Karov v Chief Executive, Department of Employment, Economic Development and Innovation
[2011] QCAT 11
•10 January 2011
| CITATION: | HKA [2010] QCAT 679 |
| PARTIES: | HKA |
| APPLICATION NUMBER: | G8146 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 1 December 2010 |
| HEARD AT: | Maroochydore |
| DECISION OF: | E Morris L Clarkson |
ORDERS MADE: |
a) Accommodation; b) Health Care; c) Provision of Services.
|
| CATCHWORDS : | Capacity of Adult- whether need for Guardian and Administrator- where basis for making limitation order not established; lack of cooperation with appointed guardian. |
REASONS FOR DECISION
On 11 December 2008 the then Guardianship and Administration Tribunal appointed the Adult Guardian as guardian for HKA to make decisions about health, accommodation, and service provision. This appointment was for two years. That Tribunal also appointed the Public Trustee of Queensland as administrator for all financial matters, until further order. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Tribunal.
The Adult Guardian’s appointment was due to expire on 11 December 2010, and in the circumstances the Tribunal took the opportunity to review the appointments of both the Adult Guardian and the Public Trustee by way of hearing on 1 December 2010.
On 16 November 2010 an interim order was made by the Tribunal appointing the Adult Guardian as guardian for decisions about contact/visits.
A confidentiality order was also made by the Tribunal on 24 November 2010 pursuant to section 109 of the Guardianship and Administration Act 2000 (the Act). The order directed that any personal information regarding HKA not be disclosed to HC, CN, and HP prior to the Tribunal hearing on 1 December 2010.
Prior to the Tribunal hearing an application was received from the Adult Guardian dated 24 November 2010 requesting that the Tribunal make a Confidentiality and Closure Order under section 107 of the Act.
HKA is a forty seven year old woman. She lives alone in her own home. HKA is a trained nurse, and previously worked in this capacity throughout Australia and overseas. She travelled extensively in her life, and had interests in painting and photography. Her circumstances changed in the early 1990s when she reportedly contracted viral encephalitis in the course of her work, with subsequent long-term health problems. There is a long history of conflict and disagreements between HKA and her family, including her two sisters and her mother.
When conducting a review of an appointment of a guardian or administrator, the Tribunal must take into account section 31 of the Act which provides that the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. The Tribunal may make an order removing an appointee and replacing that person only if the Tribunal considers that the appointee is no longer competent or another person is more appropriate for appointment.
The Tribunal when considering the appointment of a guardian or an administrator must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
The issues for the Tribunal are:
(a) Is the Tribunal satisfied that it is necessary to prevent serious harm or injustice to a person to exclude from the hearing certain persons by way of a closure order?
(b) Is the Tribunal satisfied that it is necessary to avoid serious harm or injustice to a person by providing that the information received from HKA during the period that a closure order was in place be withheld from the active parties and other persons by way of a confidentiality order?(c) Does HKA have capacity for financial and personal matters?
(d) Is there a need for a guardian? If so, who should be appointed?
(e) Is there a need for an administrator? If so, who should be appointed?
The Tribunal can make a closure order pursuant to section 107 of the
Act which provides:(1) If the tribunal is satisfied it is necessary to avoid serious harm
or injustice to a person, the tribunal may, but only to the extent
necessary, by order (a closure order), do either or both of the
following—
(a) close the hearing or part of the hearing to all or some
members of the public;
(b) exclude a particular person, including an active party,
from a hearing or part of a hearing.
(2) To the extent the hearing or the part of the hearing concerns
health information for a person, serious harm to the person
includes significant health detriment to the person.
(3) The tribunal may make a closure order on its own initiative or
on the application of an active party.
(4) A person must not contravene a closure order, unless the
person has a reasonable excuse.
The Tribunal can make a confidentiality order pursuant to section 109 of the Act which provides:
(1) If the tribunal is satisfied it is necessary to avoid serious harm
or injustice to a person, the tribunal may, but only to the extent
necessary, by order (a confidentiality order)—
(a) withhold from an active party or other person a
document, or part of a document, before the tribunal; or
(b) withhold from an active party or other person other
information before the tribunal.
