DN

[2011] QCAT 442

CITATION: DN [2011] QCAT 442

PARTIES: DN

APPLICATION NUMBER:   GAA6108-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 4 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The tribunal is satisfied that urgent action is required.

2.    The tribunal, for the purposes of making this Interim order, hereby dispenses with any or all of the procedural requirements of the Act.

3.    The Adult Guardian is appointed guardian for DN for the following personal matters:

(a)   legal matters not relating to DN’s financial or property matters in addition to the matters set out in the order dated 17 August 2010.

4.    The tribunal directs the guardian to provide a written account of their actions as guardian to the tribunal no later than three (3) working days prior to the hearing.

5.    This guardianship appointment remains current for three (3) months or, if the tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

CATCHWORDS:

GUARDIANSHIP – where guardian had been appointed for an adult – where review of appointment seeking to extend decision making powers – immediate risk of harm – interim order sought

Guardianship and Administration Act 2000, s 129

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. DN had been the subject of intensive disputation between members of his family and various medical and care providers since 2009.  He had been diagnosed with dementia and had been in hospital for a lengthy period of time in 2010 before being placed into a nursing home.  The Adult Guardian had been appointed as his guardian for decisions about accommodation, health care, services and contact. 

2. The Adult Guardian informed the tribunal that as of 4 August 2011 DN no longer had a general medical practitioner or a geriatrician due to the threat of litigation by family members.  DN required ongoing medication for his various medical conditions including diabetes but without a treating doctor, the Adult Guardian was having difficulty finding an appropriate health care provider to provide the necessary scripts due to the widely known threats to initiate legal action made on behalf of DN by members of his family.

3. Several family members of DN have been in conflict with the hospital where DN had been an inpatient in 2010.  One family member had made a complaint on behalf of DN to the Anti-Discrimination Commission and had commenced steps in a proposed personal injuries claim on his behalf.  None of these actions had been carried out with consultation with the guardian.

4. The Adult Guardian applied to QCAT for a review of the appointment of the guardian and sought to extend the areas of decision making to include legal matters not relating to financial or property matters.  The Adult Guardian also applied for an interim appointment of a guardian for legal matters to be in place while the hearing of the review application was pending.

5. Appointments of decision makers without a hearing and without notice to an adult or family should be made only when circumstances compel such action. Section 129 of the Guardianship and Administration Act 2000 restricts the making of interim orders to those cases where an adult is at an immediate risk of harm.  By having only a limited power to make interim orders under that Act, QCAT must find a balance between the right of an adult with impaired capacity to have the greatest possible degree of autonomy in decision making and the adult’s right to adequate and appropriate support for decision making.  

6. In this case, DN required ongoing medication but access to that medication was being significantly hindered by the litigious threats and actions of his family.  Removal of the threat of litigation would be one step in a process to assure his medical treatment team that they could provide necessary treatment for their patient without unwarranted action being taken against them in the name of DN. 

7. By QCAT appointing on an interim basis a guardian for legal matters, decisions about pending or threatened legal action could be made immediately by a formal decision maker who would be accountable to the tribunal.  If a guardian were not to be appointed on an interim basis, decisions about legal matters would continue to be made informally by the family of DN and his access to adequate medical treatment would remain dangerously compromised.

8. The tribunal was satisfied that there was an immediate risk of harm to the health and welfare of DN and that his decision making needs about legal matters were not being adequately met by DN due to his infirmities or by his family due to their lamentable focus on disputation with the hospital without regard for the consequences that had ensued. 

9. The tribunal was satisfied that by making an interim appointment of a guardian for legal matters the impasse with the medical treatment team could be overcome for the benefit of DN.  The Adult Guardian was already the appointed guardian for several areas of personal decision making and would be the appropriate appointee for legal matters on an interim basis.