CRC [2014] QCAT 236

CITATION: CRC [2014] QCAT 236 PARTIES: CRC APPLICATION NUMBER: GAA10525-13; GAA10667-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 9 May 2014 HEARD AT: Brisbane DECISION OF: Professor Adrian Ashman DELIVERED ON: 21 May 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The guardianship order made by the Tribunal on 26 August 2013 is changed by removing DC as guardian and appointing the Adult Guardian as guardian for CRC for decisions about the following personal matters a. Accommodation b. Provision of services c. Health care 2. The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed within two years. 3. The application for directions is dismissed. CATCHWORDS: REVIEW OF THE APPOINTMENT OF A GUARDIAN – where there is ongoing, substantial disagreement between the guardian and members of the adult’s family APPEARANCES and REPRESENTATION (if any): The adult’s guardian The applicant 3 members of the adult’s family Representative of the adult’s community case service -- 1 of 6 -- 2 REASONS FOR DECISION [1] CRC first came to the attention of the Tribunal in 2004 when his natural mother and foster mother applied to the Guardianship and Administration Tribunal for the appointment of a guardian and administrator for CRC. His natural mother was appointed as CRC’s guardian for service provision and the Public Trustee of Queensland was appointed as his administrator. [2] Since that time there have been over a dozen decisions of the Tribunal with an appeal application outstanding as the present matter is being considered. [3] The majority of the decisions made by the Tribunal have dealt with guardian matters and relate to conflicts between CRC’s natural family and his foster family. The matters before the Tribunal today are consistent with this theme. On 26 August 2013 the Tribunal changed the joint guardianship appointment from his brother and his foster sister DC, to DC alone for decisions relating to accommodation, health care, and the provision of services. It appears that the natural family expected that the flow of information about CRC’s life would run freely from the solely appointed guardian and they would be kept continually informed of his circumstances. The argument presented to the Tribunal in the most recent application is that this has not occurred. [4] There are two matters under consideration: the review of the appointment of the guardian (currently under appeal) and an application for directions. In undertaking a review, the Tribunal must act in accordance with s 31 of the Guardianship and Administration Act 2000. This section requires the Tribunal to deal with the matter as though it was being considered for the first time. The initial consideration, therefore, is whether CRC has capacity to make decisions for himself in personal matters. Does CRC lack decision-making capacity for personal matters? [5] On the Tribunal’s files, there is an abundance of information that reflects the tensions among those with an enduring interest in CRC’s life. There is also significant information concerning his decision-making capacity. The Tribunal here draws attention to two documents only. There is a report from a doctor dated 5 June 2008 that gives diagnoses of autism, Tourettes syndrome, and frontal lobe damage with consequential severe intellectual disability. The doctor was CRC’s general practitioner at the time and had known CRC for 11 years. The doctor expressed the view that CRC had little or no understanding of the decision-making process. The second report is from another medical practitioner dated 9 May 2013. She reflected her colleague’s report indicating diagnoses of intellectual disability, autism, and epilepsy. She stated that CRC has very limited decision-making capacity. [6] Those attending the hearing agreed with the diagnoses and the summary that CRC lacks decision-making capabilities in regard to personal matters. -- 2 of 6 -- 3 [7] The Tribunal finds that CRC has autism and intellectual disability to the extent that the presumption of capacity contained in the Guardianship and Administration Act 2000 is rebutted in regard to personal matters. [8] The Tribunal then turned it attention to the need for the appointment of a guardian. Is there a need for the appointment of a guardian and, if so, who is the most appropriate appointee? [9] Section 31 of the Act states that the Tribunal may make an order removing a guardian only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for that appointment. [10] The Tribunal collected oral evidence from all active parties attending the hearing. The applicant raised a number of matters. He stated that there was a general expectation following DC’s appointment that communications from her would keep the family informed of CRC’s health, welfare, and current circumstances. He also questioned DC’s dealings concerning CRC’s health care including a review of his medications. He further alleges that DC has made an accommodation decision that will potentially isolate CRC from his family, several of whom live on the Sunshine Coast. DC has sought accommodation options only in the area in which CRC is currently living, that is, the northern Brisbane suburbs. [11] The applicant also alleges that DC misled the Tribunal at the last hearing when she failed to inform the Tribunal that there were active criminal proceedings being taken against her. He asserts that this makes her unsuitable to continue in the role of guardian. [12] These various allegations were echoed by other members of CRC’s natural family but without the addition of substantive evidence. [13] DC stated that her main consideration and all of her actions as guardian have always been in CRC’s best interest. She asserts that she has communicated with members of CRC’s extended family although there had been some complications due to the birth of her child. She agreed that she has perhaps provided less information about CRC’s circumstances than ideal but her role as decision maker was to collect a body of information to inform her decisions and this has been time- consuming. [14] DC reported that CRC is settled in his current residence although with the foreseeable future closing of the residence (which is akin to an institution), all residents will be transferred to community-based accommodation. DC confirms that she has limited the housing area being sought through the Department of Housing by focusing attention on the northern suburbs where CRC has lived for several years, where she claims he is comfortable, and familiar with the territory. She states no intention to isolate CRC from his family, believing that he could visit his family on the Sunshine Coast and elsewhere as he pleases, and they could likewise visit him. -- 3 of 6 -- 4 [15] DC asserts that she has not ignored her