CLE [2025] QCAT 518

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CLE [2025] QCAT 518 PARTIES: In applications about matters concerning CLE APPLICATION NOS: GAA8972-25, GAA8974-25, GAA13637-25 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 3 November 2025 (ex tempore) HEARING DATE: 3 November 2025 HEARD AT: Townsville DECISION OF: Senior Member Browne ORDERS: APPOINTMENT OF A GUARDIAN 1. AJM is appointed as a guardian pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld) to make decisions about the following personal matters: (a) to give informed consent or withhold consent for the use of “chemical restraint” and “environmental restraint” as that term is defined in section 17-5 of the Aged Care Rules 2025 (Cth) (‘the Rules’). 2. That appointment is conditional upon: (a) Consent being given only for the sole purpose of the safety of CLE; (b) The power to consent being limited to the residential care home that CLE currently resides at; (c) Consent being given by AJM only if AJM is satisfied that there is compliance with section 162-15 of the Rules with respect to CLE. 3. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. ADMINISTRATION 4. AJM is appointed as administrator for CLE for all financial matters. 5. The financial management plan dated 31 May 2025 is approved. 6. The Tribunal directs the administrator to provide -- 1 of 8 -- 2 to the Tribunal: (a) Copies of CLE’s bank statements/passbooks/term deposits for the past year; (b) A list of CLE’s current assets and liabilities; (c) A current fortnightly budget of income and expenditure; (d) Copy of the latest accommodation account or statement for residential aged care for the period; (e) Copy of receipts for any individual items purchased in excess of $500.00; and (f) A signed Declaration as to continuing appropriateness for appointment. At the following times: (i) For the initial year of the appointment no later than one (1) month after the anniversary of the appointment; (ii) For the year in which a review of the appointment will occur, three (3) months prior to a review of the appointment; and (iii) When requested by the Tribunal. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where the adult resides in a secure area at an approved residential care home – where the adult is subject to environmental restraint and chemical restraint as defined under the Aged Care Rules 2025 (Cth) – where the adult is an individual receiving funded aged care services from a registered provider under the Aged Care Act 2024 (Cth) – where the registered provider is required to have the informed consent of a restrictive practices substitute decision-maker for an adult who lacks capacity to give that consent – whether the Tribunal should appoint a guardian for the adult to provide informed consent – where the presumption of capacity is rebutted – where giving informed consent to the use of environment restraint and chemical restraint is a personal matter as defined under the Guardianship and Administration Act -- 2 of 8 -- 3 2000 (Qld) – where the guardian was appointed to give consent to environmental restraint and chemical restraint as defined under the Aged Care Rules 2025 (Cth) HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal considered whether the decision is compatible with human rights – where the Tribunal recognises the adult’s relevant human rights – whether human rights are limited and engaged – whether the limits imposed on the relevant human rights are reasonable and justified Aged Care Act 2024 (Cth), s 17, s 18, s 162 Aged Care Rules 2025 (Cth), s 17-5, s 162-15, s 162-20 Disability Services Regulation 2017 (Qld), s 12 Guardianship and Administration Act 2000 (Qld), s 11B, s 12, ch 5B, sch 4 Human Rights Act 2019 (Qld), s 13, s 15, s 17, s 19, s 24, s 25, s 48 NJ [2022] QCAT 283 APPEARANCES & REPRESENTATION: Adult: CLE M Hewitt, Registered Nurse Applicant: AJM – Daughter of CLE REASONS FOR DECISION [1] SENIOR MEMBER BROWNE: This is a hearing today on 3 November 2025 concerning CLE.1 There are applications before the Tribunal for the appointment of an administrator and a guardian, received on 2 June 2025. The applications, filed by AJM, CLE’s daughter, propose that she be appointed as her mother’s guardian and administrator.2 The Aged Care Act 2024 (Qld) [2] It is important to identify that CLE is an individual receiving funded aged care services from Arcare Peregian Springs, a registered provider under the Aged Care Act 2024 (Cth) (‘Aged Care Act’). CLE resides in an approved residential care home, Arcare Peregian Springs, and services known as ‘residential care’ are delivered to the accommodation setting where CLE resides. Staff supporting CLE in the residential care home are using practices or interventions that are known as restrictive practices under the Aged Care Act. Relevantly, s 17 of the Aged Care Act 1 Reasons have been published in a de-identified format for the purposes of s 114A of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’). 