PJ
[2021] QCAT 194
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
PJ [2021] QCAT 194
PARTIES:
In applications about matters concerning PJ
APPLICATION NO/S:
GAA8980-20
GAA10909-20
GAA10910-20MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
28 May 2021
HEARING DATE:
11 February 2021
HEARD AT:
Rockhampton
DECISION OF:
Member Bayne
ORDERS:
GUARDIANSHIP
1. The guardianship order made by the Tribunal on 6 January 2020 is changed.
2. The Public Guardian is appointed as guardian for PJ for the following personal matter:
(a) Provision of services, including in relation to the National Disability Insurance Scheme (NDIS).
3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in eighteen (18) months.
ADMINISTRATION
4. The administration order made by the Tribunal on 6 January 2020 is changed.
5. PL and MMS are appointed jointly and severally as administrators for PJ for all financial matters.
6. The administrators are to provide an updated financial management plan to the Tribunal by 1 July 2021.
7. The Tribunal grants a partial exemption to the administrators from the requirement to provide accounts but directs the administrators to provide to the Tribunal by 6 November 2021 and the equivalent annually thereafter:
(a) copies of PJ’s bank account statements for the period 1 September 2020 to 31 August 2021;
(b) copy of the latest accommodation account or statement for the rental property or other accommodation;
(c) copy of receipts for any individual items purchased in excess of $500.00; and
(d) a signed Declaration as to continuing appropriateness for appointment.
8. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in five (5) years.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – REVIEW, REVOCATION, ETC – where the Tribunal is satisfied the presumption of capacity has been rebutted –– where adult’s mother and guardian acting contrary to the best interests of the adult – where actions and behaviour of the adult’s mother/guardian resulted in various service providers becoming unable to provide services to the adult – where allegations of emotional abuse of adult by her mother – where mother unable to abide by the principles of the legislation – where mother had minimal understanding of the role and responsibilities as guardian – where mother unable to foster and maintain working relationships with various service providers – review of appointment of guardian – whether appointment of guardian should continue – where the Public Guardian was appointed
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION, ETC – where the Tribunal is satisfied the presumption of capacity has been rebutted – where adult’s mother and administrator provides unsatisfactory accounts – where adult has simple estate – review of appointment of administrator – whether appointment of administrator should continue – where another family member had financial record keeping experience – where joint and several administrators were appointed
Disability Services Act 2006 (Qld) ss 140, 144, 145, 150, 166, 173, 178
Guardianship and Administration Act 2000 (Qld) ss 6, 12, 14, 15, 16, 31, 34, 35, 36, Schedule 1, Schedule 4
Human Rights Act 2019 (Qld) ss 13, 48
Mental Health Act 2016 (Qld)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
Public Guardian Act 2014 (Qld) s 41
APPEARANCES & REPRESENTATION:
Adult:
PJ
AR of ADA Law, advocate
Applicant:
DV - UQC Service Provider for PJ
Guardian and Administrator:
PL
Public Guardian:
McPS
Public Trustee:
MS
Interested Persons:
MMS – sister of PJ
WL – Step-parent of PJ
KK – UQC Service Provider for PJ
MA – UQC Service Provider for PJ
REASONS FOR DECISION
Background
Introduction
PJ, aged 28, currently resides with her mother, PL, and her stepfather in Gladstone.
PL has been appointed by the Tribunal as PJ’s guardian for all personal matters since 2012, and as plenary administrator since 2014. The latest appointments of PL as guardian and administrator were made on 6 January 2020.
PL has also been appointed as PJ’s guardian for restrictive practices (general) since 31 July 2013. The latest appointment was made on 18 September 2020; this appointment expired on 1 November 2020.[1]
[1]As discussed later in these reasons.
In addition, PJ is also subject to an order first made on 18 July 2014 by the Mental Health Court under the Mental Health Act 2016 (Qld). She continues to be a client of the Central Queensland Mental Health Service and is managed under a Forensic Order (Disability – Prescribed Offence) (‘FDO’). This order is regularly reviewed by the Mental Health Review Tribunal (‘MHRT’), most recently on 7 December 2020.[2]
[2]This order was confirmed with conditions.
