ADU[2024] QCAT 77

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This proceeding relates to a woman aged 85. Her identity must not be disclosed,^[1] so she will be referred to only as ADU in these reasons. She has a son, who is her only child. To protect the identity of ADU, the son will be referred to as SNA. ADU was admitted to hospital on 8 September 2023. There have been efforts to discharge ADU into an aged care facility, however (at last report) she remains in hospital. 
2. [2]
   The particular proceeding addressed in these reasons is an application by SNA for variation or revocation of confidentiality orders made by the tribunal on 11 December 2023. The confidentiality orders were made in the course of substantive proceedings which are part-heard. The substantive proceedings are for the appointment of an administrator and a guardian for ADU, and about an enduring power of attorney made by ADU on 31 August 2023. ADU appointed SNA as attorney, with ADU’s niece’s husband, NPA, as successive attorney.
3. [3]
   Essentially, a hospital social worker seeks the appointment of the Public Trustee as administrator and the Public Guardian as guardian for ADU, overtaking the powers of the attorney. Elder abuse by SNA is alleged. There is a tribunal-initiated application for an order about the enduring power of attorney, as the validity of the enduring document has been disputed. SNA opposes the appointment of the Public Trustee and the Public Guardian. He contends that if a substitute decision-maker for ADU is required, it should be him as attorney. Alternatively, SNA says, if the enduring power of attorney is declared invalid by the tribunal, he should be appointed as guardian and ADU’s accountant should be appointed as administrator. (However, the accountant has not advised the tribunal that he is willing to accept appointment).
4. [4]
   The tribunal hearing began on 11 December 2023 before another member. That member subsequently became unavailable, and the hearing resumed before me on 11 January 2024. Unfortunately, ADU was unable to attend as she had recently suffered a further stroke. The hearing will resume on 8 March 2024. Hopefully ADU will be able to attend then.
5. [5]
   In September 2023, a member of the tribunal had made a pre-hearing confidentiality order to the effect that SNA and NPA (in the event he became an active party) were not entitled to access documents on the tribunal’s file before the hearing. That was stated to be a pre-hearing confidentiality order under section 110(1) of the Guardianship and Administration Act. Such orders are automatically vacated at the start of the hearing: section 110(2).
6. [6]
   On 11 December 2023, the member conducting the hearing decided to make confidentiality orders. These were expressed to be under section 109 of the Guardianship and Administration Act. That section permits the tribunal to make a confidentiality order rather than merely a confidentiality order before a hearing. Relevant parts of sections 109 and 110 are set out below:

109  Confidentiality order

1. If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a confidentiality order)—
   1. (a)
      withhold from an active party or other person a document, or part of a document, before the tribunal; or
   2. (b)
      withhold from an active party or other person other information before the tribunal.
2. To the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.
3. The tribunal may make a confidentiality order on its own initiative or on the application of an active party.
4. Also, the tribunal may make a confidentiality order in relation to a document or other information on the application of the entity who prepared or provided the document or other information.

…

110  Non-publication or confidentiality order made before hearing

1. In a proceeding, a non-publication order or confidentiality order may be made before a hearing of the proceeding starts.
2. However, a non-publication order or confidentiality order made before a hearing is vacated at the start of the hearing.

…

7. [7]
   The confidentiality orders made on 11 December 2023 prohibit the disclosure of certain documents on the tribunal’s file to SNA, SNA’s lawyer, and NPA. Further, they prohibit other active parties from divulging the contents of those documents to SNA.
8. [8]
   Section 119 of the Guardianship and Administration Act explains who active parties are. In the present case, the active parties are ADU, the hospital social worker who is the applicant in some of the proceedings, SNA, the Public Guardian, and the Public Trustee. Two hospital social workers have been involved: the original hospital applicant, and the current social worker who has replaced the original hospital applicant as applicant in certain proceedings.
9. [9]
   The documents which are the subject of the confidentiality orders are:

