AAB [2019] QCAT 245

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AAB [2019] QCAT 245 PARTIES: In an application about matters concerning AAB APPLICATION NO/S: GAA164-19, GAA1649-19, GAA1650-19, GAA1651- 19,GAA1652-19,GAA2047-19, GAA2110-19, GAA3006-19,GAA3705-19 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 12 August 2019 HEARING DATE: 2 April 2019 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: GUARDIANSHIP 1. The guardianship order made by the Tribunal on 10 February 2017 is changed by appointing the Public Guardian as guardian for AAB for the following personal matters: (a) Accommodation; (b) With whom AAB has contact and/or visits; (c) Health care; (d) Provision of services, including in relation to the National Disability Insurance Scheme; (e) Legal matters not relating to AAB’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. DIRECTIONS 3. The applications by HK for directions, ratify/approve an informal decision and an interim order for AAB are dismissed. LIMITATION ORDERS 4. The application for an Adult Evidence Order for AAB is dismissed. 5. The Tribunal orders that pursuant to s107(1)(a) of -- 1 of 11 -- 2 the Guardianship and Administration Act 2000 the hearing of applications numbered as per case numbers; GAA164-19, GAA1649-19, GAA1650-19, GAA1651-19, GAA1652-19, GAA2047-19, GAA2110-19, GAA3006-19 and GAA3705-19 is closed to HK. 6. The Tribunal orders that pursuant to s108 of the Guardianship and Administration Act 2000 publication of information about the hearing is prohibited. 7. The Tribunal orders that pursuant to s109 of the Guardianship and Administration Act 2000 the following information/documents are confidential and must not be disclosed: (a) The letter from the Public Guardian dated 13 February 2019; (b) The application from the Public Guardian dated 13 February 2019; (c) Any information or documents which discloses the names of the current delegates of the Office of the Public Guardian. CATCHWORDS: ORDERS 8. The Tribunal orders that HK is not an interested person for AAB. HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where review of appointment of guardian – where adult resident in aged care facility – where adult prescribed medication without consent – whether adult has impaired capacity – whether applicant is an interested person – whether limitation orders should be made. Guardianship and Administration Act 2000 s12, s14, s31, s104, s105, s107, s108, s109Schedule 2 - Types of Matters Appearances HK, by telephone. CD, EF and GF represented the Public Guardian GP represented the Public Trustee of Queensland and Karen Williams was tribunal appointed representative for AAB. REASONS FOR DECISION INTRODUCTION [1] AAB is 26 years old and is currently an inpatient in the extended care unit of a Mental Health facility operated by the Queensland Health Department. The primary -- 2 of 11 -- 3 application before the Tribunal is an application to review the appointment of the Public Guardian as guardian for AAB for all personal matters which order was made on 10 February 2017 for two years. When reviewing a guardian, the Tribunal does so in accordance with sections 31 and 12 of the Guardianship and Administration Ac t 2000 (GAA Act). That requires the Tribunal to be satisfied as to whether AAB currently has capacity for personal decisions. If there is a need for decisions and if so then the current guardian must be continued unless they are no longer competent or there is another party more appropriate. [2] There are other applications before the Tribunal for directions, an interim order and to ratify an informal decision. These were made by HK who had been in AAB’s life over a period of years. Having regard to material that was filed by the Public Guardian which indicated that HK may be having a negative impact on AAB the Tribunal initiated an application to determine if HK was an interested person for AAB in accordance with s126 of the Guardianship and Administration Act 2000 (GAA Act). The definition of interested person in Schedule 4 of the Act, “a person who has a sufficient and continuing interest in the other person”. If the Tribunal determines that a person is not an interested person for an adult, then that person is not able to make applications to the Tribunal regarding that adult in accordance with s115 of the GAA Act. [3] Finally, there have been application made for limitations orders1 by the Public Guardian in respect of whether material they have filed in respect of the applications before the Tribunal should be available to HK. An application was also made by the Tribunal appointed representative of AAB for an adult evidence order to enable her to give her evidence without HK being present. That application was dismissed due to AAB not attending the hearing. IS HK AN INTERESTED PERSON FOR AAB [4] The Public Guardian had advised the Tribunal on 19 November 2018 that they were not aware of any ongoing involvement by HK with AAB. Further, that in March 2018 HK assisted AAB to abscond from Mental Health Queensland and she was found to be residing in country NSW with HK. On 10 May 2018 AAB was transported to a hospital in Victoria after a domestic incident involving HK and was subsequently transported back to