GKK

[2011] QCAT 344

CITATION: GKK [2011] QCAT 344

PARTIES: GKK

APPLICATION NUMBER:   GAA2153-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 21 March 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Application for the interim appointment of a guardian is refused

CATCHWORDS : 

GUARDIANSHIP – request for interim appointment – where alleged non compliance with medical treatment – appointment of Adult Guardian sought – where tribunal not satisfied immediate risk of harm

Guardianship and Administration Act 2000 – section 129

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. An application for the appointment of a guardian for GKK was lodged with the tribunal by ML, a case manager with the Continuing Care team of Queensland Health.  

2. According to the application, GKK attends a Mental Health Clinic on a monthly basis to be reviewed by her psychiatrist.  The applicant sought the appointment of a guardian to make health care decisions for GKK. 

3. In her application, ML submitted that GKK was refusing necessary services, that she was making, or was likely to make, decisions that are not in the best interests of her health and that may be detrimental to the diagnostic investigations that she requires to examine the full extent of her physical presentation.

4. In a health professional’s report filed in support of the application, Dr Roy stated that GKK has been diagnosed with chronic schizophrenia and chronic obstructive pulmonary disease.  Dr Roy reported that in 2009 GKK unreasonably refused intravenous medication at the Princess Alexandra Hospital.  Dr Roy stated that GKK has poor insight into her physical and mental health conditions.

5. Dr Roy reported that GKK appears not to understand that her lack of decision making with regard to her physical health may result in poor diagnostics and treatment. Dr Roy expressed the opinion that GKK could make simple decisions about health care but not complex decisions due to her psychiatric condition.

6. ML applied for an interim appointment of a guardian. Section 129 of the Guardianship and Administration Act 2000 gives the tribunal power to make an interim appointment of a guardian if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health or welfare of an adult.  

7. ML submitted that GKK is 67 years of age.  GKK was reviewed by her psychiatrist on 4 March 2011 when it was felt that GKK’s mental health had deteriorated and her physical health was also a concern.  ML submitted that GKK was unco-operative with her case manager and refused to attend a clinic at her hostel with her treating general medical practitioner on 10 March 2011.  On 11 March 2011 GKK attended for a chest x-ray and had one film taken but refused to co-operate further.

8. ML stated that GKK reportedly experienced reduced sleep, had lost weight over two to three months, was irritable and was voicing increasing verbal aggression.  The health professional’s report did not report the presence of a disorder requiring immediate treatment. 

9. ML did not provide evidence that GKK was at an immediate risk of harm.  The evidence, relevant to the interim appointment request, provided to the tribunal was limited.  It was stated that GKK had refused to co-operate with her case manager and had refused to have more than one film taken of a chest x-ray.  It was not explained how the actions of GKK were alleged to have placed her at an immediate risk of harm.  There was no satisfactory evidence of any immediate serious health condition that required treatment without delay. 

[10] Appointments of decision makers without a hearing and without notice to an adult should be made only when circumstances compel such action. Section 129 restricts the making of interim orders to those cases where an adult is at an immediate risk of harm. That restriction attempts to find the 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.

[11]  The evidence provided to the tribunal in support of the application for an interim appointment of a guardian did not establish a basis to impose a decision making regime on GKK without giving her an opportunity to be heard.   In the absence of appreciable risks of immediate harm, the tribunal must not appoint a decision maker without according procedural fairness to an adult.