BS [2014] QCAT 281

CITATION: BS [2014] QCAT 281 PARTIES: BS APPLICATION NUMBER: GAA8966–13; GAA8967–13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 8 April 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 13 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adult Guardian is appointed as BS’ Guardian for the following matters: (a) Accommodation; and (b) Provision of services. 2. BJ is appointed as BS’ Guardian for the following matter: (a) Health care 3. Unless the Tribunal orders otherwise, these appointments remain current for one (1) year. 4. BJ is appointed as BS’ Administrator for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal eight (8) weeks prior to the anniversary of this appointment. 7. Unless the Tribunal orders otherwise this appointment remains current for one (1) year. CATCHWORDS: APPOINTMENT OF GUARDIAN AND ADMINISTRATOR – with a need for appointments -- 1 of 7 -- 2 Guardianship and Administration Act 2000 ss 12, 14, 15 APPEARANCES and REPRESENTATION (if any): UH NS SU BJ BP PM Case manager - Mental Heath Service Case manager - Mental Heath Service Treating Psychriasist - Mental Heath Service Father Brother Legal representative for BJ REASONS FOR DECISION Background [1] BS is a 40-year-old woman who has been diagnosed with a serious mental illness. She has over the last twenty years spent time as an inpatient in various mental health facilities; she has spent time attempting to live independently; and she has spent time living with her family. [2] Dr Connolly who has known BS for approximately 13 years states that BS has a long history of a very turbulent relationship with her family. This relationship would have been challenged at many times by BS’ erratic and impulsive behaviour and her tendency to vacillate over decision making. [3] Her case manager UH has bought an application at a time when BS was living in a hotel where she was extremely unsafe and where she was vulnerable to being taken advantage of by others. She has brought the application seeking the appointment of independent decision makers because she believes that there is significant conflict between BS and her family; and between BS’ family and the mental health service over who should be responsible for making decisions for BS. [4] BS is currently under an Involuntary Treatment Order (“the Order”) under the Mental Health Act 2000. [5] BJ brought an application to be appointed as his daughter’s decision maker because he believes that he is best able to make decisions that take her best interests into account. Does that BS have capacity to make her own decisions? [6] BS unfortunately did not attend the hearing so the Tribunal was not able to directly hear her views. [7] UH Registered Nurse attached to the Mobile Intensive Rehabilitation Team of the Mental Health Service provided a Health Professional Report in which she stated that BS had been diagnosed with a schizoaffective disorder in 1997. She was receiving medication for that illness. -- 2 of 7 -- 3 [8] Dr Connolly GP has also provided a Health Professional Report in which he states that he has known BS for some 13 years. He says that her ability to make decisions: ‘is extremely variable’ in relation to making decisions about her personal health care and lifestyle and accommodation choices. He says that at the time of his report that: ‘BS is reasonably rational but this is not an ongoing state’. He states that she: ‘tends to have a fairly turbulent relationship with family members’ that is sometimes very good sometimes a bit negative’. He was of the view that BS could make simple decisions. [9] SU who is BS’ treating psychiatrist told the Tribunal that BS’ decisions were erratic. She might make one decision today and a completely different decision next day. [10] PM informed the Tribunal that BS’ father and her brother conceded that BS did not have capacity and needed to be supported making more important decisions. [11] The Tribunal accepts the evidence of Dr Connolly and SU. The Tribunal finds that: BS suffers from a serious mental illness; she has had a very turbulent history over the last 20 years with episodes of complete psychosis punctuated with episodes of relative normality; and BS can be erratic and impulsive in her decision making. Does BS need a Guardian? [12] PM told the Tribunal that BS needs someone to make health care decisions for her. BS’ dental hygiene needs to be looked at as is being affected by her smoking addiction. She is unable to get private health cover because she is on the Order. She is consenting to take the medication for her mental health so there should be no need for the Order and that is being challenged. [13] Her family believe that BS needs help with her smoking addiction. They also believed she needs services to help her with access to the community and be more independent. [14] In relation to the conflict with the mental health service PM told the Tribunal that she had been dealing with BJ for four years and that he is not the source of the conflict. He wants to see that his daughter receives the right treatment and appropriate support. She agrees that there is tension in the interactions that the family have with the mental health service and that BS raises her voice when she is tense. Her father wants his daughter’s treatment to be holistic and he is frustrated at the mental health services’ focus only on her mental health. BJ is also upset because he alleges that BS has been discharged from the mental health service on a number of occasions without appropriate discharge arrangements leading to her being homeless and vulnerable. [15] The Tribunal accepts BJ’s evidence that BS has been discharged without appropriate supports in the past. The Tribunal