MDM
[2011] QCAT 113
•10 March 2011
| CITATION: | MDM [2011] QCAT 113 |
| PARTIES: | MDM |
| APPLICATION NUMBER: | GAA9744-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | B Bayne, Member |
| DELIVERED ON: | 10 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appointment of The Adult Guardian as guardian for MDM for decisions for decisions about the following personal matters is continued: (a) Accommodation; (b) With whom MDM has contact and/or visits; (c) Health care; (d) Provision of services. 2. Unless the Tribunal orders otherwise, this appointment remains current for one (1) years. |
| CATCHWORDS: | Capacity – need for the appointment of a guardian – appropriateness |
APPEARANCES and REPRESENTATION (if any):
Ms MM Sister
Ms CT Representative of the Adult Guardian
Mr TE Solicitor for Ms M, by leave
Ms TC DON of the Care Facility (briefly by telephone)
REASONS FOR DECISION
HISTORY OF THE APPLICATION
MM is aged 51 years of age and currently resides at a Care facility.
Mr M has one sister, Ms M, and an aunt, Ms MI.
Since 2006 Mr M has been subject to a series of guardianship and administration orders. The most recent Order is dated 19 February 2010 and reads in part:
GUARDIANSHIP
2. That the Adult Guardian is appointed as guardian for MDM for decisions about the following personal matters:
(a)Accommodation;
(b)With whom Mr M has contacts and/or visits
(c) Health care
(d)Provision of services
3. Unless the Tribunal orders otherwise, this appointment remains current for 12 months.
Mr M had made two Enduring Powers of Attorney under the Powers of Attorney Act 1998:
(a)15 April 2006 appointing Ms M as attorney for financial, personal and health matters.
This Enduring Power of Attorney was declared invalid pursuant to section 113(2) of the Powers of Attorney Act 1998 and section 84(2) of the Guardianship and Administration Act 2000 in the Order of the Tribunal dated 23 May 2006.
(b)15 October 2009 appointing Ms M as attorney for financial, personal and health matters.
On 8 December 2009 the Adult Guardian suspended the attorney’s authority to act as financial and personal attorney pursuant to sections 195 and 196 of the Act.
The Enduring Power of Attorney was declared invalid pursuant to section 113(2) of the Powers of Attorney Act 1998 and section 84(2) of the Guardianship and Administration Act 2000 in the Order of the Tribunal dated 19 February 2010.
A periodic review of the appointment of the guardian made under the Order dated 19 February 2010 was heard in Brisbane on 10 February 2011.
The Tribunal recognised that written reasons would assist the parties’ understanding of the issues, the legislation and its decision.
THE ISSUES AND THE LEGISLATION
The Queensland Civil and Administrative Tribunal (the Tribunal) came into effect on 1 December 2009. The Guardianship and Administration Act 2000 (the Act) is an enabling Act conferring original and review jurisdiction on the Tribunal.
Section 6 of the Act explains that the Act seeks to strike a balance between
(a) the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
(b) the adult’s right to adequate and appropriate support for decision making.
Many adults with impaired decision-making capacity do not need a guardian or administrator appointed because their family, friends and support network help them deal with important choices, such as where they live or how to arrange their financial affairs.
The Tribunal will only appoint a guardian and/or administrator when there is no other way to ensure that the adult’s interests are protected and that his/her needs are met.
The Evidence
In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views, where specifically relied upon by the Tribunal, are discussed below.
LEAVE TO APPEAR
On 9 February 2011 the Tribunal received an application from TE of a legal service for leave to represent Ms M, sister and previous attorney of Mr M and an active party.
The Tribunal considered the application in the hearing on 10 February 2011 under section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009 and section 124 of the Act.
The Tribunal noted that TE had been given leave to appear for Ms M in a previous hearing and had significantly assisted the Tribunal on that occasion.
CT stated that the Adult Guardian had no objection to the granting of leave to TE.
On this occasion, the Tribunal was convinced that the interests of justice would be well served by the granting of leave to TE in that his presence was highly likely to again assist the Tribunal in reaching the right outcome while at the same time meeting the statutory objects as stated in section 3 of the Queensland Civil and Administrative Tribunal Act 2009: accessible, fair, just, economical, informal and quick.
DOES MDM HAVE CAPACITY FOR THE MATTER?
The Tribunal is required to determine capacity as at the date of hearing in accordance with section 12 of the Act. The Tribunal must be satisfied that Mr M has impaired capacity before it can further consider the matter before it.
The Act defines capacity:
“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.
Mr M is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. The Tribunal considered the medical evidence and submissions from the parties to determine if the presumption of capacity had been rebutted for him.
Mr M has been diagnosed with complex health conditions including an advanced HIV infection (past HIV encephalopathy), epilepsy, an acquired brain injury, dementia and Hepatitis B.
The Tribunal file contains a series of health professional reports, letters and assessments which refer to Mr M’s ability to make decisions. Many of these are comprehensive, including documents for example from:
(a)Social Worker, Princess Alexandra Hospital (PAH) - 11 February 2009, 29 September 2009 and 26 November 2009;
(b)Occupational Therapist, PAH - 10 February 2010;
(c)Specialist Physician, Department of Clinical Immunology, PAH - 17 March 2006, 25 July 2006, 12 November 2007;
(d)ACAT Assessment - 6 October 2006 (MMSE 5/30);
(e)Medical Officer PAH - 27 Nov 2009;
(f)ACAT assessment - 23 December 2009 (low level permanent care residential in a secure/key pad accommodation); and
(g)GP since 28 April 2010 - 10 December 2010.
