MPS - [2012] QCAT 474

CITATION:

MPS [2012] QCAT 474

PARTIES:

MPS

APPLICATION NUMBER:

GAA7286-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

29 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal is satisfied that urgent action is required.

2. The Tribunal, for the purposes of making this interim order, hereby dispenses with any or all of the procedural requirements of the Queensland Civil and Administrative Act 2009.

3. The Adult Guardian is appointed guardian for MPS for the following personal matters only:

(a) accommodation decisions;

(b) health care of MPS;

(c) provision of services for MPS;

4. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing.

5. This guardianship appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.

CATCHWORDS:

GUARDIANSHIP – where interim appointment requested – where immediate risk of harm established

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

MPS has been diagnosed with schizophrenia. According to information provided to QCAT by his treating psychiatrist, Dr Mufti, MPS is under an Involuntary Treatment Order under the Mental Health Act 2000. Although he has been tried on numerous antipsychotic medications, he continues to display residual symptoms which have proven to be treatment resistant.
MPS has had numerous admissions to psychiatric inpatient units which have often been prompted by his aggression towards his parents with whom he has been living. Dr Mufti reports that the parents of MPS have repeatedly reported that their son has been physically and verbally aggressive towards them. The parents have on occasions called the police due to the aggression of MPS and at one stage a domestic violence order was taken due to his violent behaviour towards his parents.
Dr Mufti reported that the mental health treating team have repeatedly recommended that MPS should move to supported accommodation to reduce the risk of aggression towards his parents. However this recommendation had been rejected by the parents of MPS who express the view that their son should live with them.
Dr Mufti, as the treating psychiatrist, expressed the opinion that due to the high expressed emotions within the home environment, there is more chance of conflict should MPS continue to live with his parents where there is a high risk of aggression. Dr Mufti believed that MPS would benefit from behavioural management away from his parents’ home.
According to Dr Mufti, the evidence suggests that there are no major problems in managing MPS’s behaviour while he is in a hospital setting. Dr Mufti stated an opinion that attempts by his parents to exert control over his behaviour worsens the risk of MPS exhibiting aggression towards his parents. Dr Mufti expressed the opinion that MPS should be placed in accommodation outside the family to reduce the risk of aggression towards MPS’s parents.
A member of the mental health treating team applied to QCAT for the appointment of a guardian to make decisions for MPS on the grounds that he does not have the capacity to make his own decisions about personal matters. As a hearing of the application for the appointment of a guardian could not be heard for some time, an interim appointment was sought under section 129 of the Guardianship and Administration Act 2000 (the GAA Act).
Appointments of decision makers for adults with impaired decision making capacity are made when the presumption of capacity has been rebutted after a hearing of the application by a member of QCAT. However the GAA Act does have provisions that permit QCAT to make appointments on an interim basis without a hearing and without deciding the issues in the proceeding.
Section 129 of the GAA Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. In the case of MPS, the applicant submitted that there was evidence that MPS was at an immediate risk of harm unless a guardian were to be appointed on an interim basis.
The applicant stated that MPS was currently in hospital and that the treating team could not responsibly keep him in hospital waiting for the QCAT hearing of the guardianship application. The applicant expressed concern that there was a high level of risk of harm if MPS was discharged back to live in his parents’ home. There was a vacancy that would arise in the near future in suitable supported accommodation and such opportunities for suitable accommodation are rare and are actively sought after for mental health patients.
An enquiry was made by a member of QCAT’s registry with MPS’s parents as to their attitude to the application for an interim appointment of a guardian for their son. MPS’s mother stated that she is already the legal guardian for her son as she was appointed by a court some 10 years ago. They are opposed to the application for the appointment of a guardian. They stated that MPS does not want to go to supported accommodation.
MPS’s mother provided to QCAT a copy of the document on which she relies for the assertion that she is the legal guardian for her son. The document was dated 17 December 2002 and was a signed consent for MPS’s mother to act as a litigation guardian for her son in an action in the District Court. According to the documents on QCAT’s file, that action had concluded in 2008 and her role as litigation guardian would have come to an end at that time.
I was satisfied that MPS’s mother had not been appointed as a guardian for decision making about personal matters for MPS under the GAA Act. MPS’s mother was mistaken in her opinion that she was a current guardian for her son. There was no person with express authority to make personal decisions as to where MPS should live, what health care he should have and what services should be provided to him if he was unable to make those decisions for himself.
I was satisfied by the evidence provided by Dr Mufti that MPS had been diagnosed with schizophrenia and with an acquired brain injury. I accepted the evidence provided to the tribunal that MPS has poor executive functioning with poor judgement and planning skills. I accepted the evidence that MPS needs prompting with simple tasks such as hygiene and self care and to take his medication. I accepted the evidence that MPS is highly suggestible and that he has demonstrated an inability to make his own decisions related to lifestyle issues and accommodation choices.
I concluded there was evidence on which the tribunal could find that MPS has impaired decision making capacity for personal decisions and on which the presumption of capacity could be set aside. I was satisfied, for the purposes of the application for the interim appointment of a guardian, that MPS had impaired decision making capacity.
I accepted the evidence that MPS could not be reasonably retained as a mental health inpatient and that he needed to be discharged into suitable accommodation where he would not be a risk to himself or to others. I accepted the evidence that MPS is influenced by his parents and that due to the high expressed emotions in the parents’ household, he was at a high risk of aggression towards his parents if he were to return to live with them after discharge from hospital. I accepted that behaviour management would be more easily attempted, at least in the shorter term, for the benefit of MPS in an environment outside his parents’ house.
I concluded that MPS was at an immediate risk of harm if decisions were not made about his health care, his accommodation and about what services would be required to provide him with appropriate support after discharge from hospital. I was satisfied that there was a real risk that MPS would cause harm to himself or to his parents if he were to be discharged to his parents’ home without adequate support.
I was satisfied that a guardian should be appointed on an interim basis for MPS so decisions could be made to support his imminent discharge from hospital. I considered that leaving decision making to informal arrangements by MPS’s parents was no longer satisfactory as they had not demonstrated an understanding of the risks to their son and to themselves should MPS return to live in their household.
The application sought the appointment of the Adult Guardian to make decisions about personal matters for MPS. The Adult Guardian is an independent decision maker for adults with impaired capacity with experienced staff who can apply the General Principles set out in the GAA Act. The Adult Guardian would be expected to consider all options for post discharge care for MPS and to make decisions that promoted his proper care and protection.