive and compelling reasons why the adjournment was not granted. Central to the reasoning was the plaintiff’s failure to comply with the directions and further to provide an adequate explanation for this failure ([124]-[126]). As an experienced litigant, the plaintiff would have understood the procedure and his obligations in terms of timing of any proposed evidence ([131]-[132]). The plaintiff gave every indication he believed he was wasting his time before a Tribunal which was biased ([138]).
(iii) The Supreme Court rejected the plaintiff’s argument that he was denied ample opportunity to be heard, and the Tribunal failed to comply with the requirements of s 38(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and to properly exercise the jurisdiction under ss 25(2)(a) and (b) of the Guardianship Act 1987 (NSW). The Court noted that the plaintiff used the time afforded to him in the hearing to attack “the Tribunal, the member hearing the matter, his brother and in doing deliberately chose to waste time on abuse, promising in any event to take the matter to the Supreme Court” ([140]).
(iv) The plaintiff was not denied procedural fairness by the Tribunal’s decision to limit the presentation time of the plaintiff’s case to 30 minutes in chief and 5 minutes for final submissions. The imposition of a time limit in all the circumstances was entirely consistent with the nature of the hearing and a reasonable response to the manner adopted by the plaintiff in his approach to his submissions. It was in any event entirely consistent with s 38(6)(c) of the NCAT Act ([141]).
(v) There was no issue with the Tribunal’s finding that the appointment of the NSWTG would be preferable to a private financial manager in deterring creditors from launching action to recover outstanding debts. The finding was based upon evidence and submissions from a representative of the NSWTG which was open to the Tribunal to accept under s 38 of the NCAT Act. It was reasonably open for the Tribunal to infer that creditors would be less likely to act precipitously if an entity such as the NSWTG were managing some person’s affairs ([148]-[149]).
(vi) The plaintiff was not denied a fair hearing by the Tribunal’s decision to reject certain emails containing evidence on the basis that they were not received in accordance with the Tribunal’s directions. The Tribunal was entitled to: determine that the materials put forward by the plaintiff would be received as submissions only because of the lateness of their service regulate its procedure given the informal nature of it and accord such evidentiary value to the materials supplied by the plaintiff inform itself as it sees fit as the rules of evidence do not apply ([161]-[162]).
| | DVB v NSW Trustee and Guardian [2021] NSWCATAD 105 A Britton, Principal Member
ADMINISTRATIVE LAW — review of decision of NSW Trustee and Guardian under NSW Trustee and Guardian Act 2009 (NSW), s 62 — decision not to commence legal action to set aside transfer of protected person’s property — whether decision is the correct and preferable decision EQUITY — unconscionable conduct — special disadvantage — whether unconscientious advantage taken — undue influence CONTRACTS — unfair contracts — Contracts Review Act 1980 (NSW) – whether the contract was unjust in the circumstances relating to the contract at the time it was made | ZTU v ZTV [2021] NSWCATAP 121 M D Schyvens, Deputy President; J S Currie, Senior Member (Legal); B McPhee, Senior Member (Professional)
APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division – guardianship and financial management orders – asserted errors of law – failure to take into account mandatory consideration – suitability and availability of candidate for appointment as guardian and as private financial manager – no error of law established – appeal dismissed – leave to appeal – grounds for grant of leave not established – leave to appeal refused. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist unrepresented appellant in formulation of their case – grounds of appeal – grounds for leave to appeal. | DYH v ZNT [2021] NSWCATAP 140 The Hon F Marks, Principal Member; J Kearney, Senior Member; L Porter, General Member
APPEAL from dismissal of applications to review guardianship and financial management orders – held no demonstrated error in decisions – appeal dismissed CIVIL PROCEDURE application by layperson who is also the secretary of an organisation designed to expose alleged abuse by government instrumentalities involved in providing guardianship and administration services to persons with appropriate disabilities and incapacities to represent parties – application refused | ZUO v ZUQ [2021] NSWCATAP 142 The Hon F Marks, Principal Member; J Currie, Senior Member; L Porter, General Member
APPEAL from decision on review of guardianship order – held no demonstrated error in decision – appeal dismissed | ZTO v Central Coast Local Health District [2021] NSWCATAP 160 J S Currie, Senior Member; J Moir, Senior Member; L Porter, General Member
APPEAL – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division- asserted error of law-failure to take into account mandatory consideration in decision to make guardianship and financial management orders – welfare and interests and views of person with a disability- Guardianship Act 1987 s4(a),(d). No error of law established – appeal dismissed. Leave to appeal – grounds for grant of leave not established – leave to appeal refused. PROCEDURE – Civil and Administrative Tribunal (NSW) Appeal Panel – appeal from Guardianship Division – obligation to assist legally unrepresented appellant in formulation of their case and grounds. | ZRY v NSW Trustee and Guardian & ZRZ [2021] NSWCATAP 181 C Fougere, Acting Deputy President; J Moir, Senior Member; M Spencer, General Member
APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – whether Tribunal prevented witnesses from taking part – allegation of bias – leave to appeal on other ground – disputed diagnosis of dementia – no question or principle or policy raised – no manifest error in the decision or decision making process – leave refused – appeal dismissed. | ZTL v ZTM [2021] NSWCATAP 200 R Booby, Senior Member; A Boxall, Senior Member; M Bolt, General Member
APPEAL – Civil and Administrative Tribunal (NSW) – Guardianship Division – internal appeal – question of law – whether the appellant was denied procedural fairness – reasonable opportunity to respond to evidence | ZVK v ZVL [2021] NSWCATAP 317 The Hon J Boland AM, Deputy President; A Suthers, Principal Member; L Porter, General Member
APPEALS – from exercise of discretion – question of law – application for leave to appeal against decision of the Guardianship Division
Note: See [100]-[105] for the Appeal Panel’s discussion and finding on the Appellant’s submission that the Tribunal made an error of law by not taking into account the factors stipulated by Article 17 of the United Nations Convention on the Rights of Persons with Disabilities. | Dowdy v Clemson [2021] NSWSC 1273 Lindsay J
MENTAL HEALTH — Management of estate — Person incapable of managing his affairs — Financial Management – Fiduciary obligations – Liability to account | Wardy v NSW Trustee and Guardian [2021] NSWCA 121 Macfarlan JA, Meagher JA, White JA
SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3 | Charisteas v Charisteas [2021] HCA 29 Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ
FAMILY LAW – Property settlements – Apprehended bias – Where husband and wife separated – Where husband commenced proceedings in Family Court of Western Australia seeking orders for settlement of property – Where Family Court made orders for settlement of property – Where orders provided for early vesting of trust and distribution of trust fund and income – Where early vesting orders set aside on appeal but not remitted for redetermination – Where different judge of Family Court ("trial judge") made new and inconsistent orders for settlement of property – Where wife's barrister engaged in private communication with trial judge, including while case underway and while judgment reserved, without previous knowledge and consent of other parties – Where wife's barrister said communications did not concern substance of case – Whether fair‑minded lay observer might reasonably apprehend that trial judge might not bring impartial mind to decision – Whether Family Court retained power to make orders for settlement of property subject of early vesting orders. WORDS AND PHRASES – "apprehended bias", "bias", "disclosure", "fair-minded lay observer", "final orders", "hypothetical observer", "independence and impartiality", "informed consent", "judicial practice", "private communications", "professional conduct", "property settlement", "public confidence in the judicial system", "reasonable apprehension of bias".
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