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- Unreported Judgment
Re KPJ QCAT 204
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
KPJ  QCAT 204
In applications about matters concerning KPJ
Guardianship and administration matters for adults
29 April 2019
29 April 2019
ADULT EVIDENCE ORDER
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS presumption of capacity – conflicting evidence on capacity – whether presumption of capacity sufficiently rebutted – whether there is a requirement for a decision maker to be appointed – defunding of a funded service provider – impact on adult – NDIS funding
Guardianship and Administration Act 2000 (Qld), s 5, s 7, s 12, s 14, s 15, Schedule 1, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46
APPEARANCES & REPRESENTATION:
HB and ST
AJ – Advocate
SJ – DCDSSS
DeAT – DCDSS
GT – M
BJ – friend
WN – friend
O'FM - friend
REASONS FOR DECISION
- There were two applications before me on 29 April 2019:
- (a)one filed by the Public Trustee of Queensland seeking the appointment of a guardian for KPJ; and
- (b)one filed by KPJ’s advocate seeking an adult evidence order for him.
- From January to April 2019, KPJ had continually expressed his desire, and intent, to remain living in the residential arrangements at PA in which he had lived for some years and with his carer BJ with whom he had developed a close relationship.
- He had continued to argue adamantly that no details have ever been given to him as why he was moved, against his wishes, from this home. He has informed a number of parties, and this Tribunal, that no-one has ever explained to or discussed with him in any detail the reasons for the move: all he had been told was that his home at PA was ‘dangerous’ and ‘unsafe’ for him.
- KPJ considered that he will be found to have capacity (to make his own complex personal and health matters) at the QCAT hearing and would immediately move back into his home at PA in Brisbane.
- KPJ, born on 21 March 2000, has been diagnosed with Arthrogryposis Multiplex Congenita; his functioning also complicated by epilepsy. KPJ relies on an electric wheelchair, hoist and access to a wheelchair-accessible motor vehicle, and will require full 24 hour care for all of his life.
- KPJ was referred to the then Department of Communities, Disability Services and Child Safety in 2008, and, until it expired on 20 March 2018, was under a long term Child Protection Order.
- Since 2017, KPJ had been living in out of home care with GA, a Director of PA Pty Ltd, which at the time was a funded service provider. KPJ continued, by his choice, to live at PA after he reached his majority; the funding of his service support changing from the now Department of Child Safety, Youth and Women to the Department of Communities, Disability Services and Seniors. In October 2018, KPJ moved into another house, also owned by PA, in the same area; BJ, a staff member of PA, became his principal carer.
- On 21 February 2019, the PTQ filed applications for an interim order and for the substantive appointment of a guardian for KPJ. The Public Guardian was proposed in both applications.
- The applications were filed as the DCDSS had advised the PTQ that on 30 January 2019 the Department had, as a result of investigations of several complaints, issued a Show Cause Notice to GA. This notice could potentially result in PA being defunded by the Department; KPJ’s accommodation and services would consequently be at risk.
- An interim order was made by the Tribunal on 27 February 2019 appointing the Public Guardian as KPJ’s guardian for accommodation, health care and services (the latter including those in relation to the National Disability Insurance Scheme).
- On 7 March 2019, under the authority as interim guardian, a delegate of the Public Guardian made the decision on behalf of KPJ to accept short term accommodation with another funded service provider, with his daily support to be provided by that organisation. KPJ moved into this new accommodation on 8 April 2019.
- On 8 April 2019, KPJ’s advocate, AJ of Queensland Advocacy Inc, filed an application for an adult evidence order.
- The issues for the Tribunal at the hearing of the two applications in Brisbane on
29 April 2019 were:
- (a)Does KPJ have capacity for relevant matters?
- (b)If not, is there a need for decisions to be made to the extent that, without the appointment of a guardian, KPJ’s needs will not be adequately met and his interests adequately protected?
- (c)If so, who is appropriate for appointment as KPJ’s guardian?
