KAD - [2012] QCAT 601

CITATION:

KAD [2012] QCAT 601

PARTIES:

KAD

APPLICATION NUMBER:

GAA9888-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

27 November 2012

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

27 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal directs the Adult Guardian as guardian for KAD to provide a spare key to the property occupied by KAD to a service provider for the purpose of enabling the service provider to enter the property and to attempt to re-engage KAD with service provision, nutritious food, health professionals and with on-going support.

CATCHWORDS:

GUARDIANSHIP – where guardian unable to arrange provision of necessary services – where adult refuses to permit entry to her residence – where evidence of self neglect – where direction sought by guardian

Guardianship and Administration Act 2000, s 138

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Kevin Martin, Adult Guardian appearing by Darren Harris from the Office of the Adult Guardian

OTHER INTERESTED PARTIES:

Tony O’Neil from Queensland Police Service
Stephen Hawkins from ARC (Homestay)
Karen Rollinson from ARC (Homestay)
Ben Carstens from Department of Housing

REASONS FOR DECISION

KAD lives alone in a house owned by the Department of Housing. The former Guardianship and Administration Tribunal appointed the Adult Guardian on 6 February 2008 as guardian for KAD for decisions about accommodation, health care, service provision and legal matters not relating to her financial or property matters. The Adult Guardian applied to QCAT for directions about decisions to be made about accommodation and service provision for KAD.
The tribunal was told that KAD had been refusing for some time to engage with service providers selected by her guardian to provide services to her. Evidence was given to the tribunal that KAD was displaying self neglecting behaviour including a very poor diet and nutrition resulting in significant and severe constipation, poor dental health and poor personal hygiene. KAD was engaging in harmful behaviour which may be the result of pain. The guardian expressed concern that KAD’s self neglect would result in significant health issues.
Written and oral evidence was provided by Sergeant O’Neil from the Queensland Police Service. He told the tribunal that police attend at KAD’s residence on multiple occasions each month, averaging about 30 calls each month. Some of those calls result from KAD telephoning 000 while other calls result from complaints from neighbours about yelling and loud noises coming from her house. Police usually conduct a welfare check when at KAD’s residence. She does not permit the police to enter into her house but contact with KAD is made through a window.
Sergeant O’Neil expressed the concern felt by police officers about KAD’s wellbeing and told the tribunal that it was the general consensus of officers who know KAD that she is unable to provide the basic necessities of life for herself. The police service also had concerns about KAD’s safety as she could be targeted by undesirable persons in the area when she is inside her home and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: KAD [2012] QCAT 601
Case: [2012] QCAT 601
Decision Date

CaseChat Overview and Summary

In KAD [2012] QCAT 601, the Queensland Civil and Administrative Tribunal (QCAT) considered an application by the Adult Guardian, appointed as guardian for KAD, to provide a direction regarding the provision of services to KAD. KAD, a person under guardianship due to her inability to manage her own affairs, lived alone in a house owned by the Department of Housing. The Adult Guardian sought directions to address KAD's refusal to engage with service providers, which had resulted in her self-neglect, including poor diet, severe constipation, and poor personal hygiene. The guardian and other stakeholders were concerned about KAD's wellbeing and safety.

The legal issues before the tribunal involved the scope of the Adult Guardian's powers under the Guardianship and Administration Act 2000, specifically whether the tribunal could direct the guardian to provide access to KAD's residence without her consent, and if such a direction would be lawful. The tribunal had to consider the necessity of accessing KAD's residence to ensure her health and safety, as well as the balance between respecting KAD's autonomy and providing necessary support.

The tribunal found that access to KAD's residence was essential for the guardian and service providers to address her self-neglect and ensure her welfare. It was noted that KAD had previously allowed service providers access to her home and might do so again in the future. However, the uncertainty of when such access would be granted severely limited the ability of the guardian and service providers to act in KAD's best interests. The tribunal was persuaded that it was appropriate to give a direction under section 138 of the Guardianship and Administration Act 2000 to the Adult Guardian to provide a key to KAD's residence to a service provider, as part of the guardian's decision-making power regarding accommodation and service provision for KAD. The tribunal also recommended that the Adult Guardian impose specific, time-limited guidelines on the use of the key and ensure regular reporting by the service provider.

The tribunal's decision allowed the Adult Guardian to provide a spare key to a service provider for the purpose of entering KAD's residence and re-engaging her with necessary services. This decision aimed to address KAD's self-neglect and ensure her health and safety while balancing the need to respect her autonomy.

Orders