2 Documents considered to be credible, relevant and significant to an issue in the proceeding have been read into the record for the purposes of s 103 of the GA Act. -- 3 of 8 -- 4 provides that a restrictive practice in relation to an individual is any practice or intervention that has the effect of restricting the rights or freedom of movement of that individual and without limiting subsection (1), ‘the Rules’ may provide that a practice or intervention is a restrictive practice in relation to an individual. [3] The Aged Care Rules 2025 (Cth) (‘Aged Care Rules’) contain relevant provisions for restrictive practices in relation to an individual to whom a registered provider is delivering funded aged care services. Section 18 of the Aged Care Act provides that the Aged Care Rules for the purposes of s 162 of the Act relating to the use of restrictive practices must contain relevant provisions including, for example, and amongst other things, require that informed consent is given to the use of a restrictive practice in relation to the individual. The Aged Care Rules provide requirements for the use of any restrictive practice, detailed under s 162-15 including, amongst other things, that if the individual lacks the capacity to give that consent – [consent] has been given by the restrictive practice substitute decision- maker, appointed under the law of the State or Territory in which the restrictive practice is used. Restrictive practices [4] CLE has, as reported in a Positive Behaviour Support Plan dated 27 September 2025, behaviours including a history of wandering, known as ‘exit-seeking behaviour’, and verbal aggression. Because there are restrictive practices that are identified in the Positive Behaviour Support Plan, the Aged Care Rules apply. It is, therefore, necessary for a substituted decision-maker to be appointed if the Tribunal is satisfied the relevant requirements under the [Guardianship and Administration Act 2000 (Qld) (‘GA Act’)] have been met, to give informed consent or withhold consent for the use of the restrictive practices. [5] The Positive Behaviour Support Plan, dated 27 September 2025, identifies chemical restraint, namely medication prescribed, to be administered only if CLE is ‘heightened’. The medication is to be used as a last resort, [meaning] ‘PRN’ [‘pro re nata’], as detailed in the Arcare Restrictive Practice Assessment Report signed by Dr Strachan dated 23 May 2025. The medication identified as Haloperidol has been prescribed by Dr Strachan for ‘confusion’. [6] In relation to the Aged Care Rules, the Tribunal is satisfied that the medication, to be given as required, is a practice or intervention that involves the use of medication or a chemical substance for the primary purpose of influencing an individual’s behaviour.3 This is because, as detailed in the Positive Behaviour Support Plan, CLE has a history of aggression, and particularly in relation to exit-seeking behaviours, CLE can become visibly upset or overwhelmed when she is unable to leave her accommodation setting. [7] The Tribunal is, therefore, satisfied that there is chemical restraint [as defined] in s 17-5 of the Aged Care Rules. Further, there is environmental restraint as defined under the Aged Care Rules, which is a practice or intervention that restricts or involves restricting an individual’s free access to all parts of the individual’s 3 See definition of ‘chemical restraint’ under s 17-5 of the Aged Care Rules. -- 4 of 8 -- 5 environment for the primary purpose of influencing the individual’s behaviour.4 This is because CLE has a history of wandering and will attempt to leave her accommodation setting without assistance and this [presents] a risk of safety [to CLE] should CLE leave the setting unassisted. [8] The area where CLE resides is known as a ‘secure dementia-sensitive area’ and residents are unable to leave without assistance. The Tribunal is therefore satisfied that there is a need for decisions to be made about CLE’s restrictive practice matters as defined under the Rules. Guardianship and Administration Act 2000 (Qld) [9] In relation to the application for the appointment of a guardian, the use of restrictive practices is regulated in Queensland under ch 5B of the GA Act. [10] Section 