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CGB[2016] QCAT 9

CITATION:

CGB [2016] QCAT 9

PARTIES:

CGB

APPLICATION NUMBERS:

GAA10698-15; GAA10699-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

16 December 2015

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

4 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. ACC’s applications for joinder as an active party and for directions to the guardian for CGB are dismissed.

CATCHWORDS:

GUARDIANSHIP – APPLICATION FOR DIRECTIONS – where guardian appointed – where decisions made by guardian about accommodation and service provision   on the basis of information from relevant professionals – where decision made that no contact between the adult and the individual seeking directions – where applicant presents her own opinion as to what is best for the adult-whether discretion should be exercised to give directions to the guardian

Guardianship and Administration Act 2000 (Qld), s 11, s 81, s 115, s 119, s 138, Schedule 1

Re WFM [2006] QGAAT 54

Re BKD [2013] QCAT 422

Re KAD [2012] QCAT 601

APPEARANCES:

ACC (Applicant)

SBK (Administrator)

Peter Sheehy (Separate Representative for CGB)

Sheryl Woolnough (Office of the Public Guardian)

Monique Kidner (Public Trustee of Queensland, via telephone)

(SBK was accompanied by his legal advisers. ACC was accompanied by various family members and friends as support persons. None of these other persons played an active part in the hearing).

REASONS FOR DECISION

  1. [1]
    CGB is aged 82 years. CGB has C3 quadriplegia as a result of an accident when he was aged 38. He has recurrent urinary tract infections. He also has a diagnosis of frontal lobe dementia. He resides at a residential aged care facility. He has lived there since being discharged from hospital on 29 July 2014.
  2. [2]
    Dr Penny King, a psychiatrist and psychogeriatrician, provided a report to the Tribunal dated 25 September 2014. Among other matters, she reported that when she saw him, CGB was ‘disinhibited and disorganised,’ and that he had cognitive impairment (which was likely to progress) against a background of progressive deterioration.  She also refers to CGB presenting as vulnerable to suggestion. She concluded that he did not have capacity for complex decision-making. A recent assessment from an occupational therapist states that CGB is easily agitated and ‘unable to initiate any purposeful activity.’ [1]
  3. [3]
    The Public Guardian was initially appointed as guardian under the Guardianship and Administration Act 2000 (GAA Act) for CGB for specified matters in October 2014. Guardianship orders were then subsequently made on review of the appointment. Several interim guardianship orders have also been made from time to time. By virtue of orders made at a review conducted by the Tribunal on 23 April 2015, the Public Guardian is guardian for CGB for decisions about accommodation; with whom CGB has contact or visits; health care; provision of services; and legal matters not relating to CGB’s financial or property matters. The order is current for two years. At the same review hearing, orders were made continuing the appointment of the Public Trustee of Queensland as administrator for CGB in respect of all of his financial matters except for certain specified matters, including some business interests (including a sandstone quarry), for which SBK is appointed as administrator for CGB.
  4. [4]
    ACC made application for directions from the Tribunal alleging concerns that CGB is not receiving an adequate level of care and in respect of his contact with her. I sought clarification from ACC at the commencement of the hearing about the directions she seeks. ACC indicated that she seeks a direction that she be ‘in charge of his care’ and that she have contact with him ‘all day, every day’. ACC had cared for CGB at his home for many years, prior to his move to the aged care facility. (His home was sold at auction by his administrator in about May 2015, although settlement did not occur until September 2015).[2] When pressed further, ACC indicated that she sought to be allowed to have contact with CGB from 7:00am until 5:00pm each day.
  5. [5]
    ACC also applied to be joined as an active party to the proceedings.
  6. [6]
    SBK and the Public Trustee participated in the hearing, both giving evidence. The Public Trustee advised that ACC’s actions have resulted in additional costs and disruption to CGB’s financial matters, including those associated with lodgement by her of a caveat over his home on the day of the auction, and her recent claim for maintenance from CGB. SBK[3] states that ACC upsets CGB by telling him people are stealing from him; posting misleading information on Facebook suggesting she is in control of his business; and initially, refusing to vacate CGB’s home (and subsequently breaking in to it) for sale; countermanding rent decisions; and suing CGB on various occasions.

