HJ
[2017] QCAT 340
•11 October 2017
CITATION: | HJ [2017] QCAT 340 |
PARTIES: | HJ |
APPLICATION NUMBER: | GAA5974-17; GAA5975-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 8 September 2017 |
HEARD AT: | Southport |
DECISION OF: | Member Mc Donald |
DELIVERED ON: | 11 October 2017 |
DELIVERED AT: | Southport |
Amended ORDERS MADE: | 1. The Tribunal orders that pursuant to s106 of the Guardianship and Administration Act 2000 (Qld) relevant information may be obtained from HJ in the absence of anyone else. 2. The Public Guardian is appointed guardian for HJ for the following personal matters: (a) Accommodation; (b) With whom HJ has contact and/or visits; (c) Health care, and (d) Provision of services. 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in 5 years. 4. The Public Trustee of Queensland is appointed administrator for HJ for all financial matters. 5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. 7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in 5 years |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where adult has been diagnosed with congenital intellectual disability – where adult’s mother has been acting as informal decision-maker – where informal arrangements are alleged to not be in adult’s interest – where application for the appointment of a Guardian – where application for the appointment of an Administrator – whether there is a need for a formal decision-maker for accommodation, services, health, contact, and financial decisions Guardianship and Administration Act 2000 (Qld), s 12, s 14, s 104, s 106, |
APPEARANCES: | HJ, SH, TN, Jasmine Griggs, Meretini Where, SS, Anna Louise Kassulke, DS, Sheryl Woolnough (Office of Public Guardian), Paul Gallagher (Public Trustee of Queensland) |
REASONS FOR DECISION
HJ is a 24-year-old man diagnosed with Prada Willi Syndrome, with an associated intellectual disability.[1] His intellectual disability has been characterised as moderate.[2] He had been living with his mother, SH, until around the time the Tribunal received the application. SH has acted as informal decision-maker for personal and financial decisions for HJ for all of his life.
[1]Health Professional Report of Dr Avva, 2 June 2017.
[2]Social Work Reort of Ashely Davies, Department of Community Services - Disability Services.
On 7 June 2017, Jasmine Griggs of Service Access/Department of Communities - Disability Services (the Applicant), filed an application for the appointment of an Administrator and Guardian for HJ, proposing the appointment of the Public Trustee of Queensland and the Public Guardian respectively, on the basis that SH had relinquished the care of HJ to Disability Services. At the point of application, HJ had been temporarily accommodated in a local hospital pending the availability of appropriate supported accommodation. He moved to live in a supported accommodation service shortly thereafter. This placement was brief with HJ returning to live with his mother over time.
SH and the Applicant disagree on the context of HJ’s move to supported accommodation. The Applicant argues that HJ was permanently relinquished into the care of the Department when his mother indicated she was unable to continue to provide care for him. SH denies that she had ever relinquished HJ’s care, but indicated that she had sought short-term respite for a post-operative period of surgery.
The parties agree that HJ was in supported accommodation through June and July 2017, with periods of overnight stays with SH. At the hearing, SH told the Tribunal that he had returned to her full-time care at her home, and did not require alternative accommodation.
Although the circumstances of the application had changed by the date of hearing, the applicant pursued the application, arguing that the informal decision-making arrangements around personal and financial decisions were not in HJ’s best interests.
Adult Evidence Order
HJ attended the oral hearing as did his mother, father, key members of his formal support network, and representatives of the Public Guardian and Public Trustee of Queensland. The Tribunal observed that there were 10 parties present in the hearing room. There was an atmosphere of significantly high emotion exhibited particularly by SH who continually interjected in the evidence of other parties throughout the proceeding. It was observed that HJ appeared to become distressed through the early stages of the proceeding. He became tearful, held his head down, and ultimately departed the hearing room. Much of the proceeding continued in his absence. During the oral hearing, the Public Guardian’s representative proposed that the Tribunal consider an adult evidence order to take the evidence of HJ without any other persons present in the hearing room.
Pursuant to section 106 of the Guardianship and Administration Act 2000 (Qld) (the Act), if the Tribunal is satisfied that it is necessary to obtain relevant information the Tribunal would not otherwise receive, the Tribunal may, by order (an adult evidence order), obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else.