Queensland and the Public Guardian decided that AAB was to have no contact with HK. That the last correspondence from HK to their office was on 18 June 2018 where he asked to know her whereabouts and would report AAB missing. [5] HK was directed to make submissions as to why he is currently an interested person for AAB with the Public Guardian also being given the opportunities to make submissions. HK submitted that he was AAB’s partner of 7 years and that he had been involved in her life since before the Tribunal application. He stated that he was applying for guardianship himself. He said he still speaks to AAB daily regardless of what the Public Guardian may claim to protect themselves. That he believed that the Public Guardian are providing false information due to a recent incident AAB was removed from his home and had her contact to me removed by Public Guardian so they can make false claims to your office (the Tribunal) I am no longer in her life. The 1 GAA Act s100 -- 3 of 11 -- 4 client was told they would go to jail for calling me which is confirmed as a lie. He also attached Facebook conversation. [6] HK advised the Tribunal that he had made an application to the New South Wales Civil and Administrative Tribunal to be appointed as AAB’s Guardian and Financial manager. HK stated in the NCAT application that he had been AAB’s de facto for 7 years. That AAB’s address was in NSW and that they had moved States in the last 12 months but AAB had fallen ill again and was returned to hospital. [7] HK made an application to the Tribunal on 23 January 2019 for ratification of a decision by HK as informal decision maker for AAB to reside where she lived last year in NSW in accordance with s154 of the GAA Act. He also requested documentation and information which he said was necessary for an NCAT hearing in February. He also requested directions that certain documents be provided to himself by the Guardian and administrator for AAB to assist in his application to NCAT. He provided material from the Mental Health Review Tribunal from 2016 which acknowledged HK as AAB’s partner and that it was her wish to live with HK and his family. This material also notes that there have been times when AAB has been on unescorted leave with HK and she has absconded from the hospital to be later returned unwell and she tested positive for cannabis and sometimes alcohol and amphetamines. That decisions had been made by her guardian that there could be no contact between AAB and HK , and this was reviewed to permit limited telephone contact. That HK was not permitted to visit the hospital due to his history of being a disruptive influence on her treatment, [8] HK made a further application to the Tribunal as to AAB’s physical place of residency when she is not in care. It asks if the Public Guardian has the real-world ability to force AAB to stay at its chosen place and if it is appropriate that the agencies continue to rent a place for over a year now that the adult hasn’t lived in it. That the Tribunal acknowledge that AAB lives with HK when not in hospital care regardless of the wishes of the Public Guardian or Queensland Health. HK sought a decision that he is by nature of their relationship and proven history an informal decision maker in relation to AAB’s residential and physical address and in particular that she resides at HK’s address in NSW. [9] HK filed an application for an interim order 24 January 2019 seeking that the Public Guardians decision to suspend with AAB inbound and outbound with HK and his family. This occurred by the removal of her phone which was alleged to constitute a restrictive practice. HK also made another application on 24 January 2019 seeking advice or directions from the Tribunal as to whether restriction of access of an adult to her loved ones/spouse via a contact order of the current appointee is a restrictive practice. That if restricting access of the adult to her phone and thus restricting access to Netflix, communicating information via google and other amenities of this device is a restrictive practice. [10] In material filed in the Tribunal HK consistently described himself as AAB’s spouse. [11] HK provided the Tribunal with a copy of advice from the Hospitals lawyers dated 5 February 2019 a decision which revoked the Hospital’s refusal to allow him to visit AAB perusal to s374 of the Mental Health Act 2000. The letter then goes on to remind HK that. The Public Guardian remains AAB’s guardian for all personal matters. This includes the power to determine that certain people may not visit and or’ have contact -- 4 of 11 -- 5 with AAB. That the Public Guardian has made the decision that it would be detrimental for AAB to have contact with you. Accordingly, although the refusal decision has been revoked you will still be unable to visit AAB based upon the decision of the Public Guardian. The Hospital is required to act in accordance with any decision made by the Public Guardian. This includes preventing you from having access to AAB for as long the Public Guardian is of the view that you should not be able to contact her. HK needs to pursue these matters with the Public Guardian. HK was also advised that given his prior conduct, should he attempt to enter