ADU [2023] QCAT 573

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ADU [2023] QCAT 573 PARTIES: In an application about matters concerning ADU APPLICATION NO/S: GAA10549-22, GAA 10550-22 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 9 January 2023 HEARING DATE: 8 December 2022 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: CONFIDENTIALITY ORDER The following documents are not to be disclosed to ADU: (a) application for miscellaneous matters - guardianship (application for confidentiality order) filed by Dr Sahil Chopra on 19 September 2022 (document H6 on the tribunal’s file); and (b) application for miscellaneous matters – guardianship (application for confidentiality order) filed by Kai Hong Leung on 11 October 2022 (document H12 on the tribunal’s file). The following passages in documents are not to be disclosed to ADU: (a) in the application for an interim order filed by Dr Karen Freier on 19 September 2022 (document H7 on the tribunal’s file), in part C, sixth line, the seven words after ‘treatments including’; and (b) in the health professional report of Dr Karen Freier dated 12 September 2022 (document Med 3 and repeated at document M4),in part D question 1, the four words after ‘fascicular block’; in part E question 1, the 12 words after ‘lost consciousness and’; and in part E question 5, the seven words after ‘life- sustaining treatment and’. The hearing is sealed and all references, in the hearing, to the health matter identified in the -- 1 of 5 -- 2 documents and extracts referred in order 1 and 2 above are not to be disclosed to ADU and must be redacted from any recording or transcript of the proceeding provided to him. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – confidentiality orders - where disclosure of a health matter to the adult could cause harm Guardianship and Administration Act 2000 (Qld) s 11B, s 103, s 104, s 109, s 110, s 113 Human Rights Act 2019 (Qld) s 13, s 48 BNA [2019] QCAT 246 DAA [2009] QGAAT 8 FG [2011] QCAT 178 HFI [2018] QCAT 279 JSM [2011] QCAT 351 APPEARANCES & REPRESENTATION: K Leung, Applicant Dr Freier SRU, sister Ms McPhillips, for the Adult Guardian REASONS FOR DECISION What is the application about? [1] ADU lives with chronic treatment-resistant schizophrenia and serious physical medical conditions including a heart condition and diabetes. [2] On 8 December 2022 I made findings that: (a) ADU had impaired decision making capacity; (b) ADU had a need for decision making for financial, accommodation, health care and the provision of services including with respect to the National Disability Insurance Scheme (NDIS) matters; and (c) Without an appointment in those areas ADU needs would not be and his interested would not be protected, and on those bases, appointed the Public Guardian as guardian for accommodation, health care and the provision of services including with respect to the NDIS and The Public Trustee as administrator for, giving oral reasons at the time. [3] At the commencement of the hearing, I made a confidentiality order. Pursuant to section 113 of the Guardianship and Administration Act 2000 (Qld) (GAA) my reasons for doing so must be given in writing, and they now follow. -- 2 of 5 -- 3 The statutory framework [4] During a guardianship or administration application, the Tribunal may make a confidentiality order if it is satisfied it is necessary to avoid serious harm or injustice to a person. [5] Such an order can withhold from an active party or other person a document or party of a document or other information that is before the Tribunal.1 [6] To the extent relevant information is health information for a person, serious harm to the person includes significant health detriment to the person.2 [7] The pre-hearing confidentiality order made 14 October 2022 automatically vacated at the start of the hearing,3 making it was necessary on Tribunal-initiative to consider whether to make a fresh order at the commencement of the hearing. [8] In making a confidentiality order, the Tribunal must: (a) take ‘access rights’ into account as a matter of procedural fairness;4 and (b) be satisfied that an order is necessary, relevantly, to avoid serious harm to a person. Is the order necessary to avoid serious harm to ADU? [9] Neither serious harm nor injustice are defined in the GAA, but it has been found to mean physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding.5 [10] In determining serious harm or injustice, the Tribunal is to regard to the existence and quality of the supporting evidence,6 and the consequences of not making a limitation order based on that evidence. [11] ADU did not attend the hearing to give evidence or express his views. [12] Dr Freier, ADU’s treating psychiatrist, signed a Health Practitioners Report dated 12 September 2022 in which she observed that ADU lacked capacity to make decisions around many issues including health, was unable to retain information, was cognitively rigid, and that there were no further options to medically optimise his decision-making capacity. ADU had a long history of treatment resistant schizophrenia, a chronic lack of insight, poor judgement, recurrent and non-adherence to treatment, and had previously lost consciousness due to a refusal to acknowledge and treat his physical health conditions. [13] Dr Freier also gave updated evidence at the hearing that ADU continued to refuse to believe or acknowledge his heart condition and was also refusing testing and insulin for his diabetes. 1 Ibid, s109(1). 2 Ibid s 109(2). 3 Ibid s 110(2). 4 BNA [2019] QCAT 246, [10]. 5 DAA [2009] QGAAT 8 [43], adopted in JSM [2011] QCAT 351, [8]. 6 FG [2011] QCAT 178, [10]. -- 3 of 5 -- 4 [14] Additional psychiatric evidence before the Tribunal included written reports of Dr Hume dated 17 June 2021, 26 October 2021 and 18 May 2022 in which is it stated, among other things, that ADU refuses all medication and treatment for his conditions, denies that he has illnesses, had four hospital admissions in the seven months preceding May 2022 with deteriorating physical health, and observed that ADU’s distrust of health services, delusions, paranoia and disbelief limited his capacity to consent to medical treatment with the effect that he consistently refused to consent to medical treatment including life-saving medical procedures. [15] Further evidence suggested that ADU might seek to undo any historical care he may have received whilst unconscious (consented to by Statutory Health Attorneys), and that any such attempt would likely result in serious, if not fatal injury to him. [16] The medical evidence before the Tribunal is descriptive and substantive. I am satisfied that it well establishes that the disclosure to ADU of the information the subject of this order may result in serious, if not fatal, physical harm to ADU and that consequences of not making such an order would likely be the risk to his life. Consideration of ADU’s access rights [17] As an active party, ADU is entitled to access a document or other information before the Tribunal that is credible, relevant, and significant to an issue in the proceeding concerning him.7 [18] Further, Tribunal hearings should be held in public and able to be publicly reported, tempered by the inherently private nature of the guardianship jurisdiction.8 [19] In making the confidentiality order I have had regard to these important factors and limited the order to the extent possible so that it does not impact those access rights too broadly, however, given the sensitive nature of the medical evidence before the Tribunal and the serious harm that may be caused to ADU (by ADU) should its content be disclosed, I am satisfied that the order as made is necessary despite its impact upon access rights. Consideration of ADU’s Human Rights [20] Section 48 of the Human Rights Act 2019 (Qld) (HRA) requires the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. [21] I acknowledge that it is a serious thing to withhold from ADU a health matter that concerns him. He has rights to privacy and reputation and liberty protected by the HRA and these rights are explicitly recognised in the GAA,9 but I am satisfied considering the findings I have made with respect to the serious risk to ADU of the disclosure of the health matter the subject of this confidentiality order, that the limits imposed by the confidentiality order are reasonable and justified in accordance with section 13 of the HRA. 7 GAA, s 103. 8 HFI [2018] QCAT 279, [34], [45]. 9 GAA, s11B, see General Principle 2 - Same human rights and fundamental freedoms. -- 4 of 5 -- 5 Decision [22] For those reasons, I made the decision to keep certain health information confidential from ADU on the terms of this order. -- 5 of 5 --