NRP - [2023] QCAT 462

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NRP [2023] QCAT 462

PARTIES:

In applications about matters concerning NRP

APPLICATION NO:

GAA13637-23

MATTER TYPE:

Guardianship and administration matters for adults

DECISION DATE:

17 November 2023

REASONS DATE:

4 December 2023

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.     The Public Guardian is appointed as guardian for NRP for the following personal matters only:

(a)     accommodation decisions;

(b)     health care of NRP; and

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

2.     The tribunal directs the guardian to provide a written account of their actions as guardian to the tribunal no later than three working days prior to the hearing.

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

4.     The application by Kellie Wren for the appointment of an administrator for NRP under an interim order is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where adult not discharged from hospital because of disagreement between hospital and family about safe discharge destination – where hospital considers family member as statutory health attorney is making unsound health care decisions for adult – whether interim guardian should be appointed

Guardianship and Administration Act 2000 (Qld), s 5,
s 11B, s 14(2), s 129

Human Rights Act 2019 (Qld), s 13, s 19, s 29

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Introduction

This proceeding relates to a woman hospitalised in a mental health ward. For privacy reasons, she will be referred to only as NRP.
On 30 October 2023 NRP's mother and brother applied to the tribunal for the appointment of a guardian for NRP. They propose that NRP's mother should be appointed but, if for any reason NRP's mother is not appointed, NRP's brother should be appointed. That application is yet to be heard and determined. They also applied for the interim appointment of a guardian for NRP until the substantive application is determined.
On 15 November 2023 a doctor at the hospital, Kellie Wren, applied to the tribunal for:
(a)the appointment of a guardian for NRP;
(b)the appointment of an administrator for NRP; and
(c)the interim appointment of a guardian and of an administrator for NRP until the substantive applications are determined.
Under the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’), a guardian can make decisions about personal matters, such as where an adult lives, while an administrator can make financial decisions.
Dr Wren proposes that the Public Guardian be appointed guardian and the Public Trustee be appointed administrator.
On 17 November 2023 I decided both interim applications. I made an interim appointment of the Public Guardian for the matters of accommodation, health care, and the provision of services. I decided not to appoint an interim administrator.
NRP's brother has requested reasons for the decision, which I now provide.

Legislative framework

An interim appointment can be made only if the tribunal is satisfied, on reasonable grounds, that the adult in question has or may have impaired decision-making capacity, and that there is an immediate risk of harm to the health, welfare or property of the adult.[1]
[1]Guardianship and Administration Act, s 129(1).
Consistent with the usual practice of the tribunal, the interim decision in the present case was made without an oral hearing, direct input from NRP, or the testing of evidence. The legislation permits the tribunal to make an interim order without adhering to procedural requirements such as giving parties at least seven days’ notice of a hearing.[2] This is unsurprising, given the urgency of an interim appointment. Nonetheless, the tribunal must be mindful of the serious nature of an interim appointment, including:
(a)that it restricts the decision-making freedom of the adult, whose right to make their own decisions should be restricted to the least possible extent;[3] and
(b)its impact on other rights of the adult, including in the present case NRP’s freedom to choose for herself where to live.[4]
[2]Guardianship and Administration Act, s 129(2).
[3]Ibid, s 5.
[4]Human Rights Act 2019 (Qld) (‘Human Rights Act’), s 19.
A human right can be limited only when the limitation is under law, reasonable, and demonstrably justified.[5]
[5]Ibid, s 13.
The tribunal must apply the general principles.[6] These are wide-ranging. In a particular case, their application may involve the balancing of factors. In NRP’s case, for example, the general principles require taking into account her views, wishes and preferences – which reportedly favour appointing her mother as interim guardian – and safeguarding her interests. In the view of the mental health treating team, NRP’s interests are currently compromised by her mother.
[6]Guardianship and Administration Act, s 11B.

Capacity evidence

According to Dr Jack Duncan, psychiatric registrar, in a report dated 3 November 2023, NRP has schizophrenia and a brain injury. She is subject to a treatment authority under the Mental Health Act 2016 (Qld). In Dr Duncan’s opinion, NRP lacks capacity to make decisions other than simple personal ones.

Why was an interim guardian appointed?