upon Hospital land for any reason other than to receive medical care for himself, the Hospital will use the powers it has to remove him from its land. [12] HK provided the advice from the Hospital’s lawyers to the Tribunal stating that this shows I am no longer prevented from visits to the adult via the MHA 2016 this also means there is no medical reason, as the treating teams head director onsite revoked the order preventing visits. This shows that AAB must be medically suitable for my visits and that it’s now just the Public Guardian hatred of me preventing visits. [13] HK made a further application for an interim order 11 February 2019 preventing the Public Guardian restricting contact and visits to AAB until the hearing and that an interim guardian be appointed, HK so that protection can be given AAB against the current sexual exploitation occurring and so that appropriate legal representation for the adult can be granted as the current appointee is only arranging a advocate where the Act permits a pro bone legal representative. [14] The Tribunal dismissed the application for an interim order filed on 11 February 2019 on 18 February 2019 following advice from the Public Guardian that the contact decision made by the Public Guardian on 11 May 2018 stating that AAB is to have no contact with HK while receiving Mental Health treatment should remain in place. That the decision was made to ensure AAB’s safety and wellbeing after absconding to NSW with HK, which was a breach of her forensic order. In addition, it was reported to the Public Guardian that the time AAB spent with HK in NSW had a negative impact on her mental health. [15] I note that the applications to NCAT by HK were dismissed on 14 February 2019. [16] HK filed a further application for advice and directions on 12 March 2018 seeking contact with AAB who he described as his spouse through specific advice and directions in regard to how to deal with the Public Guardian to have his contact with AAB. [17] HK provided a copy of correspondence he received from the Queensland Chief Psychiatrist in response to concerns he raised about contact with AAB, access by her to alcohol/illicit substances on the inpatient unit, alleged breaches of the Queensland Health sexual health and safety guidelines 2016 and mobile phone access. [18] HK copied to the Tribunals emails he sent the Hospital in regard to his concerns that AAB was accessing cannabis and that there was a male person on her ward who was sexual risk to her and demands to the Public Guardian to give him reasons for their contact decision. He also provided a copy of a referral to the Health Ombudsman in regard to the male providing her with drugs and taking advantage of her disinhibition while unwell. -- 5 of 11 -- 6 [19] At the hearing HK stated that he had been AAB’s spouse for 8 years. He had resided with her and had been at every guardianship hearing. He said he was way more than a spouse. He noted that he had restricted communication with AAB and it had been limited since 2014. He was asked if his contact with AAB was subject to a decision of the Public Guardian. He said the last decision gave him telephone communication and 14 days for visits. The Public Guardian’s representatives confirmed that current contact arrangements go back to May 2018 with no contact while AAB is in mental health treatment. They said that they had had discussions with AAB on Friday and that the treating team considered HK makes AAB quite unwell. HK breaches her confidentiality so she doesn’t want contact. HK responded that was rubbish and he had recent contact with her. Karen Williams that AAB had expressed no particular views and she didn’t want to make calls to HK. [20] The Public Guardian’s representative advised the Tribunal on 23 January 2019 that the Public Guardian did not offer further submissions in relation to whether HK is an interested party for AAB. The Public Guardian did note though that HK’s actions in the past have put AAB’s health and safety at direct risk. [21] It is clear that while HK asserts he is AAB’s spouse he is subject to no contact, and he is not married to her. That contact with HK results in exacerbation of her illness and he is subject to decisions of the treating team that he is not to be present on hospital property unless it is for his own health and the Public Guardian in regard to his contact with AAB. I looked at the applications made by HK and noted that there was an appointed guardian so no informal decisions could be ratified, that restricted access to a telephone in a mental health environment was not a restrictive practice. That the Tribunal appoints and reviews decision makers but does not make decisions about such things as contact. [22] While I understand that HK has been in AAB’s life for many years and that he has tried to ensure that care has been provided to her in her best interests. What I perceive now is that his involvement in her life doesn’t add anything to it and is not in her best interests. He is someone whose contact with her has been denied because it ahs a negative impact on here and that he is not an interested person and his applications must therefore be dismissed. [23] At this stage HK indicated that he was recorded the