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  • Unreported Judgment

QN[2019] QCAT 56

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

QN [2019] QCAT 56

PARTIES:

In applications about matters concerning QN

APPLICATION NO/S:

GAA14121-18, GAA14122-18, GAA14226-18, GAA2734-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

8 March 2019

HEARING DATE:

8 March 2019

HEARD AT:

Brisbane

DECISION OF:

Member [Redacted]

ORDERS:

GUARDIANSHIP

  1. The Public Guardian is appointed as guardian for QN for the following personal matters:
  1. (a)
    Accommodation;
  2. (b)
    With whom QN has contact and/or visits;
  3. (c)
    Health care;
  4. (d)
    Provision of services, including in relation to the National Disability Insurance Scheme.
  1. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years.

ADMINISTRATION

  1. The Public Trustee of Queensland is appointed as administrator for QN for all financial matters.
  2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  4. The appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

LIMITATION ORDERS

  1. The Tribunal orders that pursuant to s 107(1)(b) of the Guardianship and Administration Act 2000 (Qld) MN and TN are excluded from the hearing of applications numbered GAA14121-18, GAA14122-18 and GAA14226-18.
  2. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld) the following information/documents are confidential and must not be disclosed to MN and TN.
  1. (a)
    The Public Guardian investigation report dated 4 March 2019; and
  1. (b)
    The Public Trustee of Queensland Tribunal Briefing Report dated 4 March 2019.
  1. Other than to the Public Guardian, The Public Trustee of Queensland, Public advocate and any legal representative engaged by [QN], and until further order of the Tribunal, the following is confidential and must not be disclosed pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld):  
  1. (a)
    All document’s held on the Tribunal’s record of proceeding;
  1. (b)
    The Tribunal’s reasons for any decision made and delivered orally by the Presiding Member at the Hearing in Brisbane on 7 March 2019;
  2. (c)
    All recordings and transcripts of evidence given in the proceeding on 7 March 2019 commencing from 3:00pm;
  3. (d)
    The names of all representatives of active parties who attended the hearing on 7 March 2019, the Presiding Member of the hearing on 7 March 2019, the Tribunal case manager and all representatives from the Department of Communities, Disabilities and Seniors who attended the hearing on 7 March 2019.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where applications for the appointment of guardian and administrator – where evidence before the Tribunal to satisfy the requirements of s 107 of the Guardianship and Administration Act 2000 (Qld) – where application initiated by the Tribunal to exclude particular persons from the hearing – where application initiated by the Tribunal to keep information relied upon in excluding particular persons from the hearing confidential – where limitation orders should be made

Acts Interpretation Act 1954 (Qld), s 14A

Guardianship and Administration Act 2000 (Qld), s 6, s 11A, s 100, s 111, s 105, s 107, s 109, s 110, s 118(2)(a)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

DAA [2009] QGAAT 8

JSM [2011] QCAT 351

APPEARANCES & REPRESENTATION:

