YUL[2024] QCAT 260

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Senior Member Browne: This is a hearing in Brisbane on the 20^th of May 2024 concerning YUL, file reference [Redacted]. The Tribunal has an application for the appointment of a guardian filed on the 13^th of March 2024 by SDT, who is a nurse and provides support to YUL at the Parklands Residential Aged Care Facility where she resides.
2. [2]
   It became apparent at the hearing that although the application filed at first instance identifies a need for a decision to be made about YUL’s accommodation matters, it was in fact necessary for a guardian to be appointed to make decisions about YUL’s restrictive practice matters. This comes about because YUL has a history of wandering. She is at risk of harm to herself should she be permitted to leave her accommodation setting unsupported, and because she is a recipient of aged care from an approved aged care provider, relevant Commonwealth legislation such as the Aged Care Act 1997 (Cth) and Quality of Care Principles 2014 (Cth) (‘Quality of Care Principles’) applies.
3. [3]
   This means that chapter 5B that sits within the Guardianship and Administration Act 2000 (Qld) (‘the Act’) that would ordinarily apply for giving consent for and the use of restrictive practices in Queensland does not apply. This is because the Disability Services Regulation 2017 (Qld) effectively exempts or carves out the application of chapter 5B for a relevant service provider such as a provider of aged care that is caught by the Quality of Care Principles.
4. [4]
   Therefore, the aged care provider – and that is the Parklands Residential Aged Care Facility – who provide all care and services to YUL as a recipient of aged care requires an appointment of a guardian to give consent to the use of a restrictive practice that is identified as a restrictive practice under the Quality of Care Principles. The relevant restrictive practice is environmental restraint, that is, the use of a practice in response to a behaviour such as placing YUL in a secure wing at the facility where she lives to prevent her free entry and exit. This is necessary to ensure that she is not at risk because of her history of wandering.
5. [5]
   The Tribunal relies on the authority contained in a decision of NJ [2022] QCAT 283, and it proceeds to consider this application under section 12 of the Act. Turning firstly to the issue of capacity, the Tribunal accepts the medical evidence of Dr Stelmaschuk, general practitioner, dated 13 March 2024. The Tribunal finds that YUL is a 76-year-old woman with no capacity to make decisions about her restrictive practice matters, including giving her consent to environmental restraint that will prevent her free entry and exit from the accommodation setting where she resides. The Tribunal finds that this is due to YUL’s diagnosed vascular dementia and health care needs including heart failure.
6. [6]
   YUL has no insight or cognitive ability to understand risks of leaving the facility. There is high risk of adverse outcomes, including death, if she leaves the facility. YUL has expressed a strong desire to walk to the airport or to walk or swim to New Zealand. This was clearly communicated to the Tribunal at the hearing. It also became apparent at the hearing that a continued discussion in the presence of YUL about her personal matters, including her restrictive practice matters, caused her distress, and it was necessary for YUL to leave because she was unable to engage in a conversation about her restrictive practice matters. She was fixated on leaving Australia and returning to New Zealand.
7. [7]
   The Tribunal is satisfied that the presumption of capacity as defined under Schedule 4, section 3 of the Act is rebutted, and the Tribunal finds that YUL does not have the capacity to make decisions about her restrictive practice matters, including environmental restraint as that term is defined under the Quality of Care Principles, and this is due to her diagnosed vascular dementia that impacts on her decision-making, including the ability to consider the consequences of making a free choice to exit the facility and to walk, swim or return to her birthplace of New Zealand.
8. [8]
   In relation to whether there is a decision that is required about YUL’s personal matters, for the purposes of section 12 of the Act, I consider the meaning of personal matters to mean the welfare of YUL, and this includes, as defined under the Oxford Dictionary, the general health, happiness and safety of a person more broadly. Additionally, the Macquarie Dictionary defines ‘welfare’ as ‘good or satisfactory existence’.
9. [9]
   As I have said, YUL moved to the aged care facility. We were told at the hearing that that was a decision made on the 13^th of February 2018. YUL was transferred to an open unit on the 23^rd of November 2020 and then back to the dementia ward from the 13^th of March this year. Prior to transitioning to Parklands, YUL lived at home with her partner until he passed away. There is a reported history of vulnerability prior to YUL transitioning to the facility, of unpaid bills and an inability to care for herself independently.
10. [10]
    The Tribunal has accepted the evidence provided in support of the application by the applicant, and indeed documented in the medical evidence referred to. I find that the restrictive practice, namely environmental restraint, is necessary for the safety of YUL. I am satisfied based on the evidence that there is a direct relationship between the matter and the welfare of YUL, and there is a matter relating to her welfare and, therefore, her care, and thus falls within the power more broadly of section 12.
11. [11]
    I consider that it is necessary to exercise my discretion under section 12 to appoint a guardian. The matters for consideration that I have considered include the seriousness of the decision to be made by YUL and the adequacy of the physical environment in the facility where YUL lives, and this is an accommodation setting that is a secure unit. I have also considered the human rights implications.
12. [12]
    There are conditions that are necessary, and they are warranted depending on the circumstances of the matter. The aged care provider, that is, Parklands, is responsible for overseeing a behaviour support plan and compliance with the Quality of Care Principles, so decisions will be required not only in relation to the restricted practice but also that the consent be given on certain conditions, and I will come to those conditions shortly.
13. [13]
    The only option for appointment, having applied section 15, is the Public Guardian. The Tribunal has been informed that attempts to contact YUL’s family have been without success. There is some sensitive information about this, including indication by family of no intention to be reunified with YUL or to be involved in her life at this point in time, so the Public Guardian is suitable as a guardian of last resort, and a review of the appointment in one year is, in my view, appropriate given the human rights implications and the necessary conditions that need to be satisfied in terms of complying with the Quality of Care Principles.
14. [14]
    I have also considered the relevant human rights as set out in the Human Rights Act 2019 (Qld) that I am required to interpret under section 48. The human rights that will be impacted by the making of this decision include: section 15, YUL’s recognition and equality before the law as a person entitled to make her own decisions. Section 17, protection from torture, cruel, inhumane or degrading treatment. YUL has expressed a desire to leave the facility, but we are required to balance that with the risk to her safety. It is simply not conceivable that YUL could walk and swim home to New Zealand, and YUL presently resides at the facility where all of her needs are being met.
15. [15]
    Freedom of movement is a relevant concern, under section 19. Moving to a secure wing will prevent YUL’s free movement and exit, but the Quality of Care Principles require that certain conditions are met and that there be a behaviour support plan prepared to ensure that YUL’s rights are the least restricted and that the restrictive practice is necessary to ensure her safety. There are other rights, including privacy and reputation, under section 25. The Public Guardian will be making decisions about intimate matters relating to YUL, and others will also have access to her private information. There is also a right to a fair hearing, under section 31. YUL did leave the hearing because it caused her distress.
16. [16]
    I have considered the relevant human rights, and I am satisfied that my orders are reasonable and justified because the Act mandates general principles to be applied by a substitute decision-maker under section 11B, and I am also only making an order over one aspect of YUL’s life, and I am satisfied that it is necessary, as I have said, given her diagnosis of vascular dementia and that the restrictive practices are necessary for her safety and to prevent her from harm.
17. [17]
    The orders are that:

    1. The Public Guardian is appointed as a guardian pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld) to make decisions about the following personal matters:

    1. To give informed consent or withhold consent for the use of “environmental restraint” as that term is defined in section 15E of the Quality of Care Principles 2014 (Cth).

    2. That appointment is conditional upon:

    1. Consent being given only for the sole purpose of the safety of YUL;

    2. The power of consent being limited to the aged care facility that YUL currently resides at;
    3. Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the Quality of Care Principles 2014 (Cth) with respect to YUL.

    3. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.
18. [18]
    I read into the record the documents that I have considered are credible, relevant and significant to an issue in accordance with section 103. They are the H39 certificate, H38 notice of hearing, H36 application, H37 interim order, H13 Public Trustee appointment and M5 HPR. I have also considered the other medical documents, M1 to M4.