PSE v Public Guardian[2021] QCATA 10

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   PSE has filed an application for leave to appeal and appeal a decision of the Tribunal which, on 5 December 2017, decided to continue the appointment of the Public Guardian as guardian for PSE’s son, LBN, for decisions about the following personal matters:

   1. (a)
      Accommodation;
   2. (b)
      With whom LBN has contact and/or visits;
   3. (c)
      Health care; and
   4. (d)
      Provision of services including in relation to the National Disability Insurance Scheme.

This appointment was reviewable and was to be reviewed in one year.

2. [2]
   We have considered the application for leave to appeal or appeal, the submissions filed by the applicant and received by the Appeal Tribunal on 10 July 2018 (including the documents provided with the submissions) as well as the oral submissions made at the hearing. We have also considered the transcript of the Tribunal hearing and the transcript of the oral reasons provided to the Tribunal. The respondents did not make submissions in the appeal. 

Legislative Framework

3. [3]
   An appeal on a question of law is as of right.^[1] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.^[2]
4. [4]
   The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision;^[3] Is there a reasonable prospect that the applicant will obtain substantive relief;^[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error;^[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.^[6]

The Appeal

5. [5]
   While we have dealt with each of PSE’s arguments regarding the errors PSE claims were made by the Tribunal in conducting the hearing and in the reasons for decision, we consider that PSE’s grounds of appeal are encapsulated in the following statement from PSE’s application for leave to appeal and appeal:

I was not given opportunity to respond to [SL’s] false claims. SL is not a medical doctor and is not qualified to comment about anyone’s mental state. She is not a doctor of psychiatry.

6. [6]
   Essentially, PSE argues that the hearing was not a fair hearing. PSE says neither she nor the witnesses she made available to the Tribunal were given a proper opportunity to respond to evidence adverse to her position and it was this evidence that the Tribunal accepted and relied upon in reaching its decision. We consider the Appeal Tribunal in PL v PT & Ors^[7] succinctly captured the law in relation to the fair hearing rule in the context of a guardianship proceeding:

The purpose of a hearing is for the tribunal to determine the application/s before it. The tribunal must observe natural justice in determining applications.^[8] The requirements are flexible and the steps required depend upon the applicable legislative framework.^[9] However, in essence parties must be given a fair hearing and the decision must not be tainted by bias, either actual or apprehended. … The fair hearing rule requires, at its heart, that a party has the opportunity to know the relevant, credible and significant evidence relied upon against him/her, and the opportunity to present his/her case, test the evidence and make submissions.

The procedure adopted in any hearing is within the tribunal’s discretion.^[10] A greater or lesser degree of informality may be appropriate, as may be in keeping with a proper consideration of the matters to be determined in the particular case.^[11] Hearings of applications under the Guardianship Act are inquisitorial in nature. It is appropriate to outline at the commencement the issues required to be determined according to the legislative framework (although it is not necessary to talk about the particular sections that are relevant) and then to systematically consider the relevant issues for determination. Because there are no respondents to the applications who, in other types of applications outside the guardianship jurisdiction of QCAT, would put forward evidence contrary to the applicant’s evidence, the member hearing the proceeding has the responsibility to ensure, as far as the Tribunal considers it practicable, that QCAT has all relevant information when hearing and deciding applications.^[12] In doing so, it must appropriately raise issues, and test the available evidence.^[13]

