Adult Guardian v Hunt [2003] QSC 297

SUPREME COURT OF QUEENSLAND CITATION: Adult Guardian v. Hunt [2003] QSC 297 PARTIES: ADULT GUARDIAN (appellant) v. FARNE STANLEY HUNT (respondent) FILE NO: 4828/03 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 12 September 2003 DELIVERED AT: Brisbane HEARING DATE: 1 September 2003 JUDGE: Chesterman J ORDER: 1. The appeal is dismissed CATCHWORDS: MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – the Adult Guardian – where Guardianship and Administration Tribunal made an order appointing the Public Trustee of Queensland as administrator to a patient - appeal - where the appointment of the Adult Guardian to the patient is subsequently revoked Guardianship and Administration Act 2000, s 2, s 12, s 14, s 15, s 31 COUNSEL: Mr S J Keim for the applicant Respondent self-represented SOLICITORS: Adult Guardian for the applicant [1] Dina Frame (“the patient”) is a patient at the Bethany Nursing Home in Norman Park. She is a 60 year old woman who for the last seven years has suffered from diffuse Lewy disease with end stage severe dementia and marked uncontrollable rigidity. The disease is progressive and terminal. Her life expectancy is short and her condition is pitiable. She is unaware of her surroundings, immobile, unable to communicate and totally dependent on others. She can scarcely eat because of an impaired swallow reflex. Feeding is risky because of the chance of aspiration. -- 1 of 8 -- 2 [2] The respondent lived with the patient as man and wife for about 13 years until her admission to the nursing home. He cared for her in the early stages of her disease and had her admitted to the nursing home in 1999 only when his own ill health prevented him from continuing to do so. They never married but appear to have been a devoted couple. Certainly Mr Hunt’s devotion for the patient is obvious. [3] The patient was formerly married. She has three adult daughters from that marriage, all of whom live in New Zealand. She has one brother who lives in the United Kingdom. [4] The respondent, who appeared for himself, is an intelligent and articulate man. His concern for Ms Frame and, in particular, his desire that everything possible be done to make her comfortable and to prolong her life has brought him into conflict with those responsible for managing the nursing home. They have, in the past, obviously found him irritating and demanding. Attention seems to have focused upon the patient’s food intake. Because of her particular physical disability she can only ingest limited types of food and in small quantities. Ensuring she obtains enough nutrition is difficult and time consuming. Mr Hunt has been critical that insufficient persistence and compassion have been exhibited in this endeavour. He was concerned that the patient lost a considerable amount of her body weight. The dispute has been resolved, really in his favour. A new regime of feeding has been instituted which has resulted in some gain in weight. [5] In July 2000 Mr Hunt complained to the ‘Aged Care Complaints Resolution Scheme’ whose Complaints Resolution Officer identified some substance in his complaints and made suggestions to the nursing home to attempt a different feeding technique. Another complaint in December of 2000 also brought a response from the Complaints Resolution Officer, this time about inconsistency in the application of the feeding technique. There was a large staff turnover in the nursing home and it appears that new employees were not sufficiently instructed in what was required. [6] The dispute went to a hearing and determination by an arbitrator on 15 December 2000 as part of the Scheme. He found that the nursing home had not adopted a consistent approach to the patient’s feeding and did not provide the prescribed food supplements her doctor had instructed. He also found that the nursing home: ‘Had not responded in an appropriate and timely manner to the need for an individualised dietician’s report. … The nursing notes … support the … claim of serious breaches in the care provided to … Ms Dina Frame … such breaches … accelerated the mental and physical deterioration of Ms Frame.’ The nursing home apparently admitted to the arbitrator that it had not properly communicated with Mr Hunt about its care for the patient and had not accurately or consistently told him what was being done. [7] The nursing home brought its dispute with the respondent to the attention of the appellant, and on 3 January 2001 the Guardianship and Administration Tribunal (‘the Tribunal’) made an interim order appointing the Public Trustee of Queensland administrator ‘for all financial matters’ concerning the patient. -- 2 of 8 -- 3 [8] On 15 February 2001 the Tribunal extended the appointment of the Public Trustee for a period of two years and appointed the appellant to be the patient’s guardian ‘for all personal matters’ for a period of two years. [9] On 3 February 2003 the