CMM v The Public Trustee of Queensland and the Public Guardian [2016] QCATA 139

CITATION: CMM v The Public Trustee of Queensland and the Public Guardian [2016] QCATA 139 PARTIES: CMM (Applicant/Appellant) v The Public Trustee of Queensland The Public Guardian (Respondents) APPLICATION NUMBER: APL479-15 MATTER TYPE: Appeals HEARING DATE: 23 June 2016 HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Gardiner DELIVERED ON: 22 September 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed and the decision made on 29 October 2015 is set aside. 2. The applications are returned to the Tribunal for reconsideration according to law by a differently constituted Tribunal and in accordance with the directions disclosed in these reasons as to the matters that must be considered when assessing the appropriateness of the proposed appointees. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where appointment of decision- makers resulted from an exercise of discretion as to appropriateness of two or more proposed appointees – where statutory considerations about appropriateness were not taken into account – where wrong principle relied on to prevent the appointment of a family member - whether discretion was wrongly exercised -- 1 of 7 -- 2 because of failure to rely on appropriateness requirements Guardianship and Administration Act 2000 (Qld) ss 11, 14(2), 15(1) and Schedule 1, General Principles Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 House v King (1936) 55 CLR 499 Lovell v Lovell (1958) 81 CLR 513 APPEARANCES: APPLICANT: CMM RESPONDENTS: The Public Trustee of Queensland by M Kidner The Public Guardian by R de Pierri REPRESENTATIVES: APPLICANT: CMM represented by Michael Shaw, solicitor of Shaw and Co Lawyers REASONS FOR DECISION [1] CJ was injured in a motor vehicle accident on 6 June 2015. His injuries included a head injury and other physical injuries. According to medical evidence filed in the Tribunal, CJ sustained a severe acquired brain injury. Formal assessment of CJ’s cognitive function revealed global/broad spectrum impairments across most cognitive domains. The assessment revealed that his most notable areas of deficiency fell within the domains of executive functioning, speed of information processing, spatial skills and memory. His ability to comprehend complex words and concepts and to engage in verbal abstract reasoning and his verbal fluency were impaired. [2] Applications were filed in QCAT for the appointment of a guardian and an administrator for CJ. The proposed guardians were the Public Guardian, the mother of CJ and the father of CJ. The proposed administrators were The Public Trustee of Queensland and the mother of CJ. [3] A hearing of the applications took place on 29 October 2015. CF, the father of CJ, did not appear at the hearing and the learned member stated that she would proceed on the basis that CF was no longer seeking appointment as a guardian. The outcome of the applications was that the Public Guardian was appointed as guardian for CJ for all personal matters and The Public Trustee of Queensland was appointed as administrator for all financial matters. Each appointment is to be reviewed in one year. -- 2 of 7 -- 3 [4] CMM who had been an applicant for appointment as guardian and administrator has filed an application for leave to appeal or appeal the decision to appoint the Public Guardian and The Public Trustee of Queensland as decision-makers for her son. The decision under appeal involved the learned member exercising a discretion about which of the proposed appointees would be the preferred decision-makers for CJ. [5] CMM submits that the learned member did not refer to and did not apply the test set out in the Guardianship and Administration Act 2000 (Qld) (the GAA Act) for determining her appropriateness for appointment as guardian and administrator for CJ. It is not contended that the learned member had reached the wrong conclusion about CJ’s capacity for decision-making or about the need for decision-makers to be appointed for CJ. [6] This ground of appeal raises a question of law about the exercise of a discretion, for which leave is not required. An Appeal Tribunal will not interfere with a learned member’s exercise of discretion unless it can be shown that the learned member acted on a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.1 An Appeal Tribunal can interfere with a decision based on the exercise of discretion if it is established that the decision is plainly unjust or unreasonable and involved a clear misapplication of the discretion.2 [7] In her reasons, the learned member explained the basis for her decision as to the appropriate person to appoint as guardian as follows: During the course of the hearing, CJ requested initially that rehabilitation be at his home with his family and then at a later time suggested the PA Hospital and then a facility similar to Jacana Lodge but closer to home. There is potential in this matter for there to be some conflict with respect to this decision. Families are often put in this difficult position where they are asked to make decisions on behalf of loved ones. It’s clear, and I’ve made a finding, that a guardian should be appointed for a short period of time in this matter for up to 12 months at this point. The question is, however, as to who should be the guardian on behalf of CJ. Three