The Tribunal formed the view that in the context of the high atmosphere of anxiety in the hearing room, the constant interruption by SJ of all parties’ evidence with her own evidence, and HJ’s evident distress, it would be difficult to obtain unfettered evidence from HJ. The Tribunal considered that a calm, uninterrupted environment would be necessary to obtain clear evidence in light of HJ’s distress. The Tribunal considered HJ would be intimidated by the Tribunal’s questions where all parties present. It is also noted that some of the allegations relate to HJ being pressured by SH to share her views, and the Tribunal considered that HJ’s evidence should be free of influence of any other party. The Tribunal formed the view that it was necessary to exclude all others to obtain HJ’s independent and unobstructed evidence.
Parties were asked their view of this suggestion. All parties agreed that it would be appropriate to proceed in this manner.
Tribunal hearings are open proceedings but for the provisions around Limitation Orders. The Tribunal was mindful pursuant to section 104 of the Act that (a) each active party in the proceeding is entitled to information before the Tribunal that is credible, relevant and significant to an issue in the proceeding; and (b) it is desirable that Tribunal hearings be held in public and be able to be publicly reported. To satisfy these considerations, the Tribunal informed HJ that the discussion would be reported back to the others when they returned to the room. HJ indicated that he understood this and was agreeable. The Tribunal questioned and reported the discussion upon the others return. This is reflected throughout these reasons where HJ’s evidence is referred to.
Application for Appointment of an Administrator/Guardian
When the Tribunal determines an application for appointment of a Guardian or Administrator, it is required to be satisfied under section 12 of the Act of the following considerations:
(a) the adult has impaired capacity for the matter; and
(b) there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
(c) without an appointment—
(i) the adult’s needs will not be adequately met; or
(ii) the adult’s interests will not be adequately protected.
Does HJ have impaired capacity?
The Application suggests that HJ has an intellectual impairment and is unable to make informed decisions, having behaviours and traits associated with Prada Willi. The applicant’s position is that HJ requires full support in all aspects of decision making.
The applicant submitted supporting medical evidence position from Dr Avva, HJ’s general practitioner since 2015. This stated that HJ had a congenital intellectual impairment, Prada Willi Syndrome, and is in her opinion, unable to make decisions freely and voluntarily. She considered that he was completely dependent in relation to financial decisions and was unable to make simple decisions in this domain. She also stated that he was unable to make simple decisions about lifestyle and accommodation. He need assistance with health decisions and could make only simple decisions. This medical evidence was not disputed at hearing.
His full-scale IQ score was assessed in 2011 as 50, being “verified within the category of intellectual impairment as per Education Queensland Guidelines”.[3] He attended a Special School throughout his schooling. He is eligible for Disability Services on the basis of his intellectual impairment.
[3]Letter from Dijana Salhbasic, Guidance Officer, Mudgeeraba State Special School to HJ, 25 July 2011.
The Act specifies at Schedule 4 that to have capacity for a matter:
…means the person is capable of—
(a) understanding the nature and effect of decisions about the matter; and
(b) freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
The Tribunal finds that HJ has been diagnosed with congenital intellectual disability and the evidence indicates that he is unable to understand the nature and consequences of decisions, or make decisions freely and voluntarily. He has impaired capacity for health, accommodation, and financial decisions.
Is there a need for a decision in personal matters?
SH has been acting as HJ’s informal guardian. The application raises concerns that these informal arrangements are not effective, and may not be in HJ’s best interest, specifically claiming they place HJ at “significant risk of financial, psychological and emotional harm.”[4]
[4]Email of Meretini Where, Disability Services, to QCAT dated 26 June 2017.
In summary, the Applicant’s position argues that there is a need for decisions in relation to accommodation, services, health and contact decisions.
Accommodation Decisions
The Applicant argued that HJ’s accommodation with his mother is not appropriate for his needs. They describe that there are behavioural problems which may be associated with the diagnoses of Prada Willi which contribute to these tensions.[5] They explained that there has been a lengthy history of extremely high levels of tension and aggression in the household of HJ and SH which has led to more than one occasion of relinquishment, and extensive interventions by Disability Services to manage the heightened tension.
[5]Oral evidence of Jasmine Griggs, 8 September 2017.
TN, the adult’s father, expressed significant concern about the safety of both HJ and SH in the circumstances. He described a long history of incidents of elevated conflict between HJ and SH which has exacerbated into violence and noted that there have been occasions when this has become an “out of control” situation. He explained that HJ was unable to regain control of himself on several occasions. TN described incidents when HJ’s behaviour had become totally beyond the control of himself and other third parties including ambulance officers. He expressed strong concern that there was a very high risk of uncontrolled violence due to the nature of the escalating tensions between SH and HJ, and was very concerned about the potential consequences for both of SH and HJ if they continue to live together.
