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- Unreported Judgment
NM  QCAT 325
Guardianship and administration matters for adults
On the papers
Senior Member Endicott
16 August 2016
GUARDIANS AND ADMINISTRATORS – APPOINTMENT PROCEDURE – STATE AND TERRITORY COURTS – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN: JURISDICTION AND POWERS – where hearing had dismissed application for appointment of a guardian – where seven weeks later further application made for appointment of a guardian – where adult in hospital – where supported accommodation needed after hospital discharge – where adult willing to be placed into supported accommodation – where choice made by adult not considered suitable by his mental health treating team – where a family member had been willing to provide support for decision-making – where adult’s wellbeing was being ensured in hospital – whether there was an immediate risk of harm
Guardianship and Administration Act 2000 (Qld) s 129(1)
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 (Qld) (QCAT Act).
REASONS FOR DECISION
- NM is an inpatient in a regional hospital. He has a long-standing diagnosis of schizoaffective disorder complicated by substance abuse. He is under an involuntary treatment order under the Mental Health Act 2000 (Qld). On 14 April 2016 QCAT appointed the Public Guardian to be guardian for NM on an interim basis for three months. The Public Trustee of Queensland was also appointed on an interim basis as administrator for all financial matters for three months.
- The guardian filed a report in the Tribunal on 20 June 2016 that stated that no decisions had been made by the guardian between 14 April 2016 and 20 June 2016. The guardian reported that NM has a long-standing relationship with his sister who remained interested in ensuring the ongoing health and welling of NM. The guardian reported that NM has long-standing case management support from his Community Mental Health team and that his sister and the treating team could liaise with the administrator for NM to support accommodation options for him.
- The Public Guardian concluded in the report that as there was support available to NM from his informal support network, the needs and interests of NM were being met and adequately protected and that the appointment of a guardian was not required.
- At a hearing held on 24 June 2016, the Tribunal dismissed the application for the appointment of a guardian. On 12 August 2016, some seven weeks later, Alexandra Didlock, the case manager for NM, filed an application for the appointment of a guardian. At that time, Ms Didlock stated that NM could not stay in hospital for long and that he should be placed into supported accommodation. She stated that NM could not live safely in the community. She sought the appointment of the Public Guardian to make accommodation, services, health and other personal decisions for NM.
- According to information filed in the Tribunal, NM had become accepting of the idea that he could not return home after he was discharged from hospital. He had agreed to visit two possible supported accommodation placements and he was keen on Herston Lodge. It was reported that NM put his name on a waiting list for this site. The report also stated that NM is improving in his mental health, he is compliant with treatment and is abstaining from illicit substances.
- The report also stated that the Mental Health Service on the Sunshine Coast had a short-term accommodation facility to which it could discharge homeless persons. The report stated that it had suggested that, as his mental state is much improved, NM could be discharged to that facility for a maximum period of four weeks. However, the report noted that the treating team considered that NM did not have capacity to manage his day-to-day functioning and so he remained in a mental health ward.
- Ms Didlock also sought an interim order appointing a guardian for NM. QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129 (1) of the Guardianship and Administration Act 2000 (Qld) (the GAA) without holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
- In support of the application for an interim order, Ms Didlock stated that NM was in hospital and fast approaching a need for discharge. He is unable to return to his previous accommodation and he needs 24 hour supported accommodation. Ms Didlock stated that NM is unhappy about that prospect and he wants to return back to the family home. As the home is being sold, NM cannot live there anymore. Ms Didlock stated that a decision needs to be made with all involved quickly about the appropriate place for NM.
- Ms Didlock further stated that NM cannot stay in hospital forever and that he needs somewhere appropriate as soon as possible. She stated that NM had agreed to be placed into a supported accommodation site but that the treating team did not believe it would suit his needs and that he would be vulnerable there. Ms Didlock stated that NM is starting to understand that he cannot go home and that he needs 24 hour support. He considers that is only a temporary matter but it will be needed for the longer term.
- Ms Didlock did not state what support NM would be able to have from his sister in arranging at least some short-term accommodation after his discharge from hospital. The evidence from the June 2016 hearing had indicated that NM could rely on support from his sister for decision-making. The further evidence provided in August 2016 suggested that NM could understand that he must accept supported accommodation to enable him to be discharged from hospital although he might believe that such a decision was only for some short-term accommodation.
- The evidence filed to support the interim order application did not establish to the satisfaction of the Tribunal that NM was at an immediate risk of harm unless a guardian was appointed for him to make decisions about accommodation, services, health care and certain other day-to-day personal matters. NM was in hospital under treatment from his mental health team. His wellbeing was ensured in that environment and his mental state had improved. NM had started to accept that he could not return to his family home after discharge and he was agreeable to supported accommodation.
- His treating team did not consider that the choice made by NM as his discharge destination was appropriate. He had his sister who had formerly been willing to provide informal decision-making support to NM and was a part of his informal support network. The GAA recognises that valid decisions can be made for persons with impaired decision-making capacity by that person’s informal support network.
- It was a reasonable inference to make that, if NM needed to be discharged before the hearing of the application for appointment of a guardian could take place, a decision could be made for him by his sister on an informal basis. However, the evidence did not establish that any immediate decision was needed to discharge NM to respond to his welfare needs. It appeared that the basis for the application for an interim order was to expedite the formal decision making process and to avoid waiting for a hearing by the Tribunal. That is not a proper rationale for making an interim order under s 129 of the GAA as that section permits orders to be made only to respond to immediate risks of harm.
- As the evidence did not establish the presence of any immediate risk of harm to NM, the application had to be dismissed.
- Published Case Name:
- Shortened Case Name:
 QCAT 325
Senior Member Endicott
16 Aug 2016