QN, in person

MN and TN, via teleconference from 2:40pm to 3:00pm, inclusive

Representatives of the Office of the Public Guardian

Representatives of the Public Trustee of Queensland

Representatives of the Department of Communities Disabilities and Seniors

REASONS FOR DECISION

  1. [1]
    On 7 March 2019 the Tribunal initiated applications to exclude QN’s brother, MN, and QN’s mother, TN, from a hearing. The hearing concerned applications for the appointment of a guardian and administrator and for a confidentiality order, made by the Public Guardian. The Tribunal also initiated an application to keep the information relied upon by the Tribunal, in making the order to exclude MN and TN from the hearing, confidential.
  2. [2]
    At the hearing on 7 March 2019, the Tribunal being satisfied that limitation orders should be made, ordered that pursuant to s Under s 107 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’) MN and TN are excluded from the hearing of the applications numbered GAA14121-18, GAA14122-18 and GAA14226-18. The Tribunal also ordered that pursuant to s 109 of the GAA, the following information/documents are confidential and must not be disclosed to MN and TN:
    1. (a)
      The Public Guardian investigation report dated 4 March 2019; and
    2. (b)
      The Public Trustee of Queensland Tribunal Briefing Report dated 4 March 2019.
  3. [3]
    After hearing the applications for the appointment of a guardian and administrator and the application for a confidentiality order, the Tribunal made orders appointing the Public Guardian as QN’s guardian to make decisions about some of his personal matters, to the extent provided in the making of the order. The Tribunal appointed the Public Trustee of Queensland as an administrator to make decisions about all of QN’s financial matters; and made a confidentiality order.
  4. [4]
    The Tribunal delivered oral reasons at the conclusion of the hearing about the applications for the appointment of a guardian and administrator. The following are my reasons for the limitation orders made on 7 March 2019.
  5. [5]
    A hearing by the Tribunal of a proceeding must be in public. However, the Tribunal may make an adult evidence order or a closure order.[1] Under s 107 of the GAA, the Tribunal may exclude a particular person from a hearing if satisfied it is necessary to avoid serious harm or injustice to a person. Under s 109 of the GAA, the Tribunal may withhold from an active party or other person a document or other information if satisfied that it is necessary to avoid serious harm or injustice to a person. In making orders under s 107 for a closure order and s 109 for a confidentiality order under the GAA, the Tribunal may do so, only ‘to the extent necessary’, as provided under the Act.
  6. [6]
    The GAA does not define the meaning of ‘serious harm’ and ‘injustice’. An interpretation that will best achieve the purpose of the Act is preferred.[2] The GAA seeks to strike a balance between the right of an adult with impaired capacity, to whom the applications for the appointment of a guardian and administrator concern, to the greatest possible degree of autonomy in decision-making. Further, the GAA seeks to strike a balance between the adult’s right to adequate and appropriate support for decision-making.[3] The adult with impaired capacity is the primary focus of the GAA.[4]
  7. [7]
    The Tribunal has previously considered the meaning of ‘serious harm’ and ‘injustice’. In another guardianship matter concerning JSM,[5] the Tribunal in adopting the approach taken in DAA’s case,[6] a decision of the former Guardianship and Administration Tribunal, observed that a person with impaired capacity has the right under the GAA to adequate and appropriate support and that right requires the Tribunal to ensure that the Tribunal’s processes are carried out in such a way that serious harm or injustice to the person with impaired capacity is avoided.[7]
  8. [8]
    In JSM’s case, the Tribunal said that ‘serious harm’ would mean ‘physical or psychological injury, whether temporary or permanent, that endangers, or is likely to endanger human life, or is likely to be significant and longstanding.[8] In JSM’s case the Tribunal also adopted the Australian Concise Oxford Dictionary meaning of ‘injustice’ and found that ‘injustice’ means ‘a lack of fairness or injustice’. The Tribunal said that conducting a hearing that would interfere with the ability of a person with impaired capacity to participate in a hearing about their decision-making capacity would ‘compromise the delivery of justice by the Tribunal’.
  9. [9]
    I adopt the approach taken by the Tribunal in JSM’s case as to the meaning of ‘serious harm’ and ‘injustice’, for the purposes of s 107 of the GAA. I also adopt the approach taken by the Tribunal in JSM’s case as to the meaning of ‘serious harm’ and ‘injustice’, for the purposes of s 109 of the GAA. I find that for the purposes of making a closure order pursuant to s 107 of the GAA and in finding that such an order is necessary to avoid an ‘injustice’, the Tribunal may in considering the particular circumstances of the proceeding before it, consider the order is necessary to avoid interference with an ongoing investigation where there is evidence before the Tribunal that disclosure of the information to a certain person or persons may cause an injustice to the adult.
  10. [10]
    In this matter, applications have been made by the Public Guardian for the appointment of a guardian and administrator following the execution of a warrant to remove QN from his home where he was living with MN and TN. The Tribunal’s order dated 11 December 2018 for the entry and removal of QN states that the Tribunal, ‘being satisfied that there are reasonable grounds for suspecting that there is an immediate risk of harm, because of neglect (including self neglect), exploitation or abuse, to [QN]’ authorises the Public Guardian, with necessary and reasonable help and force, to remove QN from the place where he was living. The Tribunal also appointed the Pubic Guardian and the Public Trustee of Queensland as QN’s guardian and administrator to make certain decisions about QN’s personal and financial matters, respectively, to remain current for three months.[9]
  11. [11]
    After QN was safely removed from where he was living, the Public Guardian prepared an investigation report detailing allegations concerning QN that were found to be substantiated and detailed disclosures that had been made by QN relevant to the Tribunal proceeding and the applications made by the Public Guardian. The allegations detailed in the Public Guardian investigation report found to be substantiated are serious and directly concern QN. The Public Trustee of Queensland prepared a report in relation to QN’s financial matters. The report dated 4 March 2019 details investigations and concerns identified by the Public Trustee of Queensland that concern QN’s financial matters.     
  12. [12]