   1. H1 (application form by original hospital applicant for the appointment of an administrator and a guardian);
   2. H2 (application for a confidentiality order by the original hospital applicant);
   3. H3 (application for an interim order by the original hospital applicant);
   4. H4 (email containing submissions by the original hospital applicant in relation to the application for an interim order);
   5. M1 (health professional report by a hospital doctor);
   6. M2 (notes by a hospital occupational therapist);
   7. M3 (notes by another hospital occupational therapist); and
   8. M4 (social work report by the original hospital applicant).
10. [10]
    The member gave oral reasons on 11 December 2023 for making the confidentiality orders. In summary:

    1. there are a number of later documents on the tribunal’s file from alternate sources, available to SNA, which give a clear indication of the nature of the concerns raised against SNA;
    2. there are substantiated indications of physical violence and threats of violence by SNA;
    3. SNA has been the respondent in a number of domestic violence orders made to protect ADU;
    4. there are domestic violence proceedings on foot;
    5. there is evidence that a bank teller has been assaulted by SNA; and
    6. the documents in question need to be withheld to avoid a serious risk of harm and injustice to people, even after taking into account the principles of procedural fairness and the requirement to give active parties a reasonable opportunity to present their case and to access (subject to any confidentiality order) relevant documents.
11. [11]
    At the resumed hearing on 11 January 2024, SNA applied for the revocation or variation of the confidentiality orders. He primarily seeks revocation of the confidentiality orders. Failing that, he seeks variation such that the documents are accessible by him in a redacted form.
12. [12]
    I made directions for that application to be decided on the papers, after the filing of written submissions. Submissions have been filed by SNA’s counsel Mr Crofton, dated 18 January 2024, and by Ms McMahon on behalf of the Gold Coast Hospital and Health Service (‘Hospital Service’), dated 7 February 2024. The Hospital Service is not an active party in the proceedings. However, the tribunal may inform itself in any way it considers appropriate.^[2] I consider it proper to hear from the Hospital Service, whose employees have created the documents in question. Also, I note that any entity that would be adversely affected by a proposed confidentiality order has standing to be heard in relation to the making of the order.^[3] By analogy, it is desirable to hear from an entity whose staff may be adversely affected by the revocation or relaxation of a confidentiality order.

Can the tribunal change the confidentiality orders made on 11 December 2023?

