CED [2012] QCAT 386

CITATION: CED [2012] QCAT 386 PARTIES: CED APPLICATION NUMBER: GAA1163-12 / GAA1164-12 / GAA3941-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 June 2012 HEARD AT: Brisbane DECISION OF: E Morriss, Member DELIVERED ON: 21 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by FS for leave to withdraw as guardian for CED is dismissed. 2. The appointment of FS as guardian for CED for decisions about the following personal matters is continued: (a) Accommodation; (b) Health care; (c) Provision of services; (d) What education or training CED undertakes. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 4. FS is appointed as guardian for restrictive practices (general) for CED. 5. The guardian for restrictive practices (general) is to provide a copy of the latest Positive Behaviour Support Plan to the Tribunal six (6) weeks prior to the expiry of the order. 6. Unless the Tribunal orders otherwise, this appointment remains current for one (1) year. 7. FS is to email once a month to CB with information concerning: (a) Accommodation; (b) Health care; -- 1 of 10 -- 2 (c) Provision of services; (d) Educational activities or major decision making. 8. In an emergency, FS is to contact CB as soon as possible to advise him of circumstances or whereabouts on his mobile telephone – by text or by personal telephone call. 9. FS is to give consent: (a) to services and treating medical/health services to provide information to CB regarding CED. CATCHWORDS: Guardianship – capacity – restrictive practices – chemical restraint – physical restraint – restricted access to objects APPEARANCES and REPRESENTATION (if any): FS – mother CB – father TM – sister TP GP – step mother WJ – service provider DT – team leader REASONS FOR DECISION [1] CED is a twenty-eight year old man with a history of uncontrolled epilepsy, challenging behaviours, and mental health concerns. He is currently placed at the Transitional Emergency Accommodation Service (TEAS), in a 24/7 accommodation support model. This is funded by Department of Communities, Disability Services. His parents are CB and FS and they have been divorced for some years. He has a close relationship with his sister, TM. [2] On 23 August 2011 the Queensland Civil and Administration Tribunal appointed FS as guardian for all personal matters for CED. Directions were issued to FS regarding the provision of information to CB. [3] CB lodged a complaint to the Tribunal on 1 February 2012 alleging FS was not complying with the directions. When provided with a copy of the complaint, FS wrote to the Tribunal indicating that although she refuted the allegations, she wished to withdraw as guardian. This was taken to be an application for leave to withdraw as guardian. A review of her appointment was initiated by the Tribunal. Subsequently FS wrote again to the Tribunal indicating that she wished to remain as guardian for CED. [4] At the hearing scheduled for 10 May 2012 it became apparent that CED -- 2 of 10 -- 3 had not received notice of hearing as he had recently moved address, according to s 118 of the Guardianship and Administration Act 2000. He was also hospitalised for treatment of his medical conditions. [5] FS also sought additional time to prepare her submissions to the Tribunal. The hearing was adjourned. A further application was received by the Tribunal on 16 May 2012 from FS for a guardian for a restrictive practice to be appointed. [6] The matters were considered on 21 June 2012. Does CED Have Capacity to Make Personal Decisions? [7] The Tribunal must consider whether CED has capacity for decision-making about his matters. There is a presumption at law that all adults have the capacity to make their own decisions. [8] The Act defines capacity. 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] The Tribunal considered a number of health professional reports about capacity. [10] A letter from Dr Dan McLaughlin (Neurologist) dated 14 June 2007 and a report received 20 June 2011 indicates that CED had been diagnosed with epilepsy since childhood, intellectual impairment and has difficulties with expressive speech. He has also been diagnosed with psychosis and had treatment in the mental health system. In regard to decision making he has “very little understanding of which medications are for which indication” and requires supervision of intake. It is unlikely that he appreciates the need for him to live with support. His mother is a positive influence, encouraging him to go to hospital and arranging reviews of his epilepsy. In Dr McLaughlin’s view CED does not have capacity to make simple or complex health, lifestyle/accommodation or financial decisions. [11] A report from Dr Andrew Woollons (General Practitioner) received 20 June 2011, provides diagnoses of epilepsy, acquired brain injury, and psychotic depression. CED’s understanding is limited and he cannot make simple or complex decisions. Medication compliance is poor. Dr Woollons also is of the view that CED did not have capacity to make simple or complex health, lifestyle/accommodation or financial decisions. [12] A report from Dr Amy Weber (General Practitioner) dated 3 June 2009 also confirms the history of epilepsy, cognitive impairment and developmental delay and psychotic depression and inability to make any complex -- 3 of 10 -- 4 decisions, including decisions about the use of restrictive practices. [13] The