hearing and I advised him that he could not do that. He stated that this was whistle blower reprisal. I told him that if he did not delete the recording I would hang up the conference call and remove him from the hearing. I understood having regard to HK’s previous conduct that there was a likelihood he would publish the recording. Having regard to s114A of the GAA Act the publication of information about a hearing which is likely to lead to the identification of the adult, AAB is prohibited. I determined to close the hearing to HK in accordance with s107 of the GAA Act at that point to avoid any furthers likelihood of him publishing material regarding AAB. I considered the requirement for hearings to be held in public, s104 of the GAA Act and that hearings must be in Public, s105 of the GAA Act. I was satisfied it was necessary to avoid serious harm to AAB by avoiding the disclosure of information about her to the public by HK publishing any recording of the hearing to close the hearing to AAB. -- 6 of 11 -- 7 CAPACITY [24] The Health Professional Report available to the Tribunal sated that AAB had a diagnosis of schizophrenia and learning difficulties resulting in expressive and receptive communication language disorder , AAB had a history of domestic violence, high expressed emotion family, was of questionable functional capacity, very trusting of others, easily led and highly suggestible. She had a history of risk taking behaviour and drug and alcohol abuse. Regarding healthcare it was stated that she completes tasks inconsistently sometimes requiring prompting sometimes not. That she requires approval from others regarding decisions such as whether to use contraception even though she expressed she did not want to have a baby and was not using any form of contraception. She left accommodation decisions to others and had used THC, cannabis, since 14 years old which was supported by HK without consideration for the effect of it on her health. [25] The Tribunal also had the MHRT clinical report from 2016 which set out AAB mental health history. She had first come to the attention of mental health services in November 2008 and was admitted to hospital for the first time in January 2009 with an episode of psychosis. It was noted that she had been using cannabis at the time. She had two further admissions of a three and then one month later that year and it was noted that speech and language difficulties. She was diagnosed with disorganised schizophrenia in May 2010. Her presentation was complicated with questions around a diagnosis of complex PTSD, parent-child difficulties and cognitive impairment. Tis report shows that between 2010 and 2016 AAB spend most of this time in hospital environments and had on several occasions absconded from hospital and was later returned to hospital after spending time with HK during which she used cannabis and alcohol and was very unwell. On two occasions she had assaulted nurses and had then been made subject to Forensic orders. [26] The report states that there has been considerable concern about AAB’s vulnerability in the past with her relationship with her partner, HK. The Office of the Public Guardian have deemed him unfit to be involved with her medical care and have restricted his access to her. HK is also an excluded visitor due to his history of being a disruptive influence on her treatment. AAB has a history of AWOP, often this is in company with of and/or assisted by her partner HK. AAB has a history of engaging in alcohol and illicit drug use during periods of AWOP. There is evidence of a correlation between cannabis use and increased hostility and physical violence. Her demeanour and level of engagement has increased markedly with stable treatment in contrasts to periods of AWOP when she returned to substance use and non c0mpliance resulting in violence. [27] I note from the reports that AAB’s demonstrated IQ was 65. I note that the average IQ is 100. They started that this is the best AAB has ever been, she is subject to influence with complex decisions and that AAB is still using substances despite them the Forensic Order requiring her to abstain from alcohol and illicit substances. [28] I am satisfied that as a result of the effects of schizophrenia and the effects of intellectual disability that AAB does not currently have capacity for personal matters. NEED FOR PERSONAL DECISIONS [29] The Public Guardian provided a report to the Tribunal which set out the decisions made by the Public Guardian during the current appointment as follows: -- 7 of 11 -- 8 (a) On 1 December 2017 consent for AABs support hours to increase, after Disability Services offered an additional 13 hours of funding; (b) On 1 December 2017 consent for AAB to accept an offer of a two bedroom transitional housing unit on a trial basis of three months; (c) On 11 January 2018 consent to temporarily amend the contact arrangements between AAB and HK so she could attend his mother’s funeral; (d) On 11 May 2018 a formal contact decision that AAB not have any contact by phone or in person with HK while she was receiving mental health treatment. At the time of this decision AAB was in a hospital in Victoria. This decision was made urgently after advice was received