13. [13]
    The confidentiality orders made on 11 December 2023 were made under section 109 of the Guardianship and Administration Act. They were not pre-hearing orders under section 110.
14. [14]
    The 11 December 2023 orders were a ‘final decision’ as defined in Schedule 3 to the QCAT Act, relevantly ‘a decision that finally decides the matters the subject of the proceeding’: the proceeding being the application by the original hospital applicant for a confidentiality order.
15. [15]
    The Hospital Service argues that the decision cannot be disturbed except by way of an appeal, or through one of the other limited avenues provided for in the QCAT Act such as reopening. It is common ground that there has been no appeal. Reopening would be available only if a ‘reopening ground’ as defined in Schedule 3 to the QCAT Act was established. The Hospital Service points out that the required procedure for a reopening application has not been followed. It further submits that, in any event, a reopening ground is not established.
16. [16]
    Mr Crofton’s submissions emphasise the importance of procedural fairness, and the tribunal’s obligations to act fairly and to observe the rules of natural justice.^[4] Further, the tribunal must take all reasonable steps to ensure each party understands the nature of the assertions made in a proceeding.^[5]
17. [17]
    To those provisions, I would add subsection 130(1) of the Guardianship and Administration Act. It requires the tribunal to ‘ensure, as far as it considers it practicable, it has all the relevant information …’. In a case where the tribunal is being invited to appoint an administrator and a guardian, and to remove an attorney’s powers, relevant information surely includes the attorney’s answers (whether ultimately accepted or rejected) to allegations that they are unsuitable. This is not so much for the attorney’s sake, but the adult’s. A properly informed decision is obviously desirable for the adult’s sake. Further, the views, wishes and preferences of the adult must be considered.^[6] ADU’s wish is for SNA to be her substitute decision-maker if she requires one. This has been expressed not only in the enduring document itself, but also repeatedly since by ADU. That choice should be removed from ADU, if that is the ultimate decision, only after a hearing process in which all active parties have a proper say. SNA cannot answer the allegations properly if he does not get to see them. Of course the tribunal can attempt to summarise concerns to him, to the extent consistent with the confidentiality orders, but in that process there is a loss and degradation of detail, tone, nuance and so on. Further, such a summary given at a hearing would leave SNA little opportunity to gather any documents or assemble any witnesses. 
18. [18]
    At the hearing on 11 December 2023, SNA was represented by Mr Dwyer, a solicitor. Subsequently, Mr Crofton, a barrister, has been engaged, instructed by Mr Dwyer. Mr Crofton notes in his submissions that Mr Dwyer was given the opportunity to make submissions on 11 December 2023 about whether a confidentiality order should be made, but his request to see the documents including the application for a confidentiality order (even if the documents could not be shown to SNA) was refused. Mr Crofton submits that this involved a denial of procedural fairness to SNA. He did not have a proper opportunity to respond to the application for a confidentiality order. He did not know what contentions were advanced in the application. This meant, Mr Crofton submits, that there was jurisdictional error, and the confidentiality orders made on 11 December 2023 are of no effect.
19. [19]
    The Hospital Service submits to the contrary, noting the flexible nature of procedural fairness, and the extent to which the rules of natural justice can be modified by statute.
20. [20]
    I do not consider it necessary to decide the jurisdictional error point. I do pause to observe, though, that when party A seeks a confidentiality order prohibiting disclosure of a document to party B, it will often be difficult if not impossible to afford full procedural fairness to B, in the sense of disclosing the document to B so that B can make submissions about whether a confidentiality order should be made. Such disclosure would circumvent the proposed confidentiality order. Perhaps a solution is disclosure to a legal representative for B, if there is one, subject to a non-disclosure condition to operate if a confidentiality order is made.  
21. [21]
    I am of the view that a confidentiality order, even though not expressed to be only ‘until further order’, can be revoked or amended. This is because a confidentiality order is procedural in nature, rather than a determination of inter-party rights that must be regarded as immutable in the interests of finality.
22. [22]
    A confidentiality order displaces the right of an active party to access relevant documents, as noted in section 103 of the Guardianship and Administration Act:

103  Access

1. Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and, in particular—

1. to access, before the start of a hearing, a document before the tribunal that the tribunal considers is relevant to an issue in the proceeding; and

2. to access, during a hearing, a document or other information before the tribunal that the tribunal considers is credible, relevant and significant to an issue in the proceeding; and

3. to make submissions about a document or other information accessed under this subsection.

2. Each active party in a proceeding, or person the tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access, within a reasonable time after a hearing, a document before the tribunal that the tribunal considered credible, relevant and significant to an issue in the proceeding.

…

5. The tribunal may displace the right to access a document or other information only by a confidentiality order.

…

23. [23]
    The tribunal has ongoing obligations to ensure there is fairness and natural justice, that parties understand the nature of assertions made in the proceeding, and that the tribunal has relevant information to make an informed decision. I do not think it can have been Parliament’s intention that a confidentiality order must be fixed and inflexible. Circumstances can change in the course of a proceeding. A risk of harm may reduce for one reason or another. A member might realise that a confidentiality order was made in more limiting terms than is necessary, as the member gains more insight in the course of a hearing into the motives and personalities of parties. A member might come to recognise that they made the wrong call in restricting a party’s access to documents, at the expense of procedural fairness. And so on.
24. [24]
    It should therefore be open to a member, or a later member, to revoke or vary a confidentiality order.
25. [25]
    I am not aware of any authorities directly on point. I note that in HFI,^[7] the tribunal concluded that it had power to make a confidentiality order over documents filed in an earlier proceeding, even though there was no current proceeding apart from the application for a confidentiality order. This is broadly consistent with my sense that the power to make a confidentiality order is a flexible procedural power.
26. [26]
    I therefore conclude that I can revoke or vary the confidentiality orders made on 11 December 2023.

