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- Unreported Judgment
MJP QCAT 253
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
MJP  QCAT 253
In applications about matters concerning MJP
Guardianship and administration matters for adults
9 July 2020
24 June 2020
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where adult is nonverbal and is not capable of independent communication – where support for decision-making about personal matters is needed – where informal support for decision-making is not adequate – where formal support for decision-making from a guardian is required – where on review, current appointees found to have been competent – where no other person is more appropriate for appointment as guardian – whether appointees should be continued as guardians
Guardianship and Administration Act 2000 Qld ss 5, 12, 15(1), 28(1), 31(2) to (4) and Schedule 4
Human Rights Act 2019 Qld ss 13 and 48(1)
Powers of Attorney Act 1998 Qld s 63(1)
Catherine Delaney, Advocate for MJP
ASD represented by R Treston QC instructed by Disability Law Queensland, Solicitors
Public Guardian appearing by Sally Christensen
REASONS FOR DECISION
- MJP is a young man living with disabilities who is loved by his parents and extended family members. The Tribunal made orders appointing guardians for MJP on 19 November 2019. The appointment of the Public Guardian to make a specific health care decision and the appointment of ASD, the mother of MJP, to make accommodation and service-related decisions are due to be reviewed and a hearing was held on 24 June 2020 to review those appointments.
- The Public Guardian had also been appointed on 19 November 2019 as guardian for MJP to make contact decisions and that appointment was intended to be reviewed in 2024. However, as GJP, the father of MJP, filed an application to be appointed as the sole guardian for his son, the appointment of the Public Guardian as a decision-maker about contact was also reviewed at the hearing held on 24 June 2020.
- MJP did not attend the hearing which was conducted by telephone. As MJP was not participating in the hearing, the application by the Public Guardian for an Adult Evidence Order no longer had any relevance. That application was dismissed at the commencement of the hearing. Leave was granted at the commencement of the hearing to ASD to be legally represented at the hearing of the review applications.
- When reviewing an appointment of a decision-maker made under the Guardianship and Administration Act 2000 (Qld) (GAA), the Tribunal is required by s 31 of the GAA to revoke the appointment at the end of the review. However, that same section permits the Tribunal to continue or change the appointment at the end of the review, if the Tribunal is satisfied by the evidence that it would make an appointment of the decision-maker if a new application for the appointment were to be made. In other words, if the evidence before the Tribunal at the time of review can satisfy the appointment criteria in s 12 of the GAA, then an appointment can be continued or changed at the end of a review.
- The first of those criteria is whether MJP has impaired capacity for making his own personal decisions. Evidence that had been filed in the Tribunal for earlier hearings about MJP consistently revealed that MJP had been diagnosed with cerebral palsy with associated severe limitation of controlled physical movement. MJP is nonverbal and experiences spasms, in particular in his upper limbs and neck, which reduce his ability for prolonged perseverance with focused manual activities. He frequently experiences fatigue when participating in prolonged activities that have to date been used to set up a line of communication between MJP and other people. His answers to questions have been nonconclusive or non-responsive at those times when he is fatigued.
- None of the reports from health professionals filed in the Tribunal reveal that any assessment of MJP’s cognitive functioning has found any cognitive impairment that would prevent MJP from understanding the nature and consequences of decisions made about his life. Rather, the evidence cannot demonstrate that understanding on the part of MJP because the reports from health professionals conclude that MJP is not presently capable of communicating decisions about his life.
- Evidence has been presented to the Tribunal since the first application filed in 2015 that MJP has used a range of techniques to communicate. These techniques have been described as looks and gazes, blinking yes/no, a Pragmatic Organisation Dynamic Display (PODD) device, iPad with Proloquo2Go, Vantage Augmentative and Alternative Communication (AAC) and Facilitated Communication, among other techniques.
- Facilitated communication is used by MJP with a speech pathologist, Alice Owen, as the facilitator. As requested by the Tribunal in November 2019 and in March 2020, a Validation Folder prepared by Ms Owen was filed in the Tribunal just one day before the hearing on 24 June 2020. Ms Owen was not called by any party to give evidence at the hearing and as a result, none of the parties nor the Tribunal were able to clarify issues arising from the validation folder with Ms Owen.