ACC’s application to be joined as an active party

  1. [7]
    Under the GAA Act, an application may be made to the Tribunal for a declaration, order, direction, recommendation or advice about something related to the GAA Act, by the adult concerned or another ‘interested person’. [4] An interested person is defined to mean ‘a person who has a sufficient and continuing interest’ in the other person in respect of whom the application is made.[5] The Tribunal may, if necessary, decide whether a person is an interested person.[6] By virtue of s 119 of the GAA Act, an applicant is an active party.[7] An active party has a right to appear in person before the Tribunal.[8]
  2. [8]
    Therefore, subject to ACC being an interested person for CGB under the GAA, she is entitled to bring an application. There was no application made by any other active party questioning her status as an interested person. In the absence of any determination that ACC is not an interested person, she is entitled to bring the application. As an applicant, ACC is by virtue of the GAA Act, an active party. Accordingly, the application for ACC to be joined as an active party is unnecessary. I make orders dismissing it.
  3. [9]
    That said, in light of the evidence which emerged in relation to this hearing, and the findings made by me, I make the observation that if ACC seeks to make any future application/s, that consideration be given to whether she remains an interested person for CGB.

The Tribunal’s jurisdiction to make directions

  1. [10]
    In this case, ACC makes application for directions, effectively directing the Public Guardian to decide certain matters, for which it has been appointed as guardian, in a particular way.
  2. [11]
    Section 81(d) of the GAA Act provides that the Tribunal has functions including the jurisdiction to give directions to a guardian. Under the GAA Act, once an application is made to the Tribunal for a declaration, order, direction, recommendation or advice about something related to the GAA Act, any appointed guardian is an active party in the proceeding.[9] Section 138 provides that once an application has been made about a matter, the Tribunal may give advice or directions about the action an active party should take. Directions may, in the Tribunal’s discretion, be given directing a substantive course of action for the decision maker, including how a matter for which the guardian has been appointed should be decided.[10]
  3. [12]
    The GAA Act provides that the General Principles and Health Care Principle must be applied in performing a function or exercising a power under the Act.[11]

Should a direction be given to the effect that the Public Guardian must allow ACC to care for CGB (or be in charge of his care)?

  1. [13]
    In her application and oral submissions at the hearing, ACC essentially says that she is better placed to care for CGB, and that the care provided in his current arrangements is inadequate. In particular, she says she was his carer for 21 years until he was removed from his home in July 2014, and that she resided in a de facto relationship with him for part of this period. The issues she raises around the adequacy of his care relate to allegations that his allergies are not properly monitored; that he is being sedated; that he has had a series of infections by way of bedsores and urinary tract infections; and that his hygiene and arrangements to maintain bowel regularity are inadequate.
  2. [14]
    In extracts from her diary notes[12] provided to the Tribunal, ACC also makes a range of allegations about events said to have occurred at various times while CGB has lived at an aged care facility. These include that CGB would not have been referred for hospital treatment promptly if she had not told the aged care facility staff that he appeared unwell; that his catheter and general hygiene needs were not being met leading to infections; that he received medication to which he was allergic; that his bed linen was not changed promptly when required; and that he has told her from time to time that he wants to go home.
  3. [15]
    When given the opportunity to expand upon her concerns at the hearing, she said that she was worried about CGB and that he does not belong in a ‘nursing home.’ She referred to some events in 2014 and early 2015, as per her diary notes. She said that the last time she saw him he was confused and she did not know why. She also referred to his telephone number having been changed and that he could not contact ‘anyone,’ (although her diary notes refer to him telephoning her).

What are the current arrangements for CGB and how were they decided?

