AS by her tutor SS v NSW Public Guardian

The Guardianship Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) first made orders regarding AS on 30 April 2020, when it was asked to provide consent to a medical procedure for her at St Vincent’s Hospital.

It is sufficient to note that AS is a 43-year-old woman who has a number of serious medical conditions and a long-standing diagnosis of paranoid schizophrenia, cluster B personality traits and substance abuse.

AS' parents, CS and AS, live in Perth and her sister, SS, lives in Sydney.

On 9 June 2020, the Tribunal made a guardianship order for AS, and appointed SS as her guardian and CS as her alternate guardian under the Guardianship Act 1987 (NSW) for six months, to make decisions about AS’ accommodation, services, healthcare, legal services and consent to medical and dental treatment. The order was made on the application of SS and CS.

On 23 July 2020, the Tribunal made a financial management order for AS and appointed the NSW Trustee and Guardian (NSW TAG) as financial manager on the application of SS and CS.

On 2 November 2020, the Tribunal made an order in respect of AS appointing the NSW Public Guardian as the guardian of AS for four months. The Tribunal made the order as part of an end of term review, as well as a review requested by a consultant psychiatrist from Caritas, where AS was under psychiatric and medical care.

On 4 November 2020, CS made an application to review that decision. On 20 November 2020, the Tribunal declined to review the order made on 2 November 2020. On 15 February 2021, an appeal to the Appeal Panel of the Tribunal was dismissed.

On 8 February 2021, CS made a further application to review the guardianship order. It was on that date that a separate representative was appointed for AS.

On 1 March 2021, a further application to review the guardianship order was made by an NDIS Specialist Support Coordinator.

The Tribunal conducted a hearing on 15 March 2021 of the applications made by CS and the NDIS Specialist Support Coordinator, at the same time as the end of term review. The Tribunal made further orders under the Guardianship Act, which included the following:

The relevant functions are set out in order 4, and the conditions to which the appointment is subject are set out in order 5.

The hearing that took place in the Tribunal on 15 March 2021 involved a contest as to whether CS should be appointed the guardian, or whether the appointment should continue in favour of the Public Guardian.

The present proceedings were commenced by summons filed on 31 March 2021, in which AS is named as plaintiff and the Public Guardian is named as defendant.

The summons was filed by SS in the name of AS, relying upon a Queensland form of appointment of enduring guardian dated 6 February 2020, apparently made by AS in favour of CS and SS.

On 26 April 2021, Lindsay J, the Protective List judge, made an order that the NSW TAG be granted leave to appear in the proceedings as amicus curiae.

On 10 May 2021, Lindsay J made an order that SS be appointed as tutor for AS in these proceedings.

Lindsay J made a note of the material that would be relied upon by AS in support of the appeal as being limited to the summons, the reasons of the Tribunal under challenge in the appeal, and the affidavit of SS affirmed on 22 March 2021.

The transcript of the proceedings on that date includes an acknowledgement by SS that she did not propose to tender on the appeal any transcript of the hearing that took place in the Tribunal.

On 19 July 2021, the Court conducted a hearing in accordance with the following order made by Lindsay J on 16 June 2021:

Clause 14(1)(b) of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) provides in respect of appeals to this Court from the Tribunal:

The summons seeks the following orders:

The appeal grounds set out in the summons are as follows:

At the hearing, SS was given leave to appear for and make submissions on behalf of AS. The Court received comprehensive written submissions from SS dated 26 May 2021. The Public Guardian was represented at the hearing by counsel, and provided written submissions to the Court prepared by different counsel dated 19 May 2021 and 9 June 2021.

The NSW TAG appeared at the hearing by leave, but elected not to make any submissions to the Court.

It will be convenient to record at this point that SS took no issue with the correctness of the Tribunal’s determination that it was appropriate in all of the circumstances to make a guardianship order in respect of AS. The only question is whether the Tribunal wrongly appointed the Public Guardian when it ought to have appointed CS: see the Tribunal’s reasons recording an agreement to that effect at [38].

Question (a) of the order for separate questions made on 16 June 2021 raises the issue of whether any of the appeal grounds specified in the summons involve questions of law.

I respectfully adopt the following observations made by Lindsay J in C v W [2015] NSWSC 1774 (which I have abbreviated):

It will be convenient to refer to the eight types of error of law identified in Prendergast v Western Murray Irrigation Limited by the numbers given to those types by the Appeal Panel.

It is to be noted that, in her oral submissions, SS appeared to acknowledge that many of the grounds of appeal may not have been expressed in a way that satisfies a test for the existence of an error of law, because she asserted that the real problem with many parts of the Tribunal’s reasons was that the Tribunal failed to provide proper reasons (Prendergast No 1). This change of position was introduced without notice, and is not consistent with the wording of the summons. It would not be fair to the Public Guardian to permit SS, on behalf of AS, to challenge the decision of the Tribunal on this ground at this late stage. In any event, with due respect to SS, I did not follow her attempt to change from complaints that the Tribunal had failed to give proper weight to various aspects of the evidence to complaints that the Tribunal had failed to provide proper reasons.