potential appointees – CF put in an application, but he didn’t attend and therefore is out of contention in this matter. CMM, the adult’s mother, has made an application, and the Gold Coast University Hospital via Blaire Grant has made an application proposing the Public Guardian as guardian. My decision is that an independent guardian is preferable. There is, as I’ve said, a potential for dispute regarding the selected means of rehabilitation. Rehabilitation is very important to CJ. The rehabilitation that he’s received so far has been extremely successful, and the best medical advice has to be sought and followed and investigated so that a good decision can be made for CJ. It is my decision that an independent body should make this decision. It is very difficult if a decision is made that CJ does not completely agree with and the brunt of that decision is borne by his family. So my decision is that 1 House v King (1936) 55 CLR 499 at 504. 2 Lovell v Lovell (1958) 81 CLR 513. -- 3 of 7 -- 4 the Public Guardian should make this decision to try and minimise the conflict in this matter.3 [8] The learned member did not explain why she preferred the appointment of the Public Guardian to CMM as guardian. At best, she alluded to the difficulty that a family member would face in making a decision about rehabilitation for CJ if that decision were to be different to what CJ wanted. However, the appointment for a guardian made by the learned member was for all personal matters, not just about rehabilitation. A plenary appointment results in the power to make every decision about a personal matter being reposed in the guardian; such as decisions about all health care, accommodation, services, employment, education and training, holding and seeking licences, contact with other people and day to day issues. The learned member did not conclude that there was a potential for conflict about any of these other personal matters but nevertheless reposed decision-making power for all such matters with the Public Guardian. [9] More fundamentally, the learned member did not identify the test set out in the GAA Act to assess the appropriateness of a person for appointment as a guardian. Section 15(1) provides that in deciding whether a person is appropriate for appointment as a guardian, the Tribunal must consider the matters in subsections (a) to (g) of section 15(1). None of the matters in those subsections nominate that a person is precluded from appointment if there is likely to be conflict between the adult in question and the appointed guardian about a decision. [10] While subsection 15(1)(c) requires consideration of the extent that the adult’s and person’s interests are likely to conflict, that subsection deals with conflicts of interest which was not the case before the learned member. There was no evidence that CMM had a personal interest, in the sense of some personal benefit or gain, in making a rehabilitation decision for her son. The learned member’s comments, both in her reasons and during the course of the hearing, make it clear that the conflict to which she alluded was potential disagreement and conflict between family members should CJ object to his mother’s rehabilitation decision.4 [11] The reasons of the learned member reveal that she did not apply the appropriateness considerations in s 15(1) of the GAA Act. She made no findings of fact about the competence of CMM to perform functions and exercise powers as a guardian despite very serious allegations having been made in the evidence about CMM’s involvement in the death of her daughter in 2011 and about her actions immediately following the accident when CJ sustained life-threatening injuries. It was alleged that CMM had a medical condition that would place the welfare of her son at risk. None of this evidence, central to the competence of CMM to act as a decision- maker, was analysed, accepted or discounted in the reasons for decision. 3 Transcript page 1-41 at lines 20 to 41. 4 Ibid page 1-41, lines 22 to 24 and lines 38 to 40 and page 1-29, lines 33 to 24. -- 4 of 7 -- 5 Instead, the only factor relied on by the learned member was the burden that making decisions about rehabilitation would put on CMM. [12] The learned member was required to consider the General Principles.5 It is stated in General Principle 7(4) that the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person performing a function or exercising power under the GAA Act must take into account what the person considers would be the adult’s views and wishes. The evidence at the hearing is clear: CJ wanted his mother to be his guardian. The reasons of the learned member do not disclose where or how she has taken into account the preference expressed by CJ. The reasons reveal that the limited matters taken into account when exercising her discretion that the Public Guardian was the appropriate appointee are not those set out in the General Principles or in s 15(1) of the GAA Act. [13] This conclusion is supported by the following comments made by the learned member well before she set out her reasons: Family members are here to support their family members. It’s the biggest role they have. Making hard decisions that may not at this point be totally grasped by the relevant adult is not really what family members are here to do. 6 … my rationale behind this is I want to keep support