  1. [16]
    The Public Guardian provided a comprehensive Guardianship Report (which attached a variety of documentation including a functional assessment from October 2014, and a care plan and rehabilitation plan both dated 16 October 2015).[13] Ms Woolnough, a representative of the Public Guardian, gave evidence and made submissions consistent with these documents at the hearing.
  2. [17]
    In October 2014, the Public Guardian instructed a functional assessment to determine whether CGB’s support needs could be met at home or whether he continued to require the level of care offered in a residential aged care setting. Coastal Rehabilitation found that CGB was fully dependent on an attendant-propelled wheelchair for his mobility. It noted that he has limited movement of his upper limbs, and no use of his lower limbs. He is reliant on others to position his lower limbs. CGB has a permanent in-dwelling catheter. He is assessed as requiring three persons to assist for all transfers. He is dependent on others to meet all of the activities of daily living. The assessment further found that CGB’s former  home was not an appropriate accommodation option for him, and that his support needs were best met within a residential aged care setting.
  3. [18]
    The Public Guardian, because of advice from health professionals including CGB’s treating geriatrician and neurologist, considers that CGB’s care needs are such that he requires a multifaceted supportive framework to meet both his health care and service needs, and that this cannot be met in a setting other than residential aged care. He currently receives support for activities of daily living from staff at the aged care facility (recently an additional support person, namely an Enrolled Nurse has been arranged to assist with his hygiene needs during the mornings, because CGB prefers to be showered and ready for the day by 8:30am). He is also supported in his activities of daily living from staff from Spinal Injuries Australia.
  4. [19]
    His health care and general care needs are monitored by the Public Guardian in consultation with the aged care facility staff, his General Practitioner, his treating team at the John Flynn Hospital and led by his Geriatrician.
  5. [20]
    The Public Guardian advises that CGB is susceptible to urinary tract infections (and it is common ground that this has been a recurring issue for him over many years), and experiences infections in his right ankle consequent upon past surgeries. He experiences pressure sores which are managed in accordance with recommended clinical practice by the aged care facility staff in consultation with CGB’s medical practitioners. He has access to occupational therapy as required.
  6. [21]
    The Public Guardian’s representative said that the pressure sores are a consequence upon CGB’s hospitalisations, because he has not received the same level of care when hospitalised, as is arranged for him at the aged care facility. She further advised that efforts were being made to minimise the frequency with which CGB suffers from urinary tract infections. She explained that he is not prescribed any medication for sedation, although he does have some pain relief. Ms Woolnough said that there is no information that suggests that CGB’s hygiene needs were not being met. She advised, however, that he can be aggressive at times and that he sometimes refuses care, and that these behaviours are associated with his diagnosis of frontal lobe dementia.
  7. [22]
    Further, Ms Woolnough advised that CGB’s condition is deteriorating, so his care needs may increase further. Dr Butler, a neurologist at the John Flynn Hospital recently recommended that, as CGB’s care needs were significantly higher than any residential aged care facility could appropriately manage, without an increase to existing arrangements, an external enrolled nurse should be employed to support CGB’s self-care. (As discussed earlier, a decision was made to do this and the arrangements are now in place.)
  8. [23]
    A stakeholder meeting was held in September to develop a new care plan based on the recommendations of CGB’s treating team. The care plan comprises of health care, personal care, increased passive exercise, increased community access and assessment for a new wheelchair and water chair. The Public Guardian indicated that as part of the care plan CGB’s allergies to trimethoprim and amoxicillin are being addressed and monitored. The care plan also addresses his nutrition and hydration requirements and bowel management.
  9. [24]
    In response to the claimed series of infections referred to by ACC, the Public Guardian points out that recurrent urinary tract infections have been a feature of CGB’s life for some years. Pressure sores are being actively managed, (CGB has increased vulnerability to skin breakdown because of poor circulation)[14] and result from hospital stays as opposed to the care support he is receiving. That said, the current care plan recommends that in future that external care support continue during future hospitalisations if consent can be obtained from the hospital concerned.[15]
  10. [25]
    The Public Guardian is of the view that any one person attempting to care for CGB would struggle.

The Separate Representative’s Observations and Submissions

  1. [26]
    Mr Sheehy, a separate representative appointed by the Tribunal for CGB, submits that the care plan has been developed over time and has been implemented.
  2. [27]
    He has seen CGB on three occasions since August 2015. He has had no concerns about the facilities or care given to CGB. He confirmed that he has observed a deterioration in CGB during the relatively short period (August to December 2015) during which he has had contact with CGB. He noted that this is consistent with Dr King’s opinion, expressed in her report dated 25 September 2014. He submitted it is unsurprising that CGB may appear confused at times when visited by ACC in the past, noting that he had found him to be responsive on some occasions and relatively unresponsive on others. He submits that, as CGB has been in his current accommodation for some 15 months, that any change to his accommodation could be catastrophic and that there is no evidence that it was required.

