MGT

[2021] QCAT 151

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MGT [2021] QCAT 151

PARTIES:

In applications about matters concerning MGT

APPLICATION NOS:

GAA880-21 and GAA881-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

28 April 2021

HEARING DATES:

24 March 2021 and 9 April 2021

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

GUARDIANSHIP

1.     The appointment of the Public Guardian as guardian for MGT for the following personal matters is continued.

(a)     Accommodation;

(b)    Health care; and

(c)     Provision of services, including in relation to the National Disability Insurance Scheme.

2.     This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

ADMINISTRATION

3.     The appointment of The Public Trustee of Queensland as administrator for MGT for all financial matters is continued.

4.     The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

5.     The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

6.     This appointment remains current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in two (2) years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where the Tribunal is satisfied the presumption of capacity has been rebutted – evidence required to reverse the Tribunal’s earlier rebuttal of capacity – adult’s mother acting contrary to the best interests of the adult – actions and behaviour of the adult’s mother resulted in twelve different service providers refusing to provide services to the adult – the guardian took action and removed the adult from his mother’s care – the adult wishes to return to his mother’s care – allegations of physical, emotional and financial abuse of adult by his mother – review of appointments of guardian and administrator – whether appointments of decision makers should continue   

Guardianship and Administration Act 2000 (Qld), s 6, s 11B, s 11B(3), s 12, s 14(2), s 15 and s 31

Human Rights Act 2019 (Qld), s 3(1) and s 13(2)(d)

APPEARANCES & REPRESENTATIONS:

S Anglim, representing the Public Guardian.

J Heyburn, representing The Public Trustee of Queensland.

A Hansen, Advocate from Independent Advocacy NQ representing MGT.

MGT, the adult.

BC.  She is MGT’s mother.

REASONS FOR DECISION

Introduction

1. On 12 March 2020, the Tribunal decided to appoint both a guardian and an administrator for the adult (MGT).  The Public Guardian was appointed as guardian for personal matters relating to MGT, more specifically for accommodation, his health care and the provisions of services, including the National Disability Insurance Scheme (NDIS).For the administration of his finances, The Public Trustee of Queensland was appointed as administrator for all financial matters. Those appointments were to be reviewed within one year.

2. MGT is a paraplegic and has significant health issues.  He also has Type 2 diabetes, testicular cancer and depression.  Over the past three years as part of his NDIS package, support was provided to him within his home by NDIS funded support services, with the support provided for 14 hours per day.

3. At the time the Tribunal made those appointments, MGT’s mother (BC) was his primary informal support.  He lived with her.  Over time, the guardian received a number of complaints about BC’s attitude towards the staff of the support service.  These were not isolated incidents, and her behaviour was persistent and protracted over a three year period resulting in twelve different service providers being engaged to provide services to MGT. Details of those complaints will be explained later in these reasons.

4. Arising from those complaints, the guardian decided it was not in MGT’s best interests for him to remain living at home with BC, and it was necessary to arrange alternative accommodation.  He was relocated for respite to the Townsville Hospital by ambulance.[1]  MGT’s mother opposed this, and she impeded this from occurring.  She refused to allow him into the ambulance, and her protests were such that it required the Queensland Ambulance Service (QAS) Operations Manager to attend.  Her efforts on that day delayed that process by two hours, thus requiring the time and services of two QAS vehicles for what should have otherwise been a relatively quick and easy process.

   [1]On 01/09/2020.

   The hearing

5. The matter was before the Tribunal for a review of the Tribunal’s earlier decision to appoint a guardian and administrator.  Prior to the hearing commencing,[2] notices were issued to a number of active parties, including BC, advising the date, time and place of the hearing.  BC did not attend the hearing.  Ms Hansen explained that BC was otherwise engaged with another appointment.

   [2]The initial hearing commenced on 24/03/2021. 

6. When the hearing commenced, MGT was provided an opportunity to address the Tribunal.  He said that he wanted 24/7 care.  His mother was especially important to him, and he wanted the freedom to see her whenever he can.  He wanted to return to his own home and live with her.  He added that living in his current accommodation arrangement was not where he wanted to be.

