HF

[2010] QCAT 216

CITATION: HF [2010] QCAT 216

PARTIES: HF

APPLICATION NUMBER:            GAA10572-09
  GAA2218-10
           

MATTER TYPE: Guardianship and Administration Matter

HEARING DATE:   30 March 2010

HEARD AT:   Brisbane

DECISION OF: Patricia Hanly (Presiding), Julie Cowdroy

DELIVERED ON:   30 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Guardian appointed

CATCHWORDS :  Appointment of Guardian, Family Conflict

APPEARANCES and REPRESENTATION (if any):

HG, HK, LJ

Danielle Lowe, Director of Nursing,
Clive Burdeu Aged Care Services

The Adult Guardian

REASONS FOR DECISION

This Hearing that took place in Brisbane on the 30^th March 2010 before the Queensland Civil and Administrative Tribunal and concerned applications in relation to HF, the adult.

Background

1. The Applications were in respect of the Appointment of a Guardian for HF.  There were two proposed appointees, on the one hand HG, who is the son of HF and on the other hand HK and LJ who are the son and daughter respectively of HF.

2. In addition the Tribunal noted that an earlier application had been made by the representative, of the Director of Nursing of the Aged Care facility, firstly proposing the appointment of the Adult Guardian and in the second application which in fact had been withdrawn proposing LJ & HK as the appropriate appointees.

3. All relevant appointees were canvassed during the course of the Hearing and all options were discussed with all parties. Commencing firstly with the threshold issue for the Tribunal, which is the issue of capacity, the Tribunal noted that the Health Professional Report completed on the 7 September 2009, recorded that the Adult had severe cognitive impairment as a result of a CVA which she had been suffering from since 2005. It was noted that the Adult’s speech was also severely affected and the Adult was not capable of complex decision making in all areas of her life.

4. At the Hearing all the family members and the Director of Nursing who were present at the hearing agreed with this assessment. The Tribunal is satisfied therefore that the Adult has severe cognitive impairment as a result of a stroke and that she is unable to make complex decisions in all areas of her life which lead the Tribunal to consider the applications for Guardianship firstly in the basis of need, secondly on the basis of who was the most appropriate appointee.

5. Turning to the question of need the evidence before the Tribunal is that there is a long history of conflict between family members over healthcare decisions and provision of services. The Nursing Home staff have also provided considerable evidence of inappropriate intervention by certain family members which has impeded the optimum delivery of health care and services for the Adult.

6. Three of the siblings are in general accord over all issues but it is unlikely in the Tribunals view that consensus could be reached on a regular basis. The history of conflict necessitates the appointment of an independent decision maker.

7. The Tribunal wishes to record the fact that there is no question in the Tribunal’s mind that all family members have concern, commitment and care for HF. However notwithstanding that, the application by LJ & HK has been made with the view that they would be able to make appropriate decisions and consult appropriately with HJ. The Tribunal’s reservation arises from the fact that much was stated about the potential for overcoming any difficulties in communication, such as has been evidenced in the past, by mediation or resort to some other form of dispute resolution.

8. The Tribunal is not satisfied that such an approach would be in the best interests of HF, not least because the Nursing Home needs to be able to have some certainty in relation to outcomes for HF and there is considerable evidence that they have in the past been impeded in respect of some of the decisions they have been required to make. The lack of certainty also has impacted on the level of service and the continuity of care and can in turn impede decisions in relation to other residents.

9. The Tribunal is satisfied that the family members truly believe that they are acting appropriately.  In relation to some actions taken by HJ, which other family members have regarded as inappropriate, the Tribunal notes that in fact on occasions there have been satisfactory outcomes for HF in relation to a change in her diet as evidenced by the fact that she has recently started to put on weight.

10. However all of those issues aside it is important for the parties to understand that resolution of matters by resorting to mediation would not be a desirable outcome where there is quite clearly a history, as yet unresolved. Statements made by family members at the Hearing confirm this when it was stated that the family hoped mediation might restore family harmony such as had existed prior to HF’s stroke. 

11. The Tribunal accepts that family members always wish to have an ongoing relationship and involvement in decision making for their loved ones and that is certainly the desired outcome where there is family harmony.  However, where there is no family harmony the Tribunal would be remiss in its duty in appointing a decision maker if it were not to recognise that certain situations as proposed will be unworkable.

DECISION:

The decision of the Tribunal therefore is that the Adult Guardian is to be appointed for decisions about provision of services, health care and contact, that appointment is for two years.