AJC [2013] QCAT 51

CITATION: AJC [2013] QCAT 51 PARTIES: AJC APPLICATION NUMBER: GAA8231-12 / GAA8232-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 22 November 2012 HEARD AT: Rockhampton DECISION OF: P Beckinsale, Member DELIVERED ON: 19 December 2012, reasons for decision delivered on 21 January 2013 DELIVERED AT: Brisbane ORDERS MADE: Appointment of Adult Guardian changed to accommodation, provision of services, health care, employment/education/training and restrictive practices. CATCHWORDS: Review of appointment of guardian – whether (new) applicant appropriate or whether appointment of Adult Guardian required Guardianship and Administration Act 2000, s 31 APPEARANCES and REPRESENTATION (if any): The Adult, AJC Sheryl Woolnough from the Office of the Adult Guardian AD, Administrator and brother-in-law of AJC BD, sister of AJC and wife of AD Dr Ash Summers, Director of Clinical Services with the Department of Communities, Child Safety and Disability Services A representative of service provider Dr John Callaghan, GP for AJC Mark Lorien, psychologist with the Department of Communities. REASONS FOR DECISION [1] AJC is a chatty and engaging 49 year old man with an intellectual impairment who receives a disability pension and currently lives in respite supported accommodation. -- 1 of 8 -- 2 [2] AJC had lived for a number of years with a private carer, HJ, but was removed from his care after AJC made allegations against HJ to carers at day respite he attended. The removal was done against the wishes of AJC’s family who had acted as his informal decision makers all his life. An application by service providers at the time for the appointment of a guardian and administrator for AJC was heard on 20 June 2012. [3] On that date the Tribunal appointed AD administrator for AJC for all financial matters with that appointment to be reviewed in 5 years. [4] On 20 June 2012 the Tribunal also appointed the Adult Guardian as guardian for AJC for decisions about accommodation and provision of services and as guardian for restrictive practices (general) with these appointments to be reviewed in 6 months. [5] This is a review of the appointment of the Adult Guardian. [6] When reviewing the appointment of a guardian or administrator the Tribunal must apply section 31 of the Guardianship and Administration Act 2000 which provides the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for appointment were to be made. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment. [7] The Tribunal when considering the appointment of a guardian or administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to the appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. [8] To appoint a guardian for a restrictive practice the Tribunal must be satisfied of the matters set out in section 80ZD. Capacity [9] The first matter to be considered is whether AJC has capacity to make decisions about the matters. The presumption at law is that adults have capacity to make decisions. That presumption was rebutted when the appointments were initially made but upon review the Tribunal must consider the issue of capacity afresh. [10] The Tribunal may have regard to capacity evidence available at the time of the appointment which is being reviewed or any new evidence provided. [11] ‘Capacity’ for a matter is defined by the Act to mean the person is capable of a) understanding the nature and effect of decisions about the matter; b) freely and voluntarily making decisions about the matter; and c) communicating the decisions. [12] A health professional report dated 30 April 2012 by Dr Callaghan, AJC’s GP of 6 years, reports AJC has a history of congenital intellectual impairment and epilepsy since the age of 3 years and is unable to make -- 2 of 8 -- 3 decisions freely and voluntarily. In the doctor’s view AJC is able to make simple personal decisions only. [13] A psychological assessment report dated 18 June 2012 by Dr Summers and provisional psychologist Kristelle Ioannou of Disability Services reports AJC has a full scale IQ of 51 and taking other criteria into account, concludes AJC has an intellectual impairment. [14] AJC’s sister and brother-in-law have related a history of AJC being dependent on others his whole adult life and of being extremely vulnerable to the influence of others. [15] All attending this hearing, including AJC, agreed that AJC continues to be unable to make his own decisions. [16] The Tribunal makes finding of facts about capacity as follows: AJC has an intellectual impairment with a full scale IQ of 51; AJC is vulnerable to influence and dependant on others for many decisions. [17] The Tribunal finds that AJC is unable to understand the nature and effect of decisions nor to make decisions freely and voluntarily. Conclusion [18] The Tribunal finds the presumption of capacity to make decisions about personal and restrictive practice matters is rebutted. The Tribunal concludes that AJC has impaired capacity for personal and financial matters and for making decisions about the use of restrictive practices. Is There a Need For the Continued Appointment of a Guardian for Personal Matters [19] The review report of the Adult Guardian dated 13 November 2012 advises that AJC’s current placement in supported accommodation funded by Disability Services is temporary and that a range of assessments are being carried out to determine the most appropriate accommodation model for AJC. [20] AD and BD propose AJC return to the home of his former carer. [21] AJC has views about where he would like to live but does not wish to return to this carer. [22] The evidence to the Tribunal is that AJC has required the support of services throughout his adult life and that he will continue to need support. [23] Clearly decisions are needed to be made around accommodation and services. [24] Dr Callaghan’s report relates AJC’s history of having epilepsy since the age of 3 years. The Adult Guardian’s report notes that in addition to epilepsy, AJC has diagnoses of scoliosis, chronic obstructive pulmonary disease and emphysema with these conditions requiring ongoing