- (d)Are the provisions for the making of an Adult Evidence Order satisfied?
Does KPJ have capacity for relevant matters?
- Under the provisions of the Guardianship and Administration Act 2000 (Qld)), the Tribunal must be satisfied that the adult lacks capacity for the matter before it can consider any need for an appointment as well as the appropriateness of any proposed appointee.
- Schedule 4 of the Act provides that:
Capacity, for a person for a matter, means the person is capable of:
- (a)understanding the nature and effect of decisions about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.
- KPJ is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand. The standard of proof required to rebut the presumption is the balance of probabilities.
- The current protective legislation in Queensland recognises that the right to autonomy in decision making must be balanced against the right to protection and that the decision-making capacity of each person very often varies across different types of matters. The Tribunal must also recognise that an individual’s right to make decisions includes the right to make decisions with which others may not agree.
- The Tribunal’s role in this respect involves the application of the law to relevant facts about the person’s personal and medical history and the probable effects of that on growth and/or deterioration of capacity to understand and make decisions on the type of matters under consideration, the nature and complexity of those matters, the awareness of and access to adequate knowledge about the matter and the familiarity and experiences of the person with the processes for making those decisions.
- The Tribunal must also take into consideration the circumstances that give rise to the need for a decision, the extent to which reliable advice and other kinds of supportare available, likely influence by or interference from other people and the prevalence of other problems and pressures.
- Decision-making is not abstract. Capacity is a functional concept, related to a person’s ability to identify, understand, evaluate, retain and process relevant information in making a choice between options for action and the ability to cause decisions to be put into effect.
Evidence pertaining to the adult’s capacity
The views of the Department and the Public Guardian
- The email dated 21 February 2019 from SJ, Senior advisor – SER NDIS Transition, DCDSSS, to the PTQ instigated the applications to the Tribunal; the contents of that email contributed to the determination by the Tribunal that an interim order was warranted.
- As early as January 2019, SJ informed that the Department considered that KPJ, whilst living at PA, was very vulnerable, was susceptible to influence and there was evidence of immediate risk to his health and welfare. SJ’s email dated 21 February 2019 reads:
Even though Mr K does not have a diagnosed cognitive disability, there is factual evidence that Mr K is very vulnerable and can be easily influenced, he understands simple aspects but needs help with more complicated long term decisions particularly regarding health and accommodation.
- The concerns of SJ in her email, which were further discussed at length in the hearing, can be summarised:
- (a)On 21 January 2019 SJ and HC visited KPJ at his home. The purpose of this meeting was to introduce SJ to KPJ and to inform him there had been some issues raised with Department concerning PA and GA that were currently being investigated. On return to their office, both departmental staff members raised concerns about KPJ’s understanding of what had been discussed
- (b)On 14 February 2019, SJ and Professor K met with KPJ alone for about 45 minutes at his home to inform him of the Show Cause notice given to GA on 30 January 2019. The process of the Show Notice and the possible implications were discussed at length with KPJ. When questioned as to his understanding the issues under discussion, KPJ answered by saying ‘’A’ would know what to do’. When SJ and Professor NK left the meeting, they discussed their mutual concerns as to KPJ’s cognitive processing and his ability to understand the complex matters just deliberated at length with him.
- A further meeting was arranged for 7 March 2019 with KPJ. The purpose was to discuss the funding problems and as to how his accommodation and services at AP might be impacted. Present were KPJ, SJ, Professor NK, GA’s daughter and BJ. The situation soon became (in SJ’s words) ‘hostile’, and, with KPJ becoming upset, SJ and Professor NK left.
- In the hearing, SJ informed that communicating directly with KPJ was very difficult. She opined that GA was ‘gate keeping’ by controlling all contact and visits, and all communications were channelled through her.
- The PTQ agreed, stating that, despite several attempts to contact KPJ himself regarding the application, all of these were unsuccessful.