- In particular, Ms Owen had stated in a report dated 18 June 2020 about the validation folder that MJP’s physical status is considerably influenced by his emotional state as well as any underlying consequences of his cerebral palsy. She stated that sometimes and, in some situations, MJP is unable to control his spasms and find the level between flaccid and spasm that allows him to type. Ms Owen stated that MJP’s physical skills have declined since 2010 and his needs regarding positioning and access have become more complex.
- GJP is a supporter of the use of Facilitated Communication for MJP and of Ms Owen as MJP’s facilitator. ASD does not support the use of Facilitated Communication by Ms Owen. In written submissions to the Tribunal for the hearing on 24 June 2020, Ms Treston QC on behalf of ASD submitted that Facilitated Communication is not recognised as a valid method of ascertaining the views and wishes of a person with a disability. Ms Treston submitted that Speech Pathology Australia had published a position on Facilitated Communication in March 2020 which concluded that there is sufficient scientific evidence to support the view that Facilitated Communication does not provide a valid means of communication. Speech Pathology Australia’s position is that Facilitated Communication should not be used.
- GJP did not provide any evidence or information to respond to the submissions of ASD on the lack of validity of the use of Facilitated Communication.
- The Tribunal had in June 2019 appointed a representative for MJP under s 125 of the GAA. Catherine Delaney of Aged and Disability Advocacy Australia (ADA) was appointed to that role. In a written report to the Tribunal dated 6 September 2019, the appointed representative described the methods used to establish communication between MJP and the representative during two meetings with MJP. One of those methods was Facilitated Communication with Ms Owens as facilitator. The representative set out a disclaimer that she was unable to state with any certainty whether any of the responses when using Facilitated Communication were being spelt out by MJP and that the representative had to rely on Ms Owens as to the accuracy of the communication received from MJP when using Facilitated Communication.
- The appointed representative concluded in her report of 6 September 2019 that her overall impression of the reliability of the interpretation of MJP’s responses raised doubts that she had completely understood MJP’s meaning and at times she had to rely on the communication facilitator to corroborate that understanding because MJP’s response was less clear.
- The appointed representative made a similar qualification on what she had understood to be MJP’s responses at times when the communication technique was the blink method. She stated that she was not confident on all occasions that she was getting a definite response from MJP. The representative stated that there were occasions when MJP closed both eyes simultaneously even when she was not directing a question to him. His eye closure at times was less definite and the representative had to rely on the communication facilitator to confirm whether or not a response could be interpreted as an affirmative response. There were other times when MJP appeared to give a response and then kept his eyes closed and appeared to drift off to sleep momentarily or experience the onset of spasm. There were some questions to which the representative was unable to obtain any response from MJP.
- An analysis of the evidence about MJP’s capacity to make his own decisions leads to the following findings of fact. MJP is nonverbal. MJP has cerebral palsy which does not permit him to have reliable and controlled physical movement of his body and limbs, including manual use of a keyboard to communicate independently. MJP experiences spasms in his upper limbs and neck and fatigue that interrupt focused activities that MJP may be otherwise able to engage for short periods of time, such as the use of a keyboard with facilitated support or responding to specific questions by blinking yes or no. MJP is presently unable to demonstrate unilaterally and reliably an ability to communicate his understanding of the range of facts and issues involved in making decisions about his own life as his communication responses are either interpreted by others for him, are yes/no responses to specific questions only or are nonconclusive because of inconsistent use of the blink technique due to spasm or fatigue. No augmented or supported communication technique presently gives MJP a clear and consistent communication method with other people.
- The Tribunal concludes that MJP is not presently capable of communicating decisions about his life to other people. The Tribunal concludes, in terms of the definition of capacity in schedule 4 of the GAA, that MJP has impaired capacity for making decisions about personal matters.
