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SS v Public Guardian[2015] QCATA 142

SS v Public Guardian[2015] QCATA 142

CITATION:

SS v Public Guardian [2015] QCATA 142

PARTIES:

SS

(Appellant)

v

Public Guardian

(Respondent)

APPLICATION NUMBER:

APL522-14

MATTER TYPE:

Appeals

HEARING DATE:

7 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Browne

DELIVERED ON:

21 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal allowed.
  2. The decision of 28 October 2014 is set aside.
  3. The application for review of the appointment of a guardian is returned to the Tribunal for reconsideration according to law.
  4. The application for review of the appointment of a guardian is listed for a directions hearing on a date to be advised.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – where guardian appointed – where application received to review the appointment of the guardian – where applicant raised issues about competency of the guardian – where tribunal found there have been no issues raised by the applicant which show the guardian is not competent – where the Tribunal continued the appointment of the guardian – whether tribunal gave adequate reasons – whether tribunal misdirected itself on the evidence –  whether grounds for leave to appeal

Guardianship and Administration Act 2000 (Qld), s 12, s 15, s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147

Camden v McKenzie (2008) 1 Qd R 39; cited

Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348; cited

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462; cited

Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183; cited

To v Choi [2013] QCATA 27; cited

REPRESENTATIVES:

APPLICANT:

SS represented by Mr C Templeton of Counsel appearing pro-bono, instructed by Sparke Helmore Lawyers

RESPONDENT:

Public Guardian represented by Mr T Brown, Acting Regional Manager of the Office of the Public Guardian

REASONS FOR DECISION

  1. [1]
    SM is 85 years old and no longer has the capacity to make decisions. Because there was a need for decisions to be made about SM’s personal matters, the Tribunal appointed the public guardian as her guardian.[1]
  2. [2]
    SM’s daughter, SS, was not happy with the decisions made by the public guardian. SS had concerns about her mother’s accommodation and the decision made that her mother permanently live in the Carramar aged care facility (not Erowal aged care facility).
  3. [3]
    SS also had concerns about the public guardian’s failure to investigate an incident involving physical contact with SM at Carramar on 21 January 2014; and the public guardian’s decision to implement a contact plan following the incident on 21 January 2014 without consulting the family of SM.
  4. [4]
    SS wanted the Tribunal to review the appointment of a guardian because she said the public guardian was no longer competent. SS wanted the Tribunal to order the removal of the public guardian and appoint her as her mother’s guardian.
  5. [5]
    The Tribunal made an order that the appointment of the public guardian continue.[2]
  6. [6]
    SS wants to appeal that decision.[3] At the oral hearing, Mr Templeton of Counsel appearing for SS narrowed the grounds of appeal to grounds that raise questions of law and questions of mixed fact and law for which leave is required. The grounds of appeal together with submissions relied upon are contained in the written submission prepared and filed by Mr Templeton.[4] In the written submissions, Mr Templeton submits that it is convenient to address the grounds that raise questions of law first.[5]
  7. [7]
    The grounds of appeal that raise questions of law concern whether the Tribunal failed to give adequate reasons. There is a further ground that the Tribunal failed to afford procedural fairness to SS by denying her the opportunity to present evidence at the hearing. The grounds of appeal that raise questions of mixed fact and law for which leave is required relate to the Tribunal’s findings about the investigation by the public guardian of the incident at Carramar on 21 January 2014, the permanent accommodation decision that SM reside in Carramar; and the public guardian’s decision to implement the contact plan. SS submits that the Tribunal failed to ultimately find that the public guardian is no longer competent.

Did the Tribunal give adequate reasons for its decision?

  1. [8]
    It is settled law that a tribunal is not required to mimic the way a court gives its reasons[6] and the ‘adequacy’ of its reasons must be viewed in light of the nature of the proceedings of the tribunal and its work.[7] Adequate reasons should refer to the evidence which was important to the determination of the matter, set out material findings of fact, give reasons for the findings of fact and state the reason or basis for the decision maker preferring one body of evidence over another competing body of evidence.[8]
  2. [9]
    SS says that the Tribunal had the benefit at the hearing of extensive written submissions and the Tribunal delivered written reasons some three months after the hearing.[9] SS says that the Tribunal did not ‘sufficiently articulate’ its findings that the public guardian was no longer competent.[10]
  3. [10]
    In this case, the Tribunal has set out the relevant law. It correctly found that in reviewing the appointment of a guardian s 31 of the Guardianship and Administration Act 2009 (Qld) (G&A Act) requires the Tribunal to revoke its order making the appointment (of a guardian) unless it is satisfied it would make an appointment if a new application were to be made.[11] It found the Tribunal may only order the removal of the public guardian if it considers the public guardian is no longer competent or another person is more appropriate for appointment.[12]
  4. [11]
    The Tribunal’s reasons identify the relevant issues to be determined for the purposes of s 12 of the G&A Act as to whether or not SM has impaired capacity for personal matters; whether there is a need for a guardian; and if so who should be appointed.[13] The Tribunal found that SM does not have capacity to make personal decisions.[14]
  5. [12]
    The Tribunal has addressed the issue of need for the appointment of a guardian in [13] to [22] (inclusive) of its decision. The Tribunal’s findings relevant to determining whether the appointment of the public guardian should continue appear in [21] of the reasons:

[21] It is clear that the Public Guardian has had some issues with the accommodation decision in terms of the lack of monitoring of SM while in respite and there needs to be a mechanism to ensure family members have the ability to raise issues in regard to SM’s care and be assured there will be a timely response. There have been no issues raised by SS though which show that the Public Guardian is not competent. SS would say that she is more appropriate. This is not supported by her family who continue to be in conflict with her and the Tribunal does not consider that SS’s interpretation of her mother’s behaviour in terms of indicating a need for another accommodation decision is correct. The Public Guardian will consult with all family members and is available when decisions need to be made. The Tribunal is not satisfied that SS is more appropriate than the Public Guardian. While she wants the best for her mother her ability to consult with her family and her insight into her mother’s needs may not be accurate.[15]

  1. [13]
    The transcript shows that SS identified several issues in support of her application that the guardian has acted incompetently in making decisions for her mother:[16]
    1. a)
      The respite accommodation decision;
    2. b)
      the decision not to obtain independent monitoring and assessment during the period of respite to inform the permanent accommodation decision process;
    3. c)
      the permanent accommodation decision;
    4. d)
      the decision not to investigate the allegation of the use of unreasonable force on SM (the incident on 21 January 2014);
    5. e)
      the decision about contact;
    6. f)
      the decision to trial the medication Aricept in SM’s home in January 2013.    
  2. [14]
    The Tribunal’s reasons do not identify the issues of competency raised by SS and its findings made about those issues. The findings of fact are relevant to determining whether, for the purposes of s 31 of the G&A Act, the public guardian is competent or another person is more appropriate for appointment. The issues of competency raised by SS were important questions which required the Tribunal to make findings about because SS made an application seeking an order that the public guardian be removed and she be appointed as her mother’s guardian.
  3. [15]
    The Tribunal’s reasons do not identify the necessary findings of fact to determine there have been no issues raised by SS which show the public guardian is not competent. Because the reasons do not identify its findings of fact the reasons are inadequate and the appeal should be allowed.

Conclusion

  1. [16]
    We have found that there was an error of law. The Tribunal did not provide adequate reasons for its decision. The Tribunal did not address all of the issues raised by SS at the hearing and its findings of fact to ultimately find that there have been no issues raised which show that the public guardian is not competent, or another person is more appropriate for appointment. Because the reasons are inadequate the appeal is allowed. The matter should be remitted to the Tribunal for reconsideration. In the reconsideration the parties will be given an opportunity to submit fresh evidence and make fresh submissions.
  2. [17]
    Because we have found there is an error it is not necessary to address the other grounds of appeal as those involve factual issues arising in the decision set aside by this decision and which may be the subject of fresh evidence at the reconsideration.

Footnotes

[1]  Order made on 19 June 2012 appointing the adult guardian (now the public guardian) to make decisions about accommodation, with whom SM has contact and/or visits, health care and provision of services, to be reviewed in five (5) years.

[2] SM [2014] QCAT 596.

[3]  Filed 28 November 2014 and as amended by Appeal Tribunal Directions dated 17 June 2015.

[4]  Appellant’s submissions dated 7 September 2015.

[5]  Ibid, [14].

[6] Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183, [61]. See Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348, [19].

[7] Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462. See To v Choi [2013] QCATA 27, [24].

[8] Camden v McKenzie (2008) 1 Qd R 39, [47].

[9]  Appellant’s submissions dated 7 September 2015, [19].

[10]  Ibid [22].

[11]  Reasons for decision, [5].

[12] Guardianship and Administration Act 2009 (Qld), see reasons for decision [6].

[13]  Ibid, [5].

[14]  Ibid, [12].

[15]  Ibid, [21].

[16]  T1-34.

Close

Editorial Notes

  • Published Case Name:

    SS v Public Guardian

  • Shortened Case Name:

    SS v Public Guardian

  • MNC:

    [2015] QCATA 142

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Browne

  • Date:

    21 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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