- A report dated 24 April 2019 from HB, Acting Principal Guardian from the Office of the Public Guardian, was discussed at some length at the hearing. HB confirmed:
- (a)On 14 March 2019 two delegates of the Public Guardian visited KPJ at home to discuss his accommodation and service provision options with him. There were also discussions with him relating to his capacity to make complex decisions.
- (b)On 8 April 2019 a delegate of the Public Guardian visited KPJ at home to facilitate transport and support KPJ in his move to the temporary accommodation in K.
- (c)In the hearing, HB also informed that on 16 April 2019 a delegate of the Public Guardian visited KPJ at his short term accommodation and discussed with KPJ ongoing decision making and his accommodation options.
- HB advised on 29 April 2019 that the delegates continued to hold considerable and ongoing concerns about KPJ’s ability to understand complex personal matters.
The views of the health practitioners
Dr NR, general practitioner
- In a health professional report dated 18 January 2018, Dr NR, general practitioner since April 2015, writes that he considers that KPJ has impaired decision-making capacity for all complex matters. He also opines that KPJ is ‘quite vulnerable to being easily influenced’.
- Dr R states that ‘KPJ understands simple aspects of health but needs help with deeper long term decisions’. In terms of lifestyle and accommodation choices, Dr R writes ‘needs help to make appropriate choices and not fall victim of unscrupulous people or his own impulsivity’.
- KPJ’s own views about his ability to make decisions are recorded in Dr R’s report as ‘Fine for small day to day decisions’.
Dr CA, clinical psychologist,
- In a health professional report dated 25 April 2019, Dr CA described the background briefing he received from the Department:
3. KJ was referred to me for an assessment of his competency to make decisions in his own best interests … The purpose of this referral was to assist in deciding whether Mr K is in need of ongoing guardianship.
5. ...KJ’s accommodation was recently “deemed unsuitable” and that the service was no longer funded to support him. According to the Department, KJ was offered a “safer location” but he had refused this and had said that he would prefer to stay with his current service provider.
- He writes that the Department had asked for an assessment to answer the following questions:
- Does KJ have an impaired cognitive or intellectual ability?
- Is KJ able to make informed decisions by weighing up the pros and cons’
- Is KJ able to make informed decisions and identify the possible/probably (long-term) outcomes of these decisions?
- Dr A conducted several clinical interviews with KPJ and assessed his intellectual function.
- Dr A highlights KPJ’s concerns:
9. … KJ stated that he didn’t know why his current service provider was considered unsafe for him.
17. … KJ said that he was told that his current placement was “dangerous” and that he needed to be removed for his own safety. KPJ said that he had not been given any details about why the placement was considered dangerous.
- Dr A considers:
10. My general impression of Mr K’s capacity was that he is able to think in a clear and reasoned way about his situation. He is able to consider the alternatives and weigh up the pros and cons of a change of his living circumstances largely independent of my input. He was able to consider hypothetical situations, such as being offered care and accommodation in his current area, and concede that such an alternative could have benefits.
12. In summary:
i. KJ seems likely to have an intellectual impairment in the mild to borderline range. Individuals in this range generally have the ability for reasoning and thinking though their capacity for abstract problem solving is likely to be moderately limited.
ii. KJ shows a good capacity for reasoning and demonstrates a process of weighing up the pros and cons of various options. He appeared to be less able to generate alternative points of view for himself. Yet, when presented with alternatives, he demonstrated a capacity to use hypothetical information to consider the alternatives.
iii. KJ’s ability to make long-term decisions in his own interests seems quite reasonable. However, where the issues are complex, KPJ does seem to find it difficult to generate alternative ideas or strategies. When presented with these he is able to take them into consideration.
15. KJ’s capacity to make decisions in his own best interest seems to be sufficient that he does not need for them to be made by a guardian.
23. I would like to reiterate that it is my opinion that KJ is competent to make decisions in his own best interests. .
- Dr A is however concerned:
18. I was left with the impression that KJ was not communicated with in a clear and straight forward way. On KJ’s report he was deprived of his right to be involved in making this decision and was not properly informed of the issues that were considered critical to his situation.
