GA - [2016] QCAT 515 | CaseChat AU

CITATION:

GA [2016] QCAT 515

PARTIES:

APPLICATION NUMBER:

GAA12504-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

29 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Guardian is appointed guardian for GA for the following personal matters only:

(a) accommodation decisions;

(b) health care of GA;

(d) provision of services for GA;

(e) legal matters not relating to GA’s financial or property matters;

2. 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.

3. 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.

4. The guardian is directed to obtain and file in the Tribunal evidence as to the decision making capacity of GA about accommodation and services decisions.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where an adult was the subject of proceedings to terminate his tenancy due to his disruptive behaviour – where the adult had not responded to the notices served by the lessor – where the adult had not appeared at the hearing of the tenancy application – where proceedings initiated for the appointment of a guardian and administrator – where the adult had not engaged with an advocacy organisation which could assist him with his Tribunal proceedings - where the adult faced homelessness and personal harm

INTERIM APPOINTMENT - where current capacity information is limited - whether the adult is at an immediate risk of harm – whether a finding of impaired capacity required – whether an interim appointment of a guardian is required

Guardianship and Administration Act 2000 (Qld), s12(1), s 129(1), s 129(2)

APPEARANCES:

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

GA lives in rented accommodation in inner Brisbane. He rents his accommodation from an affordable housing organisation. An application was made by the lessor to QCAT on 19 September 2016 for termination of his tenancy agreement and for a warrant for possession. The application stated that a notice to remedy breach had been served and then a notice to leave had been served on GA. The grounds for these notices arose from allegations that GA had repeatedly disturbed the peace of his neighbours which behaviour continued even after the notices had been served on GA. GA did not respond to either notice.
The application to QCAT included evidence from neighbouring tenants of GA who complained of his noisy behaviour in the early hours of the morning, of his music and television blaring out, of threats of harm and of unpleasant smells coming from his unit. There was evidence that police had been called to the units in response to GA’s behaviour but no remedial action seemed to have been taken. The application contained statements that some of the neighbours had become very stressed, had poor sleep and wanted immediate action to stop GA’s disturbing behaviour.
GA did not attend the hearing of the application to terminate the lease. The adjudicator at QCAT adjourned the proceedings out of a concern that GA may not have the capacity to understand the application and applications for the appointment of a guardian and an administrator were initiated by QCAT. An inference had been made from the evidence that GA may have some mental health issues that were preventing him from taking steps to respond to the tenancy termination application.
A disability advocacy organisation had initially told QCAT that GA had agreed to accept assistance with the QCAT proceedings. However, on 14 November 2016, a representative from that organisation told QCAT that GA had not met with them as arranged and the organisation concluded that they could not assist GA with the QCAT proceedings. He had not answered his mobile phone and the contact telephone numbers they had for GA appeared to have been disconnected.
The behaviour of GA was putting himself at a risk of harm. The evidence was that his neighbours were becoming increasingly stressed about the noise caused by GA, his tenancy could be terminated and his physical safety was at risk if he became homeless. If his tenancy were to be terminated, GA would have great difficulty obtaining other affordable housing.
QCAT can make appointments of substituted decision-makers under the Guardianship and Administration Act 2000 (Qld) (GAA) if satisfied that the adult in question has impaired decision making capacity, that there are decisions that need to be made and in the absence of an appointment, that the decision making needs of the adult will not be adequately met.[1] Appointments are made following a hearing of the application where the adult can attend and put forward views and wishes about the applications.
[1]Guardianship and Administration Act 2000 (Qld), s 12 (1).
However, QCAT can make an appointment of a decision maker on an interim basis for up to three months under s129(1) of the GAA without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
The Tribunal considered whether GA was at an immediate risk of harm. Taking in account the pending application to terminate his tenancy, his likely resulting homelessness and his noisy and unruly behaviour which was likely to attract retaliation from other people, I was satisfied that GA was at an immediate risk of harm.
I had noted that there is little relevant evidence as to GA’s current decision-making capacity. The Tribunal had obtained notes from Mental Health Services that revealed that GA had been referred that Services in March 2016 because of reports of bizarre behaviour such as opening and closing his front door repeatedly, yelling and “raving” day and night about shooting soldiers and car bombs.
The notes also revealed that GA blamed his neighbour for calling out racist comments to GA. The notes reveal that GA denied delusional ideas, was pleasant and co-operative, showed partial but reasonable insight and judgement, was orientated to time, place and person and had no acute concerns although issues with his neighbour remained. GA had explained that the reports of his loud and noisy behaviour may relate to his talking on his mobile phone to family overseas and to his singing.
The notes also revealed that GA had had previous engagement with Mental Health Services in 2014 when he was referred by his doctor as GA was experiencing visual and tactile hallucinations and a diagnosis had been made of psychosis and depression. GA was referred again to Mental Health Services in 2015 over his behaviour but no evidence of psychosis and low acute risks were identified.
The Tribunal is not required to make a finding that a person has impaired decision-making capacity in order to make an interim appointment of a decision-maker in circumstances where there is found to be an immediate risk of harm.[2] In this case, GA has in the past demonstrated some psychosis and delusional ideation which had been treated within the mental health system. Much of the psychosis was about his neighbour and ongoing allegations of racist comments. Those triggers or stressors are still present and are likely to be having an ongoing impact on GA.
[2]Ibid, s 129(2).
For unknown reasons, GA has not engaged in the legal process which may result in the termination of his affordable tenancy, nor has he followed up an opportunity of support by a disability advocacy organisation with his legal problems. He may well have a good response to the termination application and he could, with support, negotiate an outcome that would not leave him homeless.
GA’s avoidance behaviour about the legal proceedings leads to a reasonable inference that he does not understand the nature and effect of decisions that are needed to be made. The cause of his avoidance behaviour may be due to a recurrence of psychosis or other mental health issues that undermine his capacity for decision-making. Determination about GA’s capacity must be made at a formal hearing but the evidence does suggest a current lack of understanding of the risks that he faces.
I was satisfied that appointing a guardian to make decisions about accommodation, services, health and legal matters would provide support to GA that was needed immediately to respond to, and reduce, the risks of harm that GA faces.
A direction was made for the guardian to obtain information about GA’s decision-making capacity so that the Tribunal would have relevant and current information for the hearing that would augment the information obtained by the Tribunal before the interim order was made. A guardian would be able to arrange medical assessments and obtain medical records that could be used at the hearing.