ACC’s Responses

  1. [28]
    ACC submitted that the Public Guardian ‘relies only on information’. She disagrees with the Public Guardian’s view, based on her own opinion. She claims that she has been there to care for CGB and that she goes ‘from my heart. I know what he wants’. She also said that she knew that when she cared for CGB he would be a ‘changed person.
  2. [29]
    In response to Mr Sheehy’s submissions, she submits that it is more catastrophic to leave CGB in his current accommodation.
  3. [30]
    At a late stage in her submissions, she then referred to having looked at other aged-care facilities, and seemed to suggest that she could be with CGB all the time at these other facilities. Accordingly, despite my attempts at the outset to clarify the directions sought, as the hearing progressed it became unclear whether ACC was proposing directions that she personally be allowed to care for CGB, or proposed directions allowing her to nominate an alternative aged care facility for CGB. 

Discussion and my conclusions

  1. [31]
    The ‘diary’ notes presented by ACC often set out her opinion rather than her observations. Many of them date back to events some time ago. Although I accept that ACC did from time to time speak with staff at the aged care facility when CGB appeared unwell, that does not of itself suggest issues with his care. I accept however that he has had infections and other issues over the time. I am satisfied that he has a history of urinary tract infections in particular, dating back years, and is vulnerable to pressure sores because of reduced skin integrity due to poor circulation.
  2. [32]
    Despite ACC’s expressed concerns for CGB’s welfare which she says motivate her to make the application, she did not demonstrate insight into his dementia and the effect it has on his cognition, nor the deteriorating nature of his condition generally. I am not satisfied that she does have insight into his conditions. Rather, her insistence that she knows ‘from her heart’ what is best for him (inferring that she knows better than the treating team) and what he wants, suggests that the application may be motivated by her own needs and wishes, rather than CGB’s.
  3. [33]
    I accept the evidence presented by the Public Guardian. I find that the Public Guardian has made decisions for CGB about accommodation, service provision and health care based on advice received from the various relevant health professionals about CGB’s extensive and complex care needs. I am also satisfied on the evidence that there has been ongoing review of CGB’s needs by the Public Guardian, as his condition has deteriorated over the past 15 months, to ensure that his needs continue to be met as they change. These actions of the Public Guardian are consistent with General Principle 10 (requiring a guardian to make decisions appropriate to the adult’s characteristics and needs) and the Health Care Principle.
  4. [34]
    I accept that CGB may have told ACC from time to time that he wants to go home. If these are his actual wishes (in later paragraphs, I discuss my reservations about wishes expressed by CGB about contact in ACC’s presence: similar reservations apply here), under General Principle 7, they must be taken into account. However, even if these were his express wishes, he has frontal lobe dementia and has been found by the Tribunal to have impaired decision-making capacity for decisions about accommodation, health care and services.
  5. [35]
    There are other important considerations, which I have concluded must prevail. The opinions of the treating health professionals are properly taken into account in making decisions about these issues given CGB’s physical and cognitive limitations, as the Public Guardian has done, in order to make the appropriate decision having regard to CGB’s characteristics and needs (under General Principle 10) and to maintain or promote his health or well-being (under the Health care Principle). I find that the decisions discussed above which have been made by the Public Guardian have been appropriate. Further, I accept Mr Sheehy’s submissions made in representing CGB’s interests. I find that a change for CGB, after 15 months in the aged care facility and with extensive and co-ordinated supports in place, may be catastrophic. He is in now familiar surroundings where he has the benefit of a comprehensive care.
  6. [36]
    In contrast, ACC seeks directions in the absence of any considered plan (uninformed and without regard to assessments as to CGB’s current needs) about CGB’s care. She presented no professional evidence to support her assertions and opinion that the current arrangements are inadequate or unsuitable in any way, or that the arrangements she proposed to make were suitable or adequate to meet CGB’s needs. I do not accept that her personal opinion that she alone knows what is best for CGB is a valid basis for change. Further, it is of significant concern that in seeking that directions be made by the Tribunal, ACC appeared not to appreciate, or be prepared to consider, the potential adverse consequences for CGB should his arrangements be changed at this stage.
  7. [37]
    In summary, on the evidence presented, I am not satisfied that it would be consistent with CGB’s needs and interests, nor consistent with the General and Health Care Principles, to exercise my discretion to make a direction to the guardian in relation to care of CGB by ACC. 

Should a direction be given to the effect that the Public Guardian allow ACC to have contact with CGB?