21. … Assuming that there may be good reasons for this removal there has clearly been a breakdown in the provision of information about the need for this to KJ. … KJ is capable of understanding the issues that may be involved in this matter. However, information does need to be presented in a form that is sufficiently straightforward that he is able to understand enough to be involved in the decision making process.
- My difficulties with Dr A’s findings in the report were partially due to:
- (a)The minimal background briefing provided to him by the Department;
- (b)The lack of the provision of any supporting documentation; and
- (c)The differences in the assessment criteria provided to Dr A compared to the definition of capacity in the Act; in particular, Dr A was not asked to consider any aspect of vulnerability or of influence.
- I also consider that his findings were significantly compromised due to his:
- (a)reliance solely on the views and opinions of KPJ himself;
- (b)inability to cross reference and/or correlate the views and opinions of other parties;
- (c)inability to obtain further facts and data from any other source; and his
- (d)unawareness of the significant concerns, and the reasons for these, expressed by various independent professional stakeholders, regarded as competent and as well experienced experts in their fields.
- Two paragraphs are of particular interest as they illustrate the challenges for Dr A:
11. I did not have access to any corroborative information about the degree of KJ’s knowledge of his current situation. So it is difficult to evaluate whether he has access to information that he is not using in his reasoning about his situation. …
13. In my opinion, assuming that KJ is accurately describing the facts of his current situation as he knows them, I believe that he does have the capacity to make decisions about his current living situation.
- I accepted that, on various occasions, several of the professionals involved took time and perseverance to explain to KPJ the issues and their impact which predictably and ultimately led to his move from PA. He was given frequent opportunities to consider and to ask questions, but consistently failed to demonstrate that he had been able to understand and process the information and issues to any reasonable extent.
- KPJ had been given access to information, and was describing the facts - but only as he understood them. Unfortunately his understanding did not reflect the reality of the situation.
The views of KPJ – and his vulnerability
- I took time to question KPJ in the hearing. When I asked why he was moved from PA, he repeated because it was ‘considered unsafe’ and ‘dangerous’. When questioned further, he was unable to elaborate on his views or to explain why he so considered.
- KPJ was also unable to recognise that, although the physical buildings belonging to PA remained intact, service support from PA was no longer available. He was not able to demonstrate that he understood the consequences of the loss of accreditation of PA and the resultant inability of the Department to provide funds to pay for his support through that organisation.
- An example of the probable influence exerted on KPJ by GA is contained in a Statutory Declaration to the Tribunal from him dated 7 February 2019. KPJ writes:
Last Monday a woman who identified herself as 'J' from Disability Services came to talk with me for a very short time… She did not speak to me about if I was unhappy about my previous living arrangements. She did not ask me if I was happy here now.
I was later told by A, that this woman J claims to have stated that I said to her "I hated living at 136". This is an untruth. I was not asked ANY questions about my previous living arrangements or my current one, which I am very happy to be at now.
- There was no evidence before me that KPJ informed SJ that he was unhappy with his accommodation at PA; he habitually informs of quite the reverse. There is also no evidence that SJ had any conversation of this ilk with GA. I consider that KPJ is correct – there is an untruth involved, but not one promulgated by him or SJ.
- At best, I considered that GA did influence KPJ, arguably above and beyond the expected ‘adequate and appropriate support for decision-making’. Although it was unclear as to whether this influence was undue, it was questionable at least as to whether decisions made were genuinely those of KPJ and whether these were made in his best interests.
- I find that KPJ was not able to provide even a reasonable summary of the complicated matters surrounding his accommodation and services, and his removal from PA. I am satisfied that on the evidence before me, KPJ does not understand the nature and effect of these complex matters.
- I also find that he has, at least in recent months, been subject to at least influence. He has demonstrated that he has struggled to make decisions freely and voluntarily.