Tribunal spoke with CED’s family who confirmed the views of the treating medical practitioners. Whilst they seek to support him to make many simple choices and decisions, he continues to require assistance with decision making in all aspects of his life. He does not have the capacity to make decisions about the use of restrictive practices to manage his challenging behaviours. [14] The Tribunal made findings of fact about capacity as follows: (a) CED has a history of epilepsy which is often poorly controlled by medication; (b) CED has significant cognitive impairments resulting from his epilepsy that compromise his ability to fully appreciate the nature and the consequences of decisions; (c) CED has a history of mental health symptoms, including depression and psychosis which also restrict his decision making capacity. He has required hospitalisation for treatment of these difficulties; (d) He has challenging behaviours such as physical aggression towards others and non-compliance with medication; (e) He has expressive speech and language impairment. Does CED Require a Guardian? [15] All parties at the hearing were in agreement that CED did require a guardian to make decisions about accommodation, health care, provision of services, and what training or education CED should receive. [16] In respect of health, CED has a history of epilepsy, which is not well controlled by medication, with frequent emergency admissions to hospital for treatment. He is on a complex regime of medications, both for his epilepsy and for treatment of his mental health symptoms. His medication has been frequently changed, with side-effects that require careful monitoring and management. He also has a troubling history of medication non-compliance. CED requires consistent and informed medical care, specialist consultations with psychiatrists and neurologists, specialist assessments and reviews. [17] CED’s current accommodation is at the Transitional Emergency Accommodation Service (TEAS), funded and staffed by Department of Communities, Disability Services. Previously he was residing in a shared accommodation arrangement, but due to his ongoing medical instability and emotional difficulties, and conflict with neighbours the decision was made for him to relocate. There is a need to identify appropriate accommodation and services to enable him to live in the community. These are complex matters that require careful consideration of options, advocacy regarding his needs, and the ability to work with key services and stakeholders. He is currently receiving services funded (both recurrent and non-recurrent) by Department of Communities and is likely to require -- 4 of 10 -- 5 ongoing funding and services to provide optimum support. [18] CED is interested in participating in education and training. He has previously studied literacy and numeracy at TAFE, and art classes which he enjoyed. His family would like the opportunity for him participate in a range of activities in the community, including sport and recreation eg photography, tenpin bowling, art. Decisions will need to be made about these activities when he is physically and mentally well enough to participate. [19] All participants at the hearing, including CB and FS supported the formal appointment of a guardian to ensure continuity and consistency in decision making. Conclusion [20] The Tribunal finds that there is a need for a guardian to make decisions about health, accommodation, provision of services, and the education and training available to CED. Informal arrangements are not sufficient to ensure his needs are met and interests are protected. Who is the Most Appropriate Guardian? [21] In his letter to the Tribunal dated 31 January 2012 CB raised a complaint regarding matters of “non-compliance and unacceptable conduct” by the appointed guardian FS. He alleged that the guardian had failed to contact him regarding his son in emergency situations, had sent information in SMS or text form, rather than ringing and speaking to him directly, and had not provided him with a report according to QCAT directions. [22] He said that her actions were offensive and unacceptable and he expected a personal telephone call when there was an emergency health or medical issue. He conceded that she had attempted to call him on a number of occasions, but her call had been redirected to his voice mail as he was at work. He had not returned the calls. [23] There was also one occasion in October 2011 when he had arranged to visit his son, but he was not there when he arrived, and had been taken out by the guardian. This was inconvenient as he had travelled over three hours and had informed the supervisor of the accommodation service provider in advance. [24] CB would prefer that the Tribunal appoint the Adult Guardian instead of FS. He was previously unhappy with the appointment of the Adult Guardian, but indicates that he now prefers their appointment, so that he is included and consulted and informed in decision making, which is of key importance to him. [25] FS has also written to the Tribunal. She indicates that she has attempted to communicate and inform CB on many occasions since her appointment, -- 5 of 10 -- 6 and attached copies of a number of SMS messages and sent to him. At least thirteen SMS or text messages were sent (26/8/11, 2/9/11, 14/9/11, 28/10/11, 31/10/11, 2/11/11, 9/11/11, 23/11/11, 1/12/11, 