  1. [38]
    In support of her application for a direction regarding contact, ACC said that contact with her would help CGB’s health and that he would be happy to see her. ACC said in support of her application that she knew CGB very well, and she did not accept that he may not wish to see her. She said that CGB knew that he was ‘in good hands with’ her. She further said that he had telephoned her and asked her to see him.

What are the contact arrangements between CGB and ACC and how were they decided?

  1. [39]
    The Public Guardian’s Guardianship Report[16] sets out much of the information set out in the following paragraphs. It was supplemented at hearing by Ms Woolnough.
  2. [40]
    The Public Guardian advised that when making decisions about contact for any person, a number of matters are considered. An attempt is made to identify the person’s wishes about the contact. The Public Guardian seeks to ascertain whether contact is a positive experience for the person concerned. An assessment is made about whether the contact is in the person’s best interests.
  3. [41]
    By way of background, (and it is uncontroversial between the parties) that in July 2014, a temporary domestic violence protection order was made in CGB’s favour, which prevented ACC from having any contact with him. ACC’s diary notes record ‘AVO Lifted’ in November 2014. However, the Public Guardian advises that, by consent, final domestic violence orders were made (which remain current until November 2016) to the effect that ACC must be of good behaviour towards CGB.
  4. [42]
    In February 2015, representatives of the Public Guardian visited CGB. ACC was present during that visit. The Public Guardian reports that there was a discussion with CGB and ACC in light of reports that ACC was visiting CGB every day and sitting with him from the early hours of the morning until late in the evening. Information was obtained from the general manager at the aged care facility to the effect that whereas there were no concerns about the contact, that CGB was not engaging in any activities at the centre, nor was he taking his meals in the dining room, apparently because of the length of time spent with ACC. CGB’s express wishes on 12 February were that he wished to have ongoing contact with ACC.
  5. [43]
    It was agreed on 12 February 2015 between the Public Guardian’s delegate and ACC that ACC would visit CGB twice daily, between 8:00am and 10:00am, and between 2:00pm and 5:00pm. 
  6. [44]
    Then on 13, 16 and 19 February 2015, the Public Guardian received reports from SBK and others that ACC had interfered in CGB’s business affairs during contact; had taken his mobile phone and used it to call his business associates; and had gained unauthorised access into CGB’s home on two occasions necessitating the involvement of the Public Trustee and the Queensland Police Service. On 18 and 19 February 2015, ACC told the Public Guardian that she had known CGB for a long time and that she knows what is best for him. However, she appeared to accept reduced hours when it was explained that CGB would then have the opportunity to engage more in his surroundings.
  7. [45]
    On 18 February, the Public Guardian made a decision to reduce contact between CGB and ACC to 3 hours per day between 2:00pm and 5:00pm. Consideration was given to whether or not supervision was necessary, but because staff move around the facility, it was thought that indirect supervision would occur through those means.
  8. [46]
    In May 2015, the contact arrangements were further reviewed because of a series of events. On 7 May 2015, Spinal Injuries Australia reported that while its representative was supporting CGB to access the grounds of the facility ACC attended and removed CGB from the care of the worker and took him to his room. Further, ACC was observed making comments about the care provided by the aged care facility staff and about large sums of money. CGB was observed and reported to the Public Guardian to be unhappy with ACC.
  9. [47]
    Then on 13 May 2015, SBK received notification from the Public Trustee that during a contact visit, ACC had called the Public Trustee and handed the telephone to CGB so that financial matters could be discussed. On that same day, SBK received a call from CGB requesting contact with his bank manager. At the time, CGB was in hospital and SBK reported hearing ACC in the background. On that same day, SBK reported receiving a telephone call from CGB requesting money for ACC. Again, ACC was in the background.
  10. [48]