7. Ms Hansen suggested that MGT had capacity to make his own decisions about his personal matters, such as where he wanted to live.  This is not withstanding the Tribunal being satisfied on a previous occasion the presumption of capacity for him had been rebutted and he had an impaired capacity.[3]  That satisfaction was achieved after the Tribunal assessed the available medical evidence.  Since then, the Tribunal has not received any subsequent application for a declaration that MGT had capacity, and nor had any further medical evidence been provided to support any hypothesis that he had regained his capacity. 

   [3]On 12/03/2020.

8. Contained within its Tribunal Briefing Report, the guardian outlined that MGT’s in-home supports service provider ceased providing services for him when BC threw water over MGT because he would not eat his meal.[4]  The service provider told the guardian that it would no longer provide support to MGT within BC’s home.  On this same day, MGT was transported to the Townsville Hospital by ambulance.  He remained in hospital for some time while awaiting placement to a suitable supported independent living arrangement.  Subsequently, a different service provider was sourced to provide services to him[5] and he was discharged from hospital to a supported independent living arrangement.  That arrangement was funded by the NDIS for a six week period.  Considering MGT requires future accommodation for his care, decisions are required to ensure that he receives appropriate accommodation for his care and support.

   [4]In home support services withdrawn on 01/09/2020.

   [5]On 23/12/2020.

9. In regard to the provision of services for MGT, the guardian anticipated the recent changes in his circumstances would require future service provision decisions because he did not have the capacity or the ability to participate in and/or navigate his own way through the sometimes complex process of reviewing or establishing an NDIS plan. 

10. When considering health care decisions, the guardian was not aware of any future healthcare decisions for him.  However, the challenging behaviours displayed by his mother towards his support services was noted and it was possible this could potentially affect MGT’s health.  She has a different opinion to that of the medical professionals in regard to his health.  If that occurs, a healthcare decision would undoubtedly be required. 

11. In respect to the unsuitability of MGT returning to live at BC’s house, the guardian received significant information by the service provider.  In the past three years, there have been twelve separate service providers, with each of them now refusing to provide services to MGT because of the interference his mother undertook, along with her attitude towards those service providers.  No service providers are prepared to provide services to MGT should he be living at BC’s house.

12. Considering the importance of that information, the Tribunal adjourned the proceedings to allow for that significant information to be provided to the Tribunal and the other active parties.  The adjournment was also appropriate because it allowed an opportunity for BC to appear personally on that subsequent occasion.

13. Ms Hansen advised she would use the time until the next hearing date to obtain an updated medical report to support the suggestion that MGT had regained his decision making capacity. 

14. Prior to the hearing resuming, Ms Hansen wrote to the Tribunal about the enquiries she had made to update MGT’s medical report as it relates to his capacity to make decisions.[6] She had spoken to Dr KJO. He was the medical practitioner who originally undertook an assessment of MGT,[7] and he determined that MGT could not understand and make his own decisions, either on a simple or complex basis, about personal health care, and lifestyle and accommodation choices.

    [6]Letter dated 01/04/2021.

    [7]On 22/11/2019.  Tribunal document MED001.

15. When the hearing resumed,[8] all active parties appeared, including BC.  The significant information material received by the guardian from the service provider was made available to the active parties.  In respect to Ms Hansen’s precis of her conversation with Dr KJO, it was noted that no formal updated medical report was available and nor did the precis assist so far as any declaration of capacity.  Given the absence of a formal medical report, or other appropriate cognitive assessment report undertaken by a suitably qualified medical professional, no weight was placed upon the contents of Ms Hansen’s precis of her conversation with Dr KJO.      

    [8]On 09/04/2021.

16. The significant information material from the service provider indicated that care was provided daily to MGT by support staff from 7:00am through to 9:00pm each day.  For the two hour periods at the start and completion of that period,[9] a 2:1 staff ratio was required for the manual handling of MGT, including transferring him from his bed to his wheelchair, and his wheelchair to bed and for personal care tasks.

