JPR[2023] QCAT 82

REASONS FOR DECISION

What is the application about?

12. [1]
    JPR is an eighty-one-year-old gentleman who suffered a severe brain injury in a motor vehicle accident in 2007 leading to his cognitive impairment, and who also now suffers from Type 2 diabetes, hypertension and various other physical ailments. He lives in aged care and pursuant to Tribunal orders made in a hearing on 11 January 2022, JPR’s wife, K and his son, CW were appointed jointly as his guardians for personal decision-making around accommodation, with whom he has contact and/or visits, health care, provision of services, day to day issues such as diet and dress and legal matters not relating to finance or property matters.  The joint appointment changed a previous appointment of K, solely as JPR’s guardian.

12. [2]
    On 25 January 2023 CW filed an application to review the appointment, together with an application for an interim order seeking to remove K as a joint guardian and to appoint a family member in her stead.

12. [3]
    The grounds for seeking the interim order were expressed as follows:^[1]

3. [K]
   refuses to follow medical recommendations, resulting in harm/hospitalisation of the adult in October 2022 and January 2023. [K] continues to ‘risk feed’ inappropriate food and fluid to the Adult, despite the known risk of aspiration or choking, without joint Guardian consent and in contravention of medical advice.

3. [K]
   has neglected her duties by disregarding jointly agreed care decisions and agreements…by abstaining from establishing formal, written and transparent care protocols to ensure the protection of the adult’s interests.

3. [K]
   has excluding the other Joint Guardian from being involved in decisions relating to health care services. 

12. [4]
    On 27 January 2023, I made an interim order that:

12. [5]
    Reasons for that decision have been requested and now follow.

The statutory framework

12. [6]
    The Guardianship and Administration Act 2000 (Qld) (GAA) establishes the framework for the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity. The Tribunal may only make a guardianship or administration order if satisfied that:

12. [7]
    Determination of the adult’s capacity is the threshold issue to be resolved before any decisions are made over the person, followed by a determination of need and risk to the adult if an appointment is not made. This is so even upon review.

12. [8]
    To remove a guardian upon review, the Tribunal must be satisfied that:

1. (a)
   the current appointee is no longer competent or another person is more appropriate for appointment;^[3]
2. (b)
   new and relevant information has become available;
3. (c)
   a relevant change in circumstances has occurred since the appointment hearing; or
4. (d)
   relevant information that was not presented at the appointment hearing has become available.^[4]

12. [9]
    A guardian or administrator must apply the General Principles^[5] as a safeguard for the adult’s rights and interests and appropriateness considerations for guardians include the likelihood of the appointee’s ability to comply and apply the principles.

12. [10]
    The Health Care principles must be applied by any person who exercises a power under the GAA for a health matter.^[6]  The health care principles require, among other things that:

1. (a)
   all adults be offered appropriate health care, including preventative care, regardless of their capacity;^[7] and
2. (b)
   any consent to or refusal of health care for an adult must respect their inherent dignity and worth, individual autonomy (such as freedom of choice) and independence;^[8]
3. (c)
   decision makers take into account, when making decisions for the adult:

3. (i)
   any information given by the adult’s health care provider;

3. (ii)
   if the adult has a medical condition, the nature of that condition and the adult’s prognosis;

3. (iii)
   the nature and degree of any significant risks associated with the proposed health care and any available alternatives;

3. (iii)
   the consequences for the adult if the proposed health care is not carried out;

3. (iv)
   the benefits versus the burdens of the proposed health care;

3. (v)
   the effect of the proposed health care on the adult’s dignity and autonomy.^[9]

12. [11]
    Applications for interim orders are largely determined ‘on the papers’, without an oral hearing, meaning the evidence before the Tribunal is both limited and untested by cross-examination.

12. [12]
    It has been said that interim orders ought not be made unless circumstances compel such action^[10] and to urgently respond to immediate risks, established by evidence.^[11]

12. [13]
    The emphasis on “immediate” indicates a sense of urgency that arises before, in this case, the review hearing is scheduled.^[12]  If there is no evidence of a serious health condition that requires immediate treatment, or an imminent health issue, there is no corresponding urgency that requires an interim order.^[13]

12. [14]
    The Tribunal may also consider extraneous factors to inform its decision such as the interests of justice and alternative measures such as changing or suspending the appointment order.^[14]

12. [15]
    The Tribunal can suspend an appointment under section 155 of the GAA if it suspects on reasonable grounds that an appointee is not competent, for example, where:

1. (a)
   a relevant interest of the adult has not been, or is not being, adequately protected; or
2. (b)
   the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
3. (c)
   the appointee has otherwise contravened the GAA.

12. [16]
    During the suspension of the operation of power of a guardian, the public guardian is taken to be the guardian for the adult for the exercise of the suspended power.^[15]

Does the adult have, or might he have, impaired decision-making capacity?

