NT[2025] QCAT 112

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Senior Member: The Tribunal received an application on 30 April 2024 for the appointment of a guardian, proposing that the Public Guardian be appointed to make decisions about personal matters for NT.
2. [2]
   The applicant identified on the application filed on 30 April 2024 is WP, who was, at the time, employed by the residential care facility where NT resides, Berlasco Court Caring Centre. At the commencement of the hearing, the Tribunal was informed that WP is no longer employed at the facility and the Tribunal gave leave to the current facility manager, ER, to represent the applicant at the hearing. The Tribunal also heard from the clinical coordinator, WH, the representative from the Public Guardian, AA, and NT's advocate from AMPARO Advocacy, MS.
3. [3]
   It is proposed by the applicant that a guardian be appointed to make decisions about certain personal matters relating to NT, concerning behaviours and the use of medication prescribed to control behaviour.
4. [4]
   Because NT is a recipient of aged care from an approved aged care provider, relevant Commonwealth legislation, such as the Aged Care Act 1997 (Cth) (‘Aged Care Act’) and the Quality of Care Principles 2014 (Cth) (‘Quality of Care Principles’) apply. This means that Chapter 5B that sits within the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) that would ordinarily apply for giving consent for, and the use of, restrictive practices in Queensland does not apply. The reason for this is because the Disability Services Regulation 2017 (Qld) effectively 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.
5. [5]
   Important to the application is the fact that NT, who is a 60-year-old man, does not have any family or friends in his life who can step into the role of an informal decision-maker or advocate for him. The Tribunal is therefore thankful that the advocacy service, AMPARO, in particular MS, who attended the hearing, is supporting NT informally in the role of an advocate.
6. [6]
   NT is a 60-year-old man who had a major vascular accident in 2017, resulting in dementia, and a transition to a residential aged care facility. Prior to that, he had emigrated from New Zealand to Australia. This is an important fact because NT is not eligible for the National Disability Insurance Scheme (‘NDIS’). It is necessary for NT to apply, first, for Australian citizenship and then to make the necessary application for NDIS. If NT was an Australian citizen and was eligible for NDIS services, there would be more options available to NT that could improve his quality of life. For example, a suitable supported accommodation setting could be sourced, and services put in place, because NT is a young man who is living in an aged care facility. The Tribunal has heard that because of NT’s present circumstances, his quality of life is perhaps not desirable, and this is due to the limited number of choices available to him as a young person living in aged care.
7. [7]
   NT has, documented in various reports before the Tribunal, behaviours of harm to himself and others. This looks like, as reported, NT regularly using his legs, with sometimes his fists to hit the table. NT is also observed to be making noise and shouting demands, which is unsettling for other residents of the aged care facility where he resides. More importantly, and relevant to the application today, is documented injuries to NT’s legs as a result of him hitting the table and, of course, it is not desirable to have NT in a setting that also can cause other residents to become unsettled when they are going about their day-to-day lives and receiving care within the facility.
8. [8]
   Medication has been prescribed by a healthcare professional that is identified in a clarification of purpose of medication as being medication prescribed for the primary purpose of controlling NT’s behaviour. This is medication that is known to be chemical restraint because the Quality of Care Principles identifies restrictive practices as practices or interventions that include, amongst other things, chemical restraint. That is a practice or intervention that involves the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour. The current medical evidence confirms that the medication is not prescribed for the treatment of, or to enable treatment of, the care recipient for a diagnosed mental disorder or a physical illness or a physical condition or end of life care for the recipient.
9. [9]
   The Tribunal is therefore satisfied that there are restrictive practices in use, namely medication prescribed to control NT’s behaviour. It was confirmed in the hearing by oral evidence given by the clinical manager that the medications identified in the clarification of purpose of medication form include Quetiapine, which is half a tablet at night, and Oxazepam, which is given as half a tablet twice per day.  This medication is still in use.
10. [10]
    The Tribunal has the power under section 12 of the GA Act, to, by order, appoint a guardian, for a personal matter, for an adult if it is satisfied certain requirements are met.
11. [11]
    Turning first to whether NT has impaired capacity for certain personal matters, it is important to pause here and identify what those matters are. The matters that we are talking about are NT’s restrictive practice matters, which is the ability to give consent to the use of medication prescribed, that is to control NT’s behaviour, to understand and weigh up the side effects, to understand whether there is benefit in taking the medication or not and particularly in circumstances where there are reported behaviours of harm.
12. [12]
