HWL

[2022] QCAT 315

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:	HWL [2022] QCAT 315
PARTIES:	In an application about matters concerning HWL In applications about matters concerning HWL
APPLICATION NO/S:	GAA7234-222
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	30 August 2022
HEARING DATE:	22 July 2022
HEARD AT:	On the papers
DECISION OF:	Member McDonald
ORDERS:	The application for directions is refused.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP – MANAGEMENT AND ADMINISTRATION OF PEOPLE WITH IMPAIRED CAPACITY – OTHER MATTERS –  Application for Directions – where independent psychiatric report requested as part of pre-hearing directions – where Tribunal directed an independent psychiatric report previously – Where the application is refused Guardianship and Administration Act 2000 (Qld), s 11B, s 138
APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This decision relates to an interlocutory application from the adult’s mother, LW for directions in a matter that is adjourned before the Tribunal and due to resume at hearing in September 2022. The application seeks a direction from the Tribunal that the adult undergo an updated psychiatric assessment from an independent psychiatrist before the resumed hearing. LW also sought directions that documents subject to confidentiality orders be disclosed to the mother. 

2. The relevant background is that the Office of Public Guardian was appointed guardian for HWL for decisions about accommodation services, health care contact and decisions relating to travel within and outside of Australia on 5 December 2019.  The Public Guardian applied for directions in relation to the order in 2021, and that matter went to hearing on 11 March 2021. An independent psychiatric report was directed at that hearing, and confidentiality orders made in relation to a number of documents. The report of the independent psychiatrist has been finalised on 27 July 2021. The adult’s separate representative provided submissions to the Tribunal as directed following that report.  At the resumed hearing the appointment of a guardian will be reviewed, upon parties application and as a periodic review.

3. LW seeks a further report from an independent psychiatrist. Parties’ views were sought by the registry, and these views were before the Tribunal in in making this decision. On 14 July 2022, parties were asked to provide their views of the application to the Tribunal by 19 July 2022.

4. The adult’s father’s response was contained in his email of 18 July 2022: “I received this only on Friday. And giving me a short amount of time in and to which to answer which I do not contract to do.” The email contained no substantive response to the request for the direction.

5. The Public Guardian provided a written response on 19 July 2022. The Public Guardian advised that on 22 May 2022 they had been previously approached by the adult’s mother to provide consent as Guardian for health decisions for an independent psychiatric report chosen by LW. They advised had declined that request, noting that HWL was regularly reviewed by his treating psychiatrist and had undergone full independent review had occurred in response to the direction of 11 March 2021. They further stated that he had since shown that he can participate in the decision-making process and articulate his views and wishes. “to make him undergo another unnecessary full assessment could be distressing for him.” The Public Guardian advised that they continued to hold this view that the psychiatric assessment is not required, and would be upsetting for HWL, with no great benefit.

6. The Public Trustee declined to express a view in relation to guardianship matters. The separately appointed representative for HWL advised that she had had no contact since 11 October 2021, and noted that the independent report before the Tribunal had recommended supervision or monitoring of contact HWL’s contact with his parents. She provided no further comment on the interlocutory application.

7. The Tribunal is empowered to provide directions upon application by s 138 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’). Section 11B of the Act requires the Tribunal when performing this function to apply the General Principles in making a decision. Among these, the Tribunal must be mindful that “an adult’s personal information, including health information must be protected on the same basis as other peoples”.[1] Further, decisions must be made in a way that promotes and safeguards the rights interests and opportunities of the adult and is least restrictive of these things.[2] And should take into account the adult’s views and wishes.[3]

   [1]General Principle 6, s 11B Guardianship and Administration Act 2000 (Qld).

   [2]General Principle 9, s 11B Guardianship and Administration Act 2000 (Qld).

   [3]General Principle 10, s 11B Guardianship and Administration Act 2000 (Qld).

8. The views and wishes were obtained from the appointed guardian who used the principle of substituted judgement, noting that a further assessment would be distressing to the adult. It is noted that the adult, now 23, had a suicide attempt at age 17 and has a history of fragile emotional and mental health. This is an important consideration in determining this application.  The Tribunal will have information updated information from treating practitioners upon which to make a determination at the adjourned hearing. I accept the Public Guardian’s submissions that it is unnecessary to subject HWL to a further assessment from a non-treating practitioner.

9. The adult has been assessed independently in accordance with the Tribunal’s direction of 11 March 2021. It is not in the adult’s interest to be further assessed. I accept that the Guardian’s decision to refuse to provide consent for this report was a decision that applied the general principles of the Act, and was appropriate. The Tribunal is primarily a protective jurisdiction for people with impaired capacity, and the adult’s interests must take priority. The application of the General Principles provides a framework for this to occur, and therefore the application is refused. In so far as the application seeks disclosure of documents made confidential under order of the Tribunal, the application is also refused on this basis.