The Applicant claimed that throughout their dealings with HJ and SH they have observed very high level of conflict in their interactions, including prolonged periods of heightened verbal and physical aggression. In an email to the QCAT registry, dated 3 August 2017, Meretini Where of Disability Services stated “Every visit since July has had a behavioural outburst from both HJ and his mother needing support staff to talk with them over the phone to calm the situation. These phone calls have taken up to 1.5 hours.”
In oral evidence, the Applicant indicated that there has been instability in the living arrangements through the history, where SH has on more than one occasion changed her mind in relation to being able to care for HJ.
In a letter from CE, the clinical manager of HJ’s supported accommodation service, it was noted that “disruptions to his living arrangement caused by SH” caused HJ distress and confusion. “It appeared from this information that HJ’s psychological distress was related to an increased likelihood of aggressive behaviour toward others; as well as an increased likelihood to engage in a pattern of skin picking behaviour associated with incidences of serious health issues (cellulitis).[6] The Tribunal understands this to mean that confusion and uncertainty around his accommodation was having an impact on his behaviours.
[6]Email from CE to QCAT dated 31 July 2017.
In further correspondence, CE suggests that HJ is strongly influenced to return to live with his mother, and may feel obligated or pressured to continue to live with his mother. He remarked that HJ exhibited emotional distress around visits to his mother’s home. His letter dated 3 August 2017 stated that SH was overheard saying to HJ “words to the effect of ‘I can’t afford two houses; I’ll sell this house and you’ll never see me again’…” Subsequently, “HJ then made comments during his telephone call to the effect of ‘I’ve got to move home ‘and ‘Mum’s not coping’”. Similarly, he was observed “to make comments to the effect of ‘don’t worry Mum; I’ll look after you” and that SH “can’t manage without me.”[7]
[7]Letter from CE to QCAT dated 3 August 2017.
The letter of CE referred to above noted three occasions when on overnight visits with SH from the service providers, SH called the service and informed them she would be returning HJ if his distress did not settle.[8]
[8]Letter from CE to QCAT dated 3 August 2017, p2.
CE was not available at the hearing to be questioned on these matters. SS, who represented the Service provider at the hearing, confirmed the contents of CE’s correspondence and gave evidence that while living in the care of the service provider, HJ’s behavioural problems were largely stable when not visiting his mother.
SH in oral evidence to the Tribunal indicated that she considered that HJ was best accommodated with her; that she had looked after him for his lifetime and was in the best position to make decisions about where he lived. She said HJ had missed her and he wanted to return to live with her. He also missed his bed, and was not sleeping well at the supported accommodation. She considered that HJ would confirm that he wanted to live with her. SH said that she was trying to “keep the house going” and indicated that as a result of the Public Trustee of Queensland’s appointment as HJ’s administrator on an interim basis, she was not able to afford her financial commitments, in particular the mortgage upon her home.
SH argued that she only sought a respite placement from Disability Services following back surgery and had no intentions for HJ to enter full time care in alternate accommodation. She denied previous communications with the Department around relinquishment, and further denied that phone calls had been made during high stress incidents seeking to return HJ to the service, or incidents where the conflict had become out of her control. She stated that the Applicant’s statements were lies and she wished to no longer communicate with the Disability Services personnel.
SH indicted in her oral evidence did not accept that she was not able to manage HJ’s behaviours, and denied having to seek the support of services to calm the situation. She agreed that the incidents had become physical at time.
SH’s sister, Christine Courtois, in a letter to the Tribunal dated 10 July 2017 suggested SH had been discredited by the application but had in fact given HJ a “lovely home and delivered the best of nutrition to ensure his happiness”. Her correspondence described HJ’s “explosive nature” and that while a problem existed, she had seen SH de-escalate the situation, and that the family have been inadequately supported by the services involved. She stated: “SH did not object to his placement as she recognises she can no longer manage HJ as she is 60 and becoming more frail.” This reflects an inconsistency in SH’s communications about her position over time as to whether she can cope with HJ’s behaviours.