Although the complaints were expressed in slightly different terms, appeal grounds 2, 3 and 5 to 9 are to the effect that the Tribunal failed to give proper weight to some alleged fact or the evidence. A complaint that a tribunal has failed to give proper weight to some aspect of the evidence in its decision-making process is a complaint about the tribunal’s reasoning in determining a question of fact. The complaints do not go so far as to say that there was no evidence to support a particular finding of fact (Prendergast No 7) or that the particular finding of fact was so unreasonable that no reasonable decision-maker could make it (Prendergast No 8). The formulation of these two types of error of law in the fact-finding process by a tribunal demonstrate how relatively extreme the flaw in the fact-finding process must be before it will be treated as an error of law.

These particular complaints do not fall within the other types of error of law identified in Prendergast. Consequently, separate question (a) must be answered in the negative in respect of these appeal grounds.

Appeal ground 1 is a complaint that the Tribunal failed to consider the evidence to properly apply and effect s 15(3) of the Guardianship Act. Section 15(3) provides:

An appointment by the Tribunal of the Public Guardian contrary to this provision would be prohibited by the Guardianship Act. However, the prohibition is only in force if, in the particular circumstances of the case, there is some other person who “can be” appointed instead of the Public Guardian. SS’ complaint is that the Tribunal failed to consider the evidence to properly apply the statutory prohibition. There is some uncertainty about whether this is a claim that the Tribunal failed to consider the prohibition, which would be, at least, a Prendergast No 5 type error of law. Alternatively, the complaint may accept that the Tribunal applied the correct legal principle, but its process of reasoning based upon its consideration of the evidence was incorrect, which would be an error of fact and not an error of law.

The best way to resolve this uncertainty, without becoming confused by pointless technical distinctions, is to consider the reasoning of the Tribunal on this issue.

The Tribunal’s reasons in respect of the determination of who should be appointed as the guardian of AS start at [87]. At the inception of its consideration, the Tribunal correctly referred to the legal effect of s 15(3) of the Guardianship Act, so it is entirely clear that the Tribunal properly directed itself as to the mandatory legal test that it had to apply.

The Tribunal noted, at [88], that it was able to appoint guardians with different decision-making authority, and at [89], the Tribunal set out the requirements in s 17(1) that must be satisfied before a private person can be appointed as a guardian. It is not necessary to set out the requirements of pars (a) and (b) of that subsection, because the Tribunal accepted that CS satisfied those requirements. Paragraph (c) requires that the person must be “both willing and able to exercise the functions conferred or imposed by the proposed guardianship order”. There was no doubt about CS being willing. The issue was whether she was “able”.

The Tribunal considered what was involved in a private person being “able” to act as guardian at [90]-[92]. By reference to appropriate authority, the Tribunal noted that the person must be “able to exercise the functions in accordance with the section 4 principles of the Act”, and must be “able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest”. Importantly, at [92], the Tribunal identified, by reference to W v G [2003] NSWSC 1170 at [25], that the Tribunal must be satisfied “that the appointment will result in the policy considerations and principles set forth in the Act being given effect”.

The Tribunal thus acknowledged that the expression “able” in s 17(1)(c) of the Guardianship Act required more than mere physical ability, but instead required that the proposed guardian could carry out all of the functions of guardianship in accordance with the letter and the policy of the Guardianship Act.

The submissions made by SS on the issue of why ground 1 involved an error of law are found at pars 14 to 20 of her written submissions. The substance of those submissions (apart from generally agreeing with the statement of principle made by the Tribunal in its reasons) is that the Tribunal failed “to distinguish any evidence identifying any compelling unsuitability of the Plaintiff’s mother to be her legal guardian” (par 17). SS continued by submitting that the Tribunal “further failed to articulate in its Decision any evidential basis the NCAT Tribunal relied upon that compelled preferential appointment (sic) the Public Guardian over the Plaintiff’s own mother as the legal guardian”.

Referring to the decision of Windeyer J in W v G, SS submitted that it was not sufficient to justify a finding that CS was not “able” because there was a “contest” about whether a particular family member was suitable to be appointed as guardian. SS submitted, at par 19, that the decision of the Tribunal to reappoint the Public Guardian “largely centred around concerns of a ‘contested view’ of various third-party care and accommodation supports and services raised by the Plaintiff’s mother, which is not a proper ground not to have appointed the Plaintiff’s mother her Private Guardian”. SS submitted at par 20 that the Tribunal erred in law “in placing too much weight on third-party evidence of concerns about the Plaintiff’s mother potentially having differing opinions and views on decisions relevant to the Plaintiff’s care, accommodation, supports and medical treatments, which evidence was significantly lacking in specificity or completely absent to sustain inferences concluded by the NCAT Tribunal”.