7. [7]
   Failure to accord procedural fairness is an error of law. Leave to appeal is not required if the Tribunal has made a legal error.
8. [8]
   In summary, we have concluded that the Tribunal below conducted a fair hearing. Further, we could find no error in how the Tribunal weighed the evidence before it and the findings made by the Tribunal were, in our view, supported by the evidence.
9. [9]
   Turning then to each of PSE’s claims in turn. At the hearing PSE relied upon Dr W’s evidence. PSE claims Dr W was not given a proper opportunity to respond to the information provided by SL. PSE says this was due to Dr W having to leave the hearing to attend to patients and because the learned Member prevented PSE from providing a full response. At the hearing before us, PSE claimed that she was cut off by the learned Member and was unable to properly present her case.
10. [10]
    We have carefully perused the transcript. Dr W was present for almost the entire hearing. We accept that SL continued to provide information to the Tribunal after Dr W had left the hearing. However, Dr W was given sufficient opportunity to provide information to the Tribunal. Dr W expressed his opinion about whether LBN was malnourished and/or underweight.^[14] Dr W agreed LBN was underweight but said that was due to his cerebral palsy and not because LBN was malnourished.^[15] Dr W spoke about the regularity with which he saw LBN.^[16] Dr W told the Tribunal that he had seen LBN and PSE outside his clinic and had not witnessed what had occurred with the carers.^[17] Dr W gave evidence that he considered LBN to be happy and calm in PSE’s company.^[18] Dr W gave evidence regarding LBN’s treatment for pressure sores.^[19] Dr W expressed his opinion about the care LBN received from PSE and also expressed his view that PSE was the best person to care for LBN as a doting family member.^[20]
11. [11]
    PSE did not raise any concerns at the hearing that she had not been given sufficient opportunity to present her case. It is clear from the transcript that PSE asked the Tribunal  for an opportunity to comment at various times during the hearing.^[21] In response, the presiding Member said she would provide PSE that opportunity at a later time.^[22]  It is clear from the transcript that the presiding Member, in taking this approach, sought to efficiently and properly manage the hearing which involved eight participants, some of whom appeared in person and others of whom participated by telephone. We do not consider that the Tribunal prevented PSE from providing information to the Tribunal. PSE and Dr W were given a proper opportunity to provide the information they wished to the Tribunal.
12. [12]
    PSE says that what followed was that the learned Member accepted the ‘unqualified and incorrect claims of SL’ and should have preferred the evidence of Dr W and Dr T, both of whom had known LBN and PSE for many years.
13. [13]
    The Tribunal’s reasons reflect that the Tribunal accepted the medical evidence that upon admission to the facility where LBN resides he was ‘underweight with groin rashes, dehydrated and distressed.’ SL was not the source of that evidence although SL referred to it during the hearing. It is clear from the reasons that the Tribunal considered a range of reports including an assessment by a physiotherapist from the facility, a report from a hospital, a report from a dietician, and a report from the Nurse Unit Manager at the facility as well as the report from SL.^[23]  SL is an occupational therapist in the employ of the Department of Disability Services. SL is qualified to express opinions within her area of expertise which she did. At the hearing, another employee of the Department informed the Tribunal that any decisions of the Department were not made by SL and that SL as a single clinician would not make the decisions for the Department.^[24]
14. [14]
    It was open for the Tribunal to weigh all of the relevant evidence before it and accept the evidence it did regarding LBN’s health upon admission to the facility.
15. [15]
    The Tribunal relied on PSE’s own evidence that she did not have a mental illness as well as the fact that, at the time of the hearing, PSE was the subject of an involuntary treatment authority. The Tribunal reasoned that PSE’s lack of understanding of her mental illness meant that she may not apply the General Principles in making decisions for LBN and that as a result of her illness, which fluctuates, that PSE cannot consistently make decisions for LBN.^[25] The Tribunal accepted that PSE had cancelled support services for LBN. The Tribunal has relied on those findings to support its conclusion that, at the time of the hearing, there was no other person more appropriate for appointment than the Public Guardian. The Tribunal applied s 31(4) of the Guardianship and Administration Act 2000 (‘the GAA’) as it was required to do in the review of the appointment of the guardian for LBN.
16. [16]
    PSE claims that SL’s evidence regarding the care provided to LBN by PSE was false. As a result, PSE claims that she should be LBN’s guardian and he should reside with her. The evidence relied upon by the Tribunal was as outlined in the previous paragraphs. SL was not the source of all of that evidence. While Dr W’s opinions regarding LBN’s health and the level of care PSE provided to LBN differed from the other reports and evidence before the Tribunal, it is for the Tribunal to weigh the evidence and make its findings of fact. All of the relevant evidence was before the Tribunal. We do not consider that the Tribunal has erred in the way it has weighed that evidence. We can find no evidence that directly contradicts SL’s such that the Tribunal below or this Appeal Tribunal could be satisfied SL has given evidence that was untrue or unreliable. 
17. [17]
    PSE claims that the report of Ms N of the Office of the Public Guardian was also factually incorrect because it too relied on claims initiated by SL. It is claimed that the Public Guardian, staff of the Tribunal and Disability Services Queensland staff have all been misled by SL. 
18. [18]
    For the reasons already given we do not accept that the Public Guardian, the Tribunal or Disability Services Queensland have been misled by SL.
19. [19]
    PSE claims that the learned Member erred by failing to take into account the written signed statements from Dr W and Dr T who agreed with evidence from Dr B that PSE was not suffering a mental illness.
20. [20]
    It is clear that the Tribunal had read the reports of Dr W and Dr T.^[26] However, the Tribunal relied upon the fact that PSE was under an involuntary treatment authority and PSE’s own evidence regarding her admissions to hospital. Dr W gave evidence that he had not liaised with Dr T. Dr W gave evidence regarding the medication PSE was taking for her mental illness. Dr T’s letter which was referred to by the Tribunal in its reasons for decision states that Dr T has known PSE since 2011 and PSE has seen him regularly since January 2014. Dr T does not state in that report that PSE has not been diagnosed with a mental illness.^[27] Dr T and Dr W have reported that when they have seen PSE she has not presented with psychotic symptoms. Further, there are reports that indicate that at certain points in time, PSE was not suffering from a mental illness.^[28]