26/12/11, 2/1/12, 26/1/12, 3/2/12). The content of these messages refers to various issues related to his health, hospital admissions, medication changes, accommodation needs, and services issues. [26] FS indicated that she had attempted to make voice telephone calls to CB on a number of occasions with the call going to mobile voice mail. She indicates that she sends text messages regarding her son’s circumstances to all family, not just CB and also to support workers to update them regarding his care as he goes to hospital frequently and there is limited time to personally call each member of the family. CED has very frequent hospital admissions, and it is not always possible to contact all parties immediately. Even when she does contact CB he does not visit his son in hospital. [27] FS refutes the assumptions of CB that she is preventing him from seeing his son, indicating she has encouraged him on many occasions to visit CED, and he has not taken these opportunities and he visits him infrequently. On one occasion he was taken out when his father travelled to visit him, but she was not informed of these plans before and this was due to poor communication by the service provider and support workers, not a deliberate attempt to prevent contact. [28] FS wishes to remain as guardian for her son. She believes that she is in the best position to make informed decisions regarding her CED’s health, accommodation, services and ability to access training and education. She is familiar with his medical history, medications, and the history of what has been trialled in the past. CED’s health needs are complex, requiring a detailed understanding and continuity of decision making. The Adult Guardian, when previously appointed did not have this knowledge with detriment to the adult. The Adult Guardian did not consult appropriately or keep family informed, and many decisions were made without family involvement. They did not understand the high level of support he required. [29] TM, is the sister of CED. She supports her mother continuing in her role as guardian. Her experience is that FS has acted honestly and with reasonable diligence. She trusts her to make decisions and indicates that FS actively discusses his circumstances with family and others involved in his ongoing care. She opposes the Adult Guardian being appointed, as they do not have the expert knowledge required and previously made decisions about her brother without consultation with family and with adverse outcomes. [30] WJ from Disability Services attended the hearing and supported the continuing appointment of FS as guardian. She has the necessary knowledge of CED’s complex needs, has been a strong advocate for him and is able to make decisions in a timely way. -- 6 of 10 -- 7 [31] Under section 31 of the Guardianship and Administration Act 2000 the Tribunal may make an order removing an appointee only if the tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment. No evidence is presented that indicates that FS has not protected the interests of the adult, or neglected her duties. Conclusion [32] The Tribunal finds little substance in the complaints of CB. It is apparent from the information provided that the current guardian FS has made genuine attempts (on more than 13 separate occasions in a six month period) to keep him informed regarding CED’s medication and health issues, admissions to hospital and treatment, issues around service provision and accommodation and access to activities. Although she has not done so in every instance, she has used SMS, emails, and personal mobile phone calls to contact him. The expectation that FS contact him on every occasion by personal telephone calls is unrealistic. [33] The Tribunal does understand CB in his strong wish to be informed and consulted regarding aspects of his son’s care. On the other hand, he has made few attempts to telephone the guardian himself to seek information or to be more involved in his son’s complex care. He has visited infrequently, even when the adult is hospitalised in intensive care. Although it is regrettable that one visit to CED in October 2011 was unsuccessful the Tribunal is not satisfied that this was due to any deliberate attempt by the guardian to exclude him from visiting his son. He has not provided evidence that the current guardian is not competent in making personal decisions or demonstrated that the Adult Guardian is more appropriate for appointment. [34] The Tribunal does expect that appointed guardians apply the General Principles set out in Schedule 1 of the Guardianship and Administration Act 2000, particularly with regard for maintenance of existing supportive relationships. Communication and consultation with key family members such as CB will continue to be important. The guardian FS has indicated her willingness to do so, as much as is practical in the circumstances. The Tribunal is satisfied with this. [35] The Adult Guardian is always available for appointment as a guardian for restrictive practices. But under section 14(2) the tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. In this case, FS is available for continuing appointment. [36] The Tribunal considered that the most appropriate decision was to continue the appointment of FS as guardian for decisions about health care, accommodation, provision of services, and education and training: (a) She is willing