BJD [2010] QCAT 285

CITATION: BJD [2010] QCAT 285 PARTIES: BJD APPLICATION NUMBER: GAA4117-10 MATTER TYPE: Guardianship and administration matters HEARING DATE: 22 June 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 22 June 2010 DELIVERED AT: Brisbane ORDERS MADE: Appointment of guardian continued CATCHWORDS : Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – appointment continued APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 4 -- REASONS FOR DECISION 1. BJD is 52 years of age. She was diagnosed with schizophrenia in 1990 and remains under treatment for that mental illness. In 2007 the Adult Guardian was appointed as BJD’s guardian by the Guardianship and Administration Tribunal and the appointment was continued in 2008 for two years. 2. At the time of re-appointment of the guardian in 2008, BJD had been receiving treatment at a regional Rehabilitation Unit to improve her ability for independent living. BJD had been assisted to transition to independent living in the community but due to non compliance with treatment, she was readmitted into a rehabilitation unit in 2009 and was place under an involuntary treatment order. 3. BJD was able to return to independent living in the community but remains under an involuntary treatment order. She received support from a community organisation four days a week. 4. From 1 December 2009 the Queensland Civil and Administrative Tribunal has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal. The appointment of the guardian is being reviewed as the appointment is due to expire on 3 July 2010. 5. On 4 June 2010 notice of this review hearing was sent to the adult and to the persons to whom notice is required to be given by section 118 of the Guardianship and Administration Act 2000 (the Act). 6. When conducting a review of an appointment of a guardian, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. 7. There is a presumption at law that adults have the capacity to make their own decisions. That presumption was rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether BJD has capacity to make decisions about personal matters. 8. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of- a) understanding the nature and effect of decisions about the matter; and b) freely and voluntarily making decisions about the matter; and c) communicating the decisions in some way. 9. In a report by Dr Straatsburg, consultant psychiatrist, dated 28 October 2009 it was stated that BJD has a long history of being non-compliant with treatment for her diagnosed schizophrenia condition and that she has a lack of insight about her mental illness. She has had several hospital admissions for treatment of her mental illness and she had been placed on involuntary treatment orders on more than one occasion. BJD’s mental -- 2 of 4 -- illness has been exacerbated by consumption of excessive amounts of alcohol in the past. BJD is very disorganised. 10. In the report provided to the Tribunal by the Adult Guardian, it was stated that BJD remains on an involuntary treatment order due to non-compliance with medication and a high risk of self neglect. The last review of the Mental Health Review Tribunal was on 30 April 2010. 11. The Tribunal finds that BJD has a 20 year history of mental illness for which she is currently being treated under an involuntary treatment order in the community. She is disorganised due to her illness and lacks some insight into her mental illness. She has established a periodic pattern of non-compliance with treatment resulting in prolonged periods of deterioration in her metal state, abuse of alcohol and self neglect. 12. The Tribunal is satisfied that BJD is not capable of understanding the nature and effect of decisions about her personal affairs. She has manifested a lack of understanding of the consequences of ceasing medication against medical advice which has resulted in her exercising poor judgment and engaging in self neglecting conduct. 13. The Tribunal is satisfied that the presumption of capacity to make decisions has been rebutted by the evidence and concludes that BJD has impaired decision making capacity for personal decisions. 14. BJD is currently residing in accommodation arranged as a consequence of her transition from rehabilitation. She is receiving support services in the community each week from Tuesday to Friday. According to the evidence from her support workers, BJD would be vulnerable to being taken advantage of without a guardian. 15. The Tribunal finds that the current support arrangements around accommodation and services minimise the risk that BJD would do something involving unreasonable risk to her health or welfare. These arrangements provide stability for BJD whose behaviour is described as disorganised by her mental health treating team. The Tribunal is satisfied that decisions are needed around ongoing issues about accommodation and service delivery for BJD and without a guardian her interests will not be adequately protected. 16. The guardian informed the Tribunal that BJD has recently been charged with an offence and that she needs to access legal advice to respond to that charge. The Tribunal is satisfied that BJD would not reliably be able to organise legal advice or instruct a lawyer and that a guardian is needed to make decisions to support BJD through the legal process. 17. BJD has no known relatives or friends who have indicated a willingness to make decisions on her behalf. The Adult Guardian was appointed as BJD’s guardian in 2007 and 2008 and has acted competently since that time. 18. The Tribunal is satisfied that the Adult Guardian should be continued as guardian for BJD. The Tribunal is confident that the Adult Guardian will apply the general principles and will make decisions for BJD in a way consistent with her proper care and protection. The Adult Guardian is appointed to make decisions about accommodation, service provision and -- 3 of 4 -- about legal matters not relating to BJD’s financial or property matters for two years. -- 4 of 4 --