The Tribunal did question HJ under an adult evidence order around this. HJ stated that he did want to stay living with his mother. The Tribunal observed some incongruence in his non-verbals that in the Member’s opinion conveyed some reluctance. HJ was asked about the difficulties living there and he explained to the Tribunal that there mostly was not any problems, but there had been times there were arguments that can get out of control, both verbally and physically.[9]
[9]Oral evidence of HJ under adult evidence order dated 8 September 2017.
The Tribunal finds there is overwhelming evidence from third parties that the current accommodation is not in HJ’s interest. In particular the evidence of all service providers involved in HJ’s care is that SH is not able to manage the high level conflict and aggressive incidents between she and HJ and may, without intention, contribute to the escalation of the situation. Such escalation directly compromises HJ’s emotional well-being. The evidence suggests that SH may be at significant risk of physical harm from HJ during these uncontrolled incidents of aggression. Of particular concern is that the current living arrangements placed HJ at high risk of the consequences of becoming a perpetrator of physical violence. These potential consequences are likely to be very damaging to H. The professional opinion before the Tribunal consistently supports his accommodation in an environment that and has effective strategies to manage them the escalating aggression. There is no evidence that SH’s strategies to manage these incidents have been effective, and as such exposes HJ to significant risk. The evidence suggests that SH does not have insight into the risks posed by the current living arrangement and, due to her dependence upon HJ’s income to pay the mortgage, has a conflict of interest in determining what is suitable accommodation to meet his needs. The Tribunal finds that there is a need for decisions about where HJ lives and without an appointment his interests will not be adequately protected.
Service Decisions
CE’s letter to the Tribunal expressed concern that HJ’s support services risked disruption under the informal arrangements. He claimed SH had communicated that she no longer wished to engage in contact with the co-ordinator of HJ’s community access service which HJ attended four days per week, and had also disengaged from contact with Disability Services. CE expressed his opinion that the appointment of the Public Guardian would “safeguard HJ from the confusion and distress related to matters of service provision and support.”[10]
[10]Letter from CE to QCAT dated 3 August 2017.
SH denied that she would withdraw HJ from his services. She stated that allegations that she had not supported his ongoing engagement with his support services were lies. She provided receipts for HJ’s transport to and from his community access program, and stated that he had medical appointments on the date that he was otherwise absent from the service.
SH was noted to have stated during the hearing that she did not want to have to communicate with representatives who had brought the application.
The applicant’s evidence suggests that there have been ongoing difficulties in the engagement of the informal decision-maker in service decision matters.
While SH has demonstrated that she did not obstruct HJ’s attendance at this service for any ongoing period, the Tribunal notes HJ’s support needs presently require consistent and ongoing interactions with a number of stakeholders in his service network. SH has not convinced the Tribunal that she is committed to these communications. Should HJ’s accommodation change there will also be service decisions to be made to support these arrangements. The Tribunal considers that the evidence suggests that there is some vulnerability in the stability of these arrangements under the current informal system, and therefore there is need for decisions about services, without which HJ’s interests will not be adequately protected.
Contact Decisions
In CE’s correspondence to the Tribunal he expressed concern that HJ’s contact arrangements with his father had been problematic due to conflict between HJ’s parents SH and TN. His letter states: “…TN indicated in an email of 10/7/17 that he waited outside SH’s residence for HJ to attend his vehicle for a period of approximately two hours past the collection time(sic) Furthermore SH indicted on 18/7/17 (sic) that she wanted arrangements to be made for HJ's collection from her care in which she would not be required to physically sight TN” … The apparent difficulties within SH and TN’s relationship were considered likely to perpetuate communications difficulties between the two parties. It is believed that this may lead to miscommunication of expectations in the care of HJ between his parents; and subsequent disruption of his routine. Further it was considered that HJ may be exposed to conflict between SH and TN given the apparent difficulties in their relationship.”[11]
[11]Letter from CE to QCAT dated 31 July 2017.
Further, CE noted parental disagreement about the length of overnight stays and stated: “it’s recommended that an external party would be best suited to provide fair and amicable arrangements with regards to HJ’s attendance to his parent’s residences for overnight stays.”[12]
[12]Ibid.
TN informed the Tribunal that his dealings with SH around co-ordinating his contact with HJ had involved high conflict. He provide the Tribunal with written correspondence from SH to TN which addressed him variously as “Hey Dumbarse”, “arsehole”, “shit for brains”, “dickhead.”[13]
[13]Photographic submissions of TN, 6 September 2017.
The Tribunal notes that communication between SH’s parents around contact arrangements have featured high conflict and have demonstrated abusive language and obstacles to co-ordinating contact. The Tribunal is particularly concerned with the high level of conflict and animosity that HJ is exposed to during the co-ordination of these arrangements and any face-to-face contacts between them at changeover. The Tribunal finds that the evidence of CE suggests such dealings expose HJ to emotional distress and that such distress may trigger aggressive and self-harming behaviour.[14] The Tribunal considers that there is a need for decisions about with whom HJ has contact and how that occurs and, without an appointment, HJ’s interests will not be adequately protected.
[14]Letter from CE to QCAT dated 31 July 2017.
Health Decisions
TN expressed concern that SH had administered Valium to HJ to manage his behaviours and provided the Tribunal with a photo of correspondence from SH to TN to this effect. SH denied that she had done so, but when presented the document agreed that had occurred several years ago.[15]
[15]Photographic submissions of TN, 6 September 2017.
SH further raised concerns that a decision had been made while HJ was out of her care to administer temazepan, a sleeping pill. She expressed concern that she was of the firm belief that HJ had adverse reactions to this medication and was concerned that she was not consulted by this decision.
It is apparent that HJ has a diagnosed medical condition which may require decisions around medication from time to time. It is not apparent that the statutory health regime can be effective in circumstances where information has not clearly passed to alternate decision-makers. It is also apparent that there is disagreement amongst his care providers about what may be in his best interest in authorising and administrating this medication, and consequently the Tribunal finds that there is a need for health decisions to be made and without an appointment HJ’s interests will not be adequately protected.
In the circumstances the Public Guardian offers an independent role as Guardian. It is noted TN and the applicant support the appointment of the Public Guardian. The Public Trustee is appointed to make the aforementioned personal decisions HJ’s behalf.
Is there a need for Financial Decisions to be made?
The applicants sought the appointment of an Administrator on the basis that HJ had no bank account and his Centrelink payments were received into his mother’s bank account.
At hearing, SH confirmed this was the case and that she needed both her and HJ’s income to continue to meet their ongoing financial obligations, specifically for the mortgage repayments. She confirmed that the house was in her sole name, but that HJ had an interest in her house through her will.
She explained that HJ had very high needs for food expenses due to his diagnosis of Prada Willi and the bulk of their expenses went to these cost.
HJ told the Tribunal that he did receive a pension which went to his mother’s account. He was troubled that the appointment of the Public Trustee Order[16] has meant that “we don’t get it anymore. My pension has been taken from us, which is a problem because Mum doesn’t have enough money to survive.”[17]
[16]Which appointed the Tribunal as Administrator for all financial matters on a short-term basis pending the outcome of the hearing of the application.
[17]Oral evidence of HJ under adult evidence order dated 8 September 2017.
The Tribunal notes that service providers have observed HJ similarly voicing concern about his mother’s financial problems and appears to feel obligated to live with her to assist her to avoid these.[18]
[18]See paragraph 24.
The Tribunal considers that there is a conflict of interest where the informal decision-maker has a vested interest in HJ remaining in her home and to continue to receive his income to pay for their joint costs.
SH has used her and HJ’s income as a common fund to manage their joint expenses. She was unable to conceptualise how she will manage without the common pool for their funds, and in particular the cost of the mortgage. While the Tribunal accepts that SH has acted to provide for all HJ’s essential need over his lifetime, and evidence suggests that she has provided well, she does not appear to be able to accept the financial implications upon her should HJ have to bear the costs of alternate accommodation.
Had HJ continued to remain living under her care, it may be unnecessary to have changed the informal arrangements. However, there is overwhelming evidence that there are significant risks with HJ continuing to live with SH, and these risks relate to his inability to control his behaviour and a risk of harm to both of them where they continue to live together. It is apparent that the financial decision-maker must not have a vested interest in the outcome of the accommodation decision due to this inherent conflict of interest.
Since the informal decision-making arrangements give rise to a conflict of interest around critical financial decisions, the Tribunal finds that there is a need for financial decisions to be made about his income expenses, and administration of bank accounts to support decisions made by his Guardian. Therefore, an administrator should be appointed. The Public Trustee is the only alternative in this circumstance. TN and the applicant support the appointment of the Public Trustee of Queensland.
0
0
1