AM [2021] QCAT 394

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AM [2021] QCAT 394 PARTIES: In an application about matters concerning AM In applications about matters concerning AM APPLICATION NO/S: GAA3880-21; GAA3831-21 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 26 October 2021 HEARING DATE: 20 September 2021 HEARD AT: Brisbane DECISION OF: Member McDonald ORDERS: The hearing of the administration review is adjourned to a date to be fixed. The administrator must file in the Tribunal any documentation in support of his compliance with his obligations as administrator, including bank statements from 20 July 2019 to 23 September 2021; and any receipts for expenses met for AM The guardianship order made by the Tribunal on 19 November 201 is changed by removing RM as guardian and appointing the Public Guardian for AM for the following personal matters: (a) Accommodation (b) with whom AM has contact and / or visits (c) Provision of services including National Disability Insurance Scheme. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 6 months. CATCHWORDS: HEALTH LAW – GUARDIANSHIP-MANAGEMENT AND ADMINISTRATION OF PERSONS PROPERTY – OF PERSONS WITH IMPAIRED CAPACITY – where review of the current appointment sought – where dispute about adults living arrangements and contact arrangements -- 1 of 6 -- 2 Guardianship and Administration Act 2000 (Qld), s 31, s 12, Schedule 4 Human Rights Act 2019 (Qld), s 48, s 13 APPEARANCES & REPRESENTATION: Adult: AM Applicant/s: FK Current Guardian RM Public Guardian: Elissa Watkins Interested Person/s: JR, NK REASONS FOR DECISION [1] On 19 July 2019, the Tribunal appointed AM’s father MR as Guardian for legal matters, including visa applications or immigration issues relating directly or indirectly to AM and his family. It made this order current until further order and to be reviewed in 5 years. On that date it also appointed RM as administrator for AM for all financial matters and made the order current until further order to be reviewed in 5 years.1 On 29 March 2021, AM’s mother, FK filed applications for the review these appointments. The administration matter was part-heard and adjourned in order to allow Mr Anas to file further documentation, relevant to his decisions as financial administrator. These reasons relate only to the guardianship application which was determined at the hearing. [2] AM is a 25 year old man with Down Syndrome. Originally from Fiji, he has been living in Australia with his father and his father’s wife for 23 years. His father has been managing his affairs. His step-mother, JR, has been dealing with NDIS and services providers on behalf of AM as NDIS nominee. [3] The application is made by FK, AM’s mother, who has moved from Fiji to Australia under a carer visa to provide care for AM. In material submitted to the Tribunal, it is noted that AM’s father supported this move with correspondence to Immigration to facilitate the mothers move to Australia to provide care to AM due to his ill health. AM’s mother alleges that she and her children are not permitted to have contact with AM, and expressed concern that AM is exposed to illicit drugs and raises concerns that AM’s funds are not used for his sole benefit. She would like AM to live with her and expresses concerns about the adequacy of his care while living with the father. [4] The Tribunal conducted a review of the appointment of a Guardian pursuant to section 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). (1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate. 1 Exhibit 1 -- 2 of 6 -- 3 (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 making the appointment, including, for example, 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, other than the public guardian, only if the tribunal considers— a. the appointee is no longer competent; or b. another person is more appropriate for appointment. (5) An appointee is no longer competent if, for example— a. a relevant interest of the adult has not been, or is not being, adequately protected; or b. the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or c. the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or d. the appointee has otherwise contravened this Act. [5] The Tribunal must first turn its mind to whether grounds for appointment under section 12 of the GAA exist. [6] Section 12 states that the Tribunal may only appoint a Guardian where it is satisfied: (a) the adult has impaired capacity for the matter; and (b) 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; and (c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected. -- 3 of 6 -- 4 Capacity Evidence [7] There is a presumption that all adults have the capacity, stated at General Principle 1.2 [8] There is independent evidence before the Tribunal that indicates that presumption is rebutted. The medical evidence before the Tribunal from Dr Shaukat Ali filed on 5 May 2021indicates that AM is diagnosed with Downs Syndrome and intellectual disability who “does not talk”.3 [9] Dr Sinnathamby in his health professional report to the Tribunal dated 22 February 2021, notes that he has been AM’s GP for 16 years.4 He states that AM does not understand social interactions and needs to be fully supervised. He stated he has nil understanding of his financial affairs and is unable to make decisions freely and voluntarily. He stated that he could made simple health decisions, but not complex decisions, and was not able to make simple lifestyle or financial decisions. He noted that his communication was impaired by deafness and a cognitive impairment. Consequently, medical opinion from his treating practitioner indicates that AM lacks appreciation of simple lifestyle decisions. [10] The decisions AM faces presently relate to contact with his mother, where he lives and the support he has. Noting the high degree of conflict around these decisions, these are complex matters, and I note Dr Sinnathamby considers he cannot make decisions freely and voluntarily.5 [11] At the hearing, to ascertain his views, I sought to engage AM in discussion on the issues at hand which relate to lifestyle decisions around his living arrangements, contact with other family members and supports. It was apparent that AM wanted to make his views clear to the Tribunal. The family members present appeared familiar with AM’s communication style and appeared to understand what AM was communicating, however, I was unable to understand most of what AM was saying to me. He spoke in English, but his expressed words were not clearly distinguishable. Because of these significant difficulties understanding what AM has said, it is my opinion that he has difficult communicating his decisions. I note medical evidence in the file identifies impaired communication. [12] The Test of Capacity is stated at Schedule 4 of the Guardianship and Administration Act, capacity, for a person for a matter, means the person is capable of— (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [13] In light of the evidence before me, I find that each of these limbs are not made out, and therefore the presumption of capacity is rebutted. I find that AM has impaired capacity for simple lifestyle, accommodation and financial matters. 