- MJP lives in a house with his mother and stepfather. MJP is 24 years of age and MJP’s living with his mother is not considered a long-term proposition by either ASD or GJP. Both parents support a move to independent living for MJP with carer support, but no definite timetable has been developed for such a move to occur. MJP relies on a range of support services funded by the National Disability Insurance Scheme (NDIS) and decisions are required about the engagement of service providers on an ongoing basis and arising from the annual review of the NDIS Plan. MJP has complex medical issues which require treatment and therapy decisions on a regular basis.
- ASD and GJP are divorced and demonstrate a difficult and conflictual relationship with each other. GJP complains that ASD had in the past terminated his contact with MJP and continues to the present to disrupt scheduled and agreed contact between GJP and his son. From the submissions made by GJP, it appears that he states agreed contact was denied on occasions where decisions were made by ASD to discontinue activities in which MJP had previously participated. GJP had attended those activities with MJP and the cancellation of those activities reduced the time when GJP had contact with his son. It was clear to the Tribunal from the evidence and submissions made at the recent hearing that ASD and GJP have been in the past, and still are, unable to discuss and successfully negotiate times when MJP could spend time in his father’s company. It is also evident from what the parties say that MJP enjoys spending time with both of his parents. However, it is unclear from the evidence how often or in what circumstances MJP wants this contact to occur, particularly should he move into supported independent living arrangements.
- The Tribunal was satisfied that the parties had identified areas where personal decisions would need to be made for MJP. Those decisions are where MJP lives, what services he has, what health care he has and what contact he has with his father while MJP lives with ASD, and with both parents should MJP move into independent living arrangements. MJP’s support network comprising of his parents and extended family members have been unable to demonstrate an ability to make those decisions informally for MJP. ASD and GJP simply do not trust the other parent to make the right decisions for MJP. From their evidence and submissions, they stand far apart in what they would each consider to be appropriate decisions about accommodation, services, health care and contact.
- The Tribunal concludes that formal decision-making support from a guardian is needed in order for the needs of MJP to be adequately met and for the interests of MJP to be adequately protected.
- Having been satisfied that there are appropriate grounds for an appointment of a guardian to continue, the Tribunal must consider, under s 31(3) of the GAA, if the appointments of the Public Guardian and ASD under review should be continued or changed or whether a new appointment of a guardian should be made. Section 31(4) of the GAA provides that an appointee should only be removed if the Tribunal considers that the appointee is no longer competent or that another person is more appropriate for appointment.
- One of the appointments made on 19 November 2019 no longer has any relevance, namely, the appointment of the Public Guardian to decide about MJP’s neuropathic bladder condition. The decision has already been made by the Public Guardian to proceed with surgery as soon as hospital and surgical team arrangements can be made.
- GJP originally submitted in his filed written submissions that he should be appointed as guardian for MJP for all personal matters but he appeared to clarify during the hearing that he was not necessarily seeking a plenary appointment as guardian but rather an appointment as guardian for the decisions that would be required for MJP.
- GJP submitted that the Public Guardian had failed to consult with MJP when a decision was made to proceed with surgical insertion of a suprapubic catheter and failed to consider whether there was any risk to MJP’s personal or social wellbeing in making that decision to justify overriding MJP’s will and preferences as to surgery. GJP submitted that the Public Guardian had displayed fundamental flaws and serious deficiencies in its decision-making processes. Although not specifically submitted, the allegations made by GJP, if proven, would tend to establish that the Public Guardian had not shown competence in its decision-making role.
- The Public Guardian submitted in written submissions filed on 15 April 2020 that the allegations of its failure to consult with MJP leading to a flawed decision about the surgery were incorrect. The Public Guardian submitted that it had followed its health care consent process and Queensland Health’s Guide to Informed Decision Making in Health Care. It was submitted that it is standard process to seek information from the adult’s treating doctor about the adult’s understanding of the proposed procedure. It was submitted that in making its decision the Public Guardian took into account the advice of Dr Clubb that the doctor was unable to determine MJP’s understanding of the procedure.
