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

1. 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.

2. 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.

3. 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. 

4. 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 when walking outside.

5. Ben Carstens from the Department of Housing told the tribunal that he had concerns for the health and wellbeing of KAD.  As the client service manager at a Housing Service Centre for the Department he had reports from KAD’s neighbours and from his housing field staff that raised these concerns.  Mr Carstens told the tribunal that KAD had breached the terms of her tenancy and action had been taken against her to terminate her tenancy and to remove her from her public housing.  That action had not been successful but if her behaviour continued to cause breaches of her tenancy, his Department would have to take action to seek to remove her from her home.

6. Written evidence was provided by Imelda Harris, Mental Health Intervention Co-ordinator at a Hospital Mental Health Service.  Ms Harris stated that KAD had been assessed by several clinicians from two mental health services over a three month period due to her behavioural deterioration.  The outcome of the assessments was a finding that KAD at those times had not been suffering from acute mental illness but that she may have one or more physical conditions.  A medical examination conducted on 3 October 2012 found that KAD was suffering from severe constipation for which treatment was recommended.

7. The recommended treatment requires KAD to drink medication dissolved in water twice a day for several weeks.  Ms Harris stated that if KAD did not comply with the recommended treatment, her condition would deteriorate and would not spontaneously resolve.  Untreated constipation could cause impaction, progress to intestinal obstruction and can cause significant behavioural disturbance in people with an intellectual disability.  Ms Harris expressed the opinion that KAD did not have the capacity to understand the need to comply with the recommended treatment and she needed someone to administer the treatment to her twice each day.  This assistance would require entry to KAD’s residence twice daily for a routine to be established to overcome her physical condition.

8. The tribunal also had received evidence from Kat Fraser, team leader at a Disability Service Centre of the Department of Communities, Child Safety and Disability Services.  Ms Fraser stated that staff at her service had attempted to engage with KAD since March 2012 so assistance could be given to identity her need for support in daily living and to enable her to access support services.  Ms Fraser expressed the opinion that KAD has little insight into how her decisions affect her quality of life and self care.  Attempts to engage with KAD have not been successful and Ms Fraser and her staff have ongoing concern for KAD’s health and welfare. 

9. Ms Fraser stated that meetings between her Department, the Adult Guardian, Department of Housing, Queensland Police Service, Queensland Health and neighbours of KAD take place as part of a collaborative approach to the concerns that all stakeholders have about KAD’s welfare and in an endeavour to assist KAD in her daily living and self care.

10. Representatives from ARC (Homestay) attended the hearing.  Their organisation has been appointed by the Adult Guardian to provide services to KAD to assist her to remain in her home by providing her with in-home support and care.  As KAD has not permitted service providers to enter into her home for some months, ARC (Homestay) will have to develop strategies to engage with KAD to win her trust.  Part of any strategy is to obtain access when appropriate to her home.  The tribunal was told that ARC (Homestay) has existing clients with similar presentations to KAD and they have been able to develop trust and deliver necessary support to those clients. 

11. The Adult Guardian’s representative asked the tribunal to exercise discretion under section 138 of the Guardianship and Administration Act 2000 (GAA 2000) to give a direction to the appointed guardian about one aspect of its decision making role as guardian for accommodation and service provision for KAD.  The tribunal was told that there was general consensus between stakeholders in Disability Services, the Adult Guardian, Department of Housing, Queensland Police Service and Queensland Health that obtaining access to KAD’s residence was essential to ensuring her welfare.  KAD was currently not providing access to service providers but she had done so in the past and she may voluntarily permit access in the future. 

12. However the uncertainty as to when access would be permitted was severely limiting the ability of service providers and her guardian to take steps to ensure her welfare in face of what I find is clear evidence of self neglect.  I am persuaded by the submissions made on behalf of the Adult Guardian that obtaining access when necessary to KAD’s residence by service providers is essential to ensuring her wellbeing.

13. I am persuaded by the submissions made by ARC (Homestay) that they are experienced in responding to situations similar to those of KAD.  I find that their organisation has developed strategies which balance respect for the wishes of a service recipient with the need for appropriate action to engage with that person to provide support to live safely in their home. 

14. I am persuaded that it is appropriate to give a direction under section 138 of GAA 2000 to the Adult Guardian to provide a key to KAD’s residence to a service provider as an aspect of the decision making power of the guardian about accommodation and service provision for KAD. A concern had been raised in the course of the application as to whether it was legally acceptable to access KAD’s residence without her permission. A person taking action under a direction of the tribunal made under section 138 of GAA 2000 is taken to have complied with that Act and such action would not be unlawful unless the person knowingly gave the tribunal false or misleading information relevant to the direction. This is an unusual direction made by the tribunal but I am satisfied that the evidence supports the making of the direction at this time.

15. I would recommend to the Adult Guardian that regular reporting is made by the service provider to the Adult Guardian as to the use of the key and that consent to the use of the key to obtain access to KAD’s residence is specifically limited by the Adult Guardian by clear guidelines and on a time limited basis.  The guardian should review that consent regularly.