NJ - [2015] QCAT 320 | CaseChat AU

CITATION:	NJ [2015] QCAT 320
PARTIES:	NJ
APPLICATION NUMBER:	GAA6053-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

26 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application by Kimberley Taylor for an interim order is dismissed.

CATCHWORDS:

GUARDIANSHIP – where adult living in unhygienic residence – where support service concerned that the residence may be condemned by health authorities

INTERIM ORDER – where differing evidence about decision-making capacity – where comprehensive neuropsychological assessment conducted – where assessment unable to find impaired capacity – whether discretion should be exercised to make interim appointment

Guardianship and Administration Act 2000 (Qld) s 129

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 (Qld) (QCAT Act).

REASONS FOR DECISION

NJ resides in her home with her two adult children. According to evidence filed in the tribunal, some of the rooms in the house are not accessible due to large amounts of stored belongings, render has come away from the walls in places exposing exterior wood, and there are infestations of insects and wildlife, including mice, in the house. Evidence was given that the family live and sleep in the main room of the house that is close to the entry to the house.
Further evidence revealed that NJ has some mobility problems due to bilateral hip dysplasia and she finds it difficult to place her feet fully onto the floor. She uses a wheelie walker for mobility. There was evidence that NJ may have some difficulties successfully completing some personal and domestic tasks at home.
NJ has been offered funded in-home support services but she did not take up that offer in 2014. The home has been industrially cleaned on a number of occasions.
An application was filed in QCAT for the appointment of a guardian for NJ. The applicant was concerned that NJ and her family were at risk of eviction from their own home due to possible breaches of public health regulations because of a significant rodent infestation of the house. The Brisbane City Council has provided a major clean-up of the house and removed rubbish. Disability Services is involved with the family and is providing support for improved outcomes for the family.
The applicant filed a health professional’s report from a social worker who appears to be a colleague of the applicant and who works for the same organisation as the applicant. The report writer stated that NJ has an intellectual disability as well as a variety of specific health complaints. It was stated that NJ appears to lack the ability to recognise the risks to her health and wellbeing arising from living in squalid and high-risk living conditions. It was also stated that she lacks the ability to understand the consequences of the risks inherent in her living conditions and that she could not access alternative accommodation if her current residence were to be condemned.
The applicant also applied for an interim order for the appointment of a guardian pending a hearing of the guardianship application. QCAT can make an appointment of a decision maker on an interim basis for up to three months under section 129 of the Guardianship and Administration Act 2000 (Qld) without holding a hearing. Before an interim order can be made, the tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.
Section 129(2) of the Act provides that the tribunal may make an interim order without deciding the proceeding. In other words, the tribunal can make an interim order appointing a substitute decision-maker even though it may not have decided all of the issues which are preconditions required by section 12 of the Act for making a final appointment. One such issue is being satisfied that the adult in question has some relevant impaired decision-making capacity. However making an interim order is an exercise of discretion. It is always open to the tribunal to refuse to make an interim order if not satisfied about any of the issues in section 12 of the Act.
I was not satisfied in the case of NJ that it was appropriate to exercise discretion to make an interim order. The issue mitigating against exercising the relevant discretion arose from a concern that the evidence did not establish that NJ had impaired decision-making capacity. The system of substituted decision-making is predicated on the basis that an adult needs support with decision making. The system is not to be used when an adult, with capacity, makes unwise or unusual decisions that most other people would not make.
Apart from the opinion expressed by the social worker working with the applicant, who stated that NJ had impaired capacity, there was other evidence filed in the tribunal that set out an opinion that NJ had capacity to make her own decisions. Dr Renee Fletcher, a clinical neuropsychologist registrar at the Prince Charles Hospital, had examined NJ on two occasions in June and July 2014. Her report, dated 2 July 2014, contained a comprehensive neuropsychological assessment of NJ’s capacity.
Dr Fletcher noted that on her clinical examination, NJ was somewhat unkempt and malodourous. She was tangential in conversation but she was orientated to time, place, person and date. Her ability to focus and sustain attention was reasonable. Testing revealed that NJ’s intellectual functioning was low average with some cognitive domains either borderline or below in range.
When assessed on her decision-making abilities about accommodation and lifestyle decisions, NJ was able to give a reasonable account of her circumstances. She could outline sound organisational abilities and her responses on hypothetical problem-solving scenarios were organised and well-articulated. She did exhibit some difficulties when needing to integrate complex information and required prompting and guidance when assimilating information. Her overall performance was in the mildly impaired range.
Dr Fletcher concluded that NJ could manage most aspects of her personal activities of daily living. Dr Fletcher concluded that there was insufficient evidence to warrant a finding of impaired capacity to make lifestyle and accommodation decisions. Dr Fletcher considered that the lack of adequate sanitation and hygiene in NJ’s household might be the result of a lifestyle choice. Substituted decision-making is not designed to supplant the right of a person to make a decision with which others may not agree.
There was no evidence that the household environment was materially worse in 2015 than it was in 2014 or that NJ’s capacity had significantly declined after July 2014. There were certainly major risks to the safety and welfare of NJ while remaining in that residence. Walls and parts of roofing had been removed, open wiring was present and the house may be structurally unsound. However the evidence did not satisfy me that NJ was unable to understand the risks and the consequences of those risks.
Given the nature of the comprehensive neuropsychological assessment by Dr Fletcher, I preferred the conclusions of Dr Fletcher over the opinion of the social worker who had not referred to objective assessment in reaching a conclusion that NJ could not make her own decisions.
It was not appropriate to make an order putting in place a substituted decision-maker for an adult when the presumption of capacity had not been rebutted by the evidence. If further evidence becomes available that can establish the lack of relevant decision-making capacity, then a further application for an interim order could be made if there is an immediate risk of harm to the welfare of NJ.
The application for an interim order was dismissed.