The Tribunal considered that there was consistency in the above medical documents, with ongoing referrals to Mr M in terms of “confusion, disorientation, progressive moderate cognitive impairment, significant cognitive impairment, difficulty with orientation, delayed short term recall, vague, slow processing, poor initiating and problem solving, no ability to make informed and competent decisions”.
The Tribunal also considered carefully a letter dated 22 September 2009 from Dr SJ to a Law Firm. The Tribunal understood that this letter was written in support of Mr M’s ability to execute the EPA on 15 October 2009. The letter reads in part:
“MM does have several elements of impaired capacity. Nevertheless I believe he has the capacity to make his enduring power of attorney, provided he is carefully and properly instructed.
MM does suffer with HIV, which could eventually affect his sound mind, memory and understanding. However in my opinion he has not reached that stage yet.”
Dr SJ explained in the letter that Mr M had been a patient at the clinic since March 2003, and his patient since April 2005. It was unclear as to whether the doctor was aware that Mr M had been subject to Tribunal Orders since 2006.
The Tribunal sought the views of those attending the hearing on 10 February 2011.
CT and TC informed that they were convinced that Mr M lacked capacity.
TE submitted on behalf of Ms M that “… at this stage, Mr M does not have the requisite capacity to make decisions for himself in relation to the matters that are the subject of this review by QCAT”.
Conclusion
The Tribunal considered that the opinions expressed by Dr SJ run contrary to all the other medical evidence provided to the Tribunal.
The Tribunal is satisfied that:
(a)Mr M has been diagnosed with a range of complex health conditions.
(b)Mr M has significant cognitive impairments including impairments to his executive functioning, his memory, his judgment, his ability to initiate and to be motivated and that these cognitive impairments impact on his decision-making ability.
The Tribunal is satisfied that Mr M lacks insight and awareness into the seriousness of his medical conditions, the medication he requires and the need for close management of his conditions. Further he lacks understanding and insight into the risks associated with his particular health conditions.
The Tribunal is therefore satisfied, as it was on 19 February 2010, that the presumption contained in General Principal 1 of the Schedule of the Act that presumes that Mr M has capacity for personal and financial matters is rebutted.
REVIEW OF THE APPOINTMENT OF A GUARDIAN
When conducting a review of an appointment of a guardian, 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, when considering the appointment of a guardian, must be satisfied not only as to the need for appointment as set out in section 12 of the Act but also as to the appropriateness of a proposed appointee as set out in sections 14, 15 and 16 of the Act.
The Tribunal noted that, as above, on 19 February 2010 the Adult Guardian had been appointed as guardian for Mr M on a limited Order.
CT spoke to the report of the Guardian dated 1 February 2011. Notably:
(a)On 19 April 2010, the Adult Guardian made the decision that Mr M should move from the PAH to the Care facility.
(b)In May 2010, Mr M was admitted to the PAH with an infection as blood tests had shown bacterium in his blood. On 31 May 2010 doctors at the PAH requested that the Guardian provide consent for a not for resuscitation order. This did not eventuate as Mr M’s condition improved.
(c)Between March and November 2010 Mr M was hospitalised on at least five occasions, mostly following seizures.
All parties, including Ms M, agree that Mr M continues to have complex medical conditions and health care needs which require specialist management as well as regular treatment and monitoring. All parties also agree that Mr M’s medical condition has improved in recent months.
Evidence from the PAH treating team dated 27 January 2011 for example states in part:
“…a considerable improvement in his appearance, general wellbeing and health. Mr M has gained weight during this time, his antiretroviral and epileptic medication compliance has improved and his attendance at the Immunology A clinic is now consistently regular and he has had far fewer admissions for seizures”.
The Tribunal recognised that there had been considerable concern in the past in regards to the appropriateness of care and the decisions made (and not made) by the former attorney, culminating in the suspension of the attorney in 2009 under section 195(2) of the Powers of Attorney Act 1998. Numerous documents on the Tribunal’s file detail these concerns: these are well known by all parties.
One major concern was that Ms M may abscond with Mr M, remove him to an island and/or not return him to the care facility.
The Tribunal noted, and was reassured by, TE’s latest submission on behalf of his client:
“Our client rejects any suggestion either directly or by implication that she would deliberately undertake the alleged course/s of action …and/or anything else that place Mr M at risk”.
CT, and the Guardian’s report dated 1 February 2011, recommended that the Adult Guardian be re-appointed for decisions about the following matters:
(a)Accommodation;
(b)Provision of services;
(c)Contact and visits; and
(d)Health care.
All other parties, including TC and the treating team from the Immunology A Clinic at the PAH, were in strong support of the appointment of the Adult Guardian for the matters identified, primarily to ensure that the improvements in Mr M’s health, nutrition and wellbeing was sustained.
TE submitted that Ms M had:
“…no objection, in principle, to the order sought by the Adult Guardian…”.
The Tribunal recognised that Ms M sought that the Order be made for a period of six months. Given however in particular the level of Mr M’s ongoing health care needs, the Tribunal determined that one year was a more appropriate period.
Conclusion
The Tribunal was satisfied on review that the Adult Guardian has performed her functions and exercised powers under the appointment order in an appropriate and competent manner.
The Tribunal was also satisfied that a number of ongoing personal and health areas have been identified which warrant the ongoing appointment of a guardian.
The Tribunal is of the view that an independent guardian would be well placed to liaise with all interested parties, undertake appropriate investigations, and assess the relative merits of options for decisions on personal and health matters.
The Adult Guardian is a professional decision-maker with extensive skills and experience, best able to make decisions to meet Mr M’s needs and properly protect his interests in the future. The Adult Guardian is considered the appropriate appointee as guardian in this case.
Orders were made accordingly.
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