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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HCA  QCAT 127
In applications about matters concerning HCA
GAA 11063-19; GAA 11064-19
Guardianship and administration matters for adults
6 March 2020
10 December 2019
In GAA 11063-19:
In GAA 11064-19:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – most appropriate appointee - whether proposed guardian ‘more appropriate’ – where protection order against proposed guardian
Guardianship and Administration Act 2000 (Qld), s 5(e), s 7(c), s 15, s 31
APPEARANCES & REPRESENTATION:
HDS – parent
Proposed Guardian/Proposed Administrator:
HDS – parent
PM – the applicant’s legal representative
PS – service provider
WP – service provider
RN – service provider
ML – service coordinator
CC – grandparent
REASONS FOR DECISION
- On 18 March 2019 the Tribunal appointed the Public Guardian as guardian for HCA and the Public Trustee of Queensland as the administrator for HCA.
- HDS is the mother of HCA. She has applied for a review of the appointment of guardian and administrator. HDS in paragraph 3.22 of her submissions states that there has been a failure to: care for the adult appropriately and properly; properly supervise the adult; and provide suitable accommodation for the adult. HDS in relation to the appointment of an administrator says that she would be more appropriate, as mother of the adult, than the Public Trustee of Queensland.
Does HCA have capacity to make her own decisions?
- Dr RF, the adult’s GP, in the Health Professional Report states that HCA has been diagnosed with Downs Syndrome and consequent intellectual disability. The doctor is of the view that HCA does not have capacity to make decisions around personal health care; lifestyle and accommodation; and financial affairs.
- The Tribunal accepts the evidence of Dr RF and finds that HCA has been diagnosed and has an intellectual disability.
- The presumption of capacity for personal matters and financial matters is rebutted.
What need is there for the appointment of a guardian?
- The Tribunal appointed the Public Guardian in 2019 for the following matters: accommodation; healthcare; and services including the NDIS.
- The parties at the hearing were of the view that these were the areas where a need remained, except for healthcare which could be managed under the Statutory Health Attorney arrangements.
- The Tribunal concludes that without an appointment there would be unreasonable risk to the health and welfare of the adult and without appointment the needs of the adult would not be adequately protected.
- The Tribunal makes the following findings:
- (a)HCA benefits from services under the NDIS; and
- (b)HCA needs support around important healthcare decisions that can be done under the Statutory Health Attorney arrangements.
Who is most appropriate party to be appointed as guardian?
- The argument in this case revolves around who is most appropriate to be appointed as guardian.
- HDS in paragraphs 10 to 22 of her submission of 2 July 2019 sets out the particulars of alleged failures of the service provider, which are summarised in paragraph 22. She submits there was: a failure to provide adequate clothing; a failure to properly bathe the adult; negative change with respect to the adult’s sleep; failure to seek timely medical assistance in relation to a skin condition; a regression in verbal communication skills; and a change in views with respect to the adult wanting to stay with HDS or otherwise.
- The first point to be made here is that the review is about the actions of the Public Guardian. This is not a review about the actions of the service provider. If HDS had real concerns about the performance of the service provider, why did she not raise those with the Public Guardian?
- The service provider is naturally concerned by the nature of the allegations against it and has provided a detailed response to the matters set out above in material filed with the Tribunal and in the oral evidence given at the hearing.
- The Tribunal is satisfied having heard the oral evidence that on balance the service provider has adequately responded to the allegations set out in paragraph 22 of HDS’ submission.
- The problem that the Tribunal has is that the evidence of the Public Guardian is that HDS at no time raised concerns or complaints regarding the actions of the service provider. HDS did not dispute this evidence. The evidence of the Public Guardians representative was that no questions were raised with the Public Guardian about the conduct of the service provider.
- The Tribunal notes further the evidence in the application for the Interim Order in Part E which states:
[The service provider] has supported HCA since approximately age 8 and [the service provider] has identified concerns with Child Safety (when HCA was under 18). Worked with HCA and her mum about strategies to keep HCA safe, HCA’s mum displays erratic behaviour and has in the past indicated she no longer wants HCA to remain in her care, this view point changes depending on how “well” HDS is at the time of conversation. HCA is a vulnerable young woman who was at considerable risk of exploitation and potential abuse due to a disability…
- The service provider also noted that HCA had indicated to them that she ‘did not want to return home’.
- The Public Guardian in their Tribunal Briefing Report also noted on page 3 that the adult indicated she would like to live somewhere else than with her mother, with support.