- The Public Guardian submitted that it had told the Tribunal at previous hearings that the Public Guardian had not been successful in obtaining MJP’s views and wishes. The Public Guardian submitted that it was not able to communicate with MJP in a way that would allow delegates to determine MJP’s understanding of the nature and effect of the proposed bladder treatment. The Public Guardian noted that while GJP supported and utilised Facilitated Communication, that method of communication had not been validated as required by the hearing member on 19 November 2019.
- The Public Guardian submitted that that it relied on the report of the appointed representative for MJP but noted that the report did not address which medical procedure MJP preferred.
- The Public Guardian further submitted that while the decision about the bladder surgery had been made on 23 December 2019, the consent process had not been finalised by that date and two delegates met with MJP on 28 February 2020. Delegates used the blinking method of communication with MJP but they were unable to determine MJP’s level of understanding of that particular health care matter.
- The Public Guardian submitted that the delegates were unable to determine the views and wishes of MJP about the proposed bladder surgery. In the absence of being able to obtain the views and wishes of MJP, the delegates consulted with the interested persons in MJP’s life, namely ASD and GJP, and took into account the views of those persons.
- The Public Guardian submitted that its decision took into account the General Principles and the Health Care Principles. It was satisfied on the advice of Dr Clubb that the presumption of MJP’s capacity to make his own decision about, and to consent to, the medical procedure had been rebutted. It was determined by the Public Guardian that the proposed health care was in line with recommended health care advice and was in line with MJP’s best interests. It was considered that MJP had been given access to maximum participation in the decision through the appointment of the representative to consider MJP’s views and wishes and noted the conclusion of Dr Clubb that he could not obtain the views and wishes of MJP. It was considered that the proposed procedure was the only medical treatment appropriate in the circumstances based on specialist medical advice.
- The Tribunal accepts the submissions of the Public Guardian about the appropriateness and validity of the basis on which it made a decision about the proposed medical treatment. The allegations of GJP depend on his assertion that MJP had expressed views and wishes contrary to the decision made by the Public Guardian. The Tribunal cannot accept that the evidence establishes that MJP had expressed his views and wishes contrary to the decision made by the Public Guardian. None of Dr Clubb, the appointed representative of MJP and delegates of the Public Guardian were able to determine MJP’s views and wishes on this subject. The Public Guardian was entitled to disregard the purported views and wishes that GJP stated had come out of Facilitated Communication as that method had not been validated by either December 2019 or February 2020. The Validation Folder filed in June 2020 is not conclusive in any event as the report writer, Ms Owens, did not give any clarification of the contents of the folder nor has she refuted the evidence referred to in paragraph 10 of these reasons that Facilitated Communication does not provide a valid means of communication.
- The Tribunal concludes that the Public Guardian has displayed competence in its decision-making about the proposed medical procedure. However, the appointment of the Public Guardian for that specific health care matter has been effectively discharged by the decision having been made. No further outstanding health care decision is still required to be made by the Public Guardian under the appointment made on 19 November 2019. The limited appointment is revoked as there is no current ongoing need for a further health care decision about the bladder condition.
- GJP seeks to change the appointment of the Public Guardian for contact decisions. His submissions do not allege why the Public Guardian should be replaced as contact guardian. He did not refer to any evidence that would lead to a conclusion that the Public Guardian was no longer competent as a guardian for contact decisions. GJP stated that the Public Guardian had told him that no decisions about contact had been made since the hearing in November 2019. He did object to what he submitted had been the cancellation by ASD of two occasions when contact had been scheduled and agreed.
- By implication, GJP appears to suggest that there had thereby been a failure in the contact decision-making process. However, on his own submissions the cancellation, if it had occurred, was the result of actions by ASD and not by the appointed guardian for contact. It is the case that a guardian, including the Public Guardian, has no role in enforcing its contact decisions. The Tribunal cannot conclude on the evidence before the Tribunal that the Public Guardian is no longer competent to be the contact guardian.
- GJP made submissions that he would be in effect a more appropriate guardian for the range of decisions needed to be made for MJP. GJP submitted that as he would empower MJP to exercise control and choice in his life, he would support MJP in the attainment and pursuit of his life goals and he would work towards improving MJP’s quality of life to prevent or minimise the likelihood of MJP experiencing reactive depressive episodes.
