DJJ [2015] QCAT 466

CITATION: DJJ [2015] QCAT 466 PARTIES: DJJ APPLICATION NUMBER: GAA30832 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 9 September 2015 HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 9 September 2015 DELIVERED AT: Brisbane ORDERS MADE: The application by Serena Tagoai for an interim order is dismissed. CATCHWORDS: GUARDIANSHIP – where the adult has a mental illness and is under an Involuntary Treatment Order – where the adult is in a rehabilitation ward awaiting discharge into the community – where the adult leaves the ward and has access to alcohol and illicit drugs – where the adult’s mental illness impacted by these actions – where application made to appoint guardian and administrator INTERIM ORDER – where interim appointments sought prior to hearing – where limitation on the adult’s use of income sought to reduce access to alcohol and drugs while on the rehabilitation ward – whether immediate risk of harm requiring interim appointments Guardianship and Administration Act 2000 – ss12(1) and 129(1) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] DJJ is 25 years of age. He has been an inpatient of the Rehabilitation Mental Health ward at a regional hospital for four months. According to evidence from the applicant, Ms Tagoai who is a senior social worker, the Rehabilitation Mental Health ward contains patients with mental illness and aims at assisting them to build on their independent living skills prior to discharge into the community. [2] The applicant’s evidence was that DJJ has been largely non-compliant with the hospital’s programme. She stated that DJJ has brought alcohol onto the hospital unit on a daily basis and has shown very little regard for consequences. The applicant stated that DJJ has support workers in place and is awaiting placement in the “homes for life” programme which provides supportive accommodation for patients who identify as Aboriginal or Torres Strait Islanders. [3] Ms Tagoai stated in a letter dated 19 August 2015 that it was uncertain how long it will take DJJ to secure this accommodation as that was largely dependent on the availability of housing with the Department of Communities. According to Ms Tagoai, DJJ becomes hostile and angry when asked about his budget for expenditure. He states that he has enough money to survive but there was no evidence that he had saved any money from his income of about $900 per fortnight. [4] The applicant stated that there was concern that DJJ is using his spare money to feed his alcohol habit and his illicit substance habit. The applicant stated that DJJ has been offered opportunities to work with the Alcohol and Other Drugs Services but he has shown ambivalence to work on these issues. The applicant reported that the treating team believes that DJJ is at risk of mis-adventure in the community as he shows very little insight into his illness and the associated risks of using drugs combined with his medications prescribed to treat his mental illness. [5] The applicant sought the appointment of a guardian and an administrator to ensure that DJJ has maximum supports in the community on an ongoing basis. Evidence was provided to the Tribunal that DJJ has been diagnosed with paranoid schizophrenia and an alcohol dependency. DJJ is under an Involuntary Treatment Order under the Mental Health Act 2000. Dr Chelikan, a psychiatry registrar, reported that DJJ could not make decisions freely and voluntarily and could not make simple or complex lifestyle/accommodation and financial decisions due to his mental illness. Dr Chelikan referred to a long-standing paranoid schizophrenia complicated by polysubstance abuse. [6] The tribunal can make appointments of substituted decision makers if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an -- 2 of 4 -- 3 appointment, that the decision making needs of the adult will not be adequately met.1 Appointments are made after a hearing by the tribunal. [7] A date of hearing was scheduled for 25 September 2015. However, the applicant applied on 7 September 2015 for an interim order. [8] QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129(1) of the Guardianship and Administration Act 2000 without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult. [9] The applicant provide evidence in support of her application for an interim order. She stated that DJJ has used alcohol from day one of his admission into the unit and has recently tested positive for methamphetamine and marijuana. She stated that DJJ has absconded from the hospital on several occasions and returned severely intoxicated requiring urgent assessment and medical interventions and monitoring. [10] The applicant expressed concern that DJJ has begun to sell drugs on the unit which places other patients at risk. She reported that DJJ openly admitted that he is planning to continue with his drug use. He is abusive towards mental health staff and shows little respect for his parents who have visited DJJ. The applicant stated that, by applying for an interim order for the appointment of a guardian and administrator, DJJ will be afforded the financial support structure to enable him to take some responsibility for his spending/life and decision-making. The applicant stated that an interim order will allow a protective factor to be applied to DJJ giving him some opportunities in the community in the future. [11] An analysis of the evidence provide in support of the interim order application revealed that DJJ is residing in a rehabilitation ward at a hospital. He is under an Involuntary Treatment Order and his access to the community can be regulated by his treating team. His mental health treating team would have responsibility for ensuring that DJJ does not leave the hospital without escort and that he does not then have easy access to alcohol and illicit drugs in the community. [12] There was no evidence that an appointment of a guardian was necessary to make any personal decisions while DJJ is residing on the rehabilitation ward in order to reduce any immediate risk of harm to DJJ. Unlike the treating team providing medical services concurrently with an Involuntary Treatment Order, a guardian has no coercive powers. I was not satisfied that an interim appointment of a guardian was necessary as the treating team already has power under the Mental Health Act to reduce any limited community access allowed to DJJ and to take practical steps to prevent 1 Guardianship and Administration Act 2000 (Qld) s 12(1). -- 3 of 4 -- 4 him from absconding from the ward to reduce any immediate risk of harm to DJJ. [13] I was also not satisfied by the evidence that an interim order for the appointment of an administrator was necessary. At the time when the interim order application was filed, a hearing date for the substantive application had already been set for less than three weeks time. It could be inferred from the evidence that DJJ would not be released from the rehabilitation ward into the community before the hearing date. He would be under the control of the mental health treating team and subject to the Involuntary Treatment Order for that period. [14] The risk of harm that had been identified in the application for an interim order related to the use of income by DJJ for purchase of alcohol and illicit drugs. However as stated above, the purchases took place when DJJ was either allowed to access the community or he had absconded from the ward. If practical measures were taken to prevent his community access without an escort, then the opportunity to make those purchases would be greatly reduced and consequently any immediate risk of harm also reduced. [15] It was clear from the evidence of the treating team that rehabilitation had not succeeded with DJJ. It would be reasonable to infer that steps could be taken to return him to some form of more secure ward until the hearing of the application by QCAT. [16] The focus on the application for the appointment of an administrator was mainly to address longer term concerns to give DJJ adequate financial decision-making support when he finally is discharged from the ward into a community setting. An interim appointment was sought to address those concerns while DJJ was still under the direct care of the hospital. [17] I was not satisfied that much action would be able to be carried out by an interim administrator in the period between 7 September 2015 and the hearing on 25 September 2015 to reduce DJJ’s spending of his funds on alcohol and illicit drugs. Any likely benefit would be very limited given that his income is paid fortnightly and any diversion of his income to The Public Trustee would take some weeks to come into effect. [18] I was not satisfied that an interim appointment of an administrator was an effective way to reduce any immediate risk of harm to DJJ. As the preconditions in section 129 were not established by the applicant, the application for interim appointments was dismissed. -- 4 of 4 --