12(4) of the GA Act also applies today. [11] Section 12 gives the Tribunal the power to, by order, appoint a guardian or an administrator for a personal matter or a financial matter. Importantly, s 12(4) provides that ch 5B does not apply for the appointment of a guardian. Because CLE receives aged care services from a registered provider, ch 5B does not apply to the present application and this is as provided under [s 12 of] the Disability Services Regulation 2017 (Qld).5 [12] The Tribunal can proceed [to appoint a guardian] using the power under s 12 of the GA Act, relying on an earlier decision of the Tribunal made in NJ [2022] QCAT 283 (‘NJ’). Tribunal’s findings about capacity and the need for decisions about personal and financial matters [13] In relation to exercising the power to appoint a guardian or an administrator, under the GA Act, as provided under s 12, the Tribunal has considered CLE’s capacity.6 The Tribunal accepts the medical evidence of Dr Strachan dated 2 May 2025. The Tribunal finds that CLE is a 74-year-old woman with bipolar disorder and dementia that impacts on her verbal communication. [CLE] is unable to understand and make decisions about her restrictive practice matters and financial matters, and this is due to cognitive decline. [14] CLE was living in South Australia for a period of time prior to moving to Queensland and the Arcare facility, where she [now] resides, in July 2024. The Tribunal had an opportunity to hear from Ms Hewitt, the registered nurse from the Arcare facility, who reported that CLE has cognitive decline due to dementia and limited verbal communication and she requires full assistance on a daily basis. [15] CLE attended the hearing today with the assistance of her daughter and proposed appointee and applicant, AJM, and Ms Hewitt, registered nurse. The Tribunal was satisfied that CLE has received notice of the hearing today. There is evidence of an earlier appointment of AJM, together with her sister, as guardians [for CLE] in 4 See definition of ‘environmental restraint’ under s 17-5 of the Aged Care Rules. 5 See s 12 of the Disability Services Regulation 2017 (Qld). 6 See s 12 of the GA Act and sch 4 for definition of ‘capacity’. -- 5 of 8 -- 6 South Australia by the Civil Administrative Tribunal; however, that appointment has been revoked. [16] The Tribunal accepts the information provided in the application, that includes a signed appropriateness and competency form by AJM and finds that AJM is a suitable person for appointment as a guardian and an administrator. AJM is well placed to apply the general principles [under the GA Act], she has an understanding of her role in relation to giving informed consent or withholding consent for the use of restrictive practices. AJM has been acting informally, providing informal decision-making for her mother, CLE, to Arcare prior to the hearing today, and she is also available [to act] as a Statutory Health Attorney. [17] In relation to financial matters, AJM has completed a financial management plan, that will be approved by the Tribunal today. The plan details CLE’s finances, including simple income in the form of a disability support pension that has recently become an aged care pension. CLE has expenses, including payment of aged care fees and her other personal expenses and private health care. The Tribunal is satisfied there is a need for decisions to be made about all financial matters, and, importantly, in relation to appointing a guardian and an administrator today, the Tribunal is satisfied that, without the appointment of a guardian or an administrator, CLE’s needs will not be adequately met nor her interests adequately protected. [18] Having accepted the medical evidence of Dr Strachan in the report, dated 2 May 2025, the Tribunal is satisfied the presumption of capacity, for personal matters in respect of restrictive practice matters and financial matters, is rebutted.7 [19] Relying on the authority of NJ’s case, the Tribunal finds that there is a personal matter for CLE that needs to be made in relation to restrictive practices and is satisfied that the restrictive practices, chemical restraint and environmental restraint, are necessary for the safety of CLE. [20] A personal matter, for the purposes of s 12, includes, as provided, that there is a need for a decision in relation to the matter, or the adult is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult’s health, welfare or property. The Tribunal is satisfied that ‘welfare’ includes, as defined under the Oxford Dictionary, ‘the general health, happiness and safety of a person’, [Further] because