- However, GJP did not provide a satisfactory explanation as to how he would be a more appropriate guardian, particularly for contact decisions if MJP were to continue to live with ASD who opposed GJP having any role as an appointed guardian for MJP. The evidence before the Tribunal reinforced the presence of mistrust and hostility that still existed between GJP and ASD. Appointing GJP as a contact guardian would be unworkable as GJP indicated that he would like to make contact arrangements which reinstated activities would have the effect of interfering with the daily routines of MJP organised by ASD and which would interrupt the reliability of service provision to MJP.
- Decisions about contact made by GJP as guardian would involve areas where the interests of MJP and GJP were likely to conflict as long as MJP remained living with ASD and accessing services arranged by ASD. GJP would not be an appropriate decision-maker about his own contact arrangements with MJP in accordance with s 15(1)(c) of the GAA and he had not been able to satisfy the Tribunal under s 31(4) of the GAA that he was a more appropriate appointee as guardian for contact than the Public Guardian.
- The Tribunal concluded that the Public Guardian should be continued as guardian for MJP for contact decisions to be reviewed in two years. The review at that stage may find that the living arrangements for MJP had changed and that a less restrictive manner for organising MJP’s contact with his family could be found. Indeed, it may be able to be established in two years time that MJP can demonstrate an ability to communicate his own decisions with the assistance of technological developments and no substitute decision-maker would be required.
- The appointment of ASD as guardian for accommodation and services was also reviewed. GJP submitted that ASD had misused her powers as guardian and should be revoked as guardian. He submitted that ASD had made decisions to deny MJP access to psychiatric and speech and language services, to deny contact between MJP and GJP, to deny MJP access to activities that would have benefited MJP, had misappropriated NDIS funding, had excluded GJP from meetings, and had not progressed MJP’s goals to live independently. These allegations were all denied by ASD. If proven, the allegations might establish a lack of competence to continue to act as guardian for MJP.
- In support of continuing as guardian, ASD filed an affidavit in which she set out evidence of her actions since the November 2019 appointment. ASD deposed that she had complied with the directions of the Tribunal and had encouraged communication with GJP so that informed decision-making could occur in MJP’s interests. ASD deposed that she was working towards progressing an independent living option for MJP which she stated involved complex factors including, training suitable support workers, providing emotional support to manage change, establishing an independent and consistent communication system, improving MJP’s physical functional capacity and developing his confidence.
- Her reports filed in the Tribunal particularised what was happening with these complex factors. The Tribunal was satisfied with the steps taken by ASD to date and with her description of what steps were still to be taken for a move towards independent living. ASD had displayed an appropriate degree of competence in her decision-making about MJP’s accommodation arrangements. The allegations by GJP that ASD had not appropriately progressed steps towards MJP’s independent living were not substantiated.
- ASD explained why she had not arranged for MJP to attend an appointment with Dr White, psychiatrist, on 13 May 2020. She explained that no previous concerns had been raised with her that would necessitate an appointment with a psychiatrist. In accordance with the advice of MJP’s GP that MJP should avoid non-essential outings at that time, ASD did not facilitate the attendance of MJP at that appointment. The explanation given by ASD was satisfactory and the allegation that ASD had denied MJP access to psychiatric services was not substantiated.
- ASD set out in her affidavit and reports to the Tribunal what she had done to put in place adequate communication support for MJP. The Tribunal notes that ASD had sought to engage GJP in that process and had involved Ms Owens in seeking information from her that helped to inform the decisions about communication support services made by ASD. While GJP was unable to participate in one important online and telephone conference, the Tribunal finds that this outcome was not the result of any deliberate obstructive action on the part of ASD to exclude GJP from the meeting and accepts that ASD had no control over the management of that particular meeting.
- The Tribunal was also satisfied that GJP had not been unreasonably excluded from meetings at times with therapists or service providers as his input had been generally sought and the attendance of the decision-maker, ASD, at meetings did not invariably mean that GJP should have been in attendance on every occasion.