Tribunal again extended the appointment of the Public Trustee, this time for a period of five years. As well, it extended the appointment of the appellant, but only for a period of three months. On 12 March 2003 it revoked the appointment of the appellant and in its place appointed the respondent as guardian for the patient for all personal matters for a period of one year. [10] A ‘personal matter’ is defined by s. 2 of Schedule 2 of the Guardianship and Administration Act 2000 (‘the Act’) to be a matter relating to the care or welfare of an adult of impaired capacity relating to such things as where and with whom he lives and works; what education he undertakes and such things as diet and dress. [11] The Adult Guardian has appealed against its removal and the appointment of Mr Hunt. [12] The grounds of appeal are: ‘(i) That the Tribunal misdirected itself by taking into account its perception that appointment of the Adult Guardian was a more restrictive alternative than the appointment of a layperson as guardian for personal matters; (ii) That the Tribunal misdirected itself by taking into account its perception that the appointment of the Adult Guardian as Guardian for personal matters should only be made as a matter of last resort; (iii) That the Tribunal misdirected itself by failing to consider the first respondent’s ability and likely propensity to maintain the adult’s existing supportive relationship as part of considering the first respondent’s likely ability and propensity to apply the general principles; (iv) That the Tribunal misdirected itself by failing to consider the first respondent’s ability and likely propensity to take the information given by the adult’s health providers into account as part of considering the first respondent’s likely ability and propensity to apply the health care principles.’ [13] Section 12 of the Act empowers the Tribunal to appoint a guardian for a personal matter for an adult of impaired capacity if there is a need to make decisions about those personal matters and without an appointment the person’s needs would not be adequately met or his or her interests protected. [14] Section 31 provides: 1. The Tribunal may conduct a review of an appointment of a guardian … in the way it considers appropriate … -- 3 of 8 -- 4 2. At the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. 3. If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either – (a) Continue its order making the appointment; or (b) Change its order … by (i) Changing the terms of the appointment; or (ii) Removing an appointee; or (iii) Making a new appointment. 4. However, the Tribunal may make an order removing an appointee only if the Tribunal considers – (a) The appointee is no longer competent; or (b) Another person is more appropriate for appointment 5. … 6. …’ [15] It was pursuant to s. 31 that the Tribunal reviewed the appointment of the appellant on 12 March and made the orders complained of. [16] The Adult Guardian is appointed by Governor in Council with the powers and responsibilities conferred by chapter 8 of the Act. Its role is to protect the rights and interests of adults with impaired capacity. [17] Section 164 gives the Adult Guardian (and other persons) a right to appeal against Tribunal decisions ‘on a question of law only’. An appeal may also be brought against the Tribunal’s decisions on a question of fact if the Supreme Court gives leave. [18] To the extent that the appellant’s grounds of appeal call in question findings of fact made by the Tribunal I give it leave to agitate those questions. [19] The Tribunal’s power to remove the appellant as guardian and to appoint Mr Hunt instead was circumscribed by s. 31(4). It is not, of course contended that the appellant was not competent to remain as guardian. The order could only be made if the Tribunal considered that Mr Hunt was ‘more appropriate for appointment’ than the appellant. It is to be noted that s. 31 confers a broad general discretion on the Tribunal to remove an existing guardian and to appoint a new one. The only restriction is that the Tribunal must consider that the new appointee is more appropriate. The word encompasses every relevant attribute and characteristic which someone appointed to be guardian of another’s affairs should manifest. Such a broad discretion is difficult to challenge. The appellant seeks to do so by arguing that the Tribunal exercised its discretion by reference to the wrong legal principles. -- 4 of 8 -- 5 [20] To determine whether this is so it is necessary to examine the Tribunal’s reasons. [21] They commence with the history of the application before the Tribunal and note that the appointment on 15 February 2001 was made: ‘Following an application by Bruce Curtis, Chief Executive Officer of Bethany. At that time, Farne Hunt was in dispute with Bethany over the health care of Ms Frame and the matter was being considered by the Aged Care Complaints Resolution Scheme. A complaints resolution committee made a determination of 8 March 2001. This was reviewed by a … panel … Following these processes and the appointment of the Adult Guardian … on 15 February 2001, conflict over Ms Frame’s health care, particularly her diet, between Farne Hunt and Bethany … continued.’ [22] The reasons then set out the relevant legislation. They recited the terms of s. 12, s. 15 and s. 31 of the Act. Section 15 is concerned with the characteristics that are necessary if a person is to be considered appropriate for appointment as a guardian. [23] The reasons then identified the written evidence placed before it, including a report by the appellant and a submission by the respondent, and a letter from the nursing home. It is evident that the Tribunal questioned the appellant’s representative and the respondent. The following findings were made: ‘(i) The yearly care plan has been completed and is in operation. All parties have received a copy. (ii) … The dietician’s report has been received. Her recommendations are being implemented … (iii) There has been no further conflict with Farne Hunt but the potential is there. (iv) (Mr Hunt) described the circumstances relating to the recent acute illness episode … He had foreseen this type of crisis and had tried to avoid it by including a strategy for acute illness in the care plan but he had been banned from input. (v) He expressed great concern that the Adult Guardian had delayed implementing the dietician’s report. Now that Ms Frame was on the new diet, her weight had improved. (vi) Bethany has a ‘wonderful nursing team’ and he has good rapport with people on the floor. His arguments have been with management.’ [24] The Tribunal then summarised the respective contentions. They were: ‘17. Farne Hunt made the following submissions relating to his appropriateness: -- 5 of 8 -- 6 • He has been “at one” with Ms Frame and has looked after her from the first day. • He is able to look after Ms Frame and to ensure that she receives proper medical attention. • He is the appropriate person to make arrangements when her end time comes. • He is happy with the suggestion that Ms Frame be placed at Moreton Bay Nursing Home at Wynnum because he does not want her to die at Bethany. However, it that has to happen then he accepts it. • He has spoken to Dr Zubeshaw and accepts that it is possible that Ms Frame could go to Mt Olivet. • His appointment would be in the best interests of Ms Frame. 18. Brian Paxton (the appellant) made the following submissions: • There is conflict between Farne Hunt and the family in NZ and England. He had discussed this with Ms Frame’s daughter, Ingrid Conlan, and she wants the Adult Guardian to continue as guardian because its office is detached and not as emotionally involved. • He referred to arguments between the family and Farne Hunt at a meeting in September 2001 when considerable friction was involved. • Bethany considers the Adult Guardian more appropriate because of Farne Hunt’s past conduct and complaints about minor issues. In his opinion this must have an effect on staff. • Bethany would certainly have problems dealing with him in the light of the history of their relationship and the referral to the Aged Care Complaints Resolution Scheme. • Farne Hunt lacks insight into Ms Frame’s condition as evidenced by his problems with feeding issues and rejection of medical reports. • While his present relations with nursing staff may be good it will always be volatile. • In respect of his caring relationship with Ms Frame, his “serial complaints” indicate that he is not appropriate because of the emotional issues involved. The family would agree with this and nothing has changed since the earlier conflict.’ [25] The Tribunal then discussed the evidence and noted: • ‘A lot has changed since the … order of 15 February 2001. The … care plan has been completed and … all parties are satisfied with it. A dietician’s report had been implemented and the diet is accepted by everyone. -- 6 of 8 -- 7 • There has been considerable conflict in the past between Farne Hunt and the family and … Bethany. While the conflict with the family may well remain, there is no present conflict with Bethany and Farne Hunt has developed a good rapport with the nursing staff. His concerns are with past care issues on the part of management. • None of Ms Frame’s family resides in Australia. It is difficult to see how any conflict … with the family could be detrimental to Ms Frame’s wellbeing. • (The appellant) made no challenge to (Mr Hunt’s claims to have been vindicated in his concerns over diet) and his claim to have a good relationship with the nursing staff. • (The appellant) submitted that Mr Hunt’s “serial complaints” indicate that he is not appropriate … as a guardian. The Tribunal does not accept this description or conclusion. There has been no suggestion that (his) complaints have been frivolous … He has sought recourse from … appropriate authorities … • Mr Hunt has had a long term and caring relationship with Ms Frame … There is no suggestion that there is any conflict between her interests and Mr Hunt’s or that any of his complaints have been detrimental to her well being.’ [26] The Tribunal then expressed what it called its application of the relevant legal principles to the evidence. It is this part of the judgment with which the appellant takes issue. The Tribunal was satisfied that the respondent was more appropriate for appointment as guardian because ‘he has a long term and caring relationship with Ms Frame and there is no conflict between their interests. His past conduct indicates that he will be an untiring and vigilant advocate for her needs … The strong emotional bonds between them will ensure that Ms Frame’s basic human rights and her human worth and dignity will be properly recognised and taken into account.’ The next paragraph is the critical one for the appellant. The Tribunal said that it was: ‘satisfied that Farne Hunt’s appointment is the least restrictive of Ms Frame’s rights. The appointment of the (appellant) should be only as a matter of last resort, when there is no other appropriate person for appointment.’ [27] The appellant has two points. The first is that the Tribunal was wrong to consider that the respondent’s appointment would be less restrictive of the patient’s rights than the appointment of the appellant. Whoever was appointed the patient’s rights would be affected to the same extent. She is incapable of making any decisions for herself or even of knowing what is going on around her. The appellant’s appointment would not restrict her rights any more than the respondent. The -- 7 of 8 -- 8 question for the Tribunal was not one of comparative restriction of rights but of the appropriateness of the candidates for appointment. [28] The appellant’s submission is clearly right but it does not follow that the Tribunal misdirected itself by applying a wrong principle. Its reasons make it clear that it did apply the correct principle: it addressed the question who between the appellant and the respondent would be the more appropriate guardian. For reasons which it gave it concluded the contest in favour of the respondent. The reference in the concluding paragraph to a comparative restriction of rights was misplaced but that principle played no part in the Tribunal’s reasoning. [29] The second submission is that the Tribunal erred in describing the appointment of the appellant ‘as a matter of last resort’. The appellant submitted that the Tribunal ‘misdirected itself by assuming that there was a significant presumption against the appropriateness of the Adult Guardian … Section 14 … recognises the Adult Guardian as a prime candidate to be appointed … If anything the Act might suggest that, were there a doubt, the Tribunal should err in favour of appointing the Adult Guardian.’ [30] The Tribunal may have overstated the point a little by saying that the appointment of the Adult Guardian is a matter of ‘last resort when there is no other appropriate person for appointment’, but the notion underlying that expression is, in my opinion, correct. The Adult Guardian is a functionary of the State which, very properly, endeavours to protect the helpless and defenceless. But where such a person has friends or family who are able and willing to provide the requisite support and assistance it is, in my view, preferable that they be allowed to do so rather than be supplanted by a bureaucrat, no matter how well intentioned. To take any other view is to deny the expression of what is good in human nature. This is all the Tribunal was saying and I agree with it. The Tribunal made the point well. It said that Mr Hunt had demonstrated a degree of affection and devotion for Ms Frame which made him a passionate advocate for her well being. The alternative was to appoint the appellant who would do no more than perform his statutory function for one more patient. [31] As I understand the material the only criticism of the respondent is that his zeal has been difficult for the managers of the nursing home to accommodate. The evidence suggests that it has prolonged her life and made her more comfortable, making due allowances for her inability to sense her surroundings. It seems to me unreasonable to criticise Mr Hunt because of his unceasing endeavours to alleviate the suffering of the woman he has loved for many years. It would, as I say, be a repression of unselfishness and impose a penalty on loyalty if it were considered inappropriate to appoint Mr Hunt as Ms Frame’s guardian because he has tried too hard to protect her. [32] It should not be overlooked that his complaints about the patient’s care were vindicated and that the nursing home sought to have the appellant made guardian shortly after the arbitrator’s determination. [33] The appeal is dismissed. -- 8 of 8 --