12. [17]
    An adult is presumed to have capacity for a matter^[16] but this is rebuttable.^[17]

12. [18]
    An adult with decision-making capacity for a matter is capable of:

1. (a)
   understanding the nature and effect of decisions about the matter;
2. (b)
   freely and voluntarily making decisions about the matter; and
3. (c)
   communicating the decisions in some way.^[18]

12. [19]
    Only one of these elements need be absent for there to be a finding of impaired capacity.^[19]

12. [20]
    Capacity is decision-specific^[20] and may differ depending on the:

1. (a)
   type of decision to be made;
2. (b)
   complexity of the decision to be made; and
3. (c)
   support available from members of the adult’s existing support network.^[21]

12. [21]
    The evidence before the Tribunal on the issue of capacity is extensive. The most recent Health Practitioners Report is dated 11 April 2018 by Dr Uddin who concluded that JPR did not have capacity for any simple or complex decision-making.  The report was prepared reviewing twenty years of JPR’s records at the practice.

12. [22]
    I accept the evidence of Dr Uddin and find that JPR has, or may have, impaired capacity for decision making concerning the personal matters the subject of the guardianship order under review.

Is there an immediate risk of harm to the adult?

12. [23]
    “Harm” has been found to 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.^[22]

12. [24]
    The following evidence before the Tribunal satisfies me that that JPR is at risk of fatal harm from choking/aspiration and hyperglycaemia because of ‘risk feeding’ of JPR by K against medical advice: 

3. (a)
   Emails were exchanged in March 2022 between the Clinical Care Leader, K and CW regarding recommendations by JPR’s speech therapist of suitable food for JPR and the risks associated with feeding him food that was not recommended, being choking and aspiration.  The family, including K, confirmed their intent not to risk feed JPR and to follow recommendations.

3. (b)
   On 1 July 2022 the Clinical Services Manager informed CW and K of foods that JPR could and could not eat.  They said that he “cannot continue to eat things like bacon and egg burgers”, that he required thickened fluids and that if he is wanting these types of foods, they required a “dignity of risk” document signed due to JPR’s high risk of aspiration and choking.  

3. (c)
   In reply on 2 July 2022, CW expressly refused consent to risk feeding by an email that was copied to K.

3. (d)
   On 16 October 2022 JPR was admitted to hospital having experienced choking and aspiration after K fed him fish and chips that he could not swallow.^[23]

3. (e)
   On 1 November 2022 CW expressed concern to K regarding her instructions to carers to provide thin rather than thickened fluids to JPR against recommendations that he have thickened fluids to avoid aspiration.

3. (f)
   On 11 January 2023 JPR was hospitalised with a kidney infection and hyperglycaemia.

3. (g)
   Notes taken from a review of CCTV footage on 11 January 2023 indicated that:

3. (i)
   1.49pm – JPR in room following medical leave with K.

3. (ii)
   1.55pm - K leaves.

3. (iii)
   3.44pm – K returns with a yellow bag, black handbag and striped cold bag.

3. (iv)
   3.56pm – K observed to obtain nondiabetic foods and return to room (not thickened or provided by staff)

3. (v)
   4.45pm – blood glucose monitored as high, JPR assisted to eat evening meal, staff found can of lemonade (not approved).

3. (vi)
   17.10pm – insulin administered.

3. (vii)
   5.45pm – blood sugars remain high, vomit, QAS contacted.

3. (h)
   A report by the aged care provider on 12 January 2023 included the following information:

[K] has been observed post family care conference where [K] had provided agreeance with the recommended dietary guidelines. Over Christmas and up to 11 January 2023, [K] has been observed to remain non-compliant which places [JPR] at an increased risk of aspiration, or potentially contributing to an adverse event.

12. [25]
    Although I appreciate the evidence currently before the Tribunal has not been tested in a hearing, as it currently stands, it appears that K is endangering JPR’s life by risk-feeding him against the joint guardian’s wishes, against an agreement reached with the joint-guardian and JPR’s care team, against medical advice, and despite two recent hospitalisations that appear to be a direct consequence of risk feeding by K.  I am satisfied further that K is aware because she has been informed of the real risk to JPR’s life of continuing that practice.

12. [26]
    This apparent and serious departure from the Health Principles and the immediate and ongoing risk to JPR’s life and safety while such practices are being adopted by K, together with K’s non-compliance with measures and plans previously agreed with CW, satisfy me that K is not presently an appropriate guardian for JPR.  JPR’s needs are not being met and his health care interests are not being protected and he is at serious risk of fatal harm prior to the review hearing, largely due to risk feeding by K against medical advice. 

12. [27]
    For those reasons basis, I suspended K’s appointment as joint guardian pending the review hearing.

Who to appoint as interim joint guardian?

12. [28]
    Although ordinarily, the Public Guardian is a guardian of last resort and family members are to be preferred where they are available, willing, appropriate, and competent to act, section 155(5) of the GAA requires, in this instance, that the Public Guardian take K’s place upon her suspension. For that reason, the Public Guardian is appointed as joint guardian with CW in her place.

Consideration of the adult’s Human Rights

12. [29]
    Section 48 of the Human Rights Act 2019 (Qld) (HRA) requires the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.

12. [30]
    I acknowledge that the ongoing appointment of guardians for JPR, and the changing of those guardians, particularly the suspension of his wife of many years, necessarily limits his human rights, including his rights to freedom of movement, privacy and reputation and liberty. 

12. [31]
    These rights are explicitly recognised in the GAA,^[24] but I am satisfied that the limits imposed by the original guardianship order that are continued by (with amendment) this decision are reasonable and justified in accordance with section 13 of the HRA.