there are restrictive practices that are necessary for the safety of CLE, there is a direct relationship between ‘the matter’ and the welfare of CLE and there is a matter relating to CLE’s welfare and, therefore, her care, and thus within the power of s 12. Application of Human Rights and General Principles [21] There is good reason to appoint a guardian today because there are serious consequences relating to CLE’s human rights and also consequences relating to [CLE’s] safety should CLE be able to exit the facility without assistance. Importantly, when considering the general principles under s 11B of the GA Act, there are, in addition, relevant rights to be considered by the registered provider who is using the restrictive practices with the consent of the substituted decision-maker. 7 See sch 2 for the GA Act for meaning of ‘personal matter’ and ‘financial matter’. -- 6 of 8 -- 7 [This] includes the statement of rights that are to be applied and also the Aged Care Act recognises the Aged Care Quality Standards [to be applied]. [22] [In appointing a guardian and administrator] the Tribunal is also required to make the least restrictive order.8 A review of the appointment of a guardian in two (2) years is, based on the evidence, the least restrictive order. In relation to the appointment of an administrator, a review of the appointment in five (5) years is appropriate. [23] The Tribunal is also required to identify relevant human rights, under the Human Rights Act 2019 (Qld), that are limited and engaged.9 The rights that are limited and engaged need to be balanced; however, with the risk of CLE’s safety being compromised. The rights include the right to be entitled to equal protection of the law without discrimination (s 15). This [right] is engaged as a result of the appointment of a substituted decision-maker. The right to freedom of lawful movement (s 19), the right to make decisions about one’s own property matters (s 24), the right to privacy (s 25) and not to have personal information shared with others. Also there will be rights limited and engaged when a chemical restraint is administered (s 17). [24] The Tribunal is satisfied that the chemical restraint is to be used as required, as a last resort, as detailed in the Positive Behaviour Support Plan. In relation to the human rights [that are] limited and engaged by the making of these orders, the Tribunal is satisfied that the appointments are necessary for CLE’s safety to protect her personal and financial interests.10 Orders [25] The orders will be that in relation to the application for the appointment of a guardian: (1) AJM is appointed as a guardian pursuant to s 12 of the Guardianship and Administration Act 2000 (Qld) to make decisions about the following personal matters: (a) to give informed consent or withhold consent for the use of ‘chemical restraint’ and ‘environmental restraint’, as that term is defined in section 17-5 of the Aged Care Rules 2025 (Cth) (‘Aged Care Rules’); (2) That appointment is conditional upon: (a) consent being given only for the sole purpose of the safety of CLE; (b) the power to consent being limited to the residential care home that CLE currently resides at; and (c) consent being given by AJM only if AJM is satisfied that there is compliance with s 162-15 of the Aged Care Rules with respect to CLE. 8 See s 5 of the GA Act. 9 See s 48 of the Human Rights Act 2019 (Qld). 10 The limits are reasonable and justified in accordance with s 13 of the Human Rights Act 2019 (Qld). -- 7 of 8 -- 8 (3) The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. (4) AJM is appointed as an administrator for CLE for all financial matters. (5) The financial management plan dated 31 May 2025 is approved. (6) The Tribunal directs the administrator to provide to the Tribunal: (a) copies of CLE’s bank statements/passbooks/term deposits for the past year; (b) a list of CLE’s current assets and liabilities; (c) a current fortnightly budgeted income and expenditure; (d) a copy of the latest accommodation account or statement for residential aged care for the period; (e) a copy of receipts of any individual items purchased in excess of $500; and (f) a signed declaration as to continuing appropriateness for appointment. At the following times: (i) for the initial year of the appointment no later than one (1) month after the anniversary of the appointment; (ii) for the year in which a review of the appointment will occur, three (3) months prior to a review of the appointment; and (iii) when requested by the tribunal. (7) This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years. -- 8 of 8 --