    Also important is, NT’s immigration and legal matters given the background evidence that I have referred to concerning NT’s current immigration status and inability to apply for and access funding and services through the Australian NDIS scheme. 
13. [13]
    NT has no family members or friends in his support network other than an advocate, of which NT can utilise with the assistance of a guardian to connect NT with pro bono legal services or a suitably qualified lawyer who may be able to apply for citizenship and then the NDIS scheme, once Australian citizenship is obtained. 
14. [14]
    They are the two areas of personal matters that the Tribunal is considering when determining whether it is appropriate to make a finding that the presumption of capacity is rebutted.
15. [15]
    The medical evidence that I accept is contained in a report of Dr Henry Douglas, general practitioner, dated 20 April 2024.  Dr Douglas reports that NT had a stroke in 2017 resulting in healthcare needs and major depression. He has advanced dementia and is unable to participate in an assessment. An earlier report of Fiona Thomas, Registered Nurse Clinical Manager, dated 7 May 2020 also reports that NT can make lifestyle choices and communicate preferences, and that he is living in a residential aged care facility.
16. [16]
    There is also an earlier report of Dr Campbell on 22 January 2019, who refers to “no capacity for complex decision-making in all areas due to an acquired brain injury”. 
17. [17]
    NT was unable to attend the hearing today and to tell the Tribunal in his own words about his preferences and whether he supports the application. The Tribunal is satisfied that NT has received notice of the hearing.  There is a document that has been completed and provided to the Tribunal which is a certificate of advice of hearing. I am satisfied that NT has received notice of the hearing and I accept the oral evidence given by his advocate, MS, in the hearing, and also the information given by the applicant and the clinician in the hearing.
18. [18]
    I find that NT is a 60-year-old man who had a major vascular accident in 2017 resulting in dementia and a transition to a residential aged care facility. He requires assistance in all activities of daily living, and has medication prescribed to control his behaviour. That behaviour includes hitting his head and legs on the table, resulting in injury to self, and also causing a disruption to other residents in the facility. NT is unable to make decisions about giving consent to the use of medication and also to make decisions about his immigration and legal matters. These decisions are complex decisions in themselves and would require an ability to consider options and to also understand the consequences of those decisions.
19. [19]
    The Tribunal finds that the presumption of capacity as defined under schedule 4, section 3 of the GA Act is rebutted, and that NT does not have capacity to make decisions about his restrictive practice matters, and this includes chemical restraint, as that term is defined under the Quality of Care Principles, and also his immigration and legal matters.
20. [20]
    There is a need for decisions to be made about NT’s immigration and legal matters and his restrictive practice matters that includes chemical restraint and the prescription of medication to control his behaviour. I have considered the meaning of personal matters under the GA Act, that, more broadly, includes welfare.
21. [21]
    Turning to part 2, schedule 2 of the GA Act, “A personal matter for an adult is a matter other than a ‘special personal matter’ or ‘special health matter’ relating to the adult’s care, including the adult’s healthcare or welfare”, and then there are listed examples. The meaning of welfare also includes, as defined under the Oxford Dictionary, “the general health, happiness and safety of a person”, additionally, as defined under the Macquarie Dictionary, “good or satisfactory existence”. The Tribunal relies on the authority contained in a decision that was previously made by the Queensland Civil and Administrative Tribunal of NJ [2022] QCAT 283 (‘NJ’).
22. [22]
    In NJ, the Tribunal considered an application made under section 12 of the GA Act in circumstances where a person was a recipient of aged care and there were restrictive practices in use, as that term is defined under the Quality of Care Principles. 
23. [23]
    In the present matter, the Tribunal is satisfied that without the appointment of a guardian to give informed consent, subject to certain conditions, for the use of chemical restraint as that term is defined under the Quality of Care Principles, and to also make decisions about immigration and legal matters relating to NT; that NT’s needs will not be adequately met or his interests will not be adequately protected.
24. [24]
    I am satisfied it is necessary to exercise my discretion under section 12 to appoint the public guardian, and the matters for consideration that I have considered in making this appointment are the seriousness of the decisions to be made about NT’s prescription of medication, to control his behaviour and the documented history of behaviours of harm to himself and also causing disruption to the residents in the facility around him. I have also considered that NT does not have any informal supports in his life and that it is necessary for decisions to be made about his immigration and legal matters. 
25. [25]
    In making the appointment of a guardian, it is appropriate to review the appointment in one year.  This would be a sufficient time to consider whether an application for citizenship has been made, and then to review whether the powers of the appointment of a guardian need to be extended to include provision of services, including NDIS, or indeed if there are other decisions to be made to ensure that NT’s personal interests are protected. 
26. [26]
