DNW [2022] QCAT 287

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DNW [2022] QCAT 287 PARTIES: In an application about matters concerning DNW APPLICATION NO: GAA7764-22 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 2 August 2022 HEARING DATE: 25 July 2022 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The application by DNW’s daughter for an interim order is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where administrator already appointed – whether interim administrator required HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult in hospital – where appointment of guardian sought for accommodation and restrictive practice decisions – whether immediate risk of harm Disability Services Act 2006 (Qld), s 144, s 166 Guardianship and Administration Act 2000 (Qld), s 80ZE(2), s 80ZR(1), s 129(1) APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] This matter relates to a woman aged 62. For the sake of privacy, I will refer to her only as DNW. [2] On 22 July 2022, DNW’s daughter applied to the tribunal for the appointment of substitute decision-makers for DNW: -- 1 of 4 -- 2 (a) an administrator (to make financial decisions for DNW); (b) a guardian (to make personal decisions for DNW); and (c) a guardian for a restrictive practice (to make decisions about the use of a restrictive practice affecting DNW). [3] DNW’s daughter proposes that the Public Trustee or herself be appointed administrator,1 and that she be appointed guardian and guardian for a restrictive practice. [4] On the same date, DNW’s daughter also made an application for an interim order: seeking interim appointments until the substantive applications are determined. On 25 July 2022, I dismissed the application for an interim order. DNW’s daughter has requested reasons, which I now provide. Background [5] Medical reports have been filed which indicate that DNW has significantly impaired decision-making capacity. This impairment has resulted from a traumatic brain injury in 2020, compounded by alcohol use. [6] On 15 February 2021, the tribunal appointed the Public Trustee as interim administrator and the Public Guardian as interim guardian for DNW. Then at a hearing on 11 May 2021, the tribunal appointed the Public Trustee as administrator for DNW for all financial matters. That appointment was until further order, but it is reviewable. The tribunal directed that the appointment be reviewed after two years. The tribunal appointed the Public Guardian as guardian for the provision of services including in relation to the National Disability Support Scheme. That appointment was for one year. [7] Accordingly, the Public Trustee remains DNW’s administrator, but DNW does not have a current guardian. [8] DNW’s daughter in her recent applications advises that DNW is in hospital after a fall. The daughter contends that it is not safe for DNW to return home when she is discharged. She says that adequate care cannot be provided at home. It will be necessary for DNW to move to a care facility, according to the daughter, and a guardian and administrator will need to make the decisions for that move. An administrator is also required, according to the daughter, because DNW is unable to budget. A restrictive practice is needed, according to the daughter, namely the restriction of access by DNW to alcohol and cash. Legislative tests [9] An interim appointment of an administrator or guardian can be made only if the tribunal is satisfied, on reasonable grounds, that the adult in question has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.2 1 The daughter’s application is confusing in this regard: at page 12 she indicated that the Public Trustee should be appointed, but at page 13 she completed the appropriateness and competence advice which is required only where a corporate administrator is not proposed. 2 Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act), s 129(1). -- 2 of 4 -- 3 [10] An interim appointment of a guardian for a restrictive practice can be made only if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the adult in question or others, and using a restrictive practice is the least restrictive way of ensuring the safety of the adult or others.3 Why was an interim guardian not appointed? [11] The risks identified by DNW’s daughter are risks of self-neglect and injury from falls in DNW’s home environment. [12] However, DNW is being cared for in hospital. I find that there is no immediate risk of harm to her health and welfare. There is, therefore, no basis for making an interim appointment of a guardian. Why was an interim administrator not appointed? [13] DNW already has an administrator, namely the Public Trustee. There is, therefore, no need to appoint an interim administrator. If DNW’s daughter has concerns about DNW’s access to funds, she should convey that to the Public Trustee. The Public Trustee can take that concern into account, along with the other factors it needs to consider, in deciding what access DNW should have to funds. Why was an interim guardian for a restrictive practice not appointed? [14] The risk identified by DNW’s daughter involves the use of alcohol. However, there is nothing to indicate that DNW has access to alcohol while in hospital. Accordingly, I find that there is no immediate risk of harm. There is, therefore, no basis for making an interim appointment of a guardian for a restrictive practice. [15] I should add that even if DNW does have access to alcohol in hospital, the information presented so far by DNW’s daughter would be insufficient to warrant making an interim appointment. The use of restrictive practices is, understandably, closely regulated. The scheme in Chapter 5B of the Guardianship and Administration Act permits a guardian for a restrictive practice to consent to the use of a restrictive practice only if certain conditions are met. These include that the use of the restrictive practice is by ‘the relevant service provider in compliance with a positive behaviour support plan’.4 DNW’s daughter has provided no evidence that a positive behaviour support plan has been developed for DNW, or that one is even in the process of development. [16] Further, it is not apparent why a guardian for a restrictive practice would be needed, even assuming that a positive behaviour support plan were to endorse the use of the proposed restrictive practice. Unlike other restrictive practices, the restrictive practice of restricting access to objects does not inevitably require the consent of a guardian for a restrictive practice. Under section 166 of the Disability Services Act 2006 (Qld), such consent can be given by an ‘informal decision-maker’,5 provided of course that the various conditions for giving consent are met. An ‘informal decision-maker’ is ‘a member of the adult’s support network, other than a paid carer …’.6 3 Guardianship and Administration Act, s 80ZR(1). 4 Ibid, s 80ZE(2). 5 Disability Services Act 2006 (Qld), s 166(3)(b). 6 Ibid, s 144, definition of ‘informal decision-maker’. -- 3 of 4 -- 4 Conclusion [17] For the above reasons, I decided to dismiss the interim order application. [18] DNW’s daughter may wish to consider, in light of the above reasons, seeking leave to withdraw her applications for the appointment of an administrator and for the appointment of a guardian for a restrictive practice. Withdrawal of those applications would simplify the proceeding. Should DNW’s daughter wish to seek such leave, she should file an application for leave to withdraw using QCAT Form 58. -- 4 of 4 --