2 Section 11B GAA (Act). 3 Exhibit 9. 4 Exhibit 10. 5 Exhibit 10 at p 6. -- 4 of 6 -- 5 Are there decisions to be made that require a Guardian to ensure that AM’s needs are adequately met or interested are adequately protected? [14] The Public Guardians investigation reported its finding of concerns that came before them. In the report of 27 August 2011, allegations were investigated that AM was prevented from maintaining a relationship with his mother. Investigations found that since 9 November 2020, AM has not seen his mother. Inquiries with AM and MR suggested that AM does not want to go to the house where his mother lives. He alleged that he has been physically harmed by his stepfather when visiting his mother FK, and does not want to go. These allegations were denied by NK, (AM’s stepfather) at hearing. The Public Guardian found that allegations that AM was prevented from maintaining a relationship were substantiated, but that restrictions had been imposed because RM considered these relationships were no longer supportive, and RM considers these relationships detrimental to AM. The Public Guardian commented that while Mr A is upholding AM’s wishes, alternate methods of contact should be explored.6 [15] The investigation determined that allegations that RM was engaging in inappropriate care practices were not made out. Claims were made that RM had supplied AM with unprescribed marijuana; that AM presented as unwashed, malodorous with dirty clothing. Inquiries were made with support service providers and client visits where undertaken. Ultimately, the evidence collated did not substantiate allegations raised in relation to these matters. [16] The investigation further determined that allegations that AM has been left without supervision whilst in the community whilst requiring high levels of support were substantiated. Investigations revealed that the police have picked up AM on the streets “regularly” and that he is often out on the streets on his own. It was further noted that his NDS funding had run out in early May 2021, and services were not being provided for a period. The report also refers to Dr Sinnathamby’s comments on 16 August 2021 where he indicated it is not safe for AM to be unsupervised in the community due to language barriers and intellectual impairment. [17] The Public Guardian concluded that while RM supports AM to participate in independent activities, there are concerns about the level of supervision provided at these times. [18] Significant contention was apparent at the hearing between the parties. AM became visibly distressed during the hearing. He told the Tribunal that he was not comfortable visiting FK’s home. FK raised concerns that AM was being influenced in his expression that he did not want to visit. [19] It was apparent that AM had strong views about his living arrangements and his contact with FK and NK. It was very difficult to understand AM’s expression of these views due to his communication impairments. [20] Ultimately, all parties agreed that there was a dispute about AM’s living arrangements and a dispute about the contact that the has with his mother and siblings. The appointed guardian is in dispute with his ex-wife, and while RM purports to be advancing AM’s views and wishes, he has not countenanced alternative contact arrangements. To some extent, given that there is dispute about AM’s living 6 Exhibit p14 -- 5 of 6 -- 6 arrangement between his two biological parents, there is a conflict of interest in the appointed guardian making this decision in light of the observably high conflict between RM and NK. A decision needs to be made around these issues to ensure AM’s interest are adequately protected. It is more appropriate for an independent party to make these decisions in the context of this dispute between the parents where there is strong acrimony, and it is not transparent that the appointed guardian is motivated solely by the adult’s interests in exercising decision making around these arrangements. [21] Further, the Investigation report substantiates that inadequate levels of supervision have occurred and reveals that there have been issues around AM’s funding levels for support services. Although there is an NDIS nominee in place, decisions need to be made to address these concerns to ensure that AM’s needs for safety and supervision are adequately met. [22] RM stated when asked that the Immigration matters had concluded and had related to NK’s immigration to Australia. There was no ongoing need for decisions to be made in relation to these legal matters. [23] I find that there is a need for decisions to be made about accommodations, service including NDIS and contact arrangement matters which are in dispute and without the appointment on a guardian on a short-term basis to make decisions about his services, accommodation and with whom AM has contact. [24] Section 31 specifies that an incumbent appointee can only be removed if they are no longer competent or someone else is more appropriate. In the context of the dispute between AM’s parents, the Public Guardian is considered more appropriate bringing an independent decision-making framework to the decisions at hand, with obligation to take into consideration AM’s views. They are accordingly appointed on a short- term basis and the Tribunal will review this appointment in 6 months. [25] Section 48 of the Human Rights Act 2019 (Qld) obliges me to interpret the statutory provisions to the extent possible that is consistent with their purpose in a way compatible with human rights. I recognise that in appointing a guardian to make decisions on behalf of the adult some incursion into the adult’s rights to privacy, may result. [26] I am satisfied that the limits imposed by the guardianship order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld), having regard to the purpose of the limitation, being to ensure that AM’s interests are adequately protected in exercising substituted decision making around his lifestyle and accommodation decisions. -- 6 of 6 --