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- Unreported Judgment
GJ QCAT 411
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
GJ  QCAT 411
In applications about matters concerning GJ
Guardianship and administration matters for adults
30 November 2018
1 May 2018 and 4 September 2018
GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where adult has impaired decision-making capacity – where hospital doctor placed adult in a nursing home – where adult wishes to change accommodation
Guardianship and Administration Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld)
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- GJ is a 78 year old gentleman who is currently residing in a permanent aged care placement. GJ was living alone in his own home until he was admitted to Logan Hospital by ambulance on 8 January 2018. He was subsequently treated and assessed as clinically ready for discharge. According to hospital records, GJ refused discharge due to concerns that he would not manage at home. On 12 and 16 January 2018, requests were made to transfer GJ’s care to the Beaudesert Hospital. Those requests were refused on the basis that GJ did not require clinical management in a hospital setting. GJ continued to refuse discharge.
- On 19 January 2018, GJ was discharged home as he was assessed as safe at home with appropriate support, and there was no clinical reason for him to remain in hospital. Later that same day he refused access to his home by community health care officers.
- On 22 January 2018, GJ was returned to Logan Hospital by ambulance after neighbours saw him lying on the floor of his house. He remained in hospital over the following weeks. While his physical condition improved, he was noticed to remain confused and delirious.
- Around 24 January 2018, his treating team formed the view that GJ would be unlikely to be able to return home safely, and that he would need nursing home placement.
- On 30 January 2018, Dr Aisling Fleury assessed GJ’s capacity to make health and lifestyle decisions. She concluded that GJ had a resolving delirium with a background of dementia and appeared close to baseline when reviewed. Dr Fleury was of the opinion that GJ did not have capacity to make his own health and lifestyle decisions. Dr Fleury suspected that GJ would also struggle with complex financial decisions. The doctor concluded “He has no-one who can act as SHA and therefore requires referral to QCAT and application for appointment of the Public Guardian and Public Trustee and likely RACF from hospital.” The Tribunal understands ‘SHA’ to be a reference to a statutory health attorney.
- No informal support network in the form of family or friends has been identified for the adult.
- On 1 February 2018, PD, a social worker from the Logan Hospital lodged an application with QCAT seeking the interim appointment of a guardian and an administrator for GJ (the first interim application). On 2 February 2018, PD lodged an application seeking the appointment of a guardian and an administrator (the substantive application).
- On 2 February 2018, the Tribunal considered the first interim application and appointed the Public Trustee of Queensland (‘PTQ’) as administrator for three months or until further order, whichever was the sooner. The first interim application for the appointment of a guardian was dismissed.
- PD lodged a second application for the appointment of a guardian under an interim order on 20 February 2018. That application was dismissed on 20 February 2018. The Tribunal provided Reasons for the Interim Order not being granted: “The Tribunal is not satisfied, on reasonable grounds, that there is an immediate risk of harm to the health or welfare of GJ. GJ is an inpatient at a hospital where all his care needs are met and he is not at immediate risk.”
- On 21 February 2018, GJ was transferred to Beaudesert Hospital for interim care.
- On 22 February 2018, EA, a social worker from Beaudesert Hospital, lodged a third application for the appointment of a guardian under an interim order. On 22 February 2018 the Tribunal dismissed the third application.
- Documentation was completed by hospital staff, and GJ was approved for permanent residential nursing home placement on 28 February 2018.
- GJ was transferred to Algester Lodge Nursing Home on 12 March 2018. GJ has advised the Tribunal that he was told to move to the nursing home. He stated that he didn’t agree to live there. The circumstances of GJ’s placement are discussed later in this decision.
- The substantive applications were considered by the Tribunal on 1 May 2018. On that date, the PTQ was appointed as administrator until further order. The appointment was to be reviewed in four (4) months. The application for the appointment of a guardian was adjourned to 4 September 2018, and directions were made that the Director of Medical Services, Beaudesert Hospital, provide all relevant documents and other material relating to the decision to have GJ moved to a nursing home, and a written explanation as to how hospital employees formed the view that they had authority to make the decision about where GJ was to live. Voluminous material was duly provided in compliance with the directions and forms the basis of much of the chronology in this decision.
- On 4 September 2018, the Tribunal considered the application to appoint a guardian, and reviewed the appointment of the PTQ as administrator. The applications were considered under the provisions of the Guardianship and Administration Act 2000 (Qld) (‘GAA’). These are the reasons for the decision of 4 September 2018.
- In relevant terms, the Act provides that a guardian may be appointed if the Tribunal was satisfied that GJ had impaired capacity for the matter, and there was a need for a decision in relation to the matter, and an appointment was necessary to ensure that GJ’s needs would be adequately met or his interests would be adequately protected. There is a presumption that GJ has capacity to make his own decisions.
- In relation to capacity, GJ told the Tribunal that he retained capacity to make complex decisions. He stated that he relies on making lists, as he has done all of his life. He stated that a recent capacity assessment by a doctor had been conducted without notice and at a time of the day when he was not at his best, and so was not a true reflection of his capacity.
