DHA [2020] QCAT 325

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DHA [2020] QCAT 325 PARTIES: In an application about matters concerning DHA APPLICATION NO/S: GAA3849-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 29 April 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Guthrie ORDERS: On 9 April 2020 the following orders were made: GUARDIANSHIP The Public Guardian is appointed guardian for DHA for the following personal matters only: (a) provision of services, including in relation to National Disability Insurance Scheme. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing. This guardianship appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. ENDURING POWERS OF ATTORNEY The Tribunal notes that any purported enduring power of attorney for DHA is overtaken by the making of this appointment and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that this appointment has been made. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where the appointment of a guardian and an administrator was sought – where an application for the appointment of a guardian on an interim basis was filed – where the medical opinion is that DHA cannot make decisions freely and voluntarily – where the Tribunal was satisfied that there was an immediate risk to the adult’s -- 1 of 6 -- 2 health, welfare, or property – where DHA appointed an Enduring Power of Attorney – where there is family conflict – where DHA is at risk if service provision is impeded – where services were withdrawn – where the Public Guardian was appointed as a guardian for DHA on an interim basis – where the right to a fair hearing is engaged – where DHA and other active parties had opportunity to respond to the interim application – where the limitation on the right to a fair hearing was reasonable and justifiable Guardianship and Administration Act 2000 (Qld), ss 11A, 12, 14(2), 15, 118, 129, Schedule 1, Schedule 4 Human Rights Act 2019 (Qld), ss 13, 31, 48 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] These are my reasons for appointing, on 9 April 2020, the Public Guardian as guardian for DHA on an interim basis, for a period of no more than three months, for making decisions about the provision of services including in relation to the National Disability Insurance Scheme for DHA. [2] On 18 March 2020 a social worker (the applicant) applied for the appointment of a guardian for DHA proposing the Public Guardian be appointed. The Public Trustee of Queensland manages DHA’s financial matters. Such applications are determined following a hearing by the Tribunal. The hearing provides the opportunity for the Tribunal to consider all relevant information including, to the extent possible, the views and wishes of the person about whom the applications concern, in this case, DHA. [3] The Tribunal, in determining such applications, must consider whether s 12 of the Guardianship and Administration Act 2000 (Qld) (GAA) is satisfied. The Tribunal must be satisfied, amongst other things, that DHA has impaired capacity for making the particular decisions that need to be made and without an appointment DHA’s needs will not be adequately met or DHA’s interests not adequately protected. [4] The applicant also applied for an interim order which was subsequently dismissed by the Tribunal.1 On 9 April 2020 another application for an interim order was filed by the social worker which was determined by me. In determining the application I considered all of the material provided to the Tribunal at the date of my decision. That included the responses of active parties and interested persons to the first application for an interim order. 1 Differently constituted. -- 2 of 6 -- 3 [5] In making the orders, I was required to consider the terms of s 129 of the GAA. Section 129 provides that the Tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including s 118 (the requirements for notifying persons concerned about the hearing). In order to make such an order the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application including because of the risk of abuse, exploitation, or neglect of, or self-neglect by, the adult. The maximum period for which an interim order can be made is three months.2 [6] While it is not necessary under s 129 of the GAA for me to make a finding that the presumption of capacity is rebutted for the relevant adult, in the absence of any medical evidence casting doubt on the adult’s decision making capacity, I would not make the interim order. I had before me a health professional report concerning DHA. According to Dr Bandara, treating psychiatrist following DHA’s admission to hospital, DHA has been diagnosed with bipolar affective disorder and developmental delay. Dr Bandara expresses the opinion that DHA cannot make decisions freely and voluntarily. Dr Bandara states that DHA ‘lacks capacity to articulate his preferences when being influenced by his sisters’ noting that his three siblings, BH, HM and DM are involved to varying degrees in his