accepts BJ’s evidence that -- 3 of 7 -- 4 he has had to come down to Cairns to find his daughter after she has been discharged to ensure her safety. [16] BJ told the Tribunal that he would also like his daughter to learn how to sew and to do other things to occupy her time. [17] UH told the Tribunal that at the time of the application the concern was about the appropriateness of the accommodation in which BS was resident. BS was also pretty derogative about her family alleging that she had been beaten and tied up to a tree. BS told UH that she wanted to live by herself. The mental health treating team held a meeting and decided put the application in stating that BS needed an independent Guardian. The Guardian could work with the Department of Housing and look at options for more appropriate accommodation. She also saw a need for an appointment in relation to health care and for the provision of services. She gave as an example the Twilight Medication Round. [18] NS stated to the Tribunal that she had been involved with BS since November 2013 and that her view was that BS was ambivalent about where she lives. NS agrees with SU that BS does: “chop and change” her decisions. Her understanding prior to the change of medicine was that BS’ family were unable to cope with her outbursts and it was necessary at times for the mental health service to take BS to the Mental Health Unit in Cairns. She saw a need for a Guardian in relation to: accommodation; health care; and provision of services. [19] SU said that she had been unable to establish a relationship with her patient BS. Her family create a dreadful atmosphere of conflict. She had been unable to manage her medication review meeting because of the level of conflict at that meeting. Her view is that BS’ family is totally focused on BS and they have put their lives on hold to focus on her needs. She sees a need for a Guardian in relation to: accommodation and health care. [20] SU has concerns about BS having appropriate accommodation and support when she is in the community. Her family have the same concerns. The evidence in the hearing was that BS has not been able to live independently for lengthy periods of time so a Guardian needs to be appointed to decide where BS lives and services that she receives where she is living. [21] The Tribunal notes that there is no real difference between the parties about BS need for a Guardian. There is a consensus between the parties that BS needs a Guardian to make decisions about: where she lives; the supporting services that she receives where she lives; and her health care needs to be monitored outside of the mental health service. [22] The Tribunal makes the following findings: BS needs the support of the mental health service to maintain a unstable mental state; BS needs to be supported in the community as she does not have all the skills to live totally independently; she sometimes likes to live with her parents; she -- 4 of 7 -- 5 sometimes likes to live independently of her parents; she has an addiction to smoking that is impacting on her dental hygiene. Who is most appropriate person to make personal decisions for BS? [23] In the background to this hearing there is a serious conflict between family and the mental health service over the treatment BS receives under the Mental Health Act. The Tribunal has made it clear to the parties that this is outside of the jurisdiction of the Tribunal and that in relation to BS’ mental health treatment the Mental Health Act gives the treating psychiatrist the power to make decisions about her mental health. The appointment of a guardian for health cannot overtake the Involuntary Treatment Order. [24] The Tribunal understands that patients with a serious mental health illness can make serious allegations against their families when they are unwell. The Tribunal does not accept the allegations that have been made against BS family that she was beaten or tied to a tree. [25] The focus of the Tribunal is on the best interests of BS. Where the adult’s relationship with her family fluctuates and where she sometimes wishes to live with her family and sometimes wishes not to do so the Tribunal is of the view that this places the family in an impossible position. When BS decides that she does not wish to live with her family this is hard for her family to accept. The Tribunal accepts the evidence of SU that BS regularly changes her mind. [26] The Tribunal believes that having her parents decide where she lives and the services that she receives is sometimes good from BS point of view and sometimes not good from BS’ point of view. This is why Dr Connolly says that her family are: ‘sometimes very good sometimes a bit negative’. This makes it very hard for her family where she sometimes expresses the view that she wishes to stay with them and sometimes expresses the view that she wishes to live independently. This is why UH brought the application for the appointment of independent decision-makers – because BS expressed the view that she did not want her parents to make those decisions for her. [27] The Tribunal is of the view that it is better for the Adult Guardian to be appointed to make decisions about where BS lives and services that she receives. This will allow BS; her family; and the mental health services to have input into where she lives and the services that she requires. The Tribunal understands the family’s concern that the mental health service will have more influence over the Guardian than BS or her family will have over the Guardian. The Tribunal does not accept this argument. The Adult Guardian is an independent professional Guardian who has responsibility under the General Principles to consult with all