HLD
[2015] QCAT 163
•30 April 2015
| CITATION: | HLD [2015] QCAT 163 |
| PARTIES: | HLD |
| APPLICATION NUMBER: | GAA9561-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Endicott |
| DELIVERED ON: | 30 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for a declaration about capacity by HLD is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where adult found to have impaired capacity for making decisions about certain lifestyle and accommodation matters and for financial matters – where evidence after the hearing produced from medical and non-medical reporters which confirmed that the adult still lacked capacity to make decisions about these matters EARLY END TO PROCEDING- where evidence not capable of supporting declaration of capacity – whether an early end to the proceeding should be made rather than conducting a hearing Guardianship and Administration Act 2000 – schedule 4 |
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
HLD wants to be able to make her own decisions about personal and financial matters. However, a guardian was appointed by the Tribunal on 30 April 2014 to make decisions about accommodation and services and an administrator was appointed to make all financial decisions for HLD.
Less than 5 months after the appointments were made, HLD applied for a declaration that she had capacity to make her own decisions. She filed in the Tribunal a report from Dr Pungu Mwilambwe who had known HLD for over five years. Dr Mwilambwe listed Korsakoff’s dementia as a current medical condition. He stated his opinion that HLD was able to make sound health care decisions and was able to make choices about lifestyle and accommodation matters. Dr Mwilambwe stated an opinion that HLD was able to carry out financial tasks but had difficulty with complex decisions.
Dr Mwilambwe stated that HLD has post-alcoholic dementia with an organic brain injury but that the conditions were in remission as HLD had stopped drinking.
Information that had been provided to the Tribunal from other medical reporters about the capacity of HLD to make decisions. Dr Sandra Baker, a psychologist, reported on 20 May 2014 that HLD had been referred to her by Dr Mwilambwe to address her anxiety and depression. Dr Baker reported that the main focus of the sessions she had with HLD was to provide behavioural strategies to help decrease her behavioural outbursts. Dr Baker reported that implementing these strategies had been difficult due to HLD’s Korsakoff’s syndrome and its associated cognitive deficits.
Dr Baker reported that further psychological assistance was required for continued anxiety and depression management. HLD ceased treatment with Dr Baker on the basis that the fees she was being charged were too high.
The Tribunal was also provided with a report from Dr Nolan, consultant physician dated 1 April 2014. He stated that HLD has been diagnosed with alcoholism, secondary organic brain disease with cognitive impairment and chronic stable liver disease. Dr Nolan referred to a neuropsychiatric evaluation that was undertaken of HLD in 2013 which indicates that HLD has significant memory disturbance, significant problems with anger management and emotional regulation and which had concluded that there was a significant risk that she could be a risk to herself in the community.
Dr Nolan reported that during his interview with HLD on 26 March 2014 her behaviour was still erratic and that she had absconded from her residence three times which Dr Nolan stated clearly demonstrated emotional instability and impaired planning. Dr Nolan had suggested to HLD that if she wanted a re-evaluation of her status then she could seek re-evaluation by an occupational therapist and clinical psychologist. Dr Nolan reported that HLD was not interested in returning for further evaluation.
The opinions expressed by Dr Nolan were supported by Dr Mwilanbwe in comments that he made on the application form filed by HLD in which she seeks a declaration of capacity.
HLD has written numerous letters to the Tribunal registry in which she asks for orders that will allow her to move out of her current secure accommodation and that will allow her to retrieve her finances from The Public Trustee of Queensland. In one letter dated 22 October 2014 she refers to have absconded from her accommodation on nine occasions. She disclosed that she had put a chair against the back fence and climbed over the fence on some occasions and on other occasions she walked out of the front yard and down the road outside her residence. She stated that on one occasion the police handcuffed her and took her to hospital.
HLD is supported in her residence by carers on a 24 hour basis. Comments on the application for a declaration about capacity were sought from the carers. On 3 December 2014 comments were provided by Life Without Barriers. The carers noted that HLD demonstrated her vulnerability in financial matters by providing money to her daughter and in an inability to save money. The carers stated that HLD demonstrated an inability to know the true value of money and how to spend it on required items.
They stated that she spasmodically spends money on non-required items and has an inability to plan for the future in regards to a savings plan or budgeting for bill payment. They stated that HLD had limited ability for comparison buying and that she will set her own priorities around money and not look after her basic requirements. They stated that she would purchase items or give money away and then could not afford to buy things she required such as food or personal effects.
The carers stated that HLD had an expectation that her money would constantly replenish and had limited understanding of the consequences if the money is already spent. The carers stated that HLD is highly emotive around money and is always wanting more.
The letter from Life Without Barriers also addressed the capacity of HLD to make personal decisions. The carers stated that HLD had a pattern of behaviour by which she would contact individuals and service agencies to request further support and services and to report that she being held captive against her will. When not receiving a response that she wanted, she would become verbally aggressive. The next day she would call the same person again as she did not recall the conversation from the previous day. She would call her guardian at all hours of the night and day to make demands.
The carers stated that HLD was at risk of getting lost when away from home due to her impaired short term memory, and she had a road skills deficit so a locked doors and gate policy was implemented at her residence. The carers stated that HLD had absconded from care on nine occasions over a 12 month period and she would not be able to seek help if she was lost due to her cognitive impairment. The carers stated that HLD would not realise she was lost but would just state that she had gone out for a walk. On one occasion she left a club at 9:15pm and proceeded to a hotel where she was found by police at the bar. Instead of going with the police, she walked out into the street in front of oncoming cars.