care. Dr Bandara also expresses the opinion that DHA cannot understand and make his own complex decisions about health care, lifestyle and accommodation choices and financial affairs. I was satisfied that there was prima facie evidence that the presumption of capacity may be rebutted for DHA. Of particular relevance in determining the application for the interim order was the opinion that DHA could not make decisions freely and voluntarily.3 [7] The progress notes of his admission to hospital and engagement with the hospital’s Mental Health Services indicate that at the time of his admission DHA was living with his sister BH and was supported by both HM and DM but there was family conflict with HM. [8] I also had before me an Advance Health Directive including an Enduring Power of Attorney for personal/health matters dated 28 August 2007 whereby DHA appointed BH and DM as his attorneys with decisions to be made jointly (unanimously). It is unclear whether any other Enduring Power of Attorney exists. [9] According to correspondence on the file, HM was DHA’s NDIS plan nominee. The application for the interim order states that DHA was residing at home alone and had no organised supports as all of his NDIS providers had withdrawn due to the providers stating they had been threatened and verbally abused by HM. The types of services included services for the provision of meals and cleaning services for DHA as well as medication supervision. It was also claimed that as DHA has a NDIS package that has already been assessed, services could be put in place during the period of the interim order. Further the application states that Queensland Health had contacted support co- ordinators and services however they would not provide services unless HM was not the nominee. Further the application states that DHA is highly vulnerable and had indicated that there was significant risk that DHA would again sign a form nominating HM as his nominee because essentially, he cannot make decisions freely and 2 GAA, s 129(6) provides for renewal of an interim order if the Tribunal is satisfied there are exceptional circumstances justifying the renewal. 3 GAA, Schedule 4 definition of ‘capacity’. -- 3 of 6 -- 4 voluntarily. The application for the appointment of a guardian also states that DHA 'tends to agree with whichever sister is speaking to him at the time. He later requests independent support'. [10] HM provided the Tribunal with copies of email exchanges indicating that DHA had signed a form to remove HM as his NDIS representative. The content of the correspondence also makes it clear that there is considerable conflict between HM and her sisters BH and DM as well as between HM and DHA’s treating team. Further correspondence indicated as late as 3 April 2020 that DHA’s support co-ordinator intended to resign upon DHA’s return home apparently as a result of statements made by HM which were perceived by the support coordinator to be slanderous and threatening. The correspondence indicates there has been conflict between HM as NDIS plan nominee and service providers for DHA for some time. [11] In response to the earlier application for an interim order, DM supported the appointment of the Public Guardian for decisions about NDIS and detailed the family conflict. BH also provided a response expressing concern about decision making for DHA. In my view, the correspondence from DM and BH indicated that they were both unable, at the current time, to assert themselves as decision makers for DHA despite the Enduring Power of Attorney and they both felt that DHA’s health was suffering as a result of the decision making by HM. [12] In response to the first application for an interim order the Public Guardian, amongst other things, agreed there was potential risk identified in the application regarding service provision but submitted that an interim order was not the least restrictive option available at the time nor the most appropriate way forward given the need for enquiries, assessments, access requests and meetings. [13] The primary focus of the GAA is adults with impaired capacity.4 DHA is my focus. At the time of my decision, DHA was living on his own. All service provision had withdrawn. He had required service provision for meals and supervision of medication and has a NDIS package. I accepted that the withdrawal of service providers was attributable to conflict between DHA’s NDIS plan nominee and the service providers. At the time of my decision it was claimed that DHA had signed a form indicating that he no longer wanted HM to be his nominee so there was some evidence that DHA no longer wished HM to be his nominee. Concern was also expressed by others, consistently with the opinion of Dr Bandara, that DHA’s mental health was negatively impacted by the conflict around his decision making and that he would be at significant risk if he did not have access to appropriate services. I also accepted that neither BH or DM sought to rely on the Enduring Power of Attorney