Should the confidentiality orders stand or be revoked or varied?

27. [27]
    The application for a confidentiality order was filed by the original hospital applicant on 19 September 2023. It sought orders that the proceedings be kept confidential from SNA, or at least that documents not be disclosed to him. In response to a question about how disclosure of documents would cause serious harm or injustice, the applicant said:

[SNA] is known to be a violent and abusive person who has perpetrated longstanding high risk elder abuse toward the Adult and has made threats of harm to those close to the Adult. The Adult, friend, relatives and staff would be at increased risk of harm from this person.^[8]

28. [28]
    Further, the applicant said:

Due to [SNA’s] behaviour in the context of elder abuse, previous alleged assault of a bank teller and threats of harm to [ADU's] friends and relatives, it is requested that this application is kept confidential so that the applicant (myself), the Adult and friends/relatives are not put at risk of harm from [SNA].

The applicant has been warned about [SNA’s] behaviour and to remain away from him due to his risk of escalation in violence when he hears about this application, as it will impact his financial position and access to [ADU’s] finances, assets and investments.

The applicant has been informed of previous threats of violence towards friends of [ADU], including threating to buy a gun if the … friend did not listen to his requests to stay away from [ADU]. [SNA] has further allegedly assaulted a bank teller when he was denied access [to ADU’s] bank account / finances.^[9]

If [SNA] hears about this application he is at risk of perpetrating increased violence towards the Adult and the staff of the hospital, including the applicant. A confidentiality order is requested to safe guard the Adult and the staff of the Public Hospital involved with the Adult.^[10]

29. [29]
    It is desirable to also make some observations about the other documents which are the subject of the confidentiality orders.
30. [30]
    The applications for the appointment of an administrator and a guardian, in H1, include allegations of SNA using ADU’s finances for his own requirements; attempting to coerce her to sign assets over into his name; and that SNA has ‘attempted to abscond the Adult out of the hospital’.^[11]
31. [31]
    ‘Abscond’ is a peculiar term in this context, as there is no suggestion that ADU is lawfully obliged to stay in hospital (for example under a mental health treatment authority). Further, it has been ADU’s repeated wish to live at home with her son when she leaves hospital.
32. [32]
    Allegations similar to those in H1 are found in the application for an interim order, which is H3, and in the submissions at H4. The documents imply that the only safe place for ADU to be discharged to is an aged care facility.
33. [33]
    M1 is health professional report by a hospital doctor dated 19 September 2023. It is on the standard QCAT form which is designed to elicit information about an adult’s decision-making capacity. The effect of the doctor’s opinion is that ADU has reduced decision-making capacity following a stroke. The only comments about SNA in the report are to the effect that he negatively influences ADU, referring to ‘evidence of coercion by the son for the patient to sign documents despite our insistence that she does not have capacity’.^[12]
34. [34]
    The social work report at M4 is dated 18 September 2023. Its includes allegations of various types of abuse perpetrated on ADU by SNA; that there have been multiple police protection notices issued but ADU has refused to press charges; there was a domestic violence order made for one week after SNA assaulted ADU with a shovel; and SNA arranged a phone call for ADU from hospital with a lawyer, giving rise to fears this was in an attempt to coerce her into changing her statement to police. It is said that a friend of ADU, whose name is given in the report, has said that SNA told her to mind her own business or he would call the police; and if they did nothing, he would buy a gun.
35. [35]
    It is apparent from the report that the social worker was unaware that ADU had appointed SNA as her attorney.
36. [36]
    The occupational therapy notes at M3 and M4 largely relate to whether ADU retains enough cognitive capacity to return home. They also discuss whether SNA can provide reliable support at home. They also contain observations about the manner and demeanour of ADU and SNA. He is described variously, for example, as withdrawn and intimidating.
37. [37]
    The above is not, of course, a comprehensive account of what is in the documents currently withheld from SNA. It is enough, though, to see that they are of central relevance and to appreciate that if some of the allegations are not satisfactorily answered by SNA there is a real chance that he could be stripped of any decision-making authority for ADU, contrary to his wishes and those of ADU.
38. [38]
    Other information has since been provided to the tribunal from various sources. This includes a copy of a police protection notice dated 5 September 2023. It outlines a history of SNA and ADU co-residing and of him yelling and screaming at her. Police had attended the house many times. The one-week protection order had come about, it is said, after ADU stated she was regularly assaulted by SNA and that property damage, which police observed, had occurred.
39. [39]
    There is a current temporary protection order made by the Magistrates Court, by consent and without admissions, pending a hearing. The hearing is expected sometime this month. The temporary order prevents SNA from attending the premises where ADU lives.
40. [40]
    The Public Trustee, which is interim administrator for ADU, has advised that ADU’s home is jointly owned by SNA and ADU. Further, there are or have been other jointly owned properties.
41. [41]
    I have not been able to find any further information on the tribunal’s file relating to an alleged assault on a bank teller. Presumably this would have resulted in a charge, if the allegation is accurate, and it probably would have been mentioned by the police in the protection notice material. In the circumstances, I place little weight on this allegation.
42. [42]
    Further, the references in the application for a confidentiality order to risks to friends (plural) and relatives does not seem consistent with the details provided, which seem to be limited to the alleged threat to the friend of ADU. Nor is it apparent why SNA might harm ADU upon becoming aware of the proceedings. In any event, SNA has now been aware of the proceedings for several months.
43. [43]
    Other information contained in documents filed since the original applications were filed includes:

    1. in January 2023, ADU transferred control of an asset-rich family trust from herself to SNA;
    2. the accountant who facilitated that transaction has advised the Public Guardian that ADU was clear about her intention;
    3. according to the accountant, ADU explained the transfer by saying ‘she was getting old and finding it harder to keep on top of things’;^[13]
    4. there are or have been a number of bank accounts held jointly by ADU and SNA containing significant funds; and
    5. in November 2022, presumably in the context of an investigation by the Public Guardian in which an interview was being contemplated, a police inspector emailed a Public Guardian officer saying that SNA:

does not have any history of violence other than the behaviour directed towards his mother. I consider that [SNA], if present, will be argumentative and obstructive to attempts to engage with [ADU]. Based on his reported history, it is unlikely he would be violent to your staff members.^[14]

44. [44]
    ADU has referred to SNA as having mental problems and attention deficit hyperactivity disorder,^[15] but I do not know if that is accurate.
45. [45]
    It can be seen that the picture as it appeared to the original hospital applicant in September 2023, of a son attempting to coerce his vulnerable mother into transferring her wealth to him, may not have been a full picture. Unknown to the original hospital applicant, ADU and SNA have some history of shared wealth; there was an earlier transfer of control over significant assets from ADU to SNA; and ADU had appointed him as her attorney prior to her current admission.
46. [46]
    I note that the current hospital social worker for ADU, who is now the hospital applicant in the tribunal proceedings, has attended and spoken at two sessions of tribunal hearings which SNA has also attended. It has not been suggested that he has tried to harm her on visits to the hospital. At the hearing on 11 January 2024, the social worker commented that the hospital can remove SNA if he threatens staff. She mentioned that he had been removed the previous day (though the reason for this was not explored).
47. [47]
    The Hospital Service submits, in effect, that for various reasons some of the documents in question do not need to be disclosed to SNA. For example, the Hospital Service points out that ADU is to undergo a further capacity assessment, and submits that the report from that assessment will be much more relevant than the September 2023 doctor’s report (M1). I acknowledge that ADU’s capacity at the time of the tribunal’s decision is what must be evaluated. That does not, mean, however, that past reports become irrelevant. They can remain highly relevant, particularly if there is a divergence of opinion.
48. [48]
    The Hospital Service notes that some of the documents concern applications that are no longer current. However, in my view they remain relevant as part of the narrative. They are the types of documents that a diligent party would normally examine to see if there are inconsistencies with other documents, signs of ulterior motive, and so on. 
49. [49]
    In respect of any documents disclosed to SNA, the Hospital Service says it should be with redaction of staff names and of the name of the person who reported the gun comment. The Hospital Service notes that in BNA,^[16] the tribunal saw fit to make a confidentiality order in broadly similar circumstances. The tribunal observed in that case that professional staff are unlikely to act capriciously or maliciously.
50. [50]
    I accept that in most circumstances professional staff act professionally. Nonetheless, it is usual and important for professionals to be identified in material used in courts and tribunals. Occasionally, there are professionals who are biased, or who dislike a party, or who have some tarnish on their record that may reflect upon their reliability. If a party to a proceeding does not know the identity of the professional making an assertion, they have no way of making what might well be a valid criticism of the professional’s evidence.
51. [51]
    I consider that H1 to H4 and M1 to M4 are highly relevant documents that must be available to SNA in full unless there is a sound basis for making a confidentiality order. The fact that other documents of a similar nature are available to SNA is immaterial. In any event, in my view, the other documents generally give only a flavour of some of the concerns. Access to other documents is not a substitute for access to core documents.
52. [52]
    I have earlier quoted section 109 of the Guardianship and Administration Act, which contains the relevant criteria. A confidentiality order can be made only, relevantly, if it is necessary to avoid serious harm to a person. Section 104 of the Guardianship and Administration Act must be borne in mind, as a confidentiality order is a type of ‘limitation order’:^[17]