(2) To the extent a document or part of a document contains
health information for a person, or to the extent other
information is health information for a person, serious harm to
the person includes significant health detriment to the person.
(3) The tribunal may make a confidentiality order on its own
initiative or on the application of an active party.
(4) Also, the tribunal may make a confidentiality order in relation
to a document or other information on the application of the
entity who prepared or provided the document or other
information.
(5) A person must not contravene a confidentiality order, unless
the person has a reasonable excuse.
SHOULD THE TRIBUNAL GRANT A CLOSURE ORDER AND/OR A CONFIDENTIALITY ORDER?
The Adult Guardian provided a written submission to the tribunal in regard to the applications for a closure order and for a confidentiality order. The submission indicated that the HKA strongly believed that any information provided about her at the hearing would be used against her or passed on to others against her wishes. The Adult Guardian has cooperated with requests from HKA and has not provided her family members with any personal information regarding her. The Adult Guardian has applied the general principles, in respecting HKA’s right to participate, to the greatest extent practicable, in decisions regarding her life, and the right to make her own decisions. HKA has strongly expressed her view that family are not to be provided with information regarding her personal matters. The Adult Guardian has also taken into account HKA’s right to confidentiality of information. Family have also asked that their contact details are not provided to HKA. The Adult Guardian indicated that while it was HKA’s strong wish that family be excluded from the Tribunal hearing and that information in the hearing be kept confidential, they were unable to elaborate on how not granting the orders would cause serious harm or injustice to HKA or any other person.
The views of HKA were directly sought. She referred to concerns that her sisters had not been willing to come to mediation in the past. She believed that they intended to destroy her life. She believed they had stalked and defamed her, interfered in her life and destroyed her support networks. She requested that her sister HC be excluded from all of the tribunal hearing. She believed family members had previously divulged information to others and have tried to convince others that she has a mental illness. HKA spoke about her family, and expressed concerns about her ability to see her mother. Her relationship with her family had broken down. She also objected to representatives of Carer’s Queensland attending the hearing.
HKA also objected to a representative of the Adult Guardian Ms Lisa Poole attending the hearing. When asked in regard to her reasons, she indicated that Ms Poole had a “short attention span” and she did not feel that Ms Poole could tolerate the hearing. She referred to Ms Poole having difficulty in keeping accurate, precise records and that she didn’t believe she had read her file.
A representative from Queensland Aged and Disability Advocacy (QADA) attended to support HKA. Ms Annelise van Deth indicated that she had only met HKA on one occasion but supported the application for a closure and a confidentiality order, as the presence of family members at the hearing would cause HKA considerable stress. However, although HKA would be distressed by family and Ms Poole participating in the hearing, no party made submissions or provided any evidence which might tend to support the proposition that in the absence of the orders sought, serious harm or injustice might be occasioned to HKA.
HC, sister of HKA, also attended the hearing. She outlined her concerns to the Tribunal that as the result of the confidentiality order prior to the hearing she had not been able to read relevant documents. She sought to review the long history of difficulties family have experienced in obtaining medical assistance for HKA, and in obtaining relevant information about her care. She indicated that because of HKA’s behaviour towards herself and other members of the family, they had obtained a Domestic Violence Order in 2008 to prevent HKA contacting them. In regard to the current applications for a closure order and confidentiality order, she voiced her strong objection to the Tribunal. HC indicated that in accordance with the principles of “procedural fairness” she had a right to be heard and respected.
A representative of Carer’s Queensland, Ms Karen Kline submitted that the case had not been made by the Adult Guardian representative or by HKA in regard to evidence of serious harm or injustice. She indicated that family had the right to be heard at the tribunal hearing.
DISCUSSION
In determining whether the Tribunal might grant either a closure order under section 107 of the Act or a confidentiality order under section 109, it must satisfy itself that it is necessary to avoid serious harm or injustice or a person. The Tribunal must only grant such an order “to the extent necessary”.
