FAB [2014] QCAT 235

CITATION: FAB [2014] QCAT 235 PARTIES: FAB APPLICATION NUMBER: GAA2505-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 26 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. FJ is appointed guardian for FAB for the following personal matter: (a) with whom FAB has contact and/or visits. 2. 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. 3. 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. CATCHWORDS: GUARDIANSHIP – where interim guardian had made an accommodation decision – where that decision to place adult into a nursing home was disputed – where stay of that decision had been refused CONTACT – where contact with adult had resulted in escalated behaviour – where adult was in a settling in period in a nursing home – where contact was likely to interfere with the adult settling into the nursing home INTERIM APPOINTMENT – where guardian sought authority to prevent contact with adult during the settling in period – whether -- 1 of 3 -- 2 immediate risk of harm to welfare of the adult Guardianship and Administration Act 2000 s 129 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 (QCAT Act). REASONS FOR DECISION [1] FAB and her twin sister lived in their family home for over 45 years. After FAB’s mother moved into a nursing home in about 2000, FAB and her sister relied on support from a community organisation to remain living at home. Both sisters were well known in their local area and had a great deal of support from friends and acquaintances in the local area. [2] On 16 January 2014, FAB’s sister had a fall at home and sustained serious injuries necessitating hospital admission and treatment. Members of her family were concerned that FAB would not be able to remain living alone at home. FAB was admitted to hospital on a social admission basis while her sister received treatment for her injuries. [3] Her brother applied to QCAT for the appointment of a guardian to make decisions about accommodation, health care, services, day to day issues and legal matters. An appointment of FJ as guardian for FAB was made on an interim basis on 29 January 2014 to make decisions about accommodation, health care and services. [4] The guardian made a decision in early March 2014 to place FAB into a nursing home. Many of FAB’s friends and supporters in the community disagreed with this decision and wanted her to return to her home with ongoing community support. Friends had telephoned FAB each day when she was in hospital and had starting telephoning the nursing home asking to speak to FAB. According to the evidence of FJ, FAB had been upset after some of the telephone calls. [5] FJ applied for a further interim order so that the guardian could make decisions about who had contact with FAB. He submitted that FAB was in a settling in period at the nursing home and he wanted to have the ability to put a stop to disruptive telephone calls during this settling in period. Evidence had been given by another family member that some of telephone calls from friends had caused FAB and her sister to become aggressive when they were in hospital and on one occasion, hospital security had to become involved to settle down their behaviour. [6] QCAT has the power to appoint a guardian to make personal decisions for adults with impaired decision making capacity. Appointments of substituted decision makers are made after a hearing when the tribunal is satisfied that the evidence has rebutted the presumption of capacity and is -- 2 of 3 -- 3 satisfied that there is a need for a decision maker. However QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of the Guardianship and Administration Act 2000 without holding a hearing. [7] 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 of the adult concerned. It was clear from the evidence presented to the tribunal since January 2014 that there was a high level of dispute between the family of FAB and her friends and supporters in the local community over what decisions should be made for her proper care and protection. Her friends were opposed to FAB being placed into a residential aged care facility and wanted her to return home. [8] One friend had unsuccessfully applied to the tribunal to stay the placement decision. At the hearing of the stay application, the tribunal received evidence that the community care group who had provided care to FAB could not continue to provide an acceptable level of in-home care to her and her sister. The tribunal dismissed the stay application after having been satisfied that the decision to place FAB into care was appropriate at that time. [9] I accepted the evidence from FJ that telephone calls received by FAB in hospital had at times upset her. I accepted his evidence that telephone calls to FAB at the nursing home were disruptive and would interfere with FAB settling into her new routine and surroundings. Although I did not have to decide whether FAB had impaired decision making capacity before I made an interim order, there was sufficient medical and lay evidence available to the tribunal to satisfy me that it was likely that FAB had impaired decision making capacity to make her own decisions about lifestyle issues, including who made calls or who visited her. [10] I determined that FAB needed an opportunity to settle into her new accommodation and that telephone calls and visits from some of her friends and supporters would adversely interfere with that process. I was satisfied that there was an immediate risk of harm to FAB’s welfare if she could not have a period of relative calm when she could settle into her accommodation without having the strain of dealing with friends who expressed strong views that conflicted with her family. [11] There was evidence that FAB could become aggressive towards other people when she was upset. It would be a risk to her welfare if her behaviour escalated and her continued accommodation in the nursing home was under threat. [12] As I was satisfied that an interim appointment should be made of a decision maker to make contact decisions for FAB, I extended the decision making authority of her current guardian to include decisions about contact and visits. -- 3 of 3 --