    I have considered the Human Rights Act 2019 (Qld) (‘Human Rights Act’) as I am acting in an administrative capacity and the Tribunal is a public entity for the purposes of section 58. I am therefore required to make a decision in a way that is compatible with human rights, and in making a decision, I must give proper consideration to relevant human rights.
27. [27]
    The human rights that are engaged by the making of the Tribunal’s order include NT’s right to be recognised as a person who is equal before the law and is entitled to equal protection of the law without discrimination. The Tribunal is appointing a substituted decision-maker, such as a guardian, and this will include making decisions to give informed consent or withhold consent for the use of chemical restraint, as a restrictive practice under the Quality of Care Principles.  
28. [28]
    This needs to be balanced, however, with the risk to NT not only physical risk as a result of behaviours of harm causing injury, but also his welfare. This is because without someone giving informed consent or to withhold consent to the use of medication that is prescribed, there may be an escalation in behaviours, or there may be a risk to NT’s welfare and his ability to remain living in the facility where he receives care in all aspects of his life. 
29. [29]
    There is also NT’s right to freedom of lawful movement within Queensland, including the freedom to choose where to live. As I have said, NT has had a major vascular incident resulting in dementia.  He is unable to make decisions about certain personal matters, and at the moment, he is living in a residential aged care facility. This is the only option for him to ensure that he is looked after and that he is able to be supported in his activities of daily living.
30. [30]
    There is also the right to privacy and not to have NT’s reputation unlawfully attacked, and there will be personal and sensitive information relating to him that will be shared with others as a result of this appointment. There is also NT’s right to be treated with humanity and with respect as a person, under section 30, because the Tribunal is appointing a guardian to give informed consent or withhold consent for the use of chemical restraint that is a restrictive practice. 
31. [31]
    There is also a right to a fair and public hearing. As I have said, NT was not able to attend today and to tell us in his own words his views and wishes about the application.  However, the Tribunal is satisfied that the notice of the hearing in the application was communicated to NT. 
32. [32]
    In making the appointments, I am also required to interpret all statutory provisions to the extent possible that is consistent with the purpose and in a way that is compatible with human rights. The rights that I have identified are limited by the operation of the GA Act. The GA Act seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. 
33. [33]
    The GA Act also acknowledges the right of a person with impaired capacity to make decisions should be restricted and interfered with to the least possible extent, and the general principles reflect relevant rights of a person with impaired decision-making capacity that must be applied for a person or other entity that performs a function or exercises a power under the GA Act. 
34. [34]
    I have gone through and applied the relevant sections of the GA Act. I have found that NT has impaired capacity for making decisions about his immigration and legal matters and for giving his informed consent or withholding consent for the use of chemical restraint that is a restricted practice. 
35. [35]
    I have found that there is no one else available in NT’s life to step into the role of a decision-maker and the Public Guardian is suitable as a guardian of last resort. I have also found that there is a need for decisions to be made about immigration and legal matters. 
36. [36]
    I am satisfied that the limits imposed on NT’s human rights by the making of the orders are reasonable and justified in accordance with section 13 of the Human Rights Act. 
37. [37]
    I have applied the GA Act, and this includes the general principles. I am also satisfied that the orders are necessary and the least restrictive based on the information before me. 

Orders

38. [38]
    The orders are that:

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

1. Immigration and legal matters relating to NT; and
2. To give informed consent or withhold consent for the use of chemical restraint as that term is defined in section 15E of the Quality of Care Principles 2014 (Cth) (‘QOCP’). 
2. That appointment is conditional upon:

1. Consent being given only for the sole purpose of the safety of NT; and
2. The power to consent being limited to the aged care facility that NT currently resides at; and
3. Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the QOCP with respect to NT. 
3. The appointment remains current until further offered of the tribunal. The appointment is reviewable and is to be reviewed in one (1) year. 

39. [39]
    I also have considered that the following documents are credible, relevant and significant to an issue in the proceeding in accordance with section 103. They are the notice of hearing (H32), the application filed 30 April 2024 (H29), written submissions dated 27 June 2024 (H30), the behaviour recording chart (H31), the Tribunal Decision dated 18 May 2021 (H28), the clarification of purpose of medication (MED5), the Statement of Choices document and the written advocacy submission dated 14 January 2025. I have also considered the other medical documents, MED1 to MED6, inclusive. I have already referred to the relevant medical reports that I have accepted today, in particular the report of Dr Henry Douglas, and that report is dated the 20 April 2024.