On 21 August 2020, the Tribunal received applications from PJ’s then service provider, Unique Quality Care (‘UQC’), for a review of the appointment of the guardian and of the administrator. The applications sought the removal of PL as guardian and administrator, and the appointment of the Public Guardian and Public Trustee of Queensland, respectively.
These two applications, and a (Tribunal-initiated) review of the appointment of PL as guardian,[3] were heard from Rockhampton on 11 February 2021.
[3]Made on 6 January 2020, to be reviewed in one year.
The Legislation
In exercising its powers, the Tribunal must act in accordance with the Guardianship and Administration Act 2000 (Qld) (‘the Act’)[4] and its General Principles[5] and ensure that an adult’s interests are protected.
[4]It should be noted that the amendments to the Act by The Guardianship and Administration and Other Legislation AmendmentAct 2019 (Qld) commenced on 30 November 2020. Under s 274 of the Act, if, immediately before the commencement of the Amendment Act, a proceeding under the Act had been started but not finished, the proceeding is to continue as if the Amendment Act had not been enacted.
[5]The Act Schedule 1.
In relation to the appointment of a guardian for personal matters and/or an administrator for financial matters, relevant legislation includes ss 12(1), 14(2), and the definition of capacity in Schedule 4 of the Act.
The Tribunal must be satisfied that PJ lacks capacity for a matter before it can consider any need for an appointment and the appropriateness of any appointed or proposed appointee.[6]
[6]Ibid ss 12 14, 15, 16.
The Tribunal may only appoint a person as a guardian and/or an administrator if the person satisfies the requirements set out in ss 14 and 15 of the Act. In deciding whether a person is appropriate for appointment, the Tribunal must consider various matters; in particular, the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
Section 12(1) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult.
Section 14(2) outlines the circumstances in which the Tribunal may appoint the Public Guardian as guardian for an adult.
Section 31(2) provides that, at the end of a review, the Tribunal should revoke its appointment unless it is satisfied it would make an appointment if a new application were to be made.
Section 31(4) provides that the Tribunal may remove an appointee only if it is satisfied that the appointee is no longer competent or that another person is more appropriate for appointment.
When a person is appointed by the Tribunal as an administrator, that appointee becomes subject to the duties and responsibilities prescribed by the Act for all administrators.
Where a substitute decision-maker is given extensive powers over another person, it is prudent protection of the adult’s human rights to expect the substitute decision-maker to be made subject to a reasonable level of accountability.[7]
[7]For example, some form of reporting.
Various aspects of the Human Rights Act 2019 (Qld) (‘the HRA’) are also invoked. In the preamble of the HRA, there is a statement that people have a right to self-determination, and decisions made by Tribunals or courts have to be compatible with the HRA. Section 13(2) of the HRA, however, indicates that, in certain circumstances, human rights may be limited.
The Issues
The issues for the Tribunal in relation to the applications before it on 11 February 2021 were:
(a)Does PJ have impaired capacity for decisions about personal and financial matters?
(b)If so, is there a need for decisions about relevant matters to the extent that, without an appointment of a guardian and/or an administrator, PJ’s needs will not be adequately met or her interests will not be adequately protected?
(c)Has the current guardian and administrator acted competently and has she managed in PJ’s interests and in accordance with the legislation?
(d)If not, who should be appointed in accordance with the eligibility requirements in s 14 of the Act and the appropriateness considerations in s 15 of the Act?
Capacity
PJ is presumed to have capacity in accordance with Schedule 1 of the Act. Unless there is sufficient evidence to rebut that presumption, it must stand.
Capacity for a person for a matter means the person is capable of:
(a)understanding the nature and effect of decisions about the matter;
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
The capacity of a person to make decisions may differ according to:
(a)the nature and extent of the impairment;
(b)the type of decision to be made, including, for example, the complexity of the decision to be made; and
(c)the support available from members of the person’s existing support network.
PJ has lifelong complex disabilities and a complex medical history. Her current medical conditions include bilateral congenital hearing loss (80%), dyspraxia, an intellectual disability, Persistent Posterior Perceptual Dizziness – Vestibular Imbalