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PS v The Public Guardian[2017] QCATA 54

PS v The Public Guardian[2017] QCATA 54

CITATION:

PS v The Public Guardian [2017] QCATA 54

PARTIES:

PS

(Applicant)

 

v

 

The Public Guardian

(Respondent)

APPLICATION NUMBER:

APL037-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Professor Ashman, Member

DELIVERED ON:

8 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal is dismissed.

CATCHWORDS:

APPEAL – MENTAL HEALTH – GUARDIANS, COMMITTEE, ADMINISTRATORS, MANAGERS AND RECEIVERS – APPOINTMENT – where Public Guardian appointed for adult – where Public Guardian restricted contact with previous long term carer – where long term carer challenged appointment of Public Guardian and contact decision – where tribunal dismissed carer’s application – whether tribunal erred – whether grounds for appeal

Guardianship and Administration Act 2000 (Qld) s 80

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

CGB (No 2) [2016] QCAT 089

SS v Public Guardian [2015] QCATA 142

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    The adult CGB was the subject of two matters PS brought to the Tribunal at a hearing on 16 December 2015. She applied to be joined as an active party in the proceedings and sought directions to be given to CGB’s guardian because she alleged that the aged care facility in which he resided was providing inadequate care.
  2. [2]
    This brings us to the hearing of 16 December 2015. The Tribunal dismissed both applications. In the first matter, the Tribunal found that PS was already an active party as she was the applicant. In the second matter, the Tribunal established that PS sought contact with CGB as his carer and having taken extensive evidence from PS, a representative of the Public Guardian, the Separate Representative appointed for CGB, and CGB’s administrator, the second application was dismissed.
  3. [3]
    PS wants to appeal the second decision and, as an interested party, is entitled to do so.[1] She states that the Tribunal did not give sufficient weight to her years of caring for CGB and that she was overwhelmed by other legal representatives attending the hearing and could not give reasons why she should have been joined as an active party or why directions should be given to the Public Guardian in regard to contact with CGB. She seeks the Tribunal’s order be set aside and directions given to the Public Guardian to allow her contact with CGB.
  4. [4]
    PS says the tribunal did not give enough weight to her years of experience in caring for CGB. She says that she was overwhelmed by the tribunal hearing and, therefore, was not able to put her case to the tribunal. She has referred the appeal tribunal to SS v Public Guardian[2] in support of her application for leave to appeal.

Background

  1. [5]
    A brief history is necessary to put PS’s present appeal application into context.
  2. [6]
    CGB is a quadriplegic as a result of his involvement in a motor vehicle accident when he was 38 years old. He is now 82 years old and has been diagnosed with frontal lobe dementia. In October 2014, the Tribunal considered his capacity for decision-making in personal and financial matters and the Public Guardian and the Public Trustee of Queensland were appointed subsequently as CGB’s guardian and administrator respectively. Relevant to the present matter before the Tribunal is the fact that the Public Guardian was appointed at that time for certain matters and in an April 2015 hearing, the Public Guardian’s role was expanded to include decisions about health care, accommodation, the provision of services, with whom CGB has contact or visits, and legal matters unrelated to finances or property.
  3. [7]
    Decisions by the Public Guardian facilitated CGB’s transition to an aged care facility and PS’s contact with him was initially limited and subsequently refused.

Did the tribunal give sufficient weight to PS’s years of experience in caring for CGB?

  1. [8]
    The oral evidence taken on 16 December 2015 focussed on two issues: PS’s concerns about CGB’s health care, and the limitations that had been placed on PS’s access to him due to the perceived negative effects arising from her contact with him.
  2. [9]
    The general thrust of PS’s evidence was as follows: she had managed CGB’s high care needs for as long as she has known him; she believed that his current confusion was a consequence of his current caring situation; and, under her care, he would be much improved because she knew what was best for him.
  3. [10]
    PS did not, however, explain how the care she provided for CGB over many years would enable her to manage his present health care needs in the context of his physical and medical vulnerability and frontal lobe dementia.[3] Simply, she told the tribunal that she knows best how to care for him.
  4. [11]
    The representative of the Public Guardian and CGB’s Separate Representative were adamant that CGB has very high health care needs, was residing in a situation where his needs were being met by professional staff according to a health care plan implemented by the facility which was based upon health professionals’ recommendations, and that PS’s involvement was detrimental to CGB’s well-being.
  5. [12]
    In the reasons for decision given on 4 January 2016,[4] the tribunal reports comprehensively on the written and oral evidence. It acknowledges PS’s assertion that she was CGB’s carer for 21 years and that she resided in a de facto relationship with him for several of those years. It summarised PS’s concerns about the inadequacy of CGB’s heath care[5] and noted:

When given the opportunity to expand upon her concerns at the hearing, she said that she was worried about [CGB] and that he does not belong in a ‘nursing home’.[6]

  1. [13]
    The tribunal stated that PS provided no plan for CGB’s care or any professional evidence to support her assertions and opinions that his present arrangements were inadequate or unsuitable.[7] Furthermore, the tribunal stated:

Whatever their relationship was in the past, at this point in time the evidence does not suggest that the relationship with [PS] is currently a supportive one for [CGB]. On the contrary, the overwhelming evidence is to the effect that it is unsettling and disturbing for [CGB].[8]

  1. [14]
    PS submitted a letter from a medical practitioner who states that (s)he has known PS and CGB for 20 years and that PS had been his sole carer for at least 23 years, having taken care of his personal and health care until his transition into an aged care facility. An affidavit was also submitted from Ms Luis Kobylski who has known PS for 35 years and CGB for approximately 24 years. Neither of these documents is descriptive of the quality or nature of the care provided by PS but they do support her contention that she was the sole care provider.
  2. [15]
    The tribunal recognised PS’s long-term relationship with CGB. The evidence taken at that time did not enquire into the longevity of that relationship or PS’s ability to provide care for him up to the time he was moved to an aged care facility. PS did not assert the merits of her long-term caring relationship in the context of CGB’s present condition other than her contention that she knew what was best for him.[9] The primary concern of the tribunal, shared by the Public Guardian and the Separate Representative, was PS’s ability to be the carer and decision-maker in health care matters at a time when CGB is in a palliative care regime, grossly affected by frontal lobe dementia and his deteriorating physical/medical condition.
  3. [16]
    In making its decision, the tribunal considered CGB’s current high care nursing needs, gave an appropriate weight to PS’s caring experience, and the likelihood that directions to the Public Guardian to vary its current decisions, would not be in CGB’s best interest. There was no error by the Tribunal.

Did the involvement of legal representatives inhibit PS’s ability to support her case?

  1. [17]
    It is evident from the transcript of the hearing that PS had difficulty expressing herself fluently. Throughout the hearing PS appears to have had some difficulty expressing herself in a reasoned way.
  2. [18]
    However, it is also evident that the tribunal patiently heard PS’s concerns about CGB’s health care. The member was diligent and patient in providing PS with the opportunity to present her case, to respond to the evidence presented by others, and to present evidence in support of her assertions. For example, the tribunal took a brief adjournment to enable PS to speak with her son and a friend.[10] It is noted that the tribunal engaged with PS following the presentation by other parties, seeking her responses to issues and statements with which she disagreed.
  3. [19]
    The transcript shows that PS was given many opportunities to respond to the evidence given by the representative of the Public Guardian, CGB’s Separate Representative appointed by the Tribunal, CGB’s administrator, and to the tribunal’s questions.
  4. [20]
    There is no evidence to support the assertion that PS did not have an opportunity to present her submissions to the tribunal, or that her submissions were deficient. There is no merit in this ground of appeal.

Does SS v The Public Guardian affect the tribunal’s decision?

  1. [21]
    SS v Public Guardian is similar to PS’s situation in that it involved an application by the adult’s long term carer because of the carer’s concerns about the adult’s accommodation, and the Public Guardian’s decision to implement a contact plan. But the similarity ends there. The appeal tribunal set aside the tribunal’s decision because it found that the reasons for decision were deficient. No such criticism can be levelled in this case. The tribunal’s decision covered all the issues before the tribunal, the evidence presented to it and it discloses careful and comprehensive reasons for the decision.
  2. [22]
    The tribunal was not in error.
  3. [23]
    The application for appeal is dismissed.

 

Footnotes

[1] Guardianship and Administration Act 2000 (Qld), s 80.

[2]  [2015] QCATA 142.

[3]  PS acknowledged that CGB has frontal lobe dementia at transcript page 1-34, line 44.

[4] CGB (No 2) [2016] QCAT 089.

[5]  Ibid at [13].

[6]  Ibid at [15].

[7]  Ibid at [36].

[8]  Ibid at [74].

[9]  For example, transcript page 1-7, lines 21 – 22, and transcript page 1-24, lines 32 – 34.

[10]  Transcript page f1-26, lines 1 – 10.

Close

Editorial Notes

  • Published Case Name:

    PS v The Public Guardian

  • Shortened Case Name:

    PS v The Public Guardian

  • MNC:

    [2017] QCATA 54

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe, Member Ashman

  • Date:

    08 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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