    Prior to the hearing of the applications for the appointment of a guardian and administrator, the Tribunal made a confidentiality order in relation to the Public Guardian’s investigation report dated 4 March 2019 and the Public Trustee of Queensland’s Tribunal Briefing Report dated 4 March 2019.[10] The Tribunal also ordered that MN and TN are excluded from physically attending the hearing of the applications for the appointment of a guardian and administrator and ordered that they may only attend the hearing by teleconference.[11]
  13. [13]
    At the hearing of the applications for the appointment of a guardian and administrator, the Tribunal accepted the evidence contained in the Public Guardian’s investigation report dated 4 March 2019 and the Public Trustee of Queensland’s Tribunal Briefing Report dated 4 March 2019. The Tribunal Notified QN, MN and TN that the Tribunal was initiating applications for a closure order and confidentiality order. The Tribunal heard the applications in the absence of QN. In proceeding to hear the applications in the absence of QN, the Tribunal was satisfied that it was necessary to do so because it would be prejudicial to the physical or mental health or wellbeing of QN to hear the applications in the presence of QN, MN and TN.[12]
  14. [14]
    In hearing the applications for a closure order and confidentiality order, the Tribunal Informed MN and TN that there was information before the Tribunal that had been filed by the active parties that their (MN and TN’s) participation in the hearing would cause serious harm to QN. Further, the Tribunal previously made a confidentiality order in relation to the relevant information before the Tribunal and as provided under s 110 of the GAA, that confidentiality order is vacated at the start of the hearing. The Tribunal informed MN and TN that they are not active parties in the proceeding and the Tribunal was initiating an application for a closure order and confidentiality order because there were serious matters raised by the active parties in the proceeding that require further investigation and discussion at the hearing relevant to any decisions made or that may need to be made about QN and his personal and financial matters. The Tribunal informed MN and TN that the information was compelling and the disclosure of the information to MN and TN may cause serious harm and or an injustice to QN.
  15. [15]
    The Tribunal also informed MN and TN that the Tribunal was unable to disclose the information relied upon by the Tribunal because of the serious nature of the matters raised by the active parties that was contained in the Public Guardian’s investigation report and the Public Trustee’s Tribunal Briefing Report in that the disclosure of the information may cause serious harm and or injustice to QN.
  16. [16]
    MN and TN were given an opportunity to make submissions about the applications before the Tribunal. This is because, as provided under s 111 of the GAA, MN and TN would be adversely affected by the proposed limitation orders and therefore have standing to be heard in relation to the applications. MN said, amongst other things, that he would like to know what the serious matters are regarding QN’s welfare. TN did not actively participate in the hearing.
  17. [17]
    The Tribunal, after considering the submissions made by MN and all of the evidence contained in the Public Guardian’s investigation report and the Public Trustee of Queensland Tribunal Briefing Report, was satisfied that it is necessary to exclude MN and TN from the hearing to avoid serious harm or injustice to QN. The Tribunal was also satisfied that it was necessary to withhold from MN and TN the Public Guardian investigation report and the Public Trustee’s Tribunal Briefing report to avoid serious harm or injustice to QN.
  18. [18]
    Further, in this matter there is a need for the Public Guardian as QN’s guardian and the Public Trustee of Queensland as QN’s administrator to make decisions that may include making further inquiries about QN’s personal and financial matters concerning allegations found to be substantiated by the Public Guardian. It is necessary for the Tribunal exercising its power under s 109 of the GAA, to protect the disclosure of this information to avoid injustice to QN.   
  19. [19]
    The Tribunal terminated the teleconference with MN and TN, invited QN, his support persons and all active parties including the representatives from the Public Guardian and the Public Trustee of Queensland to the hearing to determine the applications for the appointment of a guardian and administrator.
  20. [20]
    At the conclusion of the hearing, the Public Guardian made an application under s 109 of the GAA to keep confidential all documents held on the Tribunal’s file, the Tribunal’s reasons for any decision made and delivered orally at the hearing on 7 March 2019, all transcripts and recordings of the hearing from 3:00pm, being the time when the teleconference with MN and TN was terminated by the Tribunal, the names of all representatives attending the hearing, the case manager’s name and the Presiding Member’s name.
  21. [21]
    After hearing submissions from the representative of the Public Guardian, the Tribunal was satisfied that a confidentiality order in the terms proposed by the Public Guardian was necessary to avoid serious harm or injustice to a person including QN, the representatives from the Public Guardian and the Public Trustee of Queensland.
  22. [22]
    The submissions made by the representative of the Public Guardian are compelling and identify recent concerns brought to the attention of the Public Guardian that required an application to be made at the hearing for a confidentiality order and that such application was necessary for the purposes of s 109 of the GAA. The Tribunal proceeded to deliver oral reasons in relation to the applications for the appointment of a guardian and administrator and made orders accordingly. The Tribunal also made limitation orders under s 107 and s 109 of the GAA. As required under s 113 of the GAA, a copy of the Tribunal’s reasons for its decision to make the limitation order must be given to QN, MN and TN, all active parties and the Public Advocate. Because the Tribunal has made a confidentiality order in relation to the names of the Presiding Member at the hearing, the names of the representatives of the active parties and the Department of Disabilities and Seniors who attended the hearing on 7 March 2019, it is necessary to produce a redacted version of the Tribunal’s decision and reasons to avoid publication of information that is the subject of the confidentiality order.[13]

Footnotes

[1]Ibid, s 105.

[2]Acts Interpretation Act 1954 (Qld), s 14A.

[3]GAA, s 6.

[4]Ibid, s 11A.

[5]JSM [2011] QCAT 351.

[6]DAA [2009] QGAAT 8, [42].

[7]JSM’s case, [7] and see DAA’s case, [42].

[8]Ibid.

[9]Order made on 11 December 2018 under s 129 of the GAA.

[10]Order made on 5 March 2019.

[11]Order made on 11 February 2019.

[12]See s 118(2)(a) of the GAA.

[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

Close

Editorial Notes

  • Published Case Name:

    QN

  • Shortened Case Name:

    QN

  • MNC:

    [2019] QCAT 56

  • Court:

    QCAT

  • Judge(s):

    -

  • Date:

    08 Mar 2019

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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