DBD[2023] QCATA 160

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from a decision of the Tribunal to appoint the Public Guardian as guardian for DBD’s health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility where DBD resides.^[1]
2. [2]
   The Tribunal had considered s 12 of the Guardianship and Administration Act 2000 (Qld) (GA Act) that gives the Tribunal the power to appoint a guardian or administrator to make certain decisions for a person referred to as the adult. Section 12(1) contains relevant criteria necessary for the appointment of a guardian or administrator.
3. [3]
   The Public Guardian now applies to the Appeal Tribunal for an order to set aside the Tribunal’s decision dated 28 June 2022 and to substitute its own decision, including that there is no need for the appointment of a guardian.^[2]
4. [4]
   The Public Guardian identifies two grounds of appeal in the application for leave to appeal or appeal that are said to contain errors of law for which leave to appeal is not required. The grounds of appeal are now set out below:

   1. Ground 1: The Tribunal has made an error of law in making orders that ‘health care’ as defined in Schedule 2 of the GA Act includes environmental restraint and/or chemical restraint in a residential aged care facility; and
   2. Ground 2: The Tribunal did not correctly apply the criteria of s 12(1)(b) and (c) of the GA Act when making the guardianship appointment.
5. [5]
   An appeal on a question of law does not require leave and is dealt with under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). If the Appeal Tribunal finds error in the Tribunal’s decision below on a question of law, it may set aside the decision. In doing so, the Appeal Tribunal may either substitute its own decision or remit the matter to the Tribunal which made the appealed decision for further consideration.^[3] However, the Appeal Tribunal will only be in a position to substitute its own decision if the determination of the question of law is capable of resolving the whole matter in the appellant’s favour.^[4]

Do the grounds of appeal raise a question of law?

6. [6]
   In the hearing below, the Tribunal was required to consider relevant evidence about DBD’s personal, health care and financial matters, whether there was a need for a decision in relation to the matter and, amongst other things, the existence of any informal support network for DBD, in order to be satisfied that the necessary criteria under s 12(1) of the GA Act has been met and a guardian should be appointed for DBD. 
7. [7]
   Ground 1 of the appeal raises a question about the statutory construction of s 12 and whether the power to appoint a guardian for health care matters, as that term is defined under s 5, Schedule 2 of the GA Act, includes decisions about environmental restraint and/or chemical restraint. Ground 2 raises questions about whether the Tribunal correctly applied the necessary criteria of s 12(1) of the GA Act to the facts as found when appointing a guardian.
8. [8]
   The question of whether facts as found answer a statutory description or satisfy statutory criteria will very frequently raise a question of law.^[5] We are satisfied that, properly framed, both grounds of appeal raise a question of law about the interpretation and application of relevant criteria under s 12(1) of the GA Act.^[6] Leave to appeal is not required.

What is the power to appoint a guardian under the GA Act?

9. [9]
   Section 12 of the GA Act provides that the Tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the Tribunal is satisfied as to certain requirements as set under subsection (1). Section 12(1) of the GA Act is now set out below (emphasis added):

12 Appointment

(1) The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied-

(a) the adult has impaired capacity for the matter; and

(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

(c) without an appointment-

(i) the adult’s needs will not be adequately met; or

(ii) the adult’s interests will not be adequately protected.

…

10. [10]
    The use of the word ‘may’ as it appears in s 12(1) of the GA Act indicates that the power to appoint a guardian or administrator for an adult may be exercised or not exercised at discretion.^[7] The matters referred to in s 12(1) must be considered in the context of the GA Act that acknowledges a number of rights for the adult including and amongst other things, the right of an adult with impaired capacity to make decisions should be restricted and interfered with, to the least possible extent.^[8] As provided under s 6, the purpose of 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.
11. [11]
    In the proceeding below, the Tribunal exercised its powers under s 12 of the GA Act to appoint a guardian for health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility where DBD resides. It is noncontroversial in the present appeal before us that the terms ‘environmental restraint’ and ‘chemical restraint’ are more generally known to be restrictive practices as defined under relevant Queensland and Commonwealth legislation.^[9] In Queensland, restrictive practices are certain practices used to respond to the behaviour of a person with an intellectual or cognitive disability that causes harm to the person or others.^[10]
12. [12]
    Restrictive practices and positive behaviour support are regulated in the State of Queensland under the GA Act (chapter 5B), the Disability Services Act 2006 (Qld) (Disability Services Act) and the Disability Services Regulation 2017 (Qld) (Disability Services Regulation). Importantly, the Human Rights Act 2019 (Qld) (Human Rights Act) also applies. There is, however, Commonwealth legislation that may apply in certain circumstances and settings where there are restrictive practices in use. For example, a restrictive practice in relation to a care recipient as provided under the Aged Care Act 1997 (Cth) (Aged Care Act) for which the Quality of Care Principles 2014 (Cth) (QOCP) apply.^[11] 
13. [13]
    In the present appeal, it is common ground that DBD resides in an aged care setting and is a care recipient as provided under the Aged Care Act. As discussed further below, the GA Act, the Disability Services Act and the Disability Services Regulation as it relates to the approval and use of restrictive practices in Queensland does not apply in an aged care setting. 

Does chapter 5B (restrictive practices) of the GA Act apply in an aged care setting in Queensland?

14. [14]
    Chapter 5B of the GA Act contains relevant provisions for the Tribunal’s approval of containment or seclusion with or without another restrictive practice and, amongst other things, the Tribunal’s power to appoint a guardian for a restrictive practice matter. Section 12 does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.^[12]
15. [15]
    The Disability Services Act, defines ‘restrictive practice’ as practices used to respond to the behaviour of an adult with an intellectual or cognitive disability that causes harm to the adult or others- containing or secluding the adult, using chemical, mechanical, or physical restraint on the adult, and restricting access of the adult.^[13]
16. [16]
    Importantly, as provided under s 80R of the GA Act, chapter 5B applies to an adult with an intellectual or cognitive disability who receives disability services from a relevant service provider.^[14] For the meaning of ‘a relevant service provider’, the GA Act refers to s 140(3) of the Disability Services Act. Section 140(1) identifies who is a relevant service provider for which the relevant part of the Disability Services Act applies.^[15] Further, the relevant part of the Disability Services Act as it relates to restrictive practices does not apply in relation to a service provider prescribed by regulation; or to the extent the service provider is providing disability services or NDIS supports or services prescribed by regulation.^[16] Relevantly, s 12 of the Disability Services Regulation makes clear that a service provider that is an approved provider under the Aged Care Quality and Safety Commission Act 2018 (Cth) (Aged Care Quality and Safety Commission Act) is prescribed in certain circumstances for the purposes of s 140(2) such that the relevant part of the Act does not apply.^[17]
17. [17]
    Properly construed, the GA Act, the Disability Services Act and Disability Services Regulation make clear that chapter 5B (restrictive practices) does not apply in relation to a service provider that is an approved provider under the Aged Care Quality and Safety Commission Act where the adult is approved as a recipient of residential care under the Aged Care Act.^[18]
18. [18]
    Put simply, a person who is receiving services in an approved aged care facility in which restrictive practices are in use will not be caught by chapter 5B. The QOCP will, however, apply if there are restrictive practices in use and the person is approved as a recipient of residential care under the Aged Care Act who is unable to provide their consent.^[19] Further, the Aged Care Act and QOCP require an aged care provider to obtain the consent of a substitute decision-maker under the law of the State or Territory where the adult resides before restrictive practices can be used on a recipient of aged care who does not have the capacity to give their consent to its use.^[20]
19. [19]
    It is important to pause here to highlight an important feature of the present appeal before us. That is, at the time of the hearing below, the Tribunal did not have the benefit of a published decision in an unrelated guardianship proceeding known as NJ’s case.^[21]
20. [20]
    In, NJ, The Honourable Justice Mellifont, President of QCAT, held that the Tribunal’s power to appoint a guardian under s 12 of the GA Act, subject to certain conditions being in place, did extend to an adult who is subject to restrictive practices said to be used in an aged care setting and is therefore subject to the QOCP.^[22] As discussed further below, NJ’s case involved applications for the appointment of a guardian for a person (namely the adult) who is subject to restrictive practices in an aged care setting and considered whether the Tribunal has the power to appoint a guardian under s 12 of the GA Act.

NJ’ s case and the power to appoint a guardian under s 12 of the GA Act for restrictive practices for a person in aged care

21. [21]
    In NJ’s case, the Tribunal determined that the power to appoint a guardian under s 12 of the GA Act may include personal matters more broadly that concern the welfare of the adult and therefore the adult’s care, to give informed consent or withhold such consent for the use of certain restraints as that term is defined under the QOCP subject to certain conditions.^[23]
22. [22]
    In NJ, the Tribunal was required to determine an application for the appointment of a guardian under s 12 and an application for the appointment of a guardian for restrictive practices under chapter 5B. The Tribunal identified and answered a preliminary jurisdictional question of whether the Tribunal can make such an appointment. The Tribunal referred to the legislation that was introduced by the Commonwealth effective from 1 July 2021 and said that prior to that, there was no need for the Tribunal to consider appointing a guardian for giving consent to a restrictive practice for an adult with impaired capacity in aged care.^[24] The Tribunal said that amendments made from 1 July 2021 to the Aged Care Act and the QOCP made it clear for the first time that informed consent to restrictive practices must be given by a restrictive practices substituted decision-maker under the law of the State or Territory where the adult resides.^[25]
23. [23]
    In answering the question of whether the Tribunal can appoint a guardian under s 12 of the GA Act for a ‘personal matter’, the Tribunal in NJ considered the drafting history of s 12 and the context of s 12. The Tribunal said that to be a matter under s 12, the matter must have ‘a direct, or indirect, connection with the adult’s care’, which includes the adult’s welfare.^[26] The Tribunal found that the restrictive practice is necessary for the safety of NJ. As such, there was a direct relationship between the matter and the welfare of NJ and more generally came within the power of s 12. Importantly, the Tribunal did consider whether the restrictive practice in respect of NJ might be ‘health care’ and said that it was not satisfied that it is ‘care or treatment of, or a service of a procedure…to diagnose, maintain or treat’ NJ’s physical or mental condition.^[27] The relevant paragraphs from the Tribunal’s reasons in NJ are set out below (footnotes omitted):

[47] We have considered the drafting history of s 12, and the context of s 12. Having done so, we have not identified anything that would point to a contrary indication. As such, to be a matter under s 12, the matter must have a direct, or indirect, connection with the adult’s care, which, as we have set out above, includes the adult’s welfare.

[48] “Welfare” is not defined in the GAA. The Oxford Dictionary defines welfare as “the general health, happiness and safety of a person” and the Macquarie Dictionary defines welfare as “good or satisfactory existence”.

[49] The evidence is clear that the restrictive practice is necessary for the safety of NJ.

[50] As such, there is a direct relationship between the matter and the welfare of NJ, and is a matter “relating” to her welfare, and therefore to her “care”, and thus within power of s 12.

24. [24]
    And, in relation to whether the restrictive practice in respect of NJ might be health care, the Tribunal said (footnotes omitted):

[63] For completeness, we should observe that we did consider whether the restrictive practice in respect of NJ might be “health care”.

[64] None of the parties favoured this position, and we are not otherwise satisfied that precluding NJ from leaving the secure area at will meets the definition of health care. That is, we are not satisfied that it “is care or treatment of, or a service of a procedure… to diagnose, maintain or treat” NJ’s physical or mental condition.

[65] NJ’s dementia cannot be improved and there is no evidence that NJ’s living environment in any way affects the progression (or non-progression) of dementia. The current limitations to the areas she can access were recommended by her health professionals to keep her safe due to her wandering. There is no evidence that it will affect any change to the wandering, a symptom of her dementia.

25. [25]
    In NJ, the Tribunal considered whether chapter 5B applies and said that NJ does not receive services from a relevant service provider, and she is in aged care.^[28] Further, the Tribunal found it had no jurisdiction to appoint a guardian for restrictive practices or make any other decision under chapter 5B concerning NJ.^[29]
26. [26]
    The Tribunal in NJ was satisfied that an appointment under s 12 of the GA Act should be made and that the imposition of certain conditions such as, that the Public Guardian (appointed as the guardian) be satisfied of compliance with s 15FA of the QOCP with respect to NJ is desirable and necessary.^[30] Ultimately, the Tribunal having exercised the power under s 12 of the GA Act and having applied the Human Rights Act, made final orders dismissing the application for the appointment of a guardian for restrictive practices under chapter 5B of the GA Act. The Tribunal appointed the Public Guardian as a guardian pursuant to s 12 of the GA Act for NJ for certain personal matters with conditions including and amongst other things, to give informed consent or withhold such consent for the use of ‘environmental restraint’ as that term is defined in s 15E of the QOCP.

Grounds 1 and 2: Error in the Tribunal’s decision to appoint a guardian for health care including environmental restraint and/or chemical restraint in an aged care setting under s 12 of the GA Act

27. [27]
    For reasons further explained below, it is convenient for this Appeal Tribunal to consider both grounds of appeal together. As reflected in the Public Guardian’s written submissions, it is contended that there are two errors of law in the Tribunal’s decision to appoint a guardian under s 12 of the GA Act. First, for restrictive practices in the context of aged care do not fall within the definition of ‘health matter’ or ‘health care’ under Schedule 2. Secondly, the Tribunal did not correctly apply the criteria of s 12(1)(b) and (c) of the GA Act when making the guardianship appointment.^[31]
28. [28]
    The transcript of the hearing below makes clear that the Tribunal considered s 12 of the GA Act and identified the relevant criteria under subsection 1 for the appointment of a guardian or administrator. The Tribunal addressed the issue of DBD’s capacity to make decisions and was satisfied that DBD would not be able to demonstrate an understanding of all of the issues involved in making the more complex decisions in her life due to a cognitive impairment associated with DBD’s Alzheimer’s Disease.^[32] The Tribunal considered the issue of need for a decision in relation to DBD’s personal matters and accepted that DBD is a permanent resident in an aged care facility and found that there is unlikely to be any accommodation decisions required in the future.^[33]
29. [29]
    As reflected in the transcript, the representative from the aged care facility submitted in the hearing below that it had limited contact with a person referred to as DBD’s appointed attorney for financial matters to make any relevant decisions about DBD’s matters including her health care. The transcript shows that, in considering DBD’s health care matters, the Tribunal identified the Public Guardian as being available to act as the statutory health attorney for DBD. The Tribunal acknowledged there may be a need for decision-making about health care concerns.^[34] The transcript shows that the representative for the facility submitted in the hearing below that DBD lived in an environment requiring environmental restraint and then, at times has required a chemical restraint.^[35] The representative for the facility went on to say, however, that, as reflected in transcript, ‘those medications have been ceased at this particular time’ and said that DBD does not ‘live under…the definition of a chemical restraint’.^[36]
30. [30]
    The Tribunal’s reasons for appointing a guardian under s 12 of the GA Act to make health care decisions that include decisions about restraints, be it environmental restraint or chemical restraint was on the basis that there would be a need for some ongoing consent to be given in relation to these, as reflected in the transcript, ‘important matters’.^[37] The Tribunal was satisfied that there is a need for a limited authority of a guardian, in order to make health care decisions that include decisions about restraints, be it environmental restraint or chemical restraint.^[38]
31. [31]
    In the present appeal, in appointing a guardian for health care including decisions on environmental restraint, we consider that the Tribunal has failed to properly construe s 12 of the GA Act and the meaning of health care that is more broadly defined under the GA Act as ‘…care or treatment of, or a service or a procedure for, the adult to diagnose, maintain, or treat the adult’s physical or mental condition…’^[39]
32. [32]
    The Transcript makes clear that DBD is residing in a secure wing of the residential facility and is subject to environmental restraint. A reasonable inference to be drawn from the evidence is that DBD’s free exit from the facility is restricted.^[40] Consistent with NJ, the restraint namely environmental restraint, does not meet the definition of health care as defined under the GA Act because it is not ‘care or treatment of, or a service of a procedure…to diagnose, maintain or treat’ DBD’s physical or mental condition. Further, DBD’s medication referred to as chemical restraint in the hearing below would not be health care unless it was prescribed medication to maintain or treat DBD’s physical or mental condition.
33. [33]
    As contended in Ground 2 of the appeal, the Tribunal below did not properly consider the requirements of s 12 of the GA Act in determining whether there was a need for decisions to be made about the use of medication for DBD identified by the Tribunal in the hearing below as chemical restraint.
34. [34]
    The transcript shows that the Tribunal asked a number of questions in the hearing below about the use of medication for DBD that was referred to as chemical restraint.^[41] The evidence given by the representative for the aged care facility in the hearing below was that consent for DBD to move into her current environment requiring environmental restraint was previously assigned by DBD’s guardian (meaning the person identified as DBD’s attorney) but that was some time ago and that the restraint needs to be reviewed on a regular basis. In relation to medication prescribed, however, that was identified by the Tribunal in the hearing as chemical restraint, the representative for the aged care facility made clear that the medications have been ceased.^[42]
35. [35]
    In our view, the Tribunal has fallen into error by appointing a guardian under s 12 of the GA Act for chemical restraint that was not only found to be health care as that term is defined under the GA Act, but also in circumstances where there was no clear evidence as to need for a decision to be made, the medication having been ceased.
36. [36]
    Because we have found an error in the Tribunal’s decision below, as contended in Grounds 1 and 2 of the appeal, we do not consider it necessary to address the balance of the Public Guardian’s written submissions filed in support of the appeal. The balance of the Public Guardian’s submissions refer more generally to the meaning and interpretation of ‘health care’ under the GA Act and the statutory framework as it applies to restrictive practice matters used in an aged care setting in Queensland. As discussed above, there is now precedent in Queensland in NJ, for the Tribunal to appoint a guardian under s 12 of the GA Act, with appropriate conditions in place, for a person who is a recipient of aged care for which restrictive practices are in use, the QOCP apply, and the person is unable to give their consent. 
37. [37]
    We agree with the submissions of the Public Advocate and ADA Law as representative for DBD that NJ should be followed by the Appeal Tribunal.^[43] In the present appeal, we consider that NJ is instructive in determining the grounds of appeal. NJ answers questions about the construction of s 12 of the GA Act and whether the power to appoint a guardian for a matter under s 12 of the GA Act includes a guardian for a person who falls outside the ambit of chapter 5B in circumstances where restrictive practices are used in an aged care setting, the QOCP apply, and the person is unable to provide their consent.
38. [38]
    We also agree with the approach taken in NJ that such matters being environmental restraint do not meet the definition of health care as defined under the GA Act.^[44]
39. [39]
    For completeness, we have considered the Public Guardian’s written submissions advanced outside of the contentions made in support of the grounds of appeal, that guardianship appointment authorising the use of restrictive practices, without the appointment of a representative for DBD, is not compatible with DBD’s right to recognition and equality before the law as provided under s 15 of the Human Rights Act.^[45]
40. [40]
    The power to appoint a representative is contained in s 125 of the GA Act. Whether an appointment under s 125 should be made involves the exercise of a discretion to be made judicially having considered relevant criteria as set out under s 125 and the relevant circumstances of the matter in order to be satisfied that the appointment is necessary. Further, the question of whether a s 125 appointment should be made in every matter involving an application for the appointment of a guardian for a person in an aged care setting in which restrictive practices are said to be in use and the person is unable to provide their consent, is a decision to be made by the Tribunal on a case by case basis.
41. [41]
    In the present matter, we do not consider that the Tribunal below failed to apply the Human Rights Act. The transcript of the proceeding below makes clear that the Tribunal did consider DBD’s relevant human rights as required by s 48 and more generally, whether any limits imposed by the orders are reasonable and justifiable in accordance with s 13 of the Human Rights Act.
42. [42]
    As discussed above, there is an error in the Tribunal’s decision below to appoint a guardian for DBD’s health care matters including decisions on environmental restraint and/or chemical restraint in the residential aged care facility.^[46]
43. [43]
    The appeal is allowed.

Disposition of the appeal

44. [44]
    We have found error in the Tribunal’s decision to appoint a guardian under s 12 of the GA Act for health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility where DBD resides. Further, in appointing a guardian to make decisions about chemical restraint, the Tribunal failed to properly consider the requirements of s 12(1) of the GA Act and whether the appointment was necessary in circumstances where there was evidence that the medication for DBD identified as a chemical restraint was no longer in use.
45. [45]
    In considering the grounds of appeal, we have followed NJ. NJ is authority for the appointment of a guardian with conditions in place under s 12 of the GA Act for a person in aged care who falls outside chapter 5B, where certain practices including restraint are necessary. This includes, for example and as was found in NJ, where the restrictive practice is necessary for the safety of the person, and the person is unable to provide consent. As discussed in NJ, it is open to the Tribunal to be satisfied based on the evidence as to whether there is a ‘direct relationship between the matter and the welfare of the adult and there is a matter relating to the adult’s welfare and therefore to their care’, and thus within the power of s 12.^[47]
46. [46]
    In allowing the appeal, it is necessary to proceed under s 146(c) of the QCAT Act to set aside the Tribunal’s decision and return the matter to a differently constituted Tribunal for reconsideration with the hearing of additional evidence as referred to in a number of written submissions filed in support of the appeal. Relevantly, the written submissions make clear that since the Tribunal’s hearing at first instance, additional information has been provided by the residential aged care facility to the Public Advocate and ADA Law as DBD’s representative, about DBD’s personal matters. This new information about DBD’s personal matters is fresh evidence for which leave to rely upon it in the current appeal is required and no application for leave to rely upon fresh evidence has been filed in the present appeal.^[48] The new information about DBD’s personal matters is clearly relevant to the criteria under s 12(1) of the GA Act and is information that can be properly considered in the rehearing of the matter.
47. [47]
    The appeal in the present matter is allowed and in proceeding under s 146(c) of the QCAT Act, the Tribunal’s decision dated 28 June 2022 appointing the Public Guardian for the following personal matter is set aside:

    1. Health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility.
48. [48]
    In allowing the appeal, we consider it necessary to remit the application for the appointment of a guardian back to the Tribunal for reconsideration by a differently constituted Tribunal with the hearing of additional evidence. Such evidence will include the additional information provided by the residential aged care facility to the Public Advocate and ADA Law as DBD’s representative. Further, prior to the hearing, the Tribunal may consider whether it is necessary to appoint a representative for DBD under s 125 of the GA Act to represent DBD’s views, wishes and interests in the hearing. We order accordingly.