MTJ
[2017] QCAT 321
•2 August 2017
CITATION: | MTJ [2017] QCAT 321 |
PARTIES: | MTJ |
APPLICATION NUMBER: | GAA5745-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Joachim |
DELIVERED ON: | 2 August 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | GUARDIANSHIP 1. The guardianship order made by the Tribunal on 5 August 2015 is changed by appointing TJT as guardian for MTJ for the following personal matter: (a) Provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – where appointment of guardian is being reviewed – whether need for guardianship powers exist Disability Services Act 2006 (Qld), s 147 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
MTJ is a 21-year-old man who lives with his father and stepmother on the Sunshine Coast in their private home. MTJ has a number of disabilities, including intellectual disability, an acquired brain injury and cerebral palsy.
On 5 August 2015, MTJ’s father, TJT was appointed as guardian for MTJ to make decisions about the following personal matters:
a)Healthcare;
b)Provision of services; and
c)Using and authorising the use of a restrictive practice device, namely an electronic mechanism to override the actions of MTJ while using his wheelchair.
The appointment remained current until further order of the Tribunal to be reviewed in two years. The review takes place on the papers in Brisbane on 2 August 2017. There are no parties present.
The Tribunal conducts the review under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). Section 31 requires that at the end of the review I must revoke the appointment unless I am satisfied I would make an appointment if a new application were to be made. This requires me to consider the various elements of s 12 of the GAA Act.
Capacity for decision-making.
On the evidence before me, I am satisfied that MTJ is not able to make decisions about personal matters as a result of his acquired brain injury and intellectual disability.
Is there a need to appoint a guardian?
The guardian, TJT, provided the Tribunal with a guardian’s report dated
20 June 2017. Section 12 of the GAA Act requires me to consider whether there is a need for a guardian. MTJ lives at home with his father and stepmother. In-home services are provided through Blue Care and MTJ also has weekly respite care and activities.
MTJ is totally dependent on others for all activities of daily living. TJT advised that during the period of his appointment, he has made each and every decision regarding MTJ’s safety and wellbeing, including dressing, nutrition, respite services, health, mobilisation and comfort. Most of these decisions can be made without the appointment of a guardian.
It seems to me in MTJ’s case, that the majority of the decisions are able to be made by TJT without the need to appoint a guardian. The current order appointed MTJ for three matters – healthcare, provision of services and the use of the restrictive practice.
In relation to healthcare, TJT is able to make decisions about his son’s healthcare under the Statutory Health Attorney regime outlined in the Powers of Attorney Act 1998 (Qld). That is, as MTJ’s carer, he is able to make healthcare decisions without being appointed as MTJ’s guardian – it is automatic.
My understanding of the purported restrictive practice is that it is used to enable safe transportation of MTJ whilst he is in a wheelchair. Under the Disability Services Act 2006 (Qld), s 147 outlines the definition of mechanical restraint as being a device for the primary purpose of controlling the adult’s behaviour in response to a behaviour that causes harm to themselves or others, to restrict the free movement of the adult or to prevent or reduce self-injurious behaviour. However, subsection (2) outlines some exemptions, including ‘a device to enable the safe transportation of the adult’. Such a device does not constitute mechanical restraint.
My understanding of the use of the electronic device is that it is used to override MTJ’s use of the wheelchair which could potentially cause harm to himself of others whilst the wheelchair is being used as a mode of transportation. In these circumstances the use of the device is not mechanical restraint, and a guardian is not required to approve its use.
In any event, if the electronic device is being used by the respite care provider, the Act allows for consent to be given by an informal decision-maker, who in MTJ’s case would be his father. There is no need to appoint a guardian for restrictive practices when mechanical restraint is being used in respite care circumstances. The use of the wheelchair at home is not covered by the legislation.
Because of MTJ’s disabilities there are a number of services which he and his family access. It would seem to me that there will be an ongoing need for multiple services going forward into the future, and a need for a decision-maker in relation to services.
As such I have concluded that there is a need for decisions about services and without an appointment MTJ’s needs will not be adequately met, nor his interests adequately protected. This is the only area of MTJ’s life in relation to personal matters that I can see a need for an appointment of a guardian. I will therefore change the order that was made on 5 August 2015 to appoint TJT as guardian for MTJ for decisions about the following personal matter:
a)Provision of services.
The appointment will remain current until further order of the Tribunal. It is reviewable and is to be reviewed in five (5) years.
This order does not affect TJT continuing to make other decisions required for MTJ.
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