The letter from Life Without barriers reported that in 2014 HLD was diagnosed with a bi-polar disorder and the medication for this condition helped to decrease her aggressive behaviour. It was reported that HLD has not attempted to leave her residence by herself since the end of July 2014 and she had demonstrated a better ability to rationalise and make day to day decisions in her life.
The carers have supported plans to assist HLD to become more independent and report that she has demonstrated a growing ability to make some basic choices in her life in her home. However she has not demonstrated the same ability to make informed choices in the community. The carers stated that they have performed risk assessments and identified that HLD is still vulnerable in the community and her behaviour can become heightened by known triggers. In particular she continued to make poor choices around alcohol consumption and the carers had an overarching concern that HLD would revert to alcohol abuse if not supported in the community.
The letter from Life Without Barriers concluded with the opinion that despite developing skills within her residence, it was not clear whether she had developed adequate skills to be able to look after her own affairs. The carers did not support revoking the appointments at the current time.
The Tribunal also received comments on the application for a declaration about capacity from the guardian appointed for HLD. HS is the sister of HLD. HS stated an opinion that HLD would end up homeless and would be at risk of consuming alcohol again if the appointments were to be revoked. HS indicated that she wanted to remain as her sister’s guardian and she supported The Public Trustee remaining in place as administrator.
HLD agreed to be assessed by another doctor and in March 2015 she consulted Dr Henry Aghanwa, a psychiatrist. Dr Aghanwa provided a report to the Tribunal dated 28 March 2015.
Dr Aghanwa reported that HLD has been diagnosed with Korsakoff’s syndrome (amnestic disorder – alcohol induced), chronic liver disease, depression, migraine, seizure disorder and peripheral neuropathy. Dr Aghanwa reported that poor impulse control and an inability to weigh consequences impacted on the ability of HLD to make decisions. He reported that a Mimi Mental State Examination had resulted in a score of 27 out of 30 on 13 March 2015.
Dr Aghanwa expressed an opinion that HLD was not able to understand and act on information relevant for making decisions regarding life style and accommodation matters due to an inability to appreciate the reasonably foreseeable consequences of such decisions. Dr Aghanwa also expressed the opinion that HLD was capable of managing simple financial matters but not complex matters.
Dr Aghanwa also stated that due to poor impulse control, HLD could lead to a relapse into excessive alcohol consumption which would lead to a deterioration of her mental and physical health. Dr Aghanwa noted that HLD did not understand the information behind the restriction of her movements, she could not appreciate the consequences of those decisions and she could not see any reason why she should be restricted in any way.
Dr Aghanwa concluded that HLD could make simple decisions about her financial affairs but not complex financial decisions and she could not make simple or complex decisions about lifestyle or accommodation matters.
The Tribunal wrote to HLD on 14 April 2015 and informed her that the report did not support a declaration about capacity. She was informed that her application would be considered for dismissal after 28 April 2015 unless she could provide evidence to support her application. HLD informed the Tribunal via the registry on 27 April 2015 that she could not provide any more evidence about capacity by the date nominated by the Tribunal.
The appointments of a guardian and administrator made on 30 April 2014 took into account the evidence about the capacity of HLD to make her own decisions. It was found that HLD had impaired capacity for making decisions about some personal matters and for making financial decisions. Subsequent to that hearing, HLD sought a declaration that she had capacity to make all her own decisions.
The evidence provided to the Tribunal did not support a declaration being made that HLD had capacity for all decisions. While Dr Mwilambwe considered HLD was able to make choices about lifestyle and accommodation matters, he considered that she had difficulty with complex financial decisions. Dr Nolan reported that assessments had found that HLD has significant memory disturbance, significant problems with anger management and emotional regulation. Dr Nolan concluded that there was a significant risk that HLD could be a risk to herself in the community. Dr Mwilanbwe supported the comments made by Dr Nolan.
Dr Aghanwa considered that HLD was not able to understand and act on information relevant for making decisions regarding life style and accommodation matters due to an inability to appreciate the reasonably foreseeable consequences of such decisions. Dr Aghanwa considered that HLD was capable of managing simple financial matters but not complex matters. Carers from Life Without Barriers and HS considered HLD was vulnerable in the community and would likely end up homeless and abusing alcohol if the current decision making support were to be removed.
Despite her frequent declarations that she would not return to drinking alcohol and that she wanted her freedom from the restrictive environment in which she lived, HLD displayed no insight into her cognitive difficulties and the risks that she faced without adequate decision support. The evidence she provided to the Tribunal would not be capable of supporting a declaration that she had capacity to make all her own decisions.
The Guardianship and Administration Act 2000 (Qld) defines capacity as: “capacity”, for a person 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 evidence provided to the Tribunal does not lead to a conclusion that HLD can understand the nature and effect of decisions about lifestyle and accommodation matters or about complex financial matters.
QCAT has the power to bring an early end to proceedings under section 47 of the QCAT Act if the tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The evidence before the Tribunal is not capable of supporting a declaration that HLD has capacity for decision making about lifestyle and accommodation matters and for financial matters. The Tribunal had already held a hearing on these issues on 30 April 2014 and concluded there was impaired decision making capacity. Another hearing on the same issues without materially different evidence is not warranted. The application by HLD lacks substance. It is appropriate to dismiss that application under the provisions of section 47 rather than proceeding to a hearing with the current evidence.
If HLD can obtain evidence that adequately supports her having capacity for decision making, then the Tribunal can consider whether a hearing should be held to review the appointment of the guardian and administrator before the end of their appointed terms. A review of the appointment of the guardian will in any event be conducted on or about 30 April 2017 when the Tribunal will consider if the appointment is still required.
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