    [9]Between the periods 7:00am – 9:00am; and 7:00pm – 9:00pm.

17. Unfortunately, BC displayed a nasty and confronting attitude towards support staff.  On numerous occasions she verbally abused and threatened them.  The mood within her house was described as a toxic environment with BC being extremely rude and obnoxious.  This resulted in the resignation of some members of the support staff.  Examples of BC’s behaviour have been described as –

    (a)   The removal of toilet paper from the toilet.  Support staff were required to bring their own toilet paper to the house when providing services to MGT;

    (b)   Support staff were denied access to the home refrigerator.  This meant they could not store drinks, lunches or other necessities on site;

    (c)   BC confiscated all the on-site hand sanitisers.  The service provider had provided those items to MGT’s home, as well as PPE equipment in line with the protocols associated with COVID-19;

    (d)   BC constantly made threats to the support staff;

    (e)   BC repeatedly told MGT (incorrectly) that the support staff were going to place him into hospital if he did not follow her instructions; and

    (f)   BC made denigrating comments and displayed aggressive behaviour towards the support staff.  She frequently accused them of stealing items from her house.

18. Other examples include when support staff were supervising MGT undertaking his exercises, they usually sat on a yoga ball.  This displeased BC; she got angry and when the carers returned on the next occasion the yoga ball, along with the chairs had been removed from MGT’s bedroom.  This meant the carers did not have anywhere to sit whilst caring for MGT. 

19. On another occasion, support workers entered the house only to be told by BC that they were not allowed to sit down anymore, and they had to clean, sweep and mop her floors even if they already look clean.

20. Frequently support staff tried to get MGT out of his house for outings.  The outings assisted his mental health and general wellbeing.  He expressed excitement and interest in going out; however quite often BC convinced him to stay home by using excuses such as it is too cold, and he will get sick.  Consequently, he listened to his mother and the outings were cancelled.   

21. A further concerning aspect of the information provided by the service provider to relates to BC’s conduct towards MGT’s finances.  It was reported that BC closed MGT’s bank account and transferred the funds to her own account as she and MGT were concerned the appointed administrator would steal his money.  The information further suggested that BC deposited into her own  account a cheque for $21,000 that belonged to MGT.  These allegations were not validated, however if true, they raise significant concerns.     

22. Overall, the material portrays concerning behaviour by BC, and that behaviour has impacted upon the care of, and services provided to MGT within the family home.  As already outlined in these reasons, the guardian took the extraordinary step of taking MGT from the home and placing him in hospital. 

23. When given the opportunity to respond to the numerous complaints made about her, BC denied the allegations and attempted to shift the blame back onto the support staff.  For example, she claimed they were stealing the toilet paper from the house and that is why she insisted they bring their own.  In respect to not allowing the staff to use her refrigerator, she said that was because there was not enough room in her refrigerator.  This is notwithstanding the staff only utilising space for a water bottle and a food container.  She suggested that ‘a lot of the allegations are just rubbish’.

    Capacity

24. The preliminary position that applies to MGT is the presumption of capacity.  The general principles of the Guardianship and Administration Act 2000 (Qld) (the legislation)[10] provide a presumption that he has capacity for a matter unless other evidence rebuts that presumption.[11]

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

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

25. Outlined earlier in these reasons was a prior rebuttal of that presumption, and at no subsequent time has there been any medical evidence produced in the form of a medical report or report concerning MGT’s cognitive assessment that would support reversing the rebuttal already reached.  I have been afforded the opportunity to review the most recent evidence, being Dr KJO’s medical report, and I concur with the Tribunal’s earlier decision.

    Legislative pathway

26. A principle exists that all adults have the same human rights and fundamental freedoms, regardless of their capacity, along with their inherent dignity and worth, their equal and inalienable rights, and their fundamental freedoms.[12]  Although the Tribunal may be satisfied of the rebuttal of the presumption of capacity for MGT, the making of appointment orders is not an automatic process.  There must exist a necessity for decisions to be made that relate to a relevant matter for the adult when any appointment is made.  That approach considers an appropriate balance between MGT’s right to enjoy the greatest possible degree of autonomy in decision-making; and his right to adequate and appropriate support for that decision making.[13]

    [12]Guardianship and Administration Act 2000 (Qld), s 11B(3); Human Rights Act 2019 (Qld), s 3(1).

    [13]Guardianship and Administration Act 2000 (Qld), s 6.

27. To be satisfied that an appointment of a decision maker is required, the Tribunal should consider whether a less restrictive limitation to MGT’s rights is appropriate,[14] and recognition should be given to his participation in decisions that affect him. Another important consideration is the maintaining of his existing supportive relationships, family members, carers and other significant persons who support him to make decisions.[15] 

    [14]Human Rights Act 2019 (Qld), s 13(2)(d).

    [15]Guardianship and Administration Act 2000 (Qld), s 11B(3), Part 8.

    Future personal decisions     

28. The guardian informed the Tribunal that MGT has high care needs and will require a supported independent living arrangement.  It was not advisable that he be placed back into the environment of BC’s residence given the concerns raised.  Therefore, it is anticipated that future accommodation decisions will have to be made for him. 

29. In regard to the provisions of services for MGT, given the recent changes in his circumstances, there will be a need for a new NDIS plan and decisions will be required for this to occur.

30. The guardian was not aware of any health care decisions that were necessary for MGT, however noting BC’s challenging behaviours towards his care, there is a possibility her behaviour could potentially impact upon any decision required for him.  The added concern is that BC has a different opinion in regard to MGT’s medical condition to those opinions expressed by medical professionals and experts, and in my view, this necessitates that the responsibilities for decisions about health care for him should be appropriated to the guardian.  

    Future administration decisions 

31. The administrator outlined what could be described as an unsophisticated financial position for MGT.  He received a fortnightly disability support pension and monies were held in trust.  No difficulties were experienced in administering his finances, although the allegation about BC closing his account and depositing his money into her own account warrants exploration.

    Conclusion – Review of appointments

32. The legislation specifies that if the Tribunal is satisfied the appointments should continue, it has the discretion to continue the orders making the appointments.  Or instead, the Tribunal may change the appointment order, for example, by changing the terms of the appointment, making an additional appointment or replacing an existing appointee.[16]

    [16]Guardianship and Administration Act 2000 (Qld), s 31.

33. However, in this matter, a balance is to be found between MGT’s wishes to live with his mother; the assertion that he can make his own decisions; and the making of orders that adequately meet his needs and protect his interests. 

34. In this case, the evidence of BC’s concerning behaviour weigh that balance in favour of the continuation of the appointments.  Without the continuation of those appointments, the Tribunal is satisfied of the existence of an unreasonable risk to MGT’s health, welfare and property; and without the appointments his needs would not be adequately met, and nor would his interests be adequately protected.[17]

    [17]Guardianship and Administration Act 2000 (Qld), s12.

35. Under the current circumstances, it is appropriate to continue the appointment of the Public Guardian as MGT’s guardian and The Public Trustee of Queensland as his administrator.  His only other family member is BC; however, after applying the appropriateness consideration,[18] I am satisfied that she is not appropriate to be appointed in any decision making role for him, either as guardian or administrator.[19] 

    [18]Guardianship and Administration Act 2000 (Qld), s 15.

    [19]Guardianship and Administration Act 2000 (Qld), s 14(2).

    Orders

36. It is the Tribunal’s decision that the appointment of the Public Guardian as guardian for MGT is continued for the personal matters of accommodation, health care and the provision of services, including in relation to the NDIS.  The Public Guardian’s appointment will remain current until further order of the Tribunal and is to be reviewed in two years.

1. In respect to the administration of MGT’s finances, the appointment of The Public Trustee of Queensland as administrator for all his financial matters is continued.  The requirement for the administrator to provide a financial management plan is dispensed with; and the administrator is directed to provide accounts to the Tribunal when requested.  This appointment will remain current until further order of the Tribunal and is to be reviewed in two years.