The terms “serious harm” and “injustice” are not defined in the Act. However, in the decision of DAA, Re [2009] GAAT the Tribunal considered the definition of “harm” in the Australian Concise Oxford Dictionary which includes “hurt” - which is defined as bodily or material injury. The Tribunal also noted the definition of “serious harm” for the purposes of the Disability Services Act 2006 (Victoria) in the decision of LM (Guardianship) 2008 VCAT 2084. That Tribunal defined “serious harm” as “physical or psychological injury, whether temporary or permanent, that endangers, or is likely to endanger a human life, or is likely to be, significant and longstanding”.
The definition of “injustice” is also defined in the Australian Concise Oxford Dictionary as “a lack of fairness or justice”.
The Tribunal must also consider the requirements of section 104 of the Act which requires it to take as the basis of consideration that each active party in a proceeding is entitled to access documents and other information that is credible, relevant or significant. It is also desirable that tribunal hearings are held in public.
The Tribunal accepts that HKA has strong views and beliefs about certain persons attending the hearing and being able to access her personal information. It accepts that these things might cause her distress. However, the arguments presented to the Tribunal, by the Adult Guardian, by the adult and her disability advocate do not provide any evidence of a possibility of serious harm or injustice to her. Indeed some of the arguments submitted by HKA, particularly in regard to attendance by a representative of the Adult Guardian and persons from Carers Queensland lack any real substance.
CONCLUSION
The Tribunal formed the view that there was no compelling evidence presented to it which might tend to establish that a closure order or a confidentiality order was necessary to prevent serious harm or injustice to HKA or to anyone else.
In the circumstances, the Tribunal dismissed the applications.
CAPACITY
In conducting a review of appointments the Tribunal must consider under sections 31 and 12 of the Act whether HKA has capacity for decision-making about relevant matters. There is a presumption at law that all adults have the capacity to make their own decisions. That presumption had been rebutted at the time when the appointments under review were made but the Tribunal must consider afresh in this review whether HKA’s decision-making capacity is impaired.
In conducting a review, the Tribunal can have regard to the evidence about capacity that had been on the Tribunal’s file at the time of the appointment under review and as well can consider any recent evidence about an adult’s capacity to make decisions.
Schedule 4 of the Act 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 Tribunal considered the following evidence about capacity:
There are a number of reports available from HKA’s previous treating psychiatrist Dr Wendy Bourke. In a report dated 9 May 2005, Dr Bourke indicates that HKA displays affective instability, insufficient to justify a diagnosis of Bipolar Affective Disorder but could be called Dysthymia or a Prolonged Adjustment Disorder with Mixed Emotions of Depression or Anger. She has problems with her personality which include poor impulse control, such as loss of control of her temper or her gambling. She meets three or four of the diagnostic criteria for Borderline Personality Disorder. Her psychiatric problems are such that outpatient voluntary treatment is sufficient. Dr Bourke is of the view that HKA is fully capable of understanding her financial situation.
A Health Professional Report from Monika Sherwood (Psychologist) dated 29 September 2008 indicated that HKA was diagnosed with depression. She also had a history of viral encephalitis, possible acquired brain injury, chronic fatigue, and problems with impulse control. In regard to finances she seems to ignore the consequences of defaulting, and says that her mother should pay her bills. She has a gambling addiction. HKA cannot make complex lifestyle or simple and complex financial decisions.
More recent assessments and medical information available from Nambour Mental Health Service indicates a complex mental health history over ten years, and consistent with a diagnosis of borderline personality traits, emotionally unstable personality and projections of mistreatment and escalated aggression.
Information available from previous Tribunal hearings, including evidence from HKA herself, indicates a history of difficulties in management of her finances, where she has required assistance from family to pay outgoing expenses such as bills, and has been unable to repay outstanding loans. Mental health difficulties such as depression, in addition to issues related to family conflict, and HKA’s gambling difficulties have impacted on her ability to manage finances. HKA blames her family for her difficulties.
There is a reported history of non-compliance with medication, medical treatment, and conflict with medical practitioners in regard their diagnosis and treatment. Family report many incidents of aggression and threatening behaviour towards them, with at times unreasonable demands for financial assistance and other support.
HKA’s demeanour and evidence at the hearing reflected an articulate and well educated person, who nonetheless was unable to shift from fixed views and beliefs regarding her family. HKA became impatient with the Tribunal process, and after shouting at the Tribunal, she abruptly left the hearing and did not return.
The Tribunal made findings of fact about capacity as follows:
HKA has longstanding mental health difficulties. She has been variously diagnosed with depression, viral encephalitis, chronic fatigue, and as having emotionally unstable personality and borderline personality traits.
Her fixed beliefs, limited understanding and reasoning processes impact substantially on her decision making ability.
Whilst HKA has an intellectual understanding of her personal and financial circumstances, she has very limited appreciation of the effect or consequences of decisions.
Limited insight prevents her making effective decisions and working cooperatively with decision makers and service providers. There is a risk of her personal and financial needs not being met, and her interests not protected.
HKA has a history of vulnerability due to limited decision making and poor management of her finances.
HKA’s mental health difficulties and gambling addiction impact on her ability to freely and voluntarily make decisions which are in her best interests, placing her assets and finances at risk.
CONCLUSION
The Tribunal finds that the evidence established that HKA’s decision making capacity is impaired, and that the presumption of capacity to which all adults are entitled is rebutted in this case in relation to decisions about personal and financial matters.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF A GUARDIAN
The Adult Guardian was appointed to make decisions about accommodation, health care, and provision of services by the Guardianship and Administration Tribunal on 11 December 2008. An interim order of the Queensland Civil and Administrative Tribunal, also appointed the Adult Guardian to make decisions about contact/visits. The Adult Guardian’s Report to the Tribunal, dated 23 November 2010, provided the following information and history:
(a)In respect of decisions about accommodation, HKA continues to live in her home and has been resistant to engaging with the Adult Guardian. The Adult Guardian has not made any accommodation decisions, and there is no evidence that the current accommodation is not appropriate for HKA’s needs.
(b)In respect of decisions regarding health care, again HKA has not been cooperative with the delegates of the Adult Guardian. She continues to make her own health care decisions, and the Adult Guardian has not made any health care decisions. She does not currently have a regular general practitioner. The Adult Guardian has consulted with medical officers of the Adult Mental Health, Acute Care, Community Assessment Team (CAT) regarding a mental health assessment. An assessment was completed with cooperation from HKA. Their assessment indicates she has borderline personality traits, projections of mistreatment, and escalated aggression, however there are no recommendations for treatment.
(c)In regards decisions about services, again HKA has been resistant to engaging with the delegates of the Adult Guardian and no decisions have been made. The Adult Guardian representatives indicated that they had “exhausted” all of the services potentially available to HKA, and could not compel her to accept services, should she adamantly continue to refuse assistance.
(d)HKA has previously expressed a strong desire to have contact and or visits with her mother. She is particularly concerned that due to her mother’s age and health, that she may not have an opportunity to see her mother prior to her death, or even to attend her funeral. There was a Domestic Violence Order (DVO) dated 11 December 2008 restricting HKA from seeing her mother, HP, HC, and CN. This order has since expired, however HC has requested her contact details not be provided to HKA, and contact with HP has been limited for many years. There has been very limited contact between HKA and her family in the last two years, reportedly on the expressed wish of family (including her mother) and the Adult Guardian has no power to compel family members to have contact with HKA in the event they choose not to do so. [There is of course the opportunity for the parties to negotiate or mediate some arrangement in relation to HKA’s contact with her mother, but this is not the province of a guardian – particularly so in this case, where HKA is opposed to the appointment of the Adult Guardian.]
HKA in written submission to the tribunal indicated that she is concerned that the Adult Guardian has not been competent, and is strongly opposed to the continuation of the Adult Guardian’s appointment. She has made complaints about the Adult Guardian and her complaints against the guardian include concerns about “competence, emotional abuse, neglect and deception”.
HKA’s sister, HC expressed concerns that should there not be an appointed guardian, her sister would not access appropriate health care and psychiatric treatment. Previously the responsibility has fallen to family to attempt to obtain services; however their efforts have also been frustrated, as HKA has declined such services. As a result, family have deliberately distanced themself from contact with HKA to minimise the stress of her demands. They remain concerned that she has appropriate support mechanisms in place and wish to reassure HKA that they have “not abandoned her”. HC also gave evidence of her sister’s history of non-compliance.