21. [21]
    We do not consider that the Tribunal has in any way misconstrued the evidence of PSE’s own doctors regarding her mental health or erred in relation to the findings made that PSE has been diagnosed with schizophrenia, was at the time of the hearing under an involuntary treatment authority and had been seen by her own psychiatrist since 2011  with admissions to hospital in 2011, 2012, 2013 and 2017. PSE’s evidence was not that she had not been admitted to hospital but that she had no symptoms of mental illness.^[29]
22. [22]
    PSE claims that the learned Member erred by failing to correctly interpret Dr W’s response to the learned Member’s question regarding fluctuations in mental health conditions generally. She relies upon a report by Dr W dated 1 June 2018. This report was not in existence at the time of the hearing. There has been no application to the Tribunal to adduce or rely upon new evidence. However, the report is consistent with the reports of Dr W that were before the Tribunal that PSE has never presented with psychotic or mental health symptoms to Dr W. While PSE may take issue with the Tribunal’s statement that her mental health fluctuates, in our view, the Tribunal has used this word to describe the fact that at the time of the hearing, PSE was subject to an involuntary treatment authority due to a mental illness and there had been previous admissions and a previous involuntary treatment authority as set out in the reasons but also periods where PSE did not present with psychotic symptoms. The previous involuntary treatment authority was revoked and there are reports evidencing periods of time where PSE was well. We do not consider that the Tribunal has interpreted Dr W’s reports or evidence at the hearing to mean that PSE experiences fluctuations in her mental health on a more regular day to day basis. The Tribunal has not made such a finding.^[30]
23. [23]
    PSE relies upon statements made by another Member in a hearing in May 2017 that PSE and LBN would not be separated. There was no evidence before the Tribunal as to what was said by the Member in the hearing conducted in May 2017. In any event, what was said by another Member on another day, hearing a different application, is not relevant. Members of the Tribunal cannot give evidence in another hearing. The transcript of the previous proceedings was not before the Tribunal and nor were the reasons given by the Member for the decision made at the previous hearing. The previous Member’s orders or final decision did not include any direction that PSE and LBN not be separated.
24. [24]
    PSE claims the Member failed to take into account the statements and evidence of CH, the investigations officer from Disability Services Queensland, claiming CH investigated SL’s claims and found them to be unjustified.
25. [25]
    CH did not give evidence at the hearing. However, the Tribunal heard evidence from RG, from Disability Services Queensland, that CH, when acting manager of clinical services, sought to withdraw the application for the appointment of a guardian but that decision was overturned and the application was submitted.^[31] It appears from the document relied on by PSE that the interim order had already been made by the Tribunal at the time CH considered withdrawing the application.^[32] Further, it does not appear that an application for leave to withdraw was ultimately made. Certainly, the application for the review of the appointment of the guardian was ultimately determined in 2016. The document relied upon by PSE is part of the Tribunal’s file in relation to matters concerning LBN. We do not consider the contents of the email to be so compelling that the findings made by the Tribunal on 5 December 2017 were made in error.
26. [26]
    PSE did not, at the hearing, refer the Tribunal to any particular aspect of CH’s investigation or report upon which she sought to rely. We can find no error in the Tribunal’s failure to rely on this overturned decision in the face of the other evidence before it.
27. [27]
    PSE claims the learned Member ‘failed to take into account the totality of the evidence of Drs W, T and B and the investigating officer from Disability Services Queensland   and the lack of complaints and sufficient regular checks and monitoring by others, that  false information caused PSE to be “incarcerated” and LBN to be accommodated at a facility and not with PSE.’^[33]
28. [28]
    We consider that this ground or claim is a repeat of those already dealt with regarding the Tribunal’s failure to accept or prefer, in its entirety, the evidence upon which PSE relied. We consider that the Tribunal considered the totality of the evidence relied upon by PSE but did not wholly accept or prefer that evidence. 
29. [29]
    PSE claims that the learned Member failed to take into account that when the Public Guardian made the decision for LBN to remain at the facility,  the Public Guardian failed to consult PSE, Dr W and Professor HA or any of LBN’s previous carers, and ignored CH’s findings and relied on SL’s factually incorrect claims.
30. [30]
    PSE did not argue at the hearing that the Public Guardian had failed to apply the General Principles in making the decision it was appointed to make. The decision could have been reviewed. We find no error.
31. [31]
    PSE claims that the Public Guardian fails to consult PSE generally. Again, this was not raised at the hearing.
32. [32]
    PSE argues that the involuntary treatment authority issued in relation to PSE was not warranted. The Tribunal was entitled to accept as a fact that PSE was subject to an  involuntary treatment authority.
33. [33]
    PSE claims the Tribunal failed to provide ‘impartial due process’ in the weight of the evidence from Doctors W, T and B and Professor HA, carers and PSE. In our view, the transcript shows the Tribunal ensured that the active parties and the witnesses provided the information they wished to provide to the Tribunal. The Tribunal indicated that it had read the material which included the reports by the doctors.^[34] PSE spoke to the various reports and Dr W was asked to comment on the report of Dr T.^[35]
34. [34]
    PSE claims that if the learned Member had taken into account all of that evidence and if PSE and Dr W had been given a proper opportunity to respond to and clarify other evidence presented, the decision to appoint the Public Guardian as guardian for LBN would not have been made but rather PSE would have been appointed instead.
35. [35]
    PSE attests to her working and family life to support her claim that she is more appropriate for appointment as LBN’s guardian than the Public Guardian. We consider that the Tribunal, as it was required to do, considered the appropriateness considerations in s 15 of the GAA.
36. [36]
    PSE claims that the learned Member failed to take into account reasonable explanations for how she manages LBN’s distress or outbursts.
37. [37]
    It is not clear from the reasons that the Tribunal considered that PSE was unable to manage LBN’s distress or outbursts. The finding made by the Tribunal was:

Given the medical evidence that [LBN] was considerably underweight with groin rashes, dehydrated and distressed when he was placed at [the facility], it would seem best for him to remain at the [facility], and this is the decision of the Public Guardian that he remain there permanently.^[36]

38. [38]
    This was a finding in relation to LBN’s condition upon admission to the facility.^[37]
39. [39]
    At the oral hearing, PSE claimed that LBN did not have an intellectual impairment and that he can indicate where he wishes to be.
40. [40]
    The Tribunal had before it reports stating that LBN has been diagnosed with an acquired brain injury and intellectual impairment. The Tribunal referred to the reports on which it relied.^[38] There was no medical evidence to the contrary. There is no error in the Tribunal’s acceptance of that evidence. The Tribunal also heard the evidence of WW, speech pathologist regarding LBN’s capacity:

So at the moment, there’s many people who’ve attempted to find a readable yes/no from [LBN ], and it’s not [LBN’s] fault but we need to set up a system for [LBN] where everyone can read that from him. But at the moment, I don’t think – there’s no way that we can expect [LBN] to have capacity to be read by a wide range of people that he has a yes/no or that – do we really – are we sure that he understands the issues. He may or may not. We can’t say that now but, over time, with a system that the rules are set in place for [LBN] and for his communication partners, there’s no reason why we can’t work towards that over time.^[39]

41. [41]
    The Tribunal was entitled to rely on that evidence which would found a basis for determining that LBN could not communicate his decisions in any way even if he has the capacity to understand the nature and effect of the decisions to be made and could make them freely and voluntarily. We cannot find any error in the finding of the Tribunal that the presumption of capacity for personal decision making was rebutted for LBN. The Tribunal took into account the submissions of LBN’s advocate.^[40]
42. [42]
    We have not found any of the claimed errors substantiated. The appeal is dismissed.