    During discussion between the Public Guardian’s representative and the nurse unit manager at the hospital, it was reported to the Public Guardian that ACC had been visiting CGB and providing hospital staff with what was considered to be misleading information about his care at the aged care facility.
  11. [49]
    On 18 May 2015, the Public Guardian made yet another decision about contact to the effect that all future contact with ACC would be supervised by Spinal Injuries Australia and may only occur on Tuesdays, Thursdays and Saturdays at a time mutually agreeable between Spinal Injuries Australia, the aged care facility and ACC. Further, CGB was entitled to reject the commencement or continuation of contact with ACC at any time. Contact was to be for no more than 30 minutes per visit, with not more than one visit per day. ACC was not to communicate with CGB about his personal finances, his business matters or make disparaging remarks about his accommodation and care arrangements.
  12. [50]
    In July 2015, the Public Guardian received information from a Spinal Injuries Australia representative reporting that ACC arrived outside the prescribed timeframes and was observed to discuss with CGB having to go to court, being evicted from her home, and that the level of care being received is not as good as when she was caring for him. The worker reported that CGB became teary during the visit.
  13. [51]
    On 23 July 2015, during a visit, ACC was observed to whisper to CGB the whole time. The support worker did not hear the details, but reported hearing CGB ‘blurt out “get fucked”’. ACC left. CGB is reported to have become quite worried about going to see his bank manager.
  14. [52]
    On 30 July 2015, ACC was observed to discuss the administrator auctioning CGB’s house and ACC was further observed to ‘keep whispering’ to CGB. CGB yelled at ACC, in effect, saying that she doesn’t know what she is talking about.
  15. [53]
    On 2 August 2015, the worker reported that CGB was ‘fine until he received a telephone call from ACC’. The worker could hear ACC yelling ‘what is wrong with you?... I think they have sedated you’. The Public Guardian also advises that she was also heard to start crying and state that the administrator ‘had evicted’ her and that CGB ‘would lose all of his money.’ The worker further reported that ‘[CGB] became very agitated and started saying the nursing home staff were useless and he wanted to go home.’
  16. [54]
    On 13 August 2015, a support worker reported hearing ACC tell CGB that she was aware the Public Guardian was attempting to speak with her. She told CGB that she had been ignoring the attempts. The Public Guardian did attempt to have contact with ACC.  On 14 August 2015, the aged care facility staff reported that CGB continued to become distressed during and after visits and telephone calls from ACC.
  17. [55]
    On 17 August 2015, ACC left a voicemail message for the Public Guardian stating that no one would stop her from seeing CGB. The delegate returned ACC’s call to discuss contact. CGB’s voice was heard in the background. ACC confirmed that she was visiting CGB, but that the Spinal Injuries Australia worker was not present. She was advised that she was in breach of the existing contact decision and asked to leave. She refused and began yelling. ACC demanded that the officer speak with CGB and handed her telephone to him. She heard CGB say ‘what do you want me to say?’. CGB became agitated during the call. He commented ‘you can’t stop [ACC] from visiting’. ACC was again asked to leave.
  18. [56]
    On 18 August 2015, the Public Guardian was advised that an altercation had occurred the previous evening at the aged care facility involving ACC, in which she had allegedly assaulted staff and the Queensland Police had been called. On 18 August 2015, the Public Guardian made another contact decision, that CGB was not to receive any contact or visits from ACC, nor any person acting on her behalf. The Public Guardian requested the Public Trustee block ACC’s number so that CGB could no longer receive telephone calls from her and that the aged care facility staff implement their policies regarding unauthorised visitors.
  19. [57]
    The Public Guardian has been advised that ACC has continued to visit CGB without consent, and on 18 November 2015 was advised by the aged care facility staff that ACC had obtained CGB’s new mobile telephone number and was ringing him constantly. She had also visited over the recent weekend. After her visit, the aged care facility staff located a drug patch on CGB’s chest for Fentanyl (a scheduled narcotic), which is not prescribed for CGB.
  20. [58]
    ACC denies visiting CGB since she was ‘banned’ and she denies any involvement in the placement of the Fentanyl patch.[17]

