CK [2012] QCAT 212

CITATION: CK [2012] QCAT 212 PARTIES: CK APPLICATION NUMBER: GAA1792-12 / GAA1793-12 / GAA1876-12 MATTER TYPE: Guardianship and administration matters for adults HEARING DATES: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 6 and 7 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The tribunal is satisfied that urgent action is required. 2. The tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Act 2009. 3. The Adult Guardian is appointed guardian for CK for all personal matters. 4. 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. 5. This guardianship appointment remains current for 3 months or, if the tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. 6. The Public Trustee of Queensland is appointed administrator for CK for all financial matters. 7. The tribunal directs the administrator to provide a written account of their actions as administrator to the tribunal no later than three (3) working days prior to the hearing. 8. This administration appointment remains current for 3 months or, if the tribunal -- 1 of 6 -- 2 makes a further order in this matter, until the date of the further order, whichever is the sooner. 9. The tribunal notes that the following enduring power of attorney for CK is overtaken by the making of these appointments and, in accordance with s 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made: (a) The enduring power of attorney dated 7 December 1992 appointing CRW, CJM and CAWE as attorneys for financial matters. 10. Copies of the Application for an Interim Order and the Application for a Confidentiality Order are to be withheld from CR until the hearing of the Application for Review of the Appointment of a Guardian and the Application for Appointment of an Administrator. 11. Any documents or information that would disclose the contact details of CK is to be withheld from CR, from his representatives and from a service provider until the hearing of the applications currently awaiting hearing in the Tribunal. CATCHWORDS: GUARDIANSHIP – where allegations that conduct of adult’s father had caused serious harm – where evidence gave rise to a satisfaction that an adult was at immediate risk of further harm – where the adult needed appropriate and safe accommodation – where decision maker needed to make decisions to pay for accommodation – where serious harm would be caused by documents and information being able to be accessed Guardianship and Administration Act 2000, ss 109, 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). -- 2 of 6 -- 3 REASONS FOR DECISION [1] CK was an inpatient in a mental health unit in January 2012 when one of the members of her mental health treating team made an application to the tribunal for the appointment of an administrator for CK. The applicant informed the tribunal that CK had coped well with living in institutionalised care but she was refusing to return to her accommodation outside the unit. Her treating team wanted to carry out an assessment of her ability to reside in accommodation outside the mental health unit so that a transition to appropriate accommodation could be undertaken. [2] The Adult Guardian had been originally appointed as guardian in 2007 and on 25 January 2011 QCAT continued the appointment of the Adult Guardian as the decision maker for CK for accommodation, health care and provision of services. CR is the attorney for CK for financial decisions. CR is the father of CK. [3] The tribunal was informed that CK had had the opportunity to attend a respite placement where medical and behavioural assessments could be conducted by a specialist behavioural response team. This opportunity was missed as the attorney did not consider it was appropriate to pay a holding fee of $10 on CK’s public housing unit while the respite placement was trialled and would not agree to assign part of CK’s pension to the facility during the period of her stay. It was alleged that this refusal had negatively impacted on CK’s health care in limiting her access to important specialist assessments. [4] The tribunal was informed that on 4 January 2012 the attorney had stated that he did not believe it was necessary for CK to have savings and that he had given her significant amounts of money. It was stated that the attorney believed that CK should be able to spend all her available funds. [5] The tribunal was informed by a member of the treating team that CK had accessed her savings and she had spent up to $5,000. After that, she was unable to comprehend that as a result of having insufficient funds in her savings account, she was unable to withdraw money with her keycard. The tribunal was informed that the treating team considered CR to be a positive support for his daughter but that it was difficult for him to assertively manage her finances as he is too emotionally involved to be firm in decisions about CK’s finances. [6] The treating team informed the tribunal that attempts to plan for CK’s discharge from the mental health unit had been stymied. Her accommodation had been made unliveable by CK and she refused to return to that accommodation. CK has a history of moving from public housing placements after a short period of time and she had had up to 7 different houses. CK had stayed in her then current accommodation for some 18 months but would no longer agree to return there. [7] CR refused to pay for alterative accommodation while CK was being assessed as to her ability to cope with living in other accommodation. As -- 3 of 6 -- 4 a result, CK remained living in an acute mental health facility when she was mentally stable and ready for discharge for some time. [8] On 6 March 2012 the Adult Guardian applied to QCAT for an interim order appointing a guardian for all personal matters and for the appointment of an administrator for CK. The tribunal was informed that a decision had been made by the guardian for CK to reside with a host family carer at Wynnum and for services to be provided by a new service provider. CK moved into the residence of the host family on 27 February 2012. [9] It was alleged that on 29 February 2012 CR went to the residence, forcefully entered into the residence without consent, entered into CK’s bedroom, closed the door to that room and remained in the bedroom with CK for a considerable amount of time. Other allegations were made about the conduct of CR and about statements made by CK after her