BCC[2021] QCAT 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   On a prior occasion, the Tribunal considered an application filed by a representative of the Charters Towers Rehabilitation Unit (the rehabilitation unit).^[1]  That prior application sought the appointment of a guardian and an administrator for BCC.  At the time of the hearing of that application, BCC was still an inpatient of the rehabilitation unit and was represented by his advocate, Ms Anne Hansen (Ms Hansen).^[2]  At the conclusion of the hearing, the Tribunal considered the application did not meet the threshold for the appointment of a guardian and/or an administrator and the application was dismissed.  
2. [2]
   Subsequent to that decision, the rehabilitation unit made another application.^[3]  Again, the Tribunal was asked to consider appointing an administrator and a guardian for BCC.  Ms Hansen applied to strike out the new application.
3. [3]
   While the current application was waiting to be listed before the Tribunal, BCC was discharged from the rehabilitation unit.  He transitioned back into the community and returned to live in Townsville.^[4]  During his stay at the rehabilitation unit, he had paid the rent to maintain his own accommodation in Townsville, as well as paying his inpatient fees with the rehabilitation unit.  Although at some point he did fall behind in the fees owed to the rehabilitation unit. 
4. [4]
   Throughout all this time, BCC enjoyed the support of Kith & Kin, who are his National Disability Insurance Scheme (NDIS) service providers.^[5]  His association with Kith & Kin is well established and had existed prior to the integration of the NDIS.^[6]  Kith & Kin are also his NDIS support co-ordinator. 
5. [5]
   The rehabilitation unit advocated that it was appropriate for an appointment of an administrator for BCC because he required prompting to pay his rent and had incurred a daily care fee debt of almost $1,000 during his admission into the rehabilitation unit.  BCC was dependent upon support to set up automatic deductions from his bank account to pay his bills and expenses, and without that support, he spent his money on cigarettes and soft drinks.  He prioritised buying those items over purchasing household necessities.  In managing his own finances, BCC was easily confused and did not have the ability to understand the information contained within the bills he receives.  An added difficulty was his poor recollection of his own financial position, and he was financially vulnerable and was known to give his money away to others.
6. [6]
   Overall, the application suggested the most appropriate approach was to appoint The Public Trustee of Queensland as BCC’s administrator to manage his Centrelink payments, as well as manage his day-to-day finances, including the payment of his bills.      
7. [7]
   In regard to BCC’s personal matters, the rehabilitation unit suggested that he made his own personal decisions, however because his living arrangements and his NDIS support was not enough to meet his needs, he required a guardian for matters relating to his accommodation and service provision.  The Public Guardian was nominated as his guardian.