It must be noted that, in her reference to W v G, SS emboldened certain parts of the extract from the judgment, but did not emphasise:

At [93]-[115] of its reasons, the Tribunal gave separate consideration to the views of AS, CS, SS, and then others who had expressed views on the subject, including the barrister appointed by the Tribunal as the separate representative of AS, concerning the appropriate person to be appointed as the guardian of AS. The Tribunal then set out its consideration and findings at [116]-[125]. It is clear from the Tribunal's reasons that it understood the terms and meaning of s 15(3) of the Guardianship Act, and it appears from the submissions made by SS that the complaint in appeal ground 1 is that the Tribunal did not correctly assess the evidence and made the wrong choice in continuing the appointment of the Public Guardian. That is not an error of law, but a challenge to the decision made by the Tribunal on the facts.

Appeal ground 4 is a complaint that the Tribunal appointed the Public Guardian "because of an unfounded suggested conflict between the Plaintiff and the Plaintiff's mother". This could be a Prendergast No 7 error of law, if the use of the word "unfounded" should be understood as a complaint that there was no evidence of the suggested conflict.

The viability of this ground of appeal must be considered in the light of the following findings of the Tribunal:

The Tribunal did not find that there was a conflict of interest between CS and AS, within the meaning of s 17(1)(b) of the Guardianship Act, and it did not find that there was a personality conflict between the two persons. What the Tribunal did find, at [120], is "that [CS] demonstrated a lack of insight and ability to explain plans for how to act as a guardian objectively and without conflict of interests". This finding expressed the view reached by the Tribunal at [120] that CS' "lack of insight is evident in her inability to acknowledge any shortcomings in the way in which she has previously dealt with differences in opinion or concerns about [AS'] care and support; her inability to make any suggestions about how she might approach things differently in the future; her continued heavy reliance on [SS]; and her defensive approach to opinions that differ from her own".

The first observation to be made about appeal ground 4 is that it is misconceived, because the Tribunal did not find that there was a conflict between AS and CS. The second observation is that, to the extent that the Tribunal found that there was an apparent deficiency in CS' ability to act as AS' guardian, it arose out of her inability to acknowledge any shortcomings in the way in which she had previously dealt with differences in opinion or concerns about AS' care and support. This was a finding of fact made by the Tribunal. It was based upon the Tribunal's consideration of the evidence. There is no basis for an assertion that there was no evidence to support the finding.

It will be convenient to deal with appeal ground 11 out of order, as its subject matter is related to that of appeal ground 4. The ground is that the Tribunal erred in failing to make proper enquiry into whether actual verifiable evidence could be presented with certainty that any conflict of interest by SS and CS existed, and did not provide procedural fairness because the Tribunal placed undue weight on unsubstantiated allegations of conflict of interest that were unfounded at law and on the evidence.

I consider that this appeal ground raises no more a question of law than does appeal ground 4. While a failure of the Tribunal to afford procedural fairness is a Prendergast No 4 error of law, the alleged placing of undue weight on unsubstantiated allegations does not in principle amount to a failure to afford procedural fairness. Apart from the repeated misconception concerning the finding by the Tribunal of a conflict of interest, it is clear that this appeal ground is a complaint about the process of reasoning of the Tribunal on questions of fact, and is not an error of law.

Appeal ground 10 is a complaint that the Tribunal erred in its understanding of the law relevant to the effect of the making of a guardianship order on the powers of a person appointed by the person the subject of the order as enduring guardian. I accept that, in principle, any such error by the Tribunal would be an error of law, in so far as it would depend upon the proper meaning of s 6I of the Guardianship Act. It would be a Prendergast No 3 type error of law.

As the only appeal ground that I accept raises in principle an error of law is appeal ground 10, it will only be necessary to consider separate question (b) ordered on 16 June 2021 in respect of that appeal ground. That question is whether the question of law involved an error on the part of the Tribunal.

It will first be appropriate to set out s 6I(1) of the Guardianship Act:

Subsection (1) states in blanket terms that the guardianship order "operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment". That wording is clear and unambiguous, so that the effect of the order is to suspend "all authority" under the appointment of enduring guardian. Lindsay J in C v W (above) at [12] stated this effect of s 6I as if it were obvious, as it is.

Not only is the interpretation by the Tribunal of the effect of s 6I correct, but even if the contrary conclusion were arguable, a consideration of the Tribunal’s reasons shows that any error did not infect the Tribunal’s reasoning concerning the orders that it ultimately made.