to apply the general principles; -- 7 of 10 -- 8 (b) She is has a strong and ongoing involvement in the adult’s life; (c) She is able to communicate with and consult the adult; (d) She is available and accessible to the adult, family members, to health care practitioners and service providers; (e) She has a detailed knowledge of his history and current medical diagnoses, medication and treatment regimes. [37] The guardian was issued with directions to email CB once a month with information concerning these key areas, and to contact him as soon as possible to advise of CED’s circumstances on his mobile telephone – by text or by personal telephone call. FS is also to give consent to services and treating medical/health services to provide information to CB regarding CED. [38] The application for leave to withdraw as guardian was dismissed. Is there a need for a Guardian for Restrictive Practices (General)? [39] The Tribunal can appoint a guardian for a restrictive practice matter under section 80ZD of the Guardianship and Administration Act 2000. It must however be satisfied: (a) the adult has impaired capacity for the matter; and (b) the adult’s behaviour has previously resulted in harm to the adult or others; and (c) there is a need for a decision about the matter; and (d without the appointment (i) the adult’s behaviour is likely to cause harm to the adult or others; and (ii) the adult’s interests will not be adequately protected [40] The Tribunal is satisfied the evidence is that CED has impaired capacity to make decisions about the use of restrictive practices under section 80ZD(1)(a). The Tribunal is also satisfied that CED has behaviour which has previously caused harm to himself and to others, under section 80ZD (1)(b): (a) He has a history of physical aggression towards support staff, including charging, punching, and throwing objects. He also becomes agitated, pacing, clenching his fists, and makes threats of physical harm to others; (b) He has a history of eating certain foods to excess, and drinking excess quantities of fluid, resulting in vomiting with need for hospitalisation and risk of seizures; (c) He wears excessive layers of clothing, leading to overheating and risk of seizures; (d) He is non-compliant with medication necessary for his epilepsy, with a risk of seizures and hospitalisation. [41] A number of restrictive practices, under section 80ZD(1)(c) are used to -- 8 of 10 -- 9 manage his behaviour. An assessment will be completed by the Specialist Response Service, Department of Communities, to inform the development of a Positive Behaviour Support Plan. Short term approval for the use of restrictive practices has been obtained by the service provider. Currently, the following restrictive practices will continue: (a) Medication (Zyprexa PRN) is used to settle his behaviour – this is considered chemical restraint as that term is defined in section 123F of the Disability Services Act 2006. (b) Physical restraint strategies are used by staff to redirect his blows and charging and prevent injury to staff or others. (c) It is also likely that he will require restricted access to some objects. [42] The Tribunal is satisfied the use of restrictive practices require the involvement and decisions of an appointed guardian. Without the approval of a guardian these practices cannot be used and it is likely in the circumstances that CED’s behaviour will cause harm to himself and/or to others. It is in his interests to appoint a guardian who can be involved in the development of a Positive Behaviour Support Plan, and approve these restrictive practices. Who is the Most Appropriate Guardian for Restrictive Practices (General)? [43] The Adult Guardian is always available for appointment as a guardian for restrictive practices. Under section 14(2) of the Act the tribunal may appoint the Adult Guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. [44] FS has proposed that she be appointed as a guardian for restrictive practices. She has an effective working relationship with CED’s treating medical practitioners, and with the services involved in his ongoing care. She has demonstrated a detailed understanding of his medication and health needs, and is a strong advocate for him. She is willing to be involved in the development of a Positive Behaviour Support Plan, which will integrate a range of positive strategies and restrictive practices to manage behaviour. She has the support of her daughter and son-in-law and the current service provider. [45] Although there has been conflict in the past between FS and CB, she has made appropriate attempts to keep him informed and to communicate with him. There is no evidence that she has made inappropriate or incompetent decisions in regard to the adult, and she has expressed a willingness to work with all family and stakeholders and to keep them informed. [46] The Tribunal found FS appropriate for appointment: (a) She is willing to apply the general principles; (b) She is has a strong and ongoing involvement in the adult’s life; (c) She is able to communicate with and consult the adult; (d) She is available and accessible to the adult, family members, to -- 9 of 10 -- 10 health care practitioners and service providers; (e) She has a detailed knowledge of his history and current medical diagnoses, medication and treatment regimes. [47] Orders were made accordingly. -- 10 of 10 --