The hearing

8. [8]
   When the hearing commenced, BE appeared at the hearing.  She is BCC’s sister.  The rehabilitation unit advocated that instead of the Public Guardian and The Public Trustee of Queensland being appointed as his guardian and administrator, consideration should be given to appointing BE for those roles.
9. [9]
   In addition, much of the rehabilitation unit’s opening comments related to a dispute between the rehabilitation unit and Ms Hansen, along with the manner in which Ms Hansen has been advocating on behalf of BCC.  Limited time had been allocated for the hearing and consequently little was discussed about the relevant factors relating to why the Tribunal should appoint a guardian and administrator, apart from a suggestion that the adult was vulnerable, he displayed suicide ideation and the rehabilitation treating team had become extremely concerned about those issues.  A concern was raised about the level of funding attributed to BCC through his NDIS plan, and the suspicion that he was at grave risk of becoming just a commodity to his service provider, Kith & Kin.^[7]
10. [10]
    In regard to the rehabilitation unit’s position that BE should be appointed as BCC’s guardian and administrator, Ms Hansen opposed any suggestion that she was appropriate.  She said that BE had limited contact with BCC over the duration of his stay at the rehabilitation unit.     
11. [11]
    To complete the matter, the hearing was adjourned with directions relating to BE providing an affidavit addressing her appropriateness and competence for appointment as a decision maker.^[8]  Directions were also given to the active parties regarding an updated medical report for BCC following his scheduled psychiatric outpatient appointment with Dr Philippa Noakes.
12. [12]
    In compliance with the Tribunal’s directions, BE provided an affidavit.  Ms Purcell provided a further affidavit in which she confirmed that BE had requested to be part of BCC’s recent inpatient admission to the rehabilitation unit and had remained engaged with BCC during his admission.  It was Ms Purcell’s opinion that BE was appropriate to be appointed as BCC’s administrator and guardian.
13. [13]
    BE deposed she had a positive and long term relationship with BCC and there were no disqualifying features in her character or background that would preclude her from being appointed as his guardian or administrator.  She was aware of the nature and severity of her brother’s schizophrenia, along with his other physical issues and learning difficulties that influenced his ability to effectively manage complex situations impacting upon his own self-care.
14. [14]
    She is well aware of BCC’s personal likes and dislikes, and she has previously supported him in those areas. She is also aware that his ability to maintain the appropriate quality of life is affected because of the complexities of his illness.  She added that he contacts her regularly when he is stressing and needs support.  Her concern is that he is not coping with his existing support network and needs further assistance.
15. [15]
    In commenting on BCC’s support network, BE said that she tried to be involved with the care provided by his service provider, however she frequently was not informed when there were serious issues that arose affecting his health.  She felt that his service provider was excluding her.
16. [16]
    Touching on her ability and competence to perform the functions and exercise the powers under any appointment order, BE said that the past four years she has diligently exercised her role as the appointed attorney under her father’s enduring power of attorney.
17. [17]
    In commenting on BE’s appropriateness to be appointed as guardian or administrator for BCC, Ms Hansen was not supportive of her appointment for either of those roles. She was critical of the role played by the rehabilitation unit staff and said that the rehabilitation unit’s staff ignored BCC’s advice to them that he wanted to live in his own accommodation, and he wanted Kith & Kin to remain as the service provider.  She added that the rehabilitation unit staff were not having collaborative and consultative conversations with BCC, but instead expressed their own personal beliefs as to where he should live. She questioned whether this was appropriate and respectful of BCC’s wishes.^[9]
18. [18]
    Ms Hansen said that BCC wanted to be in control of his own life; live his own way and be in control of his own destiny. She indicated that his current psychological symptoms unfortunately lead him to be extremely anxious about the upcoming Tribunal hearing and this has led to his increased propensity to engage in smoking cigarettes.  The increased intake of nicotine from smoking cigarettes directly impacts upon his Clozapine medication, and the flow on effect is an unfortunate detrimental influence on his schizophrenia.
19. [19]
    Ms Hansen explained a recent concerning event when BCC attempted to take his own life.  The precursor for this event was the anxiety suffered by BCC after he received a letter from Queensland Health informing him of his scheduled medical procedure at the Townsville Hospital.  BCC has a real fear of not waking up after being anaesthetised.  He became so concerned about the medical procedure that he tightened a sheet around his neck and attached it to a ceiling fan with intent to hang himself.
20. [20]
    Although BCC failed in his suicide attempt, it was understandably a concerning event. Fortunately, a support worker from Kith & Kin arrived at his residence shortly afterwards, and when discovering what had occurred, arrangements were immediately made for him to be taken to the emergency department of the Townsville Hospital.  After an assessment, it was identified that although the event was concerning, there was no immediate risk to his health, and he was discharged to go home.
21. [21]
    In regard to her view on BE’s appropriateness to be appointed as BCC’s guardian or administrator, Ms Hansen said any appointment of BE would certainly put a strain on her relationship with BCC.  She added that BE would be best suited as his informal support.
22. [22]
    Ms Hansen’s reason for adopting that position related to her observations that for periods over the last few years BE had dissociated herself from BCC’s life. She questioned whether this would occur again, thus placing BCC at risk. On the other hand, Ms Hansen also questioned whether the appointment of BE would allow her to over protect BCC and hinder BCC building his own capacity to live the life that she and others think he should live.^[10] 
23. [23]
    I found no evidence to support any of those propositions raised by Ms Hansen.  In regard to BE’s appropriateness, no feature was identified that would associate her with any risk to BCC.  I am satisfied that there is nothing that would cause apprehension to her appointment as either BCC’s guardian and/or administrator.   

Capacity

24. [24]
    Three professional reports were provided to the Tribunal for consideration.  They were a medical and related health professional report authored by Mrs Monique Bailey (Mrs Bailey);^[11] a functional capacity evaluation report authored by Ms Emma de Waal (Ms de Waal);^[12] and BCC’s mental health progress report authored by Dr Phillipa Noakes (Dr Noakes).^[13]  None of the authors of those reports gave evidence at the hearing and the active parties appeared to accept the general consensus that since at least 1997, BCC has experience an established diagnosis of treatment resistant paranoid schizophrenia.

Mrs Bailey’s report

25. [25]
    Mrs Bailey is an Occupational Therapist employed at the rehabilitation unit by Queensland Health. She provided details of the Mini Mental State Examination (MMSE), the Montreal Cognitive Assessment (MoCA) and the Allen Cognitive Level Screen Assessment (ACLS) undertaken by BCC.  Those tests are psychological assessments to determine his cognitive level.  The research from each of those assessments indicated he fell within the cognitive deficit range.
26. [26]
    Mrs Bailey’s opined that BCC lacked the ability to understand and act on information relevant to him making complex decisions about the important issues in his life such as personal health care, lifestyle and accommodation choices and his own financial affairs.  She added that he did not appreciate the consequences of making, or indeed the consequences of not making decisions about those issues just discussed. 
27. [27]
    Regarding his ability to understand and act on information that is relevant for making decisions about personal healthcare, BCC required daily prompts to attend to all self-cares. Without support, he was unable to attend medical appointments and he experienced difficulty retaining verbal information and recommendations from the medical staff.  He also lacked the ability to make decisions or appreciate the consequences relating to decisions about lifestyle and accommodation choices.  Although he has lived for a significant period of time at his current address, and he is supported within the community, there remained a suggestion that he may require help regarding future tenancy issues.
28. [28]
    Finally, in regard to the management of his own finances, Mrs Bailey assessed that BCC lacked the decision-making capacity for his own financial position.  When admitted into the rehabilitation unit in 2019, he had no savings in his bank account and was not able to demonstrate any forward planning to budget for additional expenses.  He had to be prompted to pay all bills, such as his pharmacy account and every indication was that he was financially vulnerable to the exploitation by others.  He also displayed impulsive grocery shopping behaviours and he was not able to demonstrate forward planning to budget for additional expenses.

Ms de Waal’s report

29. [29]
    Ms de Waal reported that BCC’s functional capacity was assessed through observation, reports from supports and non-standardised assessments within the domains of communication, social interaction, learning, mobility, self-care and self-management, using terminology and indicators from the World Health Organisation International Classification of Functioning, Disability and Health.
30. [30]
    Ms de Waal assessed BCC as having a mild impairment in receptive communication and mild to no impairment in expressive language, with his problem solving ability falling within the moderate impairment range.  He required prompting and supervision to reorganise and solve the more complex problems and complete tasks such as budgeting.  In respect to interpersonal interactions and communications, he is impacted by his anxiety and displays a delay or lack of focus in this area.  His cognitive skills provide him with some ability to analyse and draw factual conclusions from complex situations, however this can be dependent upon other factors such as his mood and his anxiety triggers.  When processing the more complex decisions to be made, BCC struggled to practice any abstract thinking and he requires strong psychological support. 
31. [31]
    Although BCC has potential to become more independent over time, it appears that he can easily cognitively overload, which results in him being unable to process information at a higher executive functioning level.  This leads to a risk of him becoming depressed and frustrated.
32. [32]
    Notwithstanding all those positive comments about BCC, it was noted that lacking from Ms de Waal’s assessment was any demonstration of examples of BCC’s decision making capacity or ability to make simple or complex decisions about his own personal or financial matters.  This is notwithstanding Ms de Waal’s assessment that he was able to independently perform self-care, household management and some leisure activities.

Dr Phillipa Noakes – psychiatric assessment progress notes

33. [33]
    Dr Noakes reported that because of BCC’s established diagnosis of paranoid schizophrenia, he had a history of being under a treatment authority.^[14]  His most recent admission to a mental health facility took place on 9 October 2019 when he was admitted to the mental health unit at the Townsville Hospital after he attended a local police station seeking help. 
34. [34]
    When taken to the mental health unit by the police, he was admitted with symptoms consistent with a relapse in his established diagnosis of paranoid schizophrenia, namely paranoid thoughts, and reports of auditory and visual hallucinations on the background of intermittent compliance to medications.
35. [35]
    He has a background depicting troubling circumstances when unwell, including previous suicide attempts, and he has attempted to harm members of his family with a weapon.  Those troubling circumstances occurred primarily due to his non-adherence to his medication regime and resulted in his multiple admissions into mental health facilities at Cairns and Townsville.  Indicators of relapse included increased agitation, displayed anxiety, pacing, banging his head with his fist or hand, believing he no longer needed his medication, talking to himself and making threatening gestures.  He is known to have carried a weapon in the past and had posed a significant risk of harm to himself and to others when he was unwell.
36. [36]
    Most recently, his sister reported that when spending some recreational time on the Townsville Strand, he became distressed and wanted to leave as he believed that aliens were after him.  Dr Noakes suggested that his thoughts at that time could possibly be attributed to his recent cessation of his smoking habit.  He was using nicotine patches instead, which made him slightly more paranoid than usual.  BCC’s medication regime includes Clozapine and the change in the nicotine intake impacted upon this medication, which in turn affected his schizophrenia.
37. [37]
    During his most recent assessment by Dr Noakes, BCC denied any thoughts of harm to others, or thoughts of self-harm.  He reported no current plan or intention to end his own life.  In regard to the issues relating to the aliens, he said that he felt the aliens were after him, and although he acknowledged that he got distressed on that occasion, he is now aware that aliens are not real.
38. [38]
    Importantly for issues relating to BCC’s personal healthcare, lifestyle and accommodation choices and the management of his financial affairs, Dr Noakes reported that he was happy being back at his own residential address.  He was slowly establishing a routine at home; he is sleeping well and wakes around 7:00am and then walks to the local coffee shop for a morning coffee before returning to his unit to meet his carers.  He then takes his morning medications in the presence of his carers, and on occasions he may go out again for a drive or walk.  He reported that he made his own meals and spent much of his time at home watching television, focusing on news programs.  He would meet his carers for the final time for the day at 5:00pm.  He discussed with Dr Noakes his plans to attend some cooking lessons, along with other social activities with Kith & Kin. 
39. [39]
    In concluding the discussions about BCC’s capacity to make decisions, I am satisfied the medical evidence reveals that when called upon to undertake a decision making role about a matter, he may be able to communicate decisions in some way, however he lacks capacity to understand the nature and effect of decisions; and lacks capacity to make decisions freely and voluntarily.  Therefore, I am satisfied that the presumption of capacity is rebutted, and BCC has an impaired capacity to make decisions for both personal and financial matters.     

Legislative pathway

40. [40]
    The starting point is the presumption of capacity that applies to BCC.  The general principles of the Guardianship and Administration Act 2000 (Qld)^[15] provide a presumption that BCC has capacity for a matter, unless other evidence rebuts that presumption.^[16]  However, is not merely the availability of evidence that results in the presumption being rebutted, it results from the application of the law from which a determination is made that BCC has impaired decision-making capacity for a matter.^[17]  
41. [41]
    Undeniably, BCC should not be treated as unable to make a decision about a matter, unless all practicable steps have been taken to provide him with the support and access to information necessary for him to make and communicate a decision.^[18]  This flows from the principle that all adults have the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, along with their inherent dignity and worth, their equal and inalienable rights, and their fundamental freedoms.^[19]
42. [42]
    It is therefore a reasonable assessment that simply because the Tribunal may be satisfied of the rebuttal of the presumption of capacity for an adult, it is not an automatic process to then move to the making of an appointment order.  Consideration must be given to, and reasoning applied as to whether a necessity exists for decisions that relate to a relevant matter for the adult at that time.  After all, the purpose of the Guardianship and Administration Act is to strike an appropriate balance between BCC’s right to enjoy the greatest possible degree of autonomy in decision-making; and his right to adequate and appropriate support for that decision making.^[20]
43. [43]
    For the Tribunal to be satisfied of the need to make an appointment of a decision maker in this matter, consideration should be given to whether there is a less restrictive and reasonably available way to achieve the purpose of applying any limitation of BCC’s rights.^[21] The maximisation of BCC’s participation in his own decision-making is a further consideration, including his right to participate, to the greatest extent practicable, in decisions that affect him.  It is therefore understandably important for the Tribunal to consider maintaining BCC’s existing supportive relationships, including any persons within his existing supportive network; family members; carers and other significant persons who support him to make decisions.^[22] 
44. [44]
    What follows is a presumption that if an appointed decision maker exercises a power for a matter for an adult, the adult’s views, wishes and preferences should be sought, at least to the greatest extent practicable.  An adult can express any views, wishes and preferences either orally, in writing or in another way, including for example, by conduct.^[23]
45. [45]
    In respect to presumption of capacity as it applies to BCC, I am satisfied that the opinions expressed by Mrs Bailey, Ms de Waal and Dr Noakes are all evidence suggesting that the presumption of capacity for BCC has been rebutted.

Guardianship

46. [46]
    The rehabilitation unit’s application seeks the appointment of a guardian for BCC in two distinct decision making roles; accommodation and the provision of services. 

Accommodation decisions

47. [47]
    Since 2011, BCC has lived in and maintained his own rental accommodation.  His rent is automatically deducted from his fortnightly Centrelink Disability Support Pension.  Notwithstanding that, he recently maintained the occupancy of his rented premises despite spending considerable time in a mental health facility.  A reasonable assessment of the current status of his accommodation is that it is secure, stable and permanent and there are no immediate or future decisions to be made with regard to where he should live. 
48. [48]
    BCC told BE that he is familiar with his surroundings and he does not want to move into other accommodation such as a support independent living arrangement.  Because of the current status of his mental health and his delicate psychological condition, to change his place of residence would be too difficult for him to process.  If he were to relocate, the only result would be a detrimental one. 
49. [49]
    Having regard to BCC’s wishes and the status of his current accommodation, I am not satisfied that accommodation is a personal matter where any consideration should be given for the appointment of a guardian.  His accommodation needs are adequately met and there is nothing to suggest that there would be any unreasonable emotional or financial risk to him if he remained living at his current residence.

Service provision decisions

50. [50]
    For a considerable amount of time, BCC has enjoyed a long association with his current service provider, Kith & Kin.  The assistance provided by Kith & Kin has continued now that he has transitioned from the rehabilitation unit back into the community.
51. [51]
    Ms Purcell suggested there was a risk of BCC being exploited or being utilised by Kith & Kin as a commodity in relation to his generous NDIS package.  It is not disputed the value of BCC’s NDIS package is substantial, and the services provided to him are managed by Kith & Kin.  Nor is it disputed that BCC and Kith & Kin have enjoyed a long established association that was founded long before the implementation of the NDIS.  Considering all those features, I am of the view that with the absence of corroboration to validate Ms Purcell’s comments, I am not inclined to accept there is any basis to the allegation.
52. [52]
    However, it has been identified that Kith & Kin were fulfilling a dual role as both BCC’s service providers under his NDIS package, as well as his service co-ordinator.  Although this is not a unique situation, it is however as the Public Guardian’s representative identified, an unusual situation without the benefit of independent oversight by the service co-ordinator over the provisions of services by the service provider.
53. [53]
    Being mindful that BCC’s service provisions are being adequately met and his interests are being adequately protected, the overall continuing conflict between his treating medical team from the rehabilitation unit, his advocate and his service provider suggests the necessity for a decision maker to maintain an overview of the services provided to him. 
54. [54]
    Having regard to the issues just identified, and the suitability of BE as BCC’s guardian, her appointment for that role is appropriate.  Without that appointment, there is an unreasonable risk of a conflict arising and BCC’s needs would not be adequately met, and his interests would not be adequately protected.     

Administration

55. [55]
    The Tribunal had previously determined that the appointment of an administrator for BCC’s financial matters was not necessary.  At that time, the information provided to the Tribunal suggested that his financial position was not sophisticated in anyway.  His only income was his fortnightly disability support pension.  He had stable and secure accommodation of which he made regular payments towards his rent and other household expenses.  His long association with Kith & Kin was noted and there is no evidence of a likelihood of BCC doing anything that would involve an unreasonable risk to his welfare or property.  At that time, his financial needs were being adequately met and his interests were adequately protected.
56. [56]
    However, at that time it seems that the active parties involved in the matter were not aware of BCC being a 50% shareholder in property at Cardwell.  His father owns the other 50%.  Nor were the active parties aware that BE was his father’s attorney under an enduring power of attorney and his father has been relocated to an aged care nursing home in Sydney.  Nor were they aware that BCC had not contributed to his share of the local council rates for the property.
57. [57]
    BCC’s only siblings are his two sisters.  One sister resides in Sydney, and the other (BE), lives in Townsville.  His father no longer has decisions making capacity and has been relocated to an aged care facility in Sydney.  BE is his father’s attorney under an enduring power of attorney for both personal and financial matters.
58. [58]
    Although BCC is able to make financial decisions for his daily living, he does not have the capacity to make complex financial decisions.  That incapacity has led to him failing in his responsibilities to maintain his financial responsibilities or obligations to the property he jointly owns with his father.
59. [59]
    Notwithstanding BCC being able to make simple financial decisions, I am satisfied that without the appointment of an administrator to make effective and appropriate decisions in relation to the property in Cardwell, there will be an unreasonable risk to his finances and property.
60. [60]
    Therefore, it is appropriate for BE to be appointed as BCC’s administrator, but only for those decisions that are required in relation to the property he jointly owns with his father.    

Conclusion

61. [61]
    Before moving to appointing a decision maker for personal and/or financial matters, the Tribunal should be mindful of the application of the principle relating to respect for, and the preservation of BCC’s privacy prior to any decision being reached for an appointment of a decision maker.  Notwithstanding that, what must also be identified is whether there is a need for the appointments of a guardian and administrator for him, or whether the matter may be resolved in the least intrusive manner. 
62. [62]
    Considering the facts and circumstances of this matter, I am satisfied that a need exists for the appointments of a guardian and an administrator to be made.  The appointments are only required for decisions relating to the provision of services for him, and the decisions relating to the administration of the real property he has an interest in. 
63. [63]
    In turning to an appropriate appointee as guardian and/or administrator, I am mindful that the rehabilitation unit’s application originally urged the appointment of the Public Guardian.  Any appointment of the Public Guardian should only be undertaken as of last resort when there is no other appropriate person available to be appointed.^[24] 
64. [64]
    Overall, I am satisfied that BE is appropriate for the appointment as both guardian and administrator.  Therefore, she is appointed for those decision making roles relating to BCC’s real property in Cardwell and the provision of services, including decisions relating to the NDIS.  Those appointments are reviewable decisions and will be reviewed in one (1) year.