- Although it is clear that KPJ can communicate that which he does understand, I find that at present KPJ’s cognitive functioning is impacted to the extent that he is unable to understand and make informed decisions about significant and/or complex personal matters.
- I am satisfied that the presumption of capacity as defined under legislation is for KPJ rebutted for complex personal matters.
Is there a need for the appointment of a guardian?
- I was satisfied that KPJ has complex personal matters; these were summarised by the Public Guardian in the report dated 24 April 2019:
KPJ is currently residing on short term accommodation. This accommodation is currently appropriate to meet his short term need and remains stable. Long term supported independent living arrangements need to be identified and explored when various functional assessments are completed to support the NDIS funding model. KPJ is eligible for the NDIS and is a registered participant in the scheme. Service access has been met and KPJ awaits further planning to determine his level of eligibility for support.
Decisions will need to be made in relation to services KPJ may be eligible under this plan.
- The Tribunal will only appoint a guardian when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met. I was satisfied that there was a need for the appointment of a guardian for KPJ to matters limited to accommodation and services (including in relation to the NDIS).
Who is appropriate for appointment as KPJ’s guardian?
- The only option for appointment as guardian in this matter is the Public Guardian. Under section 14(2) of the Act, the Tribunal may only appoint the Public Guardian if it is satisfied that no other appropriate person is available for appointment for that matter. I found that there was no family or friend available for appointment.
- The Public Guardian is an independent decision maker with extensive skills and experience, is available and willing to act and will comply with the general principles contained in the relevant legislation. The Public Guardian was therefore considered the appropriate appointee as guardian in this case.
- I note, that as discussed in the hearing, BJ continued to be KPJ’s carer of choice. HB undertook to investigate the opportunities for BJ to be at least part of KPJ’s future support team.
Adult Evidence Order
- RA had filed an application for an Adult Evidence order. Such an application would be determined at an oral hearing when the substantive application for the appointment of a guardian was heard and determined.
- The purpose of an Adult Evidence Order is to permit the Tribunal to obtain evidence at a hearing from an adult in the absence of other persons. Section 106 of the Act permits such an order being made if the Tribunal is satisfied that it is necessary to avoid serious harm or injustice to a person or to obtain relevant information that the Tribunal would not otherwise obtain at a hearing.
- KPJ remained extraordinarily keen to have the opportunity to discuss issues and to express his views in private with the Tribunal. Given its importance to KPJ, I was satisfied that an adult evidence order was required.
- Orders are made accordingly.
A residential care service provider, registered on 22 May 2010.
Section 14 DSA 2006 refers.
The introduction of the NDIS in Queensland will necessitate a change for KJ’s funding from DCDSS to the NDIS.
Appointed as KJ’s plenary administrator by the Tribunal on 28 March 2018.
Investigations into the complaints, coupled with the interim findings of an independent review of PA’s finances, eventually did result in the defunding of PA by the DCDSS in March 2019.
Section 129 refers.
Section 106 of Act permits such an order being made if the Tribunal is satisfied that it is necessary to avoid serious harm or injustice to a person or to obtain relevant information that the Tribunal would not otherwise obtain at a hearing.
Sections 12, 14 and 15 of the Act apply.
Re Bridges  1 Qld R 574, 583.
Section 5 of the Act.
Section 5 of the Act.
Section 129 of the Act provides.
Service Access Team Leader, DCDSSS.
Professor and Centre Director, Centre of Excellence for Clinical Innovation and Behaviour Support.
Using the Abbreviated Battery of the Stanford-Binet Intelligence Scales, 5th Edition (SB5).
See Section 5 of the Act.
Section 12 of the Act.
The statutory health attorney regime (see the Powers of Attorney Act 1998 (Qld)) is appropriate for any health decisions which may be required for KJ which he is unable to make. This is indeed the least restrictive option.
- Published Case Name:
- Shortened Case Name:
 QCAT 204
29 Apr 2019