Based on the information set out above, the Tribunal determined that although it is clear that HKA requires some assistance in regard to personal decision making, her longstanding personality difficulties mean that she is resistant to cooperating with decision makers and service providers. On a pragmatic basis, a decision maker cannot compel an adult to accept decisions on a range of personal matters where that adult simply does not cooperate or engages in certain behaviour which renders such decisions unworkable.
HKA has indicated that the appointment of the Adult Guardian has added little value to her life. The representatives of the Adult Guardian submit that due to HKA’s lack of cooperation they have little to offer in regard to decision making. HKA can and has continued to make her own decisions regardless of the Adult Guardian’s appointment in the last two years, and there is no evidence before the Tribunal that this situation is likely to change.
CONCLUSION
The Tribunal is satisfied that there may well be decisions which could be made to assist HKA in accessing appropriate health care, community services, and in having contact or visits with her mother. However, the evidence establishes that HKA herself continues to make her own decisions, and will not cooperate with the Adult Guardian to the extent that any substituted decision would be workable.
There is no evidence that the appointment of the Adult Guardian has added any value to HKA’s life, and there is no evidence which establishes that, without the appointment of a guardian, HKA’s needs will not be adequately met or her interests will not be adequately protected.
The Tribunal was therefore not satisfied that if a new application was before it, the appointment of a guardian would be made. In the circumstances, the appointment of the Adult Guardian as guardian for HKA ought to be revoked.
IS THERE A NEED FOR THE CONTINUED APPOINTMENT OF AN ADMINISTRATOR?
HKA lives in her own home on the Sunshine Coast. This home was previously at risk of foreclosure, due to outstanding payments, and there continues to be a mortgage of approximately $46,000. There is also a small outstanding debt to a loan company The Public Trustee of Queensland representative, Mr Alan Albury, indicates that they have worked cooperatively with HKA to pursue issues related to payment of outstanding debts, and maintenance of her property. They are making savings on HKA’s behalf, and ensuring that these funds are available to her for her basic living expenses such as food. They pay outgoing utilities and insurance on her property. Some difficulties have been encountered in regard to completion of maintenance work such as termite inspections and prevention, and other maintenance on the home is necessary (electrical wiring, roofing etc). They hope to work with HKA and her disability advocate to negotiate arrangements for further work to be done in this area.
HKA supports the continued appointment of the Public Trustee of Queensland. Ms Annalise van Deth from QADA indicates that the HKA has advised her that her interests will not be protected without an appointment of the Public Trustee of Queensland. They have assisted HKA to make savings and to manage her financial matters.
HC raised concerns regarding the need for an administrator. She raised the issue of the adult’s difficulty with gambling, and inability to manage her finances over a long period of time. Her assets and income have previously been placed at risk due to gambling, borrowing of funds, and non-payment of bills such as rates and utilities, and lack of ability to attend to basic maintenance of her home. She believes that HKA has in the past prioritised gambling over spending of income on food and basic necessities and is concerned about this. She believes that without the appointment of an administrator, her sister is vulnerable, and her interests will not be protected. Her sister fails to recognise when people are acting in her best interests, and will not accept assistance.
CONCLUSION
Based on the information and evidence set out above, the Tribunal was satisfied that there is a need for a decision in relation to a range of financial matters, and that without the appointment of an administrator, the interests of HKA will not be adequately met and her interests will not be adequately protected
WHO SHOULD BE APPOINTED AS ADMINISTRATOR?
All parties attending the hearing, including HKA, supported the continued appointment of the Public Trustee. All parties consider that the Public Trustee is appropriate and has provided valuable support and assistance to the adult, in management of her finances.
There was no evidence to suggest that the Public Trustee was no longer competent or that another person was more appropriate for appointment.
CONCLUSION
[45].In view of the unchallenged evidence of all parties about the competence and appropriateness of the current appointee, the Tribunal concluded that the appointment of the Public Trustee should be continued.
[46]. Orders were made accordingly.
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