104  Basis of consideration for limitation order

1. In considering whether to make a limitation order, the tribunal must take as the basis of its consideration—
   1. (a)
      that each active party in the proceeding is entitled to access a document or other information before the tribunal that is credible, relevant and significant to an issue in the proceeding; and
   2. (b)
      that it is desirable that tribunal hearings be held in public and be able to be publicly reported.
2. For subsection (1), something is relevant only if it is directly relevant.

53. [53]
    In the present case, the relevant question is whether, if he sees the documents, SNA is likely to cause serious harm in reprisal against hospital staff or his mother’s friend who have said adverse things about him. ‘Serious harm’ is not defined. Clearly it would cover physical harm, but intimidation that causes genuine fear could also be serious harm.
54. [54]
    The Hospital Service makes the point that SNA has not provided evidence or even reassurance that that there is no risk of serious harm if the confidentiality order is revoked. I accept that SNA would have an idea of at least some of the assertions made against him: he would know that the hospital is aware of the domestic violence proceedings, and I made mention of some of the concerns in written reasons dated 15 January 2024. However, overall, I do not consider that SNA can be expected to respond to allegations he is only broadly and partially informed about. 
55. [55]
    I consider it is not likely that SNA would cause serious harm if he has access to the documents in question. The material overall on the tribunal’s file suggests he can be an intemperate person who can issue impulsive threats under pressure. His conduct towards his mother was enough to convince a court to make a protection order against him, though notably for only a one-week period. He is also currently subject to a temporary protection order, by consent. However, he has never been charged with an offence to my knowledge. There is no suggestion he has made a threat to harm anyone who associates themselves with proceedings such as the ones before the tribunal. The comment about the gun, while reprehensible if true, appears to have been an intemperate threat that he did not follow through on. A police inspector in late 2022 characterised him as difficult but not dangerous to staff of an agency.
56. [56]
    I am not satisfied that a confidentiality order is necessary to avoid serious harm perpetrated by SNA. The continuation of the existing confidentiality orders gravely impedes SNA’s ability to present his case. It prevents the tribunal from making a properly informed decision in the substantive proceedings.
57. [57]
    It was not explained in the member’s reasons on 11 December 2023 why the confidentiality orders extended to NPA, who is the successive attorney. Presumably, the concern may have been that as a relative by marriage, he might pass on documents to SNA. As I have reached the conclusion that SNA should have access to the documents, there is no reason to prohibit their disclosure to NPA.

Conclusion

58. [58]
    Accordingly, I have decided to revoke the confidentiality orders.