The Separate Representative’s evidence and submissions and ACC’s responses

  1. [59]
    Mr Sheehy, separate representative, most recently visited CGB in December 2015. Although acknowledging CGB’s cognitive limitations, he endeavoured to ascertain CGB’s wishes about contact with ACC. Mr Sheehy’s open questions to CGB about whether he would like to see ACC elicited somewhat unfocussed responses about the house in which he used to live and that ACC told people that he was not home when he was, volunteering that she sometimes did the ‘wrong thing’. Mr Sheehy asked what he would say to her if she visited, and he responded that he would tell her to ‘postpone’ until he was ‘better.’[18]  As far as possible, Mr Sheehy tested the information that he received from CGB in the manner he had previously successfully employed with him, that is, by rephrasing it and repeating it back, for a response as to whether Mr Sheehy has understood correctly. Mr Sheehy reported that at the time his wishes were expressed, CGB had been awake for some time, although he was less responsive on that day than he had been at the time of other visits.
  2. [60]
    In reply, ACC asserted that CGB always talks to her about the business and he had asked her to call people, stating that it’s what he wanted and that she didn’t know why ‘they are trying to stop us’. She further said that only she and CGB ‘knew’ and that ‘these people’ have taken over his life and his business. When it was pointed out to her that the Tribunal had been satisfied that CGB had impaired decision-making capacity and appointed decision-makers for him about these matters, she said he had told her he was going to give her the business and that he was protecting her.
  3. [61]
    The separate representative expressed concern that although ACC said she knew what was in CGB’s best interests, that was not the case. He submitted that CGB did not have the cognitive ability to deal with the emotional issues arising from contact with her. In his view, the continuation of the relationship with ACC is detrimental to CGB and not in his best interests, and that visits with her are likely to unsettle him. He further submitted that he did not consider that the relationship with ACC could be considered a supportive one, at this point in time, whatever it may have been in the past.[19]
  4. [62]
    He further submitted that the recurring theme, which came out of the hearing from Ms Person’s comments was that that the purpose of contact was to meet her needs, rather than CGB’s. He considered that she had demonstrated that she did not accept authority or the orders and decisions that were made. Further, she does not have any insight into CGB’s cognitive and physical limitations, with the sole basis of her arguments being that she knew what was best for him. He concluded that contact would be dangerous for CGB.
  5. [63]
    In response, ACC said she disagreed with those comments and that she was doing what CGB wanted, stating that they loved one another and that he always wanted to see her and asked when she would be taking him home.

