DBD - [2023] QCATA 160

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DBD [2023] QCATA 160

PARTIES:

In applications about matters concerning DBD

APPLICATION NO/S:

APL254-22

ORIGINATING APPLICATION NO/S:

GAA14089-20; GAA14090-22

MATTER TYPE:

Appeals

DELIVERED ON:

30 November 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo, Presiding
Senior Member Browne

ORDERS:

1.     The appeal is allowed.

2.     The Tribunal’s decision dated 28 June 2022 appointing the Public Guardian as guardian for DBD for the following personal matter is set aside:

(a)     Health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility.

3.     The application for the appointment of a guardian (GAA14090-20) is remitted back to the Tribunal for reconsideration by a differently constituted Tribunal with the hearing of additional evidence.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – where grounds of appeal raise questions about statutory interpretation and application - whether the grounds of appeal raise a question of law – whether leave to appeal is required

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – OTHER MATTERS – where adult resides in a residential aged care facility - where a guardian was appointed for health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility – whether the requirements were met for the making of an appointment - whether there was a need for the appointment to be made

Acts Interpretation Act 1954 (Qld), s 32CA

Aged Care Act 1997 (Cth), s 54-9
Aged Care Quality and Safety Commission Act 2018 (Cth), s 7
Disability Services Act 2006 (Qld), s140, s 144
Disability Services Regulation 2017 (Qld), s 12
Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 12, s 80U, s 80R, s 125, Sch 2
Human Rights Act 2019 (Qld), s 13, s 15, s 48
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Quality of Care Principles 2014 (Cth), s 15E, s 15FA

Ericson v Queensland Building Services Authority [2013] QCA 391

Hope v Bathurst City Council (1980) 144 CLR 1
NJ [2022] QCAT 283
Racing Queensland Limited v Dixon [2013] QCATA 172

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

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]
[1]Ex tempore reasons given for the Tribunal’s decision at the oral hearing on 29 June 2022. The Tribunal also appointed the Public Trustee of Queensland as administrator for DBD for all financial matters overtaking an Enduring Power of Attorney appointing an attorney for DBD’s financial matters.
The Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DBD

Details

AGLC: DBD [2023] QCATA 160
Case: [2023] QCATA 160
Decision Date: 30 November 2023

CaseChat Overview and Summary

In this case, the appellant challenged the decision of the Tribunal to appoint the Public Guardian as the guardian for the health care of DBD, specifically concerning decisions on environmental restraint and/or chemical restraint in a residential aged care facility. The Tribunal's decision was made on 28 June 2022. The respondent, DBD, did not appeal the decision.

The primary legal issue before the court was whether the Tribunal's decision to appoint a guardian for health care, including decisions on environmental restraint and/or chemical restraint in the residential aged care facility, was appropriate. The court had to determine if the requirements for such an appointment were met and whether there was a genuine need for the appointment to be made. Additionally, the court considered whether the grounds of appeal raised questions of law and whether leave to appeal was required.

The court found that the grounds of appeal indeed raised questions of law concerning statutory interpretation and application. The court granted leave to appeal and found that the Tribunal had not sufficiently considered the need for the appointment of a guardian for health care. The court held that the Tribunal's decision was flawed as it did not properly weigh the evidence and the statutory criteria for such an appointment. Consequently, the appeal was allowed, and the Tribunal's decision was set aside.

The court ordered that the appeal be allowed, and the Tribunal’s decision appointing 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, be set aside. The application for the appointment of a guardian (GAA14090-20) was remitted back to the Tribunal for reconsideration by a differently constituted Tribunal, with the opportunity to hear additional evidence.

Orders

Orders of the court

1. The appeal is allowed.

2. The Tribunal’s decision dated 28 June 2022 appointing the Public Guardian as guardian for DBD for the following personal matter is set aside:

(a) Health care including decisions on environmental restraint and/or chemical restraint in the residential aged care facility.

3. The application for the appointment of a guardian (GAA14090-20) is remitted back to the Tribunal for reconsideration by a differently constituted Tribunal with the hearing of additional evidence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.