- While GJP may not be satisfied with the decisions made by ASD about the manner of ongoing communication support to be provided to MJP, the Tribunal does not find that ASD has been deficient in her overall efforts to make appropriate service-related decisions. The Tribunal finds that the evidence and reports filed by ASD lead to a conclusion that ASD has acted competently in decision-making that is designed to provide access to MJP to effective communication support. The allegations that ASD has denied MJP access to speech and language services is not substantiated.
- ASD deposed that MJP’s attendance at activities (at Conductive Education Queensland, at the Brotherhood of the Wordless poetry group and other activities) had been suspended due to COVID-19. ASD deposed that she was taking steps to return MJP to his regular activities but that she had reservations about the value afforded by MJP’s attendance at the Brotherhood of the Wordless. ASD deposed that GJP had not provided her with information about the meetings that he also wanted MJP to attend at Developing Inclusive Education (DICE) and that as a result she had not agreed to MJP’s attendance, particularly when he already had other activities he attended that were of benefit to him.
- The Tribunal was satisfied by the evidence in ASD’s affidavit and in her filed reports that the decisions made about the activities attended by MJP and decisions not to attend other activities suggested by GJP were appropriate and displayed competence as a decision-maker on her part. Her subsequent decisions to suspend MJP’s access to activities was appropriate for the COVID-19 times and the Tribunal finds that ASD had not unreasonably denied MJP access to activities of benefit to him.
- GJP alleges that ASD had denied him contact with MJP on 20 May 2020 and 17 June 2020. These days are Wednesdays and fall outside the times when formal fortnightly weekend contact had been decided by the Public Guardian. ASD submits that agreed contact time between GJP and MJP does not extend to the days when MJP had attended activities where GJP was present. There is no basis for GJP’s allegation that ASD had denied him contact on these days with MJP as the Public Guardian had told the Tribunal that no changes had been made to the fortnightly contact decision made before November 2019.
- The Tribunal finds that ASD’s decisions about what services would be provided to MJP and what services or activities he would not access have been made appropriately in these COVID-19 times and have not been made with a deliberate view to denying contact between GJP and MJP. The dispute over what constitutes agreed contact should be clarified in the future by the Public Guardian as contact guardian for MJP.
- The most serious allegation made by GJP about ASD is that she has misappropriated NDIS funding. This is an allegation of fraud. GJP alleged that NDIS funding for services provided by Conductive Education Queensland (CEQ) to MJP has arisen from a conflict of interest whereby a personal benefit was derived by ASD who is a director of CEQ. GJP alleged that MJP’s funds partially underwrite the financial viability and success of CEQ which in turn benefits ASD as a director of CEQ. GJP does not provide any other facts that support the allegation of misappropriating of NDIS funds relating to CEQ.
- ASD denies the allegation of misappropriation of NDIS funding in relation to CEQ. She submits that she is an unpaid director of CEQ and gains no personal benefit from the funding paid for CEQ’s services to MJP. She deposes in her affidavit that CEQ provides value for its funding and at CEQ, MJP works on physical capacity, technology and eye gaze skills, hydrotherapy and community access. The Tribunal does not accept the allegation of GJP that there has been a conflict of interest in the decisions made by ASD over the choice of service providers for MJP. ASD has not derived a personal benefit from her decision to use CEQ as a service provider for MJP.
- GJP made a further allegation of misappropriation of NDIS funding by ASD. Funding of $35 per week is paid by NDIS for cleaning services in the home where MJP and ASD and her partner reside. GJP alleges that NDIS funding should not be used for the total cleaning costs of the household but should only be for a proportionate part attributable to the cleaning of the rooms in the house used by MJP and /or taking into account that MJP stays with GJP for 52 days per year.
- No evidence was provided by GJP that the rate of $35 per week for cleaning was excessive or was in fact higher than a charge for only cleaning those rooms used by MJP. Misappropriation or fraud must be proved strictly and the allegations of GJP fall far short of proof of fraud on the part of ASD.
