DD [2010] QCAT 37

1 CITATION: DD [2010] QCAT 37 PARTIES: DD APPLICATION NUMBER: GAA7746-09 MATTER TYPE: Guardianship and administration matters HEARING DATE: 5 January 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 5 January 2010 DELIVERED AT: Brisbane ORDERS MADE: Appointment of guardian continued CATCHWORDS: Review of appointment of guardian – section 31 of Guardianship and Administration Act 2000 – increased areas of decision making APPEARANCES and REPRESENTATION (if any): The hearing was conducted on the papers in the absence of parties. -- 1 of 4 -- 2 REASONS FOR DECISION [1]. On 14 January 2008 the Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for DD (the adult). 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. [2]. The appointment is being reviewed today on the basis of information on the Tribunal file. On 18 November 2009 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). [3]. DD is 42 years old and resides in supported accommodation provided by Centacare. He has community access with the support of another service provider. [4]. When conducting a review of an appointment of a guardian or administrator, 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. 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. [5]. The Tribunal when considering the appointment of a guardian or an 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 appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act. CAPACITY [6]. The first matter to be considered by the Tribunal is whether DD has capacity for decision-making about his personal matters. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted at the time when the appointment under review was made but the Tribunal must consider afresh in this review whether the adult has decision making capacity or not. [7]. In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about the adult’s capacity to make decisions. [8]. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of- -- 2 of 4 -- 3 (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]. The Tribunal considered the following evidence about capacity: a report from DD’s treating doctor in 2007 who referred to a diagnosis of autism and epilepsy. The doctor reported that DD was totally dependant on his carers for decision making. DD was described as having no verbal communication due to his intellectual disability. The doctor expressed an opinion that DD could not make decisions freely and voluntarily nor could he make any simple or complex decisions. [10]. The Tribunal made findings of fact about capacity as follows: DD has a severe intellectual disability and has been diagnosed with autism and epilepsy. He cannot communicate verbally and he relies on other persons for decision making for both simple and complex matters. [11]. The Tribunal finds that the evidence established that DD cannot understand the nature and effect of decisions about personal matters and he is not capable of making decisions freely and voluntarily. CONCLUSION [12]. The Tribunal determines that DD does not have capacity to make decisions about personal matters. IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN [13]. The evidence in the file is that: DD resides in a co-tenancy situation provided by Centacare. There has been verbal and physical aggression between DD and his co-tenant and alternate accommodation may become necessary. DD exhibits challenging behaviour and a comprehensive medical assessment needs to be conducted to identify whether the behaviours are caused by his medical conditions. A medication review needs to be conducted to assess whether his current medication is appropriate for his needs. The adequacy of service provision needs to be considered to provide an adequate level of quality of life. An assessment needs to be conducted to ascertain if DD is subject to chemical restraint as a response to his challenging behaviours and if so, a Positive Behaviour Support Plan needs to be prepared. [14]. Based on the information set out above, the Tribunal determines that there is a need for a decision in relation to DD’s personal affairs and without an appointment the needs of DD will not be adequately met or his interests will not be adequately protected. -- 3 of 4 -- 4 SHOULD THE APPOINTMENT OF THE CURRENT GUARDIAN BE CONTINUED? [15]. The Tribunal considered the following evidence about the ongoing competence of the current guardian: the Adult Guardian has made decisions about service provision over the past two years. The guardian, after becoming aware that medication may be being used to respond to DD’s challenging behaviours without appropriate assessments and support being implemented, has attempted to work collaboratively with the service provider to develop a Positive Behaviour Support Plan. The guardian is waiting for updates on the progress made to date by the service provider. The Adult Guardian has the experience as a guardian to contribute effectively to support of DD to reduce the extent of any restrictive practices currently in place and to improve his quality of life. [16]. No other person has sought to be appointed as guardian for DD. [17]. The Tribunal made the following findings about the appropriateness of the current appointee: the Adult Guardian has acted competently in making decisions about health care and service provision. The Adult Guardian has acted appropriately in attempting to have a Positive Behaviour Support Plan developed when becoming aware of the use of chemical restraint as a response to DD’s challenging behaviour. CONCLUSION [18]. The Tribunal is satisfied that the Adult Guardian can make decisions that best meet the needs of DD. The Adult Guardian is an independent decision maker and has extensive skills and experience and is considered the appropriate appointee as guardian in this case. APPOINTMENT [19]. The guardianship appointment made on 14 January 2008 is changed by appointing the Adult Guardian as guardian for DD for the following personal matters: accommodation decisions health care decisions service provision to seek help and make representations about the use of restrictive practices for one year. The increased areas for decision making take account of the likely need for a change of accommodation to be made and for the need for the guardian to advocate for DD in relation to the use of restrictive practices and to develop appropriate support to reduce the use of any such restrictive practice over time. -- 4 of 4 --