from the hospital that AAB had been brought in very unwell and presented with physical injuries attributable to a domestic incident. The decision was made for the proper care and protection of AAB. (e) Consent for AAB undergo health procedures under general anaesthetic were made on 12 September 2018 and 5 October 2018. [30] The Public Guardian has also attended several stakeholder meeting with AAB’s treating team and support services. The meetings have been held to discuss discharge planning and transitional housing options, the issues associated with AAB absconding from care and funding for additional supports. [31] The Public Guardian advised that in February 2018, HK began stating he would be removing AAB and moving her to another State and then set out the details of AAB absconding. [32] The Public Guardian stated that had been liaising with AAB”s support services regarding her upcoming NDIS planning meeting. The Public Guardian noted that since the notice of review had been sent out they had received close to 100 emails from HK raising concerns and allegations of drug use within the ward at the hospital and the Public Guardian delegates had conducted another stakeholder review to raise these concerns. It was noted that AAB had breached the terms of her forensic order multiple times while continuing to reside in a secure ward and that HK had made an application to the NCAT to be appointed as guardian and administrator for AAB in NSW. [33] The Public Guardian advised that delegates of the Public Guardian had visited AAB on 6 July 2017 and 16 March 2018 and that during the most recent visit she declined to engage with the delegate guardian, except to state she wanted to make her own decisions. [34] The Public Guardian identified that there were risks of significant concern about AAB’s impulse control. That even while supported one on one while on leave from her ward, she has to be redirected form impulsive behaviours. Treating team have advised AAB has difficulties regulating emotional distress and opportunistic substance use. At this time AAB’s actions appear to demonstrate that she does not comprehend the conditions on her forensic order. [35] The Public Guardian advised that the following further decisions were required: -- 8 of 11 -- 9 (a) Service Provision – AAB has her NDIS planning meeting scheduled, and there may be ongoing decisions around engagement of support coordinators and service providers; (b) Accommodation – there may also be ongoing decisions and discussions around accommodation for AAB when she is ready to discharge from hospital. At this time there is no timeframe for discharge as it remains dependent on AAB receiving sufficient NDIS funding; (c) Legal – AAB does not currently have any outstanding legal matters, however the Public Guardian is aware that there is a potential for future legal matters to arise for her as a result of the relationship between her and HK. Given the ongoing involvement of HK with AAB, and the lengthy history of legal issues arising from his involvement with AAB, the Public Guardian is of the view that a continuing appointment for legal matters is appropriate to ensure that immediate steps can be taken on AAB’s behalf through the legal system, if the need arises. (d) Contact – The hospital has recently identified that AAB has re-established contact with members of her family and further decisions for contact may be required; and (e) Health Care – the Hospital have identified that AAB may require a health care consent in the near future in relation to the use of contraception. At this time information is still being obtained to determine if this will be for the treatment of a health condition. [36] The Public Guardian advised that AAB is supported by a service provider and receives 24 hours of support per week. AAB also receives full support from the mental health treating team while she is an in-patient at the hospital. She has no contact with any informal support networks and the treating team indicated AAB had not had contact with HK since June 2018, but contact had recently recommenced and there was a noticeable change in her behaviour at the commencement of contact with HK. [37] The Public Guardian sought the views of AAB’s service provider who advised the details of support hours and that they were not aware of AAB having any contact with HK, and that she had indicated she had a new partner. They were of the opinion there were going to be decisions and support required around service provision, with the upcoming NDIS process for AAB. AAB’s social worker at the hospital advised AAB had been participating in pre-planning preparation for her upcoming NDIS planning meeting, and the social worker was happy with how this was progressing. He advised that HK had commenced contacting AAB in the last couple of days. AAB had begun exhibiting challenging behaviours that coincided with the contact from HK, and the social worker indicated that HK’s contact was having a very noticeable effect on her well-being. He disclosed that AAB had not had any contact with HK since her return from inter State, when he removed her from Queensland without authority. [38] The Public Guardian had obtained a report from AAB’s psychiatrist Dr Rich to be