monitoring and possibly specialist treatment. The report further notes AJC has had a long-standing injury resulting in his need to wear orthopaedic footwear. [25] The Adult Guardian reported communication difficulties between AJC’s sister and brother-in-law as statutory health attorneys for health care, -- 3 of 8 -- 4 Disability Services, medical practitioners and service providers. At the hearing the Adult Guardian’s delegate, Sheryl Woolnough, reported there had been difficulties for the Adult Guardian as guardian for restrictive practices accessing information for health care matters. Specifically Ms Woolnough reported she had not been able to obtain information about a prescription of Zyprexa for AJC. This would not have occurred had the Adult Guardian also been appointed for health care matters. [26] Ms Woolnough reported that AJC expressed a wish to work and to continue his reading and writing. [27] The Tribunal determines there is a need for decisions about accommodation, services, health care and employment/education/training matters. The Tribunal finds that an informal decision making regime would not meet the needs of AJC as there is significant conflict between his family and professionals in his life. Is There a Continued Need for a Guardian for Restrictive Practices [28] In the health professional report provided by him, Dr Callaghan reports AJC was prescribed Procur 100 to control inappropriate sexual behaviour and previously ‘in a different environment he required Zyprexa and Risperda’. [29] A further psychological report was received from the Department of Communities dated 24 October 2012 by Dr Summers and Mark Lorien. The reason stated for the report was to satisfy a condition of short-term approval of a request for the use of a restrictive practice from AJC’s service provider for the use of chemical restraint for AJC given by the Department. The report sought to clarify the nature of the current behaviours of concern and establish the degree of risk associated with these behaviours. [30] This report states AJC is currently taking Lamictal – an anticonvulsant used for seizures, Zyprexa – an atypical anti-psychotic and Cyprohexal – a steroidal anti-androgen (also referred to as Androcur and equivalent to Procur). [31] The report relates that BD advised Androcur was initially prescribed by mental health after an allegation of attempted rape was made against AJC in 2010. Dr Callaghan reportedly advised the Department Androcur was initially prescribed by him in 2009 after inappropriate sexual behaviour by AJC. [32] The Adult Guardian’s report confirms these matters. [33] At the hearing BD expressed grave concerns about her brother’s willingness to engage in unprotected sex, his seeking out inappropriate sexual relationships, including with prostitutes and his accessing pornography. She described Androcur as ‘helping to rid [AJC] of constant thoughts of sex and how to get it’. Both AD and BD were of the strong view that Androcur was of great benefit to AJC and concerned for his wellbeing should the Androcur be reduced or ceased, particularly given AJC’s changed environment. -- 4 of 8 -- 5 [34] At the hearing Dr Callaghan acknowledged the possible side effects of Androcur but reiterated that with AJC’s limited intellectual capacity and limited capacity to learn from mistakes, the prescription of the medication was indicated. [35] The report of Dr Summers and Mr Lorien includes a recommendation that a review of the need for Androcur to be prescribed to AJC be conducted with possibly a trial cessation of the medication. [36] The purpose of the administration of Androcur to AJC is not to treat a diagnosed medical condition but to control harmful behaviour. As such, the use of Androcur comes within the definition of a restrictive practice. [37] The Tribunal finds in terms of section 80ZD that AJC has impaired capacity to make decisions about a restrictive practice, that his behaviour has previously resulted in harm to himself or others, that there is a need for a decision about a restrictive practice and that without an appointment AJC’s behaviour is likely to cause harm to himself or others and that his interests would not be adequately protected. Should the Appointment of the Adult Guardian be Continued? [38] The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment. [39] At the previous hearing AD and BD acknowledged there was conflict between the family and professionals and service providers for AJC. Whilst AJC had at that time filed an application to be appointed both administrator and guardian for AJC, at the hearing the appointment of the Adult Guardian for accommodation and services was supported by AD and BD as being appropriate to involve an objective independent body, which would to take into account the views of all those involved and make an informed decision. They further supported the appointment as guardian for restrictive practices on the basis of the Adult Guardian’s experience in the area. [40] Whilst no application had been filed by AD and BD, at the hearing they sought appointment as guardian for AJC for personal decisions as well as for restrictive practices. [41] In support of their appointment BD forwarded documents to the Registry on 30 October 2012 and both AD and BD made oral submissions at the hearing. [42] The documents comprised a 3 page letter from BD, a request for Dr Callaghan to attend the hearing, letters from Bluecare in support of AJC’s mobility allowance, a letter from Dr Callaghan dated 23 October 2012 summarising AJC’s medical history and letters of support for HJ as a carer from Marie Pikula, a senior social worker with the mental health unit of Prince Charles Hospital and from Dr R G Brooke, general practitioner. [43] BD’s letter outlines some history and the approach taken by the family to caring for AJC prior to the Adult Guardian’s appointment as well as the family’s concerns for AJC’s care following the Adult Guardian’s appointment. BD’s written submissions and her oral submissions and -- 5 of 8 -- 6 those of her husband are that they strongly resent the involvement of the Adult Guardian and advocate that they as AJC’s family be allowed to resume making personal decisions on his behalf. AD and BD were supported by Dr Callaghan in their seeking appointment. BD said that while at the time of the last hearing she had conceded inexperience in relation to restrictive practices and the chemical restraint prescribed for AJC she had since ‘made it her business’ to gain knowledge in the area and felt qualified to make restrictive practice decisions for her brother. She wrote that she had sought the opinion of more than one doctor in relation to Androcur and further that Dr Callaghan, on whose advice they relied, has credible experience in the field and she took issue with his input being disregarded. [44] AD and BD say they have not been consulted nor informed as to the decisions made by the Adult Guardian. BD writes that ‘we have had no contact from anyone there informing us of what changes are to be made or even keep us up to date on where they are at the moment’. At the hearing she complained that the Adult Guardian had only telephoned her two weeks ago and after she had sent written submissions. AD at the hearing remonstrated that after looking after AJC for 48 years they have not been involved in his decisions for 6 months and have no influence: ‘consultation is nil’. [45] In support of their appointment being more appropriate AD and BD cite their lifelong knowledge and care for AJC. BD writes ‘[AJC] is not another part of someone’s workload to us. We love him, and more to the point, we understand him’. AD said ‘our experience and care over 49 years must rate right up there. He’s not another case file on our desk. We care about him’. [46] AD and BD both questioned whether the decisions which have been made or may be made since the Adult Guardian’s appointment adequately safeguard AJC or those he is in contact with. [47] They were critical of the report authored by Dr Summers and Mr Lorien questioning, for example, how the report concludes that AJC’s level of understanding is very low but later proposes that AJC may achieve semi- independent living and engage in sexual relationships. They also questioned how AJC could have so much input into decisions made for his benefit given his lack of capacity. [48] Whilst AD and BD acknowledged the difficulties to the family resulting from AJC’s impairment and behaviours throughout his life, they said the past 6 months had been by far the family’s worst experience due to the interference of people outside the family and the way they felt they were being treated by those who had only known AJC a short time. They advised, AJC and BD’s mother, VC, is now too frail to be involved with decisions concerning AJC. They also advised the Tribunal that should they not be appointed as guardians for AJC they would have no further involvement with him other than for AD to continue in the role of administrator. -- 6 of 8 -- 7 [49] The Adult Guardian’s appointment was only five months ago. Ms Woolnough reported that no decisions had yet been made and that she had been gathering information and seeking the views of key parties, including AD and BD whom she had contacted by telephone and email. Ms Woolnough’s report dated 13 November 2012 summarises the investigations of the Adult Guardian thus far. [50] Despite the criticisms of AD and BD, there is no evidence that the Adult Guardian has acted inappropriately given that no decisions have yet been made by the guardian. The guardian is seeking input into decisions that will have to be made. The Tribunal does not find that the Adult Guardian has acted incompetently. [51] Whilst the Tribunal considers it is often appropriate that family members are the personal decision makers for an adult, particularly where the family has been making decisions throughout the adult’s life, as AD and BD have done for AJC, in this matter the Tribunal finds AD and BD are not more appropriate for appointment than the Adult Guardian for a number of reasons. [52] There are important issues where AJC is in conflict with his family. AD and BD wish AJC to return to the care of HJ whilst AJC says he does not wish any further contact with him. [53] AD and BD remain in conflict with carers and health professionals who have been involved with AJC. They have been critical of his carers having AJC take a greater role in his own day to day care, for example shaving. [54] AD and BD were highly critical of the report authored by Dr Summers and Mr Lorien and their remarks at the hearing indicated their rejection of the authors’ professional opinions despite their experience in the legislative regime set up about restrictive practices. [55] The Tribunal is of the view that the Adult Guardian is in a better position to objectively take into account the views of all parties involved, including AJC and his family members as well as professionals, in making personal decisions for AJC. This is particularly so in the complex area of the use of a chemical restraint such as Androcur. [56] AD and BD at the hearing indicated their intention to withdraw their involvement with AJC should they not be appointed guardians. The Tribunal acknowledges the depth of emotion felt by both AD and BD at the hearing and in the lead up to that day but encourages both to remain firmly in the life of their brother and brother-in-law. AD in carrying out the role of administrator is required not only to consult with the Adult Guardian but to be available and accessible to AJC. As importantly, AJC will continue to need the love and affection that only family can provide. [57] The guardianship order made by the Tribunal on 20 June 2012 is changed by appointing the Adult Guardian as guardian for AJC for decisions about accommodation, healthcare, provision of services and employment/ education/training matters. [58] The Adult Guardian is appointed as guardian for restrictive practices for AJC. -- 7 of 8 -- 8 [59] The maximum period for the appointment of a guardian for restrictive practices is 12 months. It is appropriate that both appointments be reviewed at the same time in 12 months. -- 8 of 8 --