- The Tribunal was provided with a significant volume of material by Metro South Health which covered the period of time that GJ was hospitalised. While in hospital, GJ was assessed to lack capacity for complex decision making. On 29 August 2018, GJ was reviewed by Dr Shum, geriatrician. Dr Shum completed a report stating:
GJ has mild to moderately severe vascular dementia with associated gait dyspraxia, executive dysfunction, and BPSD. His delirium from earlier this year appears have resolved. Although he has significantly improved in terms of physical function and cognition, he lacks insight to his physical and cognitive function. He is socially isolated, and has in the past declined extra services. Despite the improvements, I believe he does not have capacity for complex decision making with regards to financial management or living arrangements.
- The Tribunal was satisfied, on the evidence available, that the presumption that GJ had capacity for complex decision making was rebutted.
- The Tribunal turned to consider whether complex personal decisions needed to be made, and whether the appointment of a guardian was necessary to ensure that GJ’s needs were met and interests protected.
- GJ was living in a nursing home. He advised the Tribunal that he has never consented to living there and does not want to remain living there. The Tribunal was satisfied that a decision was needed in relation to accommodation. GJ requires support from services, and decisions are needed to ensure that GJ’s service provision needs are met. GJ does not have an informal network of friends and family to assist him. The Tribunal was satisfied that GJ’s interests would not be adequately protected without the appointment of a guardian.
- The circumstances surrounding GJ’s placement in the nursing home are of great concern to the Tribunal. In response to the directions issued by the Tribunal on 1 May 2018, material was produced which explains how the placement occurred. In short, hospital staff advised the PTQ, that, following a multidisciplinary meeting, a hospital doctor had made the decision to accept permanent nursing home placement for GJ. The doctor was said to have made this decision acting as statutory health attorney for GJ. This was confirmed by the doctor herself.
- There is no evidence that the PTQ or the nursing home questioned the doctor’s authority to make the placement decision, or her authority to act as statutory health attorney.
- The statutory health attorney regime is established and described in Chapter 4 of the Powers of Attorney Act 1998 (Qld). Statutory health attorneys make health care decisions. It is not clear that the decision to place GJ in a nursing home was a health care decision. In any event, the hospital (through the Director Clinical Services) has now acknowledged that the doctor had no authority to make the accommodation decision, and could not act as statutory health attorney under the legislation.
- The Health Service also acknowledged that, as a result of the actions of the hospital staff, it may be that further disciplinary and other processes are undertaken. The Tribunal was concerned to ensure that GJ’s interests were properly protected and promoted in any further processes arising out of these circumstances. Accordingly, the Tribunal was satisfied that it was necessary to appoint a guardian to seek help and make representations for GJ.
- The Tribunal was satisfied that the Public Guardian was appropriate for appointment. In the absence of any available alternative appointees, the Public Guardian was appointed as guardian for decisions regarding accommodation and the provision of services, and for seeking help and making representations for GJ. The appointment will be reviewed in two (2) years.
- The Tribunal also reviewed of the appointment of the PTQ as administrator. When conducting a review, the Tribunal must revoke the appointment unless satisfied that it would make an appointment if a new application for appointment were to be made. Accordingly, it is necessary to consider GJ’s capacity to make financial decisions, whether there is a need for financial decisions to be made, and whether GJ’s financial interests can be adequately protected without an appointment.
- For the reasons discussed earlier in this decision, the Tribunal was satisfied that the presumption that GJ had capacity to make complex financial decisions was rebutted. Ongoing financial decisions needed to be made for GJ. GJ’s owns a house and a car, and a decision would need to be made as to how that his assets can be best used to meet GJ’s financial needs. A refundable accommodation deposit was payable to GJ’s current accommodation provider, and an accommodation agreement would need to be signed if GJ were to move. A budget needed to be established and implemented. The Tribunal was satisfied that GJ’s interests could not be adequately protected without the formal appointment of an administrator.
- The Tribunal was satisfied that the PTQ was appropriate for appointment. In the absence of any available alternative appointees, the PTQ was appointed as administrator for all financial matters until further order.
Other matters of concern to the tribunal
- On 31 July 2018, the Tribunal received correspondence from Dr John Britten, director of clinical services at Beaudesert Hospital. After providing a chronology of events, Dr Britten indicated that there had been confusion amongst hospital staff as to whether a doctor could act as statutory health attorney, and as to the test applied by the Tribunal when considering an application for an Interim Order. Dr Britten acknowledged that, while it appears that GJ required nursing home placement, he had been transferred to the nursing home without authority from an appropriate decision maker. Dr Britten advised that the Health Service is taking steps to rectify the deficiencies identified in understanding the legislation, and takes absolute responsibility and offers it profound apologies to GJ and to QCAT.
- Dr Britten expressed the view that this matter has highlighted deficiencies in the current system which particularly affects persons such as GJ who remain in hospital longer than is clinically necessary while awaiting the outcome of QCAT proceedings.
- A representative from the Public Guardian was present at the hearing on 4 September 2018. The representative indicated that the Public Guardian will engage with the Health Service and the PTQ to provide education around the provisions of the relevant legislation. The Tribunal raised concerns that it appears that confusion was widespread in the health service, and also across stakeholders. In the circumstances, the representative indicated that she would recommend that the issue be raised with the Public Advocate of Queensland.
- Published Case Name:
- Shortened Case Name:
 QCAT 411
30 Nov 2018