stakeholders. This will protect BS’ rights to participate in decision-making. This will also protect her family from criticism that they are not allowing her to participate in decision making about where she lives and services that she receives. -- 5 of 7 -- 6 [28] The Tribunal expects the Guardian to take into account in its decision- making the high needs that BS has in making an appropriate decision as to where she lives. She needs to be supported where ever that she is living whether that is with her family or whether she is living in the community. [29] In relation to health matters the Tribunal is of the view that BS’ father appears to be an appropriate person to be appointed. It is clear that he has a keen interest in the welfare of his daughter. His evidence is that his daughter has been discharged into the community without supports and she has been assaulted. He has demonstrated a clear understanding of her health issues. He accepts that she needs treatment for her mental illness. He has supported her in the past when she has been erratic and impulsive. He told the Tribunal that his daughter has been stable since taking clozapine and that either he or his son BP administered the medication at night. The Tribunal notes that BS has appointed her father as her Allied Person under the Mental Health Act. [30] The Tribunal has made it clear to BJ that the appointment for health care for his daughter does not override the Order which gives the mental health service power to make decisions about his daughter's mental health. [31] The Tribunal is concerned about the nature of the conflict between the mental health service and family. The Tribunal however has not been convinced that BJ does not have his daughter's best interests in mind. His holistic approach to his daughter’s health is an appropriate where the focus by the mental health service is on his daughter's mental health. His actions of driving down to Cairns to look for his daughter when she has been discharged are the actions of a person who has her well-being and safety as overriding priorities. His understanding of her health issues and willingness to pursue ways to treat her smoking addiction and address her dental hygiene are examples of someone who has her best interests at heart. The Tribunal believes that he is more appropriate than the Adult Guardian to make health care decisions in circumstances. [32] The Tribunal believes that a short appointment of one year is appropriate so that the Tribunal can come back and view the actions of the guardians and see how BS’ interests have been advanced. Can BS manage her finances? [33] SU told the Tribunal that BS is quite hopeless managing her finances. She has no issues with the current situation where BS’ family manage her finances informally. [34] UH said that BS had looked after her finances up to a point and then all her funds had disappeared. Her view is that BS has a limited ability to manage her finances. She does not have the skills to budget. She would like to see BS live more independently but has difficulty seeing that occur looking into the future. BS needs to be supported to live independently -- 6 of 7 -- 7 and believes that BS has a long way to go to do that. She supports an administrator being appointed. [35] NS agreed that there was a need for an administrator to be appointed. [36] PM told the Tribunal that BS receives a disability services pension of approximately $750 per fortnight. She has a debt to Centrelink of $1,500 and no savings. BS has had a tendency to spend all her pension and be left without enough money for the necessities of life. [37] PM stated that BJ has kept records of the money that BS has received and how that has been spent. He is willing to account to the Tribunal for his actions. She has explained to him his duties and responsibilities of the role which he is willing to accept. [38] BJ said that BS had an addiction to smoking and spends up to $150 a week on smokes. He is trying to address this situation. He told the Tribunal that BS has in the past given him her Key Card to manage which was an indication that she trusted him to manage her finances. He would support the payment of money towards rehabilitation if there was a program that BS was willing to undertake. The problem he has experienced is that after he has cancelled BS’ card when she has become unwell she can simply go to the bank and get it reissued and the cycle continues. Since BS has been at home he has managed her finances informally so that all of her needs have been met. This has meant that he has been able to save money for her which has enabled him to buy new clothes for her. Who should be appointed as the financial manager for BS? [39] BJ has been managing his daughter's finances informally since she was returned home in November of 2013. He is willing to continue to do soon a formal basis. SU has indicated that she has no concerns about the informal arrangements that have been place. The evidence of BJ was that he has been able to manage BS’ finances in a way that her needs have been met and that the savings have been achieved which allowed him to buy her new clothes. [40] BS’ financial situation is quite simple she receives a disability support pension; has been unable to make any savings; and has a debt to Centrelink of $1,500. [41] The Tribunal is satisfied that BJ is appropriate person to support BS in managing her pension. He clearly has his daughter's best interests at heart. The evidence before the Tribunal is that family members have contributed financially to help BS at times when she had no money. BJ wants to see that his daughter’s financial needs are met. He is willing to consult with her about her needs. -- 7 of 7 --