nor felt able at this time to make decisions for DHA in relation to service provision and NDIS, in particular, due to the conflict with HM. [14] Further, I accepted the submission of the applicant that service provision could be put in place for DHA quickly. The applicant indicated that services were available but the conflict around the decision maker was the impediment to those services being engaged. DHA needs decisions to be made in a timely manner particularly now that he has been discharged from hospital. For those reasons, I was satisfied that there was an immediate risk of harm to DHA if a guardian for making decisions about provision of services including NDIS was not appointed. I was not satisfied that there was an 4 GAA, s 11A. -- 4 of 6 -- 5 immediate risk of harm to DHA in the absence of the appointment of guardian on an interim basis, to make other decisions for DHA. [15] In deciding to appoint the Public Guardian as guardian for DHA, I concluded that, as at the date of the decision, there was no other person appropriate, available and willing to be DHA’s decision-maker due to the conflict already outlined in these reasons.5 Any appointed decision maker must apply the General Principles in Schedule 1 of the GAA in making decisions for an adult which include, but are not limited to, recognising and taking into account the presumption of capacity, the right of all adults to the same basic human rights regardless of the adult’s capacity, an adult's right to respect for his human worth and dignity as an individual, the encouragement of self- reliance, an adult's right to participate to the greatest extent practicable in decisions affecting their life and the importance of maintaining an adult’s existing supportive relationships.6 I am satisfied that the Public Guardian will apply the General Principles when making decisions for DHA. [16] For clarity, I made an order that Enduring Power of Attorney provided to the Tribunal was overtaken only to the extent of the appointment that is for making decisions about provision of services including NDIS. In my view, the orders made by me based on the material at the time of my decision were the least restrictive option to ensure DHA’s needs were adequately met and his interests adequately protected. [17] I have also considered the provisions of the Human Rights Act 2019 (HRA). DHA has the right to a fair hearing under s 31 of the HRA. Section 129 of the GAA makes it clear that the Tribunal has a discretion to make an interim order without hearing and deciding the proceeding or otherwise complying with the requirements of the GAA including giving DHA notice of any hearing to determine the application. It was unclear from the formal applications that DHA had been notified of the application to appoint a guardian for him or of the applications for the interim orders. There was however, as already set out earlier in these reasons, some expression of his views about who might support him to make decisions.7 I found that there was an immediate risk of harm to DHA. Applications for interim orders are effectively applications for urgent orders where there is an identifiable risk to the relevant adult. They are typically determined on the papers based on the material before the Tribunal at the time of the decision due to the urgency. Interpreting s 129 of the GAA compatibly with Human Rights8 requires a balancing of the urgency of making the order, in particular the risk to the adult taking into account the primary focus of the GAA which is adults with impaired capacity, and the right to a fair hearing. [18] As stated above, I was satisfied that DHA's views were to some extent obtained in relation to who should support him to make decisions in addition to evidence both objective and otherwise that DHA cannot make decisions freely and voluntarily. DHA is entitled to adequate support services to enable him to live independently which is consistent with a free and democratic society based on human dignity, equality and freedom. I also rely on the reasons I gave in relation to the order being the least restrictive option in the circumstances at the time of the decision. The Public 5 GAA, ss 14(2) and 15. 6 GAA principles 1, 2, 3, 6, 7, 8. 7 See [6]-[9] and [11]. 8 HRA, s 48. -- 5 of 6 -- 6 Guardian, BH, DM and HM were all given the opportunity to respond to the applications made by the applicant for an interim order. For all of those reasons, I am satisfied that any limit on DHA's right to a fair hearing or any other active party's right was reasonable and justifiable.9 [19] The application for the appointment of a guardian will continue to be progressed by the Tribunal’s registry to a final hearing before another member of the Tribunal. The final hearing will provide the presiding member with an opportunity to discuss all of the material before the Tribunal with the active parties. The presiding member at the hearing is not bound to accept any of my findings or conclusions. 9 HRA, s 13. -- 6 of 6 --