father left her bedroom. [10] CR took CK from the residence with him. On returning to the host family later that day, CK screamed most of that night. CK was moved to other accommodation. [11] The Adult Guardian stated that a correlation had been previously noted between CR having contact with his daughter and her behavioural outbursts. The Adult Guardian informed the tribunal that CR was looking for his daughter but he had not been given any information about her current whereabouts. [12] The Adult Guardian sought a review of the appointment of guardian to extend the areas of decision making so that, among other matters, an application for a protection order could be made on behalf of CK. It was submitted that CK was at immediate risk of harm and abuse and that an interim appointment of the Adult Guardian for all personal matters was appropriate. An order was also sought for the interim appointment of The Public Trustee of Queensland as administrator for CK so decisions about her accommodation and service provision pending hearing could be effectively made and paid for. [13] Section 129 of the Guardianship and Administration Act 2000 states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. The result of the power to make interim orders being limited to cases where the tribunal is satisfied there is immediate risk of harm is that QCAT must be satisfied that appointments of decision makers without a hearing and without notice to an adult or family should be made only when circumstances compel such action. [14] I was reasonably satisfied that on the information provided to QCAT CK was likely to be at immediate risk of harm based on the allegations made against her father. If those allegations were correct, steps were needed to protect her and to provide her with appropriate support, services and accommodation while the applications for the appointment of an -- 4 of 6 -- 5 administrator and for a guardian were pending before QCAT. In view of the serious nature of the allegations, it would not be right to wait until the allegations had been fully responded to by CR at a hearing before taking steps to address the immediate risk of harm. [15] The Adult Guardian was appointed on an interim basis to make all personal decisions for CK for a period of 3 months. In that time decisions would be required to be implemented to source accommodation for CK that would not be disclosed to her family. CR as attorney controlled the funds available to CK to pay for that accommodation. [16] I was satisfied that another substituted decision maker apart from CR would be required in the interim to ensure that the accommodation and other needs of CK were paid for. The Public Trustee of Queensland was an appropriate appointee on an interim basis for 3 months until a hearing could determine the best way to meet the financial decision making needs of CK in the longer term. [17] The Adult Guardian had also applied for orders to keep confidential from CR certain documents and information until the hearing of the applications for the appointment of guardian and administrator. The documents in question were the application for an interim order and the application for a confidentiality order made by the Adult Guardian. Additional information sought to be kept confidential was the contact details of CK. [18] Under section 109 of the Guardianship and Administration Act 2000 the tribunal can withhold documents and information from any person if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person. The Adult Guardian submitted that it was necessary to withhold the specified documents and information to avoid serious harm to CK. [19] I was satisfied that the allegations made against CR were serious. They were being investigated by the proper authorities and disclosure of information about the specifics of the allegations prior to hearing of the guardianship and administration applications was likely to interfere unreasonably with the progress of the investigation. CR will then have the opportunity to explain his conduct and, if he chooses, he can respond to the allegations at the hearing. [20] The focus of any hearing in the guardianship jurisdiction is on the adult with impaired capacity. The allegations made against CK’s father are only relevant to the QCAT hearing to the extent that his conduct may reflect on the appropriateness of CR remaining as a decision maker for his daughter. An order that prevents disclosure before the hearing of the documents that contain allegations against him will not cause injustice to CR as it does not unreasonably restrict his opportunity to put forward at the hearing any submissions as to why it is appropriate that he remain as a decision maker for his daughter. [21] I was satisfied that the interim order application and the application for confidentiality should be withheld from CR until the hearing. The Adult -- 5 of 6 -- 6 Guardian may then seek to extend the confidentiality order and CR can oppose any further extension at that time. [22] I was satisfied that in view of the allegations of serious harm caused to CK from the incident on 29 February 2012, it was necessary to avoid any further serious harm occurring to CK or to any person with her to keep the contact details of CK from her father, from his representatives and from the service provider who had formerly been working with CK as the tribunal had been informed that the servicer provider was also being represented by the lawyers instructed by CR. [23] He had entered the host family’s house without consent on 29 February 2012 and his contact then with CK had resulted in a prolonged episode of distressed behaviour. Since the order made on 6 March 2012 extending the authority of the Adult Guardian to make decisions about all personal matters for CK, permission had not been given by the Adult Guardian for CR to have contact with his daughter. There was a real likelihood arising from his past actions on 29 February 2012 that CR would repeat his forceful actions resulting in harm and distress to his daughter. [24] The confidentiality order withholding the contact details of CK will only extend to the hearing of the guardianship and administration applications. In the event that the Adult Guardian seeks to extend the confidentiality order at the hearing, CR will have the opportunity at the hearing to put a case opposing any such extension of the order. -- 6 of 6 --