KDV[2025] QCAT 256

REASONS FOR DECISION

1. [1]
   Senior Member Browne: On 28 November 2024, an application was filed by DE, who is a representative from Eventide, a residential aged care facility, proposing that the Office of the Public Guardian be appointed as a guardian to make decisions about KDV’s personal matters, including his restrictive practice matters.
2. [2]
   The Tribunal, in proceeding, is satisfied that notice of hearing has been given, having received a certificate of advice of hearing in relation to the notice being given to KDV. Also, in attendance at the hearing by remote conferencing was TU, who was seeking permission from the Tribunal to represent the applicant, for the application for the appointment of a guardian, on the basis that DE was not available to speak as the applicant. The Tribunal was satisfied that leave should be given to TU who is an enrolled nurse with Eventide, the aged care facility where KDV resides.
3. [3]
   In allowing TU to appear as the applicant in the proceeding, new information was provided to the Tribunal in support of the application, being a behaviour support plan indicating that the current review date in relation to the plan for KDV is dated 3 March 2026.
4. [4]
   The application comes about because Eventide, being the aged care facility where KDV resides, has in use practices or interventions that are said to be necessary to ensure KDV is provided with adequate care and that he is safe in his current accommodation setting. The evidence tells us that KDV is a 78-year-old man who has an intellectual disability and cognitive impairment as well as a longstanding history of mental illness, namely schizophrenia, and healthcare needs. KDV has been residing in the Eventide aged care facility since 6 June 2017. This is important because this means KDV is a recipient of aged care.
5. [5]
   A restrictive practice is known, in Queensland under the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’) and Disability Services Act 2006 (Qld), as a practice or intervention that is used for a relevant person who has an acquired brain injury or an intellectual disability by a relevant service provider in response to behaviours that cause harm to the person or others. I mention that because the Disability Services Regulation 2017 (Qld) that would ordinarily apply for the use of restrictive practices by a relevant service provider effectively carves out the application of chapter 5B because the service provider is a provider of aged care. Therefore, the Eventide aged care facility is required to apply the Quality of Care Principles 2014 (Cth) (‘Quality of Care Principles’) that sits within the Aged Care Act 1997 (Cth) (‘Aged Care Act’).
6. [6]
   The Quality of Care Principles provide that there are practices or interventions that are restrictive practices. This includes, amongst other things, environmental restraint which is defined as a practice or intervention that restricts or that involves restricting a care recipient’s free access to all parts of the care recipient’s environment, including items and activities for the primary purpose of influencing the care recipient’s behaviour.
7. [7]
   The Aged Care Act that applies for a provider of aged care, such as Eventide, also provides that a restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient. In order for an approved provider of care to use a restrictive practice it must comply with the Commonwealth legislation, in particular the Quality of Care Principles. Importantly, the recipient of care is required to give their informed consent to the use of the restrictive practice and how it is to be used. If the care recipient lacks the capacity to give that consent, then the law requires a restrictive practice substitute decision-maker for the restrictive practice to provide the informed consent. I will pause here to say that this is usually given based on certain conditions.
8. [8]
   Relevant to the laws in Queensland is an earlier decision made by the Tribunal in the case of NJ [2022] QCAT 283. That decision is instructive and, more importantly, is authority to support the Tribunal having the jurisdiction to consider an application under s 12 of the GAA Act for the appointment of a guardian to give informed consent for the use of restrictive practices as that term is defined under the Quality of Care Principles.
9. [9]
   The decision of NJ, in proceeding under s 12, considered the meaning of “personal matter” that was to include welfare as defined under the Oxford Dictionary as “the general health, happiness and safety of a person” and the Macquarie Dictionary definition as “good or satisfactory existence”. Further, NJ’s case considered, in determining whether a guardian should be appointed to give informed consent for the use of restrictive practices under the Commonwealth legislation, whether the restrictive practice is necessary for the safety of the adult, KDV, and also whether the evidence establishes a direct relationship between the matter and the welfare of the adult and that there is a matter relating to the adult’s welfare and therefore to the adult’s care and thus within the power of s 12.
10. [10]
    Here, the requirements under s 12 of the GAA Act, that must be satisfied before the Tribunal can exercise its discretion to appoint a guardian, have not been met. The reason for this is because the evidence does not demonstrate that there is a restrictive practice in use that would be caught by the Quality of Care Principles and that there is a restrictive practice in use that is for the primary purpose of influencing the care recipient’s behaviour.
11. [11]
    The Tribunal accepts the information contained in the recent positive behaviour support plan and in various medical reports, including the report of Dr AB dated 5 July 2024, the notes of Dr LM reported in respect of a longstanding mental illness as at 22 May 2024, and the oral evidence given in the hearing by TU.
12. [12]
    The evidence demonstrates that due to the longstanding mental illness and diagnosed schizophrenia, it is necessary for KDV to have regular access to a psychiatrist to review and prescribe his medication for the treatment of his diagnosed mental illness.  KDV also has decreased mobility and requires care and assistance in all his activities of daily living. He also has been diagnosed with polydipsia, which is an inability to determine when one has had enough water to drink.
13. [13]
    Presently, the need for high care and to have access to a psychiatrist for the purpose of reviewing medication is in relation to a diagnosed mental illness. This service is being provided in what is referred to as a “psycho geriatric specific unit”. Within this accommodation setting where KDV resides, there is regular access to a psychiatrist.  All services and care are provided, and KDV is able to exit the secure unit freely with the assistance of another person. But most importantly, the Tribunal is satisfied that the primary reason for KDV residing in the psycho geriatric specific unit is in order to receive the necessary care, treatment and access to a regular psychiatrist, and this is due to KDV’s diagnosed schizophrenia as well as his cognitive impairment and high care needs.
14. [14]
    The requirements of s 12 have not been met because the Tribunal is not satisfied on the evidence that there is a matter for the purposes of s 12 for which there is a need for decisions to be made about KDV’s restrictive practice matters as that term is defined under the Quality of Care Principles. It is also important to note that prior to the application being considered, there was, in use restricting access to water due to KDV’s diagnosed condition of polydipsia.
15. [15]
    However, the Tribunal was informed that this restrictive practice, that would be environmental restraint for the purposes of the Quality of Care Principles, is no longer in use. Should there be a change in KDV’s circumstances, an application can be filed at any time in the Tribunal together with supporting material. In relation to the accommodation setting where KDV resides, there is no proposed change to that accommodation, and healthcare decisions can be made by the Public Guardian as the statutory health attorney as guardian of last resort.
16. [16]
    It is therefore necessary and appropriate for the Tribunal, proceeding under s 47 of Queensland Civil and Administrative Tribunal Act 2009 (Qld), to dismiss the application filed for the appointment of a guardian, and in arriving at that decision, the Tribunal has also considered the GAA Act and the general principles and the requirement that the Tribunal make the least restrictive order in relation to KDV’s areas of decision-making.
17. [17]
    The Tribunal has also considered the Human Rights Act 2019 (Qld), and, indeed, there are no human rights that are limited and engaged in relation to dismissing the application.

18. Orders

18. [18]
    The orders will be that leave is given to TU to represent the applicant for the application for the appointment of a guardian filed on 28 November 2024, and the application by TU for the appointment of a guardian for KDV is dismissed.
19. [19]
    The following documents are considered by the Tribunal to be credible, relevant and significant to an issue in the proceeding in accordance with s 103 of the GAA Act: the notice of hearing (H37), the certificate of advice of hearing, the behaviour support plan dated 3 March 2024 (H036) and reviewed more recently on 3 March 2025 (H038), the application (H035), the medical reports, in particular the health professional report of Dr AB dated 5 July 2024, and the hospital records and the report of Dr N (MED002).