- The Tribunal notes that there was a Police Protection Notice in place at the last hearing. This Notice sets out the grounds at paragraph 3:
…at approximately 11:30 PM on the 23rd day of January 2019, police were called to attend the respondent and aggrieved’s home… after reports of yelling and physical abuse occurring at the address. Upon arrival at the location, neighbours flagged down police and advised them that since 9 PM they had been hearing sounds of the aggrieved being kicked and crying out in pain, property being damaged and the respondent yelling hysterically. Police have attended the address and spoken with the respondent who immediately appeared highly strung and erratic. The respondent has advised police that she was just attempting to get her daughter, the aggrieved, to sleep and that nothing had occurred, further screaming police were only called because her neighbours were racist. The respondent told police that when the aggrieved failed to go sleep [sic] she confiscated one of her belongings, namely an acoustic car [sic], and proceeded to smash it into pieces as punishment and saw nothing wrong with her actions. Police have observed the smashed property and further items strewn around the house…. Checks upon the respondent show an alarming pattern of erratic and possibly physical abusive behaviour reported by external agencies that are involved with the family, towards the aggrieved. In 2016, the aggrieved made reports to an external agency that her mother had hit her in the head on three separate occasions. Police are of the belief that the aggrieved is an extremely vulnerable person, which is heightened by her inability to effectively communicate with persons about her current situation. Police further believe that the aggrieved is at an unacceptable risk of being a victim of further domestic violence offences, and as such requires the protection of a Domestic Violence Order.
- The solicitor for HDS at paragraph 3.25 of his submissions makes the point that the Protection Order was entered into by consent without admissions. The Tribunal makes the point that a consent order is still relevant evidence as to the appropriateness of HDS for appointment. How would the community look at the Tribunal if it appointed someone with a Police Protection Order in place? The solicitor for HDS submits that the allegations were at the low end for such behaviour. The Tribunal does not accept this contention. The police reports refer to ‘physical abuse and yelling’. The Tribunal also notes that HDS smashed HCA’s guitar. This could easily have been a prized possession of the young adult and the actual violence in its destruction and the potential to cause harm to the child’s emotional well-being should not be lightly taken.
- The Tribunal is of the view that there should be a low threshold in terms of acting on this evidence. Any evidence of actual harm to a child or young adult should be given significant weight in looking at appropriateness.
- While the making of the Police Protection Order might not necessarily preclude HDS, it should be taken into account in a decision on appropriateness.
- The Tribunal is of the view that the allegations which have been raised against the service provider have been addressed appropriately. The Tribunal is further of the view that the failure to raise any concerns with the Public Guardian, the appropriate decision-maker, undercuts the evidence of HDS. The Tribunal is not satisfied on the evidence that HDS is more appropriate than the current guardian: the Public Guardian.
- The Tribunal took into account the following factors:
- (a)The wishes expressed by the adult which were not to live with her mother;
- (b)The past history of concerns in relation to HDS’s conduct towards HCA. The Application for Interim Order refers to that in paragraph E. The Police report for the Protection Order refers to the incident leading to the making of the Protection Order and the history in 2016 of HCA being struck three times during the year by HDS; and
- (c)The Public Guardian is a professional guardian who has much experience dealing with young adults in HCA’s circumstances.
- The Tribunal accepts that the appointment of a decision-maker with a similar cultural background would be beneficial.
- The Tribunal is of the view that on balance, looking at the factors in relation to appropriateness, the Public Guardian is most appropriate.
- The Tribunal makes the following findings of fact:
- (a)HDS was the subject of a Police Protection Order; and
- (b)HDS failed to raise any concerns with the Public Guardian.
- The Tribunal is of the view that the Public Guardian meets the appropriateness considerations in section 15(1) of the Guardianship and Administration Act 2000 (Qld) (‘the Act’).
- The Tribunal makes the following finding:
- (a)The Public Guardian is a professional guardian able to support HCA with important personal decisions.
Does HCA need an administrator?
- The parties at the hearing agreed that HCA needed support in relation to financial affairs.
- The evidence before the Tribunal is that HCA receives a pension.
- The Tribunal makes the following finding of fact:
- (a)HCA receives a pension that needs to be managed.
- The Tribunal is satisfied that HCA needs support managing her finances.
- The Tribunal concludes that without an appointment there would be unreasonable risk to the finances and property of the adult and that without appointment the adult’s interests would not be adequately protected.
- The crux of HDS’s argument is that as the adult’s mother she is best placed to manage her finances.
- The Tribunal points out to the applicant that on review, section 31 of the Act provides that the Tribunal should only change an appointment if the party is no longer competent or if the applicant is more appropriate.
- The Tribunal notes that no serious challenges were mounted against the actions of the Public Trustee of Queensland. The Tribunal notes that the Public Trustee of Queensland provides an excellent professional service to people in HCA’s position.
- The Tribunal was not satisfied that the evidence provided satisfied the evidentiary burden to establish the applicant was more appropriate.
- The Tribunal makes the following finding:
- (a)The Public Trustee of Queensland is a professional administrator that can support HCA with her financial affairs.
- Published Case Name:
In applications about matters concerning HCA
- Shortened Case Name:
 QCAT 127
06 Mar 2020