There is no challenge at this stage to Dr Duncan’s opinion. I accept that NRP may have impaired capacity for making decisions about personal matters.
NRP has been in hospital since 3 August 2023. She usually lives with her mother and teenage son.
According to NRP's mother and brother:
(a)NRP's mother has been her long-term carer and advocate;
(b)NRP's mother visits NRP daily in hospital and is her nominated support person;
(c)although NRP is in a public hospital, she is a private patient and is entitled to choose her treating team;
(d)the current treating team is ineffective and also unsatisfactory for other reasons, yet requests by NRP and her family for a change of treating team have been fruitless;
(e)the family was informed that hospital staff would be seeking the appointment of a guardian, and NRP’s preference if a guardian is appointed is that it be her mother;
(f)NRP's mother is a strong advocate for NRP’s best interests; and
(g)if NRP's mother is not appointed guardian, then NRP's brother should be as he would similarly strongly advocate for NRP's best interests.
NRP was previously treated by a psychiatrist in private practice. The family say his treatment was effective over a number of years. NRP's brother says the family has asked that psychiatrist to once again treat NRP. The psychiatrist told the family that he can attend the hospital only if invited by NRP’s current treating team. NRP's brother says that the treating team has declined to invite the psychiatrist to see NRP.
According to Dr Wren in her interim application and the ‘application notes’:[7]
(a)discharge planning began in early September but discharge has not been possible because of a breakdown in communication between the treating team and NRP’s family;
(b)there have been two changes of treating team at the request of the family;
(c)NRP’s firm wish is to return home;
(d)there had been issues about whether stairs at home would be hazardous for NRP and whether any risk could be sufficiently mitigated;
(e)NRP's mother is opposed to NRP being discharged to a respite facility or transferred to a subacute ward;
(f)the treating team has formed the impression that NRP’s mother wants NRP to remain in hospital in the acute ward because she does not feel comfortable that she can manage NRP at home; and
(g)in the treating team’s view, NRP's mother as statutory health attorney has insisted on inappropriate medication management, and NRP's mother ‘has had ever shifting goalposts resulting in a prolonged acute admission’.[8]
[7]Document M4 on the tribunal’s file.
[8]Ibid, third page.
It appears to be common ground that NRP's mother is a dedicated carer, advocate and informal decision-maker for NRP. Views differ on whether NRP's mother has become carer-fatigued and therefore less able to make sound decisions about treatment and discharge.
It is not entirely clear from the documents provided why the treating team and the family have been unable to agree on discharge arrangements. It seems to be a situation where the treating team regard the home environment as not suitable, while the family is unwilling to agree to any option other than home.
There has been a breakdown in communication and trust between the treating team and the family. An impasse has developed. It has left NRP in an acute ward for much longer than clinically necessary. Whether fault lies with the treating team or the family or partly with both is not something I can confidently determine on the basis of the documents provided. Further, it is largely immaterial for present purposes. The ongoing impasse creates an immediate risk of harm to NRP’s welfare. Although NRP does have opportunities for some periods of accompanied leave from hospital, her hospitalisation under a treatment authority significantly interferes with her right to liberty.[9] Her opportunity to ‘live a life in the general community’[10] is diminished.
[9]Human Rights Act, s 29.
[10]Guardianship and Administration Act, s 11B, general principle 3(b)(ii).
If NRP is discharged under a treatment authority, her liberty would still be curtailed. However, the restrictions on her freedom and normal social functioning would obviously be loosened.
An interim guardian for NRP should be appointed to make objective decisions about where NRP should live and about any associated services required: whether NRP can return home, with any external support services if required, or whether she should live in a respite facility or other accommodation. An interim guardian as a decision-maker under the Guardianship and Administration Act would be obliged to apply the general principles. As noted earlier, these are wide-ranging and often require a balancing of competing factors.
The Public Guardian can be appointed as an adult’s guardian only if there is ‘no other appropriate person available for appointment’.[11] Given that the impasse has developed while NRP's mother has been informal decision-maker, it is unlikely that it would be resolved by making her a formal decision-maker. This is not to prejudge whether she is appropriate to be a formal decision-maker, if one is required, in due course after the impasse has been resolved. I do not consider that NRP's brother is appropriate for an interim appointment, given his close alignment with his mother’s perspective on the hospitalisation and treatment.
[11]Ibid, s 14(2).
There remains the possibility of an impasse even if the Public Guardian is appointed, in the event that the treating team considers that accommodation chosen by the Public Guardian is not a safe discharge destination. However, the prospects of discharge would be substantially higher, in my view, if a fresh and independent decision-maker is involved.
The treating team has expressed concern about the competence of NRP's mother to make health care decisions for NRP as statutory health attorney. While those concerns are yet to be tested at a hearing, I regard them as sufficiently credible to establish that there is an in immediate risk of harm and to warrant the interim appointment of a guardian for health care decisions. The concerns are raised by health professionals who have observed NRP and her mother over several months. Again, I do not consider NRP's brother appropriate for appointment at the present time because the family’s approach is a joint one. In the circumstances, the Public Guardian should be appointed.
It is perhaps desirable to add that to the extent that decisions about mental health care are to be made which are within the scope of the treatment authority, a guardian, whether interim or longer-term, would not be the decision-maker. The Mental Health Act 2016 (Qld) governs how such decisions are made.

Why was an interim administrator not appointed?

Dr Wren says the treating team understands that NRP ‘is currently supported by family with all areas of her financial wellbeing’.[12] In her interim application, Dr Wren did not mention any immediate risks to NRP associated with her finances.
[12]Document H15 on the tribunal’s file, page 10.
According to NRP's mother and brother, NRP ‘only gets minimal money on a disability pension, which is spent on catering to her needs, and her son’s needs’.[13] They do not believe that an administrator is needed.
[13]Document H10 on the tribunal’s file, page 10.
It is not apparent that the present informal decision-making arrangements pose any risk of harm to the health, welfare or property of NRP. Nor is it apparent why Dr Wren sought the interim appointment of an administrator.
The tribunal sometimes sees situations where an informal financial decision-maker stymies the work of a guardian by withholding funds needed to implement decisions. It should not be assumed that this will occur in NRP’s case. If it does, a further application for the appointment of an interim administrator can be made at that time.

Conclusion

For the above reasons, I decided to appoint an interim guardian but not an interim administrator. Although the appointment of an interim guardian limits NRP’s human rights to some extent, the limitation is reasonable and justified in my view. The interim appointment is likely to advance NRP’s right to freedom and promote opportunity for her to live in the general community.