The significance of the appointment of enduring guardian by AS of CS and SS is considered at [56], [59] - [63] and [80] of the reasons. The context is the careful consideration by the Tribunal of which functions should be given to the guardian, in respect of such matters as accommodation, authorising others to carry out actions in relation to AS, healthcare, services and restrictive practices. In a number of places, the Tribunal observed that CS and SS had claimed, on a number of occasions and in various contexts, that they were authorised to make decisions for AS because of their appointment under the appointment of enduring guardians. SS had sent the appointment of enduring guardians to the St Vincent’s Hospital treating team and AS’ general practitioner. There was potential for ongoing confusion about where the authority lay to make relevant decisions about AS. While it is true that, at [63], the Tribunal stated its conclusion that the effect of the appointment of a guardian would be that authority under an appointment of enduring guardians would be suspended, the Tribunal neither made an order to that effect, nor based its decision to appoint a guardian for AS on that conclusion. All the Tribunal did in that respect was to decide to appoint a guardian because of the uncertainty that it had found to exist by reason of CS and SS having claimed authority under their appointment as enduring guardians. The uncertainty was a reason why the Tribunal appointed a guardian. The Tribunal thought the appointment would remove the uncertainty, because authority under the enduring guardian appointment would be suspended, but even if that understanding proved to be false, that would complicate the exercise of the guardian’s powers, but would not be a reason not to appoint the guardian.

Consequently, not only did the Tribunal not make an error of law in relation to the suspension of the appointment of enduring guardians, but the issue was immaterial to the orders actually made by the Tribunal, even if its view of the law was arguably wrong.

Prayer 4 sought by AS in the summons is a declaration affirming the ongoing powers and authorities of the power of attorney to the enduring guardians for the function decisions not under guardianship orders. That is not relief that arises out of any appeal from the orders made by the Tribunal. It may be that this Court has jurisdiction, in properly constituted original proceedings, to make a declaration of right as to whether a party who has been appointed as enduring guardian of a person the subject of a guardianship order may exercise a function given to that party under the appointment of enduring guardian but not given to the guardian by the guardianship order. It is not necessary to consider that question. It is not a matter that arises on the appeal, and, at the least, the persons who claimed the right to exercise the function would have to be parties to the proceedings.

The last question that arises for consideration is separate question (c) made on 16 June 2021, being whether AS should be granted leave to appeal on a ground other than a question of law.

I am satisfied that AS should not be granted leave to appeal from the orders of the Tribunal.

As noted by Lindsay J in C v W (above) at [44], 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.

I am satisfied that the Tribunal clearly understood its role and the approach that it was required to adopt. It adequately reviewed all of the evidence and gave properly considered reasons. The Tribunal exercised a proper balance in considering the evidence, and the conclusion that it reached was a rational one that was available on the evidence. There is no proper reason why this Court should grant leave to appeal from the orders of the Tribunal.

I consider that the conclusions that the Tribunal reached were entirely justifiable. As the transcript of the hearing before the Tribunal was not put in evidence, the Court is not in a position to know the entirety of the material upon which the Tribunal based its reasons. However, the Court did have the evidence of the St Vincent’s Hospital 14 December 2020 discharge summary for AS, which noted that AS had a history of suicidal ideation and that her emotional dysregulation had proved difficult to manage by carers and her previous legal guardian, who was SS. Three different NDIS care providers had withdrawn due to ongoing behavioural management issues. The discharge summary included:

The reference to DQS is a reference to Disability Quality Services, who provided short-term accommodation to AS after she was discharged from hospital. By correspondence to the NDIS Specialist Support Coordinator dated 4 January 2021, DQS explained why it had made a decision not to continue to provide services for AS after 20 January 2021. The correspondence included:

I have not attempted to set out all of the relevant evidence, as that is not the task of this Court, but it is to be noted that the Tribunal said at [119] that there “can be no disagreement that [AS’] welfare and interests are not served by further instability or conflict regarding her accommodation and support circumstances”. It was in this context that the Tribunal made its observations about CS’ inability to act as a satisfactory guardian because of her lack of insight and her inability to acknowledge any shortcomings in the way in which she had previously dealt with differences in opinions or concerns about [AS’] care and support. Significantly, the Tribunal said at [122]:

The Tribunal concluded at [124] that, as it was not satisfied that CS met the requirements to be appointed guardian for AS with any functions, there was no private person available to be appointed guardian, and accordingly the Tribunal appointed the Public Guardian with all of the functions of the order.

The Tribunal was entitled on the evidence before it, so far as that evidence has been disclosed in these proceedings, to make the findings and the orders that it made.

The application made by the Public Guardian was an order that AS’ summons be dismissed. The Public Guardian did not ask for an order for costs against AS and I will assume that no such order is sought, unless my Associate is advised to the contrary.

The order of the Court in respect of the separate questions is:

Consequently, the Court makes the following additional order: