OMN[2022] QCAT 292

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This matter relates to a man in his late eighties. For privacy reasons, I will refer to him only as OMN. He has two daughters, who are his current attorneys.
2. [2]
   On 24 May 2022, OMN’s sister applied to the tribunal for the appointment of an administrator and for the appointment of a guardian for OMN. She proposes that the Public Trustee of Queensland and the Public Guardian be appointed administrator and guardian respectively. Those applications have not yet been heard and determined.
3. [3]
   On 24 May 2022, OMN’s sister also applied for an interim order. That application was dismissed by another member of the tribunal on 3 June 2022.
4. [4]
   On 13 July 2022, OMN’s sister filed a Form 10 application Application for administration/guardianship appointment or review – Guardianship and Administration Act 2000. She used a superseded form which is not the current approved form. Despite lodging that application, she indicated in the form that nobody should be appointed administrator or guardian. This presumably reflects a view by OMN’s sister that OMN retains decision-making capacity. 
5. [5]
   On 14 July 2022, OMN’s sister applied again for an interim order. She sought the interim appointment of the Public Trustee and the Public Guardian until the substantive applications are determined. On 25 July 2022, I dismissed the application. OMN’s sister has requested reasons, which I now provide.

Background

6. [6]
   On 8 February 2022, the tribunal dismissed earlier applications by OMN’s sister for the appointment of an administrator and a guardian. This followed a hearing in July and December 2021. The tribunal also made a number of declarations, including that:

   1. (a)
      a 2021 enduring power of attorney made by OMN, appointing one of his sisters (not the present applicant) and a long-term friend^[1] as his attorneys, was invalid;
   2. (b)
      a 2001 enduring power of attorney made by OMN, appointing his two daughters as his attorneys, is valid; and
   3. (c)
      OMN has impaired capacity for all matters.^[2]
7. [7]
   OMN was living with the friend at the time of the previous hearing. Later, he spent some time living with one of the attorneys. Then he spent some weeks at a residential aged care facility in May to early June 2022. That was in accordance with a decision made by the attorneys. Since then, he has been living once more with the friend. This change of accommodation was not decided by the attorneys.
8. [8]
   Contentions made by OMN’s sister in the current proceedings include:

   1. (a)
      OMN does not require a substitute decision-maker;
   2. (b)
      his attorneys are not acting in accordance with the general principles which must be applied by attorneys;
   3. (c)
      the move to the residential aged care facility caused OMN great distress;
   4. (d)
      the attorneys refuse to return OMN’s debit card to him;
   5. (e)
      they do not allow him access to spending money apart from funds for one lunch per fortnight;
   6. (f)
      one of the attorneys provides OMN with a weekly supply of cigarettes, but a lesser number than she had agreed to provide;
   7. (g)
      the attorneys have taken several of OMN’s chattels, and have attempted to take others; 
   8. (h)
      the attorneys are preventing OMN from seeing his general practitioner of choice (‘Dr A’), as they have informed that doctor that they will seek an injunction if he sees OMN;
   9. (i)
      this also prevents OMN from obtaining a fresh assessment of his capacity;
   10. (j)
       they insist that OMN is treated only by his former doctor (‘Dr B’), whom OMN does not wish to see;
   11. (k)
       OMN regards the former doctor as complicit in abuse perpetrated by the attorneys;
   12. (l)
       the attorneys cancelled an appointment made with a gerontologist;
   13. (m)
       OMN urgently needs to consult with a reliable general practitioner, as he is on medications that need monitoring and ongoing prescriptions;
   14. (n)
       the attorneys are obsessively opposed to OMN’s friendship with the friend, and they continue to make vexatious complaints about her; and
   15. (o)
       complaints made by the attorneys have resulted in OMN being interviewed by police.
9. [9]
   The attorneys have provided submissions. Essentially, their position is that they are making decisions that are appropriate in OMN’s circumstances. They consider that OMN’s sister and friend have been determined to have OMN see Dr A rather than Dr B. However, it remains their decision that Dr B, who has been OMN’s general practitioner over many years, should continue to be his treating general practitioner. They consider that OMN’s sister and friend manipulatively shape his views.

Statutory framework

10. [10]
    An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.^[3]

Why were interim appointments not made?

11. [11]
    The assertions by OMN’s sister about his choices and preferences must be treated with caution. The member who determined the previous applications found that OMN ‘avoids conflict and goes along with whomever is helping him at the time’.^[4]
12. [12]
    The issues raised by OMN’s sister in the current proceedings are of the same nature as ones she ventilated in the previous proceeding. The member in that proceeding considered a large body of evidence, including testimony from OMN, OMN’s sister, and the attorneys. The member gave detailed reasons for his decision.
13. [13]
    It is apparent from those reasons that the attorneys face a challenging task in meeting OMN’s needs and in protecting his interests. There is considerable conflict within the family. OMN has a very expensive tobacco addiction, and limited remaining funds. The member concluded that OMN lacks decision-making capacity. The member also concluded that OMN’s needs are adequately met and that his interests are adequately protected by his attorneys.  
14. [14]
    The same question about which of the two doctors should treat OMN was a matter of controversy at the previous hearing. The member observed:

In view of the sharp differences as to medical treatment between [OMN’s] daughters and his siblings, there is an undoubted need for clarity as to who has the final say about health care and treatment, including choice of doctor.^[5]

15. [15]
    It is apparent that OMN’s sister does not accept the decision made by the tribunal in February 2022. It would be somewhat perverse to accede to her wish, so soon after the previous hearing, for an outcome that she failed to achieve in that proceeding. Nonetheless, the health, welfare and property of OMN must be the focus of the tribunal’s concern, rather than the propriety of a party’s conduct. If interim appointments are warranted to safeguard OMN against an immediate risk of harm, then the tribunal should make those appointments.
16. [16]
    I am not satisfied that there is an immediate risk of harm to OMN. It is apparent that the attorneys continue to take a close interest in his welfare. They are providing what they regard to be proper financial and other support to OMN. There is no compelling reason to question their assessment, on an interim basis.
17. [17]
    It seems to be implied by OMN’s sister that he will not receive necessary health care unless he is able to see Dr A. That would be the case only if OMN’s friend or other family members discourage or otherwise hinder him from seeing Dr B. Presumably, they would not do that. If they did, and OMN’s health was jeopardised, then they would probably find themselves subject to action by the attorneys. This might be a civil proceeding, a request by the attorneys to the Public Guardian that she consider applying to the tribunal for an entry and removal warrant, or some other action.

Conclusion

18. [18]
    For the above reasons, the application for an interim order was dismissed.