- The argument by GJP that the cleaning costs should be reduced as MJP does not use rooms such as the kitchen or dining room is baseless as cleanliness of the whole physical environment in which MJP lives is essential to his health and wellbeing. MJP depends on members of his household to provide close and intimate support to him and it is fallacious to argue that in some way MJP’s wellbeing is unconnected with the wellbeing of the other people who reside in close proximity to him.
- The second basis raised by GJP for ASD gaining an unwarranted benefit from NDIS cleaning funding relies on MJP being out of ASD’s household every second weekend. GJP provides no evidence that the need for cleaning services is somehow suspended when MJP is absent for a weekend. The physical environment would accumulate dust and potentially germ comprised surfaces at any time during a given fortnight and the need for cleaning could not reasonably be attributable to any given period of time within any fortnight. It is for the benefit of MJP that his house is properly and comprehensively cleaned.
- The allegation of fraud or misappropriation of NDIS funding by ASD is not established. The allegations made by GJP of misappropriation of NDIS funding by ASD are scandalous and reflect poorly on his judgement.
- GJP made a further allegation of misappropriation by ASD about payments to ASD under the Continence Aids Payment Scheme. GJP submitted that ASD is not eligible for this payment. The evidence from ASD was that she had at an earlier time used the Scheme to top up MJP’s continence supplies but that these continence aids are now funded under MJP’s NDIS plan as consumables. The Tribunal finds that there is no evidence that ASD has engaged in wrongdoing in relation to the funding of MJP’s continence aids and the allegation of misappropriation is not proven.
- The Tribunal finds that ASD has established that she has been competent in her decision-making as guardian for accommodation and services. GJP’s allegations against her competency have been refuted by the evidence and submissions of ASD. The Tribunal finds that overall ASD has adequately protected the interests of MJP, that ASD has not neglected or abused her powers as guardian for MJP and that she has not been found to have contravened her obligations or duties under the GAA.
- GJP has not satisfied the Tribunal that he is more appropriate for appointment as a guardian than ASD. While it is undoubted that GJP loves MJP and wants a future for MJP that maximises his potential, GJP has not provided evidence to establish for the Tribunal that at this point in time he would be a more effective guardian for MJP. His baseless allegations of fraud and wrongdoing on the part of ASD reveal an intention to win his arguments at any cost and ignore the impact that his allegations may have on those persons who will remain involved in the life of MJP for many years to come.
- The Tribunal is satisfied that GJP could not presently act in a genuinely corroborative manner with ASD who is important in the life of MJP. GJP stated that if he were to be appointed guardian for MJP he would move MJP out of the ASD’s home until permanent independent living arrangements could be put into place for MJP. The reports of ASD filed in the Tribunal set out the practical difficulties she was experiencing in laying down a proper basis for any change of accommodation for MJP. GJP’s assertion of making an immediate change of MJP’s accommodation appeared to lack an awareness of what emotional impact such a move would have on MJP and of what complex support would be needed to bring about such a change. The Tribunal was left with the impression that GJP as a guardian would be prone to making these types of unilateral decisions that fitted in with his own committed views without adequate regard to alternative views of other significant people in MJP’s life.
- The Tribunal will continue the appointment of ASD as guardian for MJP about accommodation and services. The Tribunal is satisfied that ASD continuing as guardian in these matters would give proper decision-making support to MJP.
- ASD argued at the hearing that her appointment as guardian should also include health care decisions as the delays and problems experienced in relation to decision-making about MJP’s bladder surgery showed that a defined authority for health care decisions was needed.
- At present, there is no guardian for health care and the statutory health attorney regime would apply when health care decisions are made. In such a case, ASD who has the care of MJP is first in line, as established by s 63(1) of the Powers of Attorney Act 1998 (Qld), to make health care decisions as the statutory health attorney for MJP. However, in practice GJP has acted as if he also has power to make health care decisions for MJP by arranging appointments with medical providers and therapists without input from ASD.
- When there is no certainty about who has actual decision-making authority to make health care decisions for MJP, there will be the potential for confusion and delay in accessing treatment at times for MJP. The Tribunal agrees with the submissions of both ASD and GJP that a guardian must be appointed to provide formal decision-making support for health care decisions for MJP.
- For the reasons already discussed, the Tribunal is satisfied that the appointment of ASD as guardian should be continued and is satisfied further that the additional matter of health care must be added to her authority as guardian for MJP. ASD is in the best position to be aware of MJP’s health care needs as she provides care to him while he lives in her household.
- Her reports to the Tribunal demonstrate an understanding of the complexities of support for MJP in other areas of decision-making and it is a reasonable inference to draw that ASD would demonstrate a similar understanding of the complexities of health care issues for MJP. The Tribunal notes that ASD has a track record of consulting GJP in complex issues about MJP and is confident that ASD will continue to involve GJP in decisions that she will make as health care guardian for MJP.
- The appointment of ASD as guardian is a reviewable appointment and under s 28(1)(b) of the GAA, the appointment must be reviewed at least every 5 years. The Tribunal is mindful that frequently reviewing appointments in this case will inevitably bring GJP and ASD into conflict that no doubt causes stress and emotional harm to each of them. However, the focus of the Tribunal is primarily on MJP and it is in his interests for reviews to take place regularly to ensure that he has appropriate support for decision-making. His needs may change from time to time, particularly if technological systems are found to provide him with independent communication support and/or he achieves a successful move to supported independent living.
- For this reason, the Tribunal finds that the appropriate review of the appointment of ASD as guardian should be in two years time being at the same time as the review of the appointment of the Public Guardian as guardian for contact decisions.
- The Tribunal notes that the orders made by the Tribunal on 19 November 2019 directed ASD to inform and consult GJP on a two-monthly basis about her activities to move MJP into more independent living options and to invite GJP to all NDIS planning meetings together with a direction to provide GJP with a copy of all correspondence to and from the NDIA and to advise GJP in writing of any changes in either service providers, regular services or regular activities. The Tribunal considers that directions along those lines are still appropriate to ensure ASD can obtain informed input from GJP into ongoing decisions and directions of a similar type were incorporated into the orders made following the hearing on 24 June 2020.
- Before closing this consideration of how to provide appropriate decision-making support to MJP by way of appointing decision-makers under the GAA, the Tribunal has considered MJP’s human rights relevantly set out in the Human Rights Act 2019(Qld) (HRA). Pursuant to s 48(1) of the HRA, the Tribunal must, to the extent possible that is consistent with their purpose, interpret statutory provisions in a way that is compatible with human rights. MJP’s rights to freedom of movement, to choose where he lives, to privacy, not to be subjected to medical treatment without his full, free and informed consent are engaged and limited by the guardianship appointments made by the Tribunal.
- The Tribunal has made a finding that MJP does not have capacity to make his own decisions about where he lives, what services he has, what health care he has and who he has contact with. In the absence of capacity to make those decisions and in the absence of appropriate informal support, MJP cannot himself exercise his rights to make his own decisions in those areas. Only by having in place formal support from a substitute decision-maker appointed under the GAA will those rights be able to be exercised on behalf of MJP.
- The appointment criteria for a guardian set out in s 12 of the GAA prevents an arbitrary limitation on the exercise of MJP’s human rights as such an appointment can only be made when the Tribunal has been satisfied that the purpose of the appointment is actually compatible with maintaining and protecting the identified human rights of MJP. The purpose of the GAA as a whole, and ss 5 and 12 and the General Principles in particular, is to ensure that a person who is found to lack legal capacity is still able to have decisions made in such a way that restricts or interferes with the autonomy of the person to the least possible extent.
- Any limitation in the exercise of MJP’s rights that arises from the appointment of a guardian is not arbitrary but is reasonable and justified in terms of s 13 of the HRA in light of the purpose of the GAA to enable decision-making to take place when a lack of legal capacity would otherwise prevent lawful decisions being made. It is consistent with MJP’s human dignity that decisions about important and fundamental issues in his life are able to be made with lawful authority so that he can live as an equal and valued member of our society which respects his human rights despite findings of lack of legal capacity.
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 QCAT 253
09 Jul 2020