used for her NDIS planning meeting. Dr Rich advised that while AAB’s mental health treatment had been stable for more than six months, she has been unable to be discharged from hospital to the community due to challenging and impulsive behaviours related to comorbid intellectual and cognitive impairments. -- 9 of 11 -- 10 [39] Karen Williams was asked if she had other submissions in relation to guardianship overall. AAB does not want a guardian wants to figure it out for herself. She has service provision Richmond Fellowship working on a plan with them heading to a discharge. She is enjoying being supervised by Richmond Fellowship. [40] In regard to the need for personal decisions, the Public Guardian stated at the hearing EF stated the following decisions were coming up NDIS plan 6 months and it was grossly under budget for transition to community. NDIS does not allow for her to be in current accommodation unit which she has been provided with by Life Without Barriers but no longer eligible to stay there so need accommodation decisions. New service provider review of NDIS for multiple service providers for community other activities, supplied in home as stable functionally as she has ever been she wants to be independent. We seek her views. Service provision is geared towards giving her independence. She only has $38K but needs $150K. The Health Department is advocating for her but NDIA say still fluctuating between acute. When in the community she becomes unwell. All of her drugs are stable. Medication change regularly with her cycle. Complex dual diagnosis. Legal matters. Karen Williams concerned about her privacy being invaded. HK is posting on Facebook and Youtube. Current plenary. Having regard to capacity the Public Guardian was concerned whether that is still least restrictive, they considered a change to accommodation and service provision, she could make more simple decisions such as training and education with support from service provider. [41] The Public Guardian submitted that there are decisions needed in accommodation, health – issues hormonal interrelationship, contraception, service provision with the NDIS, contact and legal matters, and AAB can handle other decisions. They haven’t identified guardian would protect her interests in regard to training and education question of incurring expense for education and training access is access is heavily regulated by Richmond Fellowship. Transition plan 24/7 support. Won’t release her from hospital unless she can get funded. MHRT wont re3move inpatient status unless she can get funding. Legal matters birth certificates passports. [42] In regards to the length of appointment while Karen Williams submitted that it should be a two year appointment and hope that things will be more stable by then. The Public Guardian was concerned that NDIS reviews are two yearly and that there needs to be continuity to ensure that there is a decision maker so the appointment should be 5 years with the understanding that if circumstances change the Public Guardian would request leave to withdraw. [43] I accepted the Public Guardians submissions on the basis that AAB had improved to the point where there were some decisions she could make with support and that it was appropriate having regard to the need for continuity that the appointment should be for 5 years. [44] The orders made by the Tribunal on 10 February 2017 is changed by appointing the Public Guardian as guardian for AAB the matters set out in the new order for a period of 5 years. -- 10 of 11 -- 11 CONFIDENTIALITY [45] The Public Guardian requested that the Tribunal make orders that certain documents be confidential having in accordance with s109 of the GAA Act. The purpose of this was so that there would be no disclosure of the names of the current delegate of the Public Guardian who are decision makers for AAB. The request was based on the fat that HK had published the names of delegates on social media sites such as Facebook and requested users to directly contact the delegate to express their concerns about his dealings with the Public Guardian in respect of AAB. This therefore opened up these individuals who were doing their duties to possible public abuse and harassment. I am satisfied that this would constitute serious harm to the individuals involved and it necessary to ensure that the names of the Public Guardians delegates are not disclosed to protect them from serious harm. The file documents previous instances where HK has published information in regard to delegates of the Public Guardian. Having regard to s104 no active party has been denied access to material and it only the identity of the delegates which is being made subject to the order with the application and the covering letter which set out the details involved. [46] Having regard to the conduct of HK I am also minded to ensure that if will be publication of any information in regard to the hearing by HK that it is clear that the interests of AAB should be protected to ensure that her confidential information is not published an I order pursuant to s108 that the publication of information about the hearing is prohibited. I note that a breach of s108 has a maximum penalty of 200 units/ -- 11 of 11 --