people as support people. I don’t want CJ’s closest support people to be having to make the tough decisions, but at the same time I would like some expertise put in to critically evaluate the options that are put forward.7 …the other advantage is that the Public Guardian is this is their – in- within their area of expertise. They can weigh up – to put it in a simple way – apples with apples, to see if they really are the same or if there is something else available. They have to take all of that into account and work out what’s going to be in CJ’s best interests. But they do have the expertise to weigh up one establishment compared to another, taking into account their areas of expertise.8 [14] The learned member had stated, well before she had heard all the oral evidence and submissions from the applicants, that she preferred to keep family in the role of support people and not as decision-makers of hard decisions for an adult with impaired capacity. This statement is difficult to reconcile with s 15(1) and relevantly with the provisions in s 14(2) of the GAA Act: (2) Despite subsection 1(a)(ii), the Tribunal may appoint the Public Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. 5 Guardianship and Administration Act 2000 (Qld) ss 15(1)(a) and 11. 6 Transcript page 1-28, lines 35 to 37. 7 Ibid page 1-30, lines 19 to 22. 8 Ibid at page 1-31, lines 1 to 7. -- 5 of 7 -- 6 [15] The learned member did not assess the appropriateness of CMM in terms of the matters set out in s 15(1) and did not as a result consider whether there was another appropriate person available for appointment as guardian. The learned member has not taken into account considerations required by ss 14(2), 15(1) and the General Principles in exercising her discretion as to who would be appropriate to appoint as guardian. She has acted on the wrong principle, stated by her, that family should remain support people and not be appointed decision-makers when hard decisions are required to be made. [16] Similar considerations apply to the learned member’s exercise of discretion as to the appointment of an administrator for CJ. The reasons do not disclose the factors about the appropriateness of CMM as required by s 15(1) of the GAA Act being analysed and determined by the learned member. When it was suggested at the hearing that there could be two administrators to make designated types of decisions for CJ, the learned member said the following: ..The difficulty from my point of view is that would require multiple administrators. The Public Trustee is usually appointed by itself. I don’t usually appoint an individual and The Public Trustee, because there’s too much of a scope for disagreement between the two parties. It really is sort of an all-or-nothing situation, I’m afraid. I can’t make an order that I know will probably lead to conflict, because then they’ll just be back here saying we can’t reach agreement, make a decision.9 [17] The reasons disclose that the learned member has not taken into account considerations required by s 15(1) and the General Principles in exercising her discretion as to who would be appropriate to appoint as administrator. Her comments early in the hearing that family should remain support people and not be appointed decision-makers when hard decisions are required to be made have influenced her exercise of discretion and lead her into error. [18] There is an error of law because the learned member did not identify the test set out in the GAA Act to assess the appropriateness of a person for appointment as a decision-maker for a person with impaired capacity and then did not apply the appropriateness considerations when exercising her discretion. The secondary ground of appeal, that false and misleading information was wrongly taken into consideration by the learned member was not directly relied on at the hearing of the appeal. The reasons do not in fact set out a reliance by the learned member on the information in question. The Appeal Tribunal concludes that this secondary ground is no longer actively pursued by CMM. [19] The appeal is allowed and the decision of the Tribunal of 29 October 2015 is set aside. 9 Transcript page 1-36, lines 23 to 29. -- 6 of 7 -- 7 [20] When deciding an appeal on a question of law only, the Appeal Tribunal may set aside the decision and substitute its own decision or can set aside the decision and return the matter to the Tribunal for reconsideration.10 As the decision on the applications for appointment of a guardian and administrator will be based on an exercise of discretion, it is not appropriate for the Appeal Tribunal to substitute its own decision. [21] There will be further evidence required to be provided to the Tribunal before that discretion can be properly exercised, particularly as to the appropriateness of CMM for appointment. The Tribunal must decide the applications by applying the General Principles and after considering the matters set out in s 15(1) of the GAA Act. The applications will be remitted to the Tribunal for reconsideration, with a Tribunal differently constituted as the learned member has already expressed strongly held views about the appointment of family members that a fair minded person may reasonably believe will influence a further decision in these applications. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146. -- 7 of 7 --