Discussion and my conclusions

  1. [64]
    There is no real dispute about the events that occurred, which led to the Public Guardian’s various decisions about contact, although ACC attributes CGB with instigating discussions about issues.
  2. [65]
    ACC says however that CGB wants to see her and that he has expressed that view to her and in her presence. I accept that he may well have done so at times. However, I find, as Dr King says, that he is vulnerable to suggestion.
  3. [66]
    She says he talks to her about the business. If he does so, because he has cognitive impairment, she could reassure him not to worry, and explain that it is being managed by SBK and the Public Trustee. However, it is reasonable to infer that she does not do so, indeed, it appears from the evidence that she may encourage him to do so.
  4. [67]
    I consider it is reasonable to infer that she does for a variety of reasons. As discussed above, CGB only takes actions about his finances and the business when she is present. Through her Facebook page about the quarry, ACC seeks personally outside of the contact visits to upset the running of the business. She says CGB is going to give her the business.   I find, as reported to the Public Guardian, that ACC raises issues with CGB about his care and other matters and instigates telephone calls about them during contact with CGB.
  5. [68]
    I do not accept ACC’s assertions that CGB instigates the discussions or the telephone calls and enquiries made. This is because there is no suggestion that CGB takes similar actions when ACC is not there to instigate them. Consistently, the rehabilitation plan assesses CGB as unable to initiate any purposeful activity. Through her discussions with him, ACC may, intentionally or unwittingly, manipulate CGB’s responses. Accordingly, I am satisfied that any views expressed by CGB in her presence must be given little weight because of CGB’s vulnerability to suggestion. Further, I find CGB’s agitated actions and responses when she raises issues demonstrate his susceptibility to suggestions made by her.
  6. [69]
    I accept the evidence of the separate representative about the recent expressed wishes of CGB indicating in effect that he does not at this stage wish to see ACC until he is ‘better.’ It is straight-forward concept, not a complex issue, and CGB’s views were tested by the separate representative. Mr Sheehy asked open questions, which led to the volunteering of responses which, I am satisfied, are more likely than not, to reflect his actual views. I accept that the views expressed by CGB to Mr Sheehy can be accepted as a reflection of CGB’s actual wishes. Despite his dementia, all that CGB needed to understand that he was being asked whether he wished to see ACC. In this context, there was no pressure or suggestion made that he should respond in any particular way. In contrast, on occasions when ACC was present, he was vulnerable to suggestion.
  7. [70]
    That is not to say that if CGB had told Mr Sheehy that he wished to see ACC that his wishes would be decisive, although clearly they would be taken into account in accordance with General Principle 7. In this case, even if he expressed that wish, for the reasons explained in the subsequent paragraphs, other considerations would in any event have led me to conclude that I should not exercise my discretion to make the direction sought by ACC.
  8. [71]
    The directions sought by ACC, if made, propose in effect that she would spend all of her time with him, caring for him or with him at another aged care facility of her choice, or alternatively, if directions are made only about contact, that she spend ‘all day, every day’ with him. In the past, she has spent all day (and evening) with CGB, with the result that he was unable to participate meaningfully in life at the aged care facility. She took him on one occasion from other carers who took him outside of his room. CGB’s recent comments to Mr Sheehy suggest that before he moved to the aged care facility, she used to tell people he was not home when he was, thereby limiting his social interaction and other supports in his life. In this manner, she isolated him from other supportive relationships. It is reasonable to infer that the consequent effect (whether intentional or unintentional) was to maximise his reliance upon her. CGB is entitled to have his dignity respected, existing supportive relationships maintained, as well as, encouragement and support to participate in community life in accordance with General Principles 3, 5 and 8. I am not satisfied that ACC respects CGB’s rights.
  9. [72]
    I am satisfied that actions taken by ACC during contact visits unsettle, upset and agitate CGB. Despite ACC’s claims that she loves CGB and that she is acting in CGB’s interests, I have concluded that ACC is unable to separate her own interests from CGB’s interests. CGB becomes agitated and unsettled as a result of ACC telling him things which can only serve to upset him, for example, that he will lose his money and that he is not receiving good care at the aged care facility.
  10. [73]
    I find that she has also, outside of contact visits with CGB, caused disruption to the management of his finances by gaining unauthorised access to his home, by lodging a caveat over his property on the day of the auction, and making numerous legal claims against him. I make no finding about whether there was, at any time, a de facto relationship between ACC and CGB, although in the deed of settlement attached to SBK’s affidavit, ACC acknowledged that there had never been a de facto relationship.
  11. [74]
    Whatever their relationship was in the past, at this point in time the evidence does not suggest that the relationship with ACC is currently a supportive one for CGB.  On the contrary, the overwhelming evidence is to the effect that it is unsettling and disturbing for CGB. Indeed, I am satisfied on the evidence that ACC’s current relationship with CGB is not supportive, but rather motivated by ACC’s emotional and/or financial self-interest. Therefore, General Principle 8 about the importance of maintaining an adult’s existing supportive relationships does not apply with respect to her. Further, CGB’s expressed wish as accepted by me, are that he does not wish to see her until he is ‘better.’
  12. [75]
    Accordingly, I conclude, consistent with the decision of the Public Guardian, that it would not be in CGB’s interests to have ongoing contact with ACC. In the circumstances, it would be inappropriate to exercise my discretion to make any direction in effect directing the Public Guardian to allow ACC to have contact with CGB.
  13. [76]
    Further, it is evident that the Public Guardian has regularly reassessed the situation. If any evidence emerges in the future that suggests contact may be desirable, then no doubt the Public Guardian will consider that and make such a decision it considers appropriate at that time.

Orders

  1. [77]
    In view of my conclusions, the application for directions is dismissed, together with the application for joinder as an active party.

Footnotes

[1] Document 83, attached rehabilitation plan, page 2.

[2] Document H 90.

[3] Document H 85.

[4] GAA Act, s 115.

[5] Ibid, Schedule 4, ‘interested person’.

[6] Ibid, s 126.

[7] See especially, GAA Act, s 119(b).

[8] Ibid, s 123.

[9] Ibid, s 115 and s 119.

[10] Re WFM [2006] QGAAT 54, especially at para [33]; Re BKD [2013] QCAT 422; Re KAD [2012] QCAT 601.

[11] GAA Act, s 11 and Schedule 1.

[12] Document H 91.

[13] Document H 83 and attachments.

[14] Document H 83, rehabilitation plan, page 2.

[15] Ibid, care plan, page 2.

[16] Document H 83.

[17] Document H 91.

[18] Document H 84.

[19] There is a dispute about whether or not there was ever a de facto relationship between ACC and CGB.

Close

Editorial Notes

  • Published Case Name:

    CGB

  • Shortened Case Name:

    CGB

  • MNC:

    [2016] QCAT 9

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    04 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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