role as decision maker for health care matters. CRC’s medication has been reduced although this appears to have come from a decision by his general practitioner. She states that she intended to have CRC reviewed by a psychiatrist and neurologist although there appears to have been some miscommunication between her and the heath care team, or within the health care team as to the most appropriate medication review process. Despite this, CRC health care is regularly reviewed and there are no outstanding issues. [16] As for the criminal investigation, DC states in written and oral evidence that there were some issues associated with the use of CRC’s money to purchase items prior to an earlier Tribunal hearing. She and her mother were interviewed by police, and if there were other investigations about which she was not aware, no charges were brought and no further action was taken. She states that as far as she is concerned she has not compromised her position as CRC’s decision maker for personal matters. [17] A representative of CRC’s current accommodation service provider confirmed the forthcoming closure of the residence where CRC has lived for about five years. He was aware of CRC’s current medications and stated that he has communicated with CRC’s family as he thought necessary. He confirmed that CRC was comfortable in the area in which he currently resides. [18] In coming to a decision about the need for the appointment of a guardian, there is no question that there are tensions among those involved in CRC’s life, primarily between DC and members of CRC’s natural family. The main concerns appear to be the lack of communication between the guardian and family and an allegation that the guardian is acting in her own interests, and not CRC’s. [19] The Tribunal does not take this view. Indeed, members of CRC’s natural family spoke about their wish to have CRC close to them, arguing that he likes visiting, and is as familiar with the Sunshine Coast as he is with Morayfield. The impression they gave during the collection of evidence was of their wishes prevailing over any that CRC might have and no comments were made about them seeking his views. The Tribunal accepts that CRC might enjoy their company and the activities in which he participates when visiting but it is not at all clear what his wishes are. [20] The Tribunal did not gain an impression that DC was acting in any way other than in CRC’s best interest. [21] Given the impending accommodation change, there is a need for a decision maker in regard to accommodation and a concurrent need for service provision. It is not apparent what support might be available in the future from CRC’s current service provider. There are different views being expressed by those attending the hearing about how these matters might be resolved. [22] CRC has complex medical and health care needs and all present at the hearing recognised that these will continue. There appears to be common ground that regular reviews of CRC’s medications and health care status are essential but disagreement about who should make these decisions. -- 4 of 6 -- 5 [23] The Tribunal finds that there is a need for a decision maker for health care, for accommodation, and the provision of services given the uncertainty of CRC’s future residential location. [24] There is one remaining question, who is the most appropriate appointee to make those decisions. [25] Members of CRC’s natural family appear to expect a level of communication from the guardian that exceeds the requirements of the Act. Schedule 1 of the Act requires an appointee to take into consideration the importance of maintaining an adult’s existing supporting relationships. The Act does not specify how an appointee is to fulfil this general principle. The Tribunal often urges appointees to ensure that they communicate with other stakeholders in an adult’s life and might even suggest some ways of achieving this. However, there is no prescription implied by any such suggestion. [26] The role of a guardian (or an administrator) appointed by the Tribunal is decision maker, not case manager, family member, carer, or support person. A guardian might have any of these later roles as a result of their relationship with the adult. Confusion about the role of guardian and the Tribunal’s expectation of the appointee can lead to a perception by some stakeholders that a guardian (or administrator) is not fulfilling the statutory responsibilities, especially in communicating with other stakeholders. This appears to be the case in the present matter. [27] The Tribunal has no convincing evidence before it that DC has not performed the role of guardian in a competent way. In review, the Tribunal has consideration of s 31(5) of the Act, and in this case there is no evidence that a relevant interest of CRC has not been, or is not being, adequately protected, that DC has neglected or abused the powers given, or has otherwise contravened the Act. [28] Section 31(4) states that an appointee can only be removed if the appointee is incompetent or if there is another person more competent. In this case, the extent of the distrust of DC by CRC’s family must have, or will eventually have, an effect on CRC if these tensions continue. There is no indication that these tensions will cease if DC remains guardian. There is likely to be an ongoing push/pull about where CRC might live, the services that might be suitable to support him in the community, and whether he is receiving the most effective medical/health care. The only resolution to this situation is the appointment of an independent decision maker. [29] The family is reminded that the Tribunal has made a number of guardianship appointments; of family members and the Adult Guardian. Indeed, the Adult Guardian has been appointed by the Tribunal twice already when the appointment of family members has failed for one reason or another. [30] The Tribunal finds that there is a need for an independent decision maker and that another appointee is more appropriate than DC on the basis of the need to collect relevant information from all stakeholders, including CRC, independent of any real or perceived bias. Decision are required -- 5 of 6 -- 6 about where CRC might live, what services might be needed to support him adequately in the community, and what medical decision, if any, are required. [31] The Tribunal changes the appointment of the guardian by removing DC and appointing the Adult Guardian for two years for decisions about accommodation, service provision, and health. [32] The application for directions sought a change in the communication flow between the former guardian and family. As the Adult Guardian has now been appointed, there is no basis of directions in relation to DC. The application is dismissed. -- 6 of 6 --