MRD - [2012] QCAT 445

CITATION:

MRD [2012] QCAT 445

PARTIES:

MRD

APPLICATION NUMBER:

GAA10135-11 / GAA10139-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

10 February 2012

HEARD AT:

Carrara

DECISION OF:

Ron Joachim, Member

DELIVERED ON:

10 February 2012

DELIVERED AT:

Carrara

ORDERS MADE:

1. JD is appointed as guardian for MRD for decisions about the following personal matters:

(a) Accommodation;

(b) Health care;

(d) Provision of services.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

3. The application for the appointment of an administrator for MRD is dismissed.

CATCHWORDS:

Guardianship and Administration – where service provider concerned re partner’s ability to care at home for adult – where conflict exists between service provider and carer – where adult has fixed delusions about another man – where long term relationship exists

Guardianship and Administration Act 2000, s 12, Schedule 4

Adult Guardian v Farne Stanley Hunt [2003] Queensland Supreme Court 4828/03

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

REASONS FOR DECISION

The Tribunal received an application from BH, a social worker on 1 December 2011 in respect of MRD. At the time of the application MRD was at the Robina Hospital. The application sought the appointment of the Adult Guardian as guardian for MRD and the appointment of the Public Trustee of Queensland as administrator for her. The hearing of the applications took place in February 2012. MRD, by that stage, had moved to the Health Centre. The applicant was not present but was represented by RX, a social worker at the Health Centre.
MRD attended the hearing as did her long term partner JD, an advocate from Carers Qld, Senior Medical Officer Dr X and a large number of family members attended by phone from Tasmania.
When the Tribunal considers applications for guardianship and administration it does so under section 12 of the Guardianship and Administration Act 2000. This requires the Tribunal to consider firstly the adult’s capacity. Capacity is defined is schedule 4 of the Act and every adult Queenslander is entitled to the presumption of capacity. This presumption can be rebutted.
The evidence before the Tribunal is that MRD has delusional beliefs about marrying an entertainer by the name of SR. She advised the Tribunal she believes completely in SR and has been talking with him about marriage right now. MRD has cerebral vascular disease and the information on the file indicates that she has impaired attention and concentration as well as poor memory and poor retrieval of new information. She lacks insight into her care needs and has poor planning ability. She perseverates in relation to SR. She is unable to perform simple calculations. This material was provided through health professional reports as a result of assessments conducted in November 2011 by Dr Y and in February by Dr X. The Tribunal also had the benefit of a report by YG, a Clinical Nurse at the Community Mental Health Clinic.
All parties present who commented on MRD’s capacity agreed that she had very limited ability to make decisions and that she had fixed delusions regarding SR. The Tribunal is satisfied that the presumption of capacity for personal and financial matters is rebutted.
The Tribunal now turns its mind to whether there is a need for a guardian. There has been a development of ongoing conflict between the Health Centre and the adult’s long term carer JD. JD has been concerned about various aspects of care of MRD. He would like her to return home with him.
The Tribunal heard evidence that a trial of home care is likely to be arranged. Health Centre staff are concerned regarding JD’s capacity to effect intimate hygiene care given MRD’s obsession and delusions regarding SR. MRD is equivocal about returning home. JD has been caring for MRD for the 5 years since she had her stroke. During this time there have been no concerns expressed regarding his level of care for her. He advised the Tribunal that in the past there has been some reluctance to obtain assistance but he now considers this is a necessity.
RX advised that she had no objection to a trial at home although she was concerned with the breakdown of the relationship between the hospital and JD.
The Tribunal was somewhat gratified by comments about a recent meeting between JD, his advocate from Carers Qld and the Health Centre in which there appeared to be some commitment to re-establishing better lines of communication. The Tribunal notes that MRD came to the hospital as a result of carer stress. A recent home visit went well. DG, a sister of MRD, advised the Tribunal that she had no personal objection with her sister returning home but she was concerned about how JD would cope. The family had a preference for MRD to return to a care facility in Tasmania.
JD advised that because of MRD’s stroke he has always had to work with health professionals and until now has never had any issues. Whilst the Tribunal had some concern about the breakdown in communication, the Tribunal was satisfied that JD was an appropriate decision maker, that there was a need for an appointment as decisions were required about accommodation and health care and without an appointment MRD’s needs would not be adequately met or her interests not adequately protected.
The Tribunal had the option of the Adult Guardian, JD or a sister SG. Whilst the Adult Guardian is independent of family and is able to make objective decisions the Tribunal considered that JD had MRD’s best interests at heart and considered that, with assistance, he would be able to develop some positive changes in the relationship with the Health Centre. The family subsequently came to a view that they would prefer the Adult Guardian after having advanced SG as a possibility.
The Tribunal in making the decision about who to appoint also took into account that JD and MRD had been in a relationship for 17 years. The Tribunal took heed of the decision of the Queensland Supreme Court, Adult Guardian v Farne Stanley Hunt in which Justice Chesterman dismissed an appeal from the Adult Guardian regarding a decision of the then Guardianship and Administration Tribunal. The decision appealed was the revocation of the appointment of the Adult Guardian and in the Adult Guardian’s place appointing Mr Hunt as guardian for Ms Frame.
The Tribunal in its decision stated it was satisfied that the respondent was more appropriate for appointment as guardian because he has a long term caring relationship with Ms Frame and there is no conflict between their interests. Justice Chesterman had this to say:
“The Adult Guardian is a functionary of the State which, very properly, endeavours to protect the helpless and defenceless. But where such a person has friends or family who are able and willing to provide the requisite support and assistance it is, in my view, preferable that they be allowed to do so rather than be supplanted by a bureaucrat, no matter how well intentioned. To take any other view is to deny the expression of what is good in human nature. This is all the Tribunal was saying and I agree with it. The Tribunal made the point well. It said that Mr Hunt had demonstrated a degree of affection and devotion for Ms Frame which made him a passionate advocate for her well being. The alternative was to appoint the appellant who would do no more than perform his statutory function for one more patient.”
At paragraph 31 of the reasons he states:
“As I understand the material the only criticism of the respondent is that his zeal has been difficult for the managers of the nursing home to accommodate… It seems to me unreasonable to criticise Mr Hunt because of his unceasing endeavours to alleviate the suffering of the woman he has loved for many years.”
Because of the controversy surrounding MRD’s care needs the Tribunal will offer the certainty of appointing JD as guardian for one year to make decisions about accommodation, services and health.
When it came to the issue of whether there was a need for an administrator, the applicant’s representative advised the Tribunal that she did not consider there was a need to appoint an administrator. MRD’s finances have been managed for several years by JD. She has some small savings in the bank and is on a disability pension. She and JD rent through Queensland Housing and JD is the Centrelink nominee for MRD. The family considered the Public Trustee to be the best option but could offer no reasonable rationale for this. There is no evidence of any mismanagement by JD of MRD’s financial affairs. The Tribunal concluded that there was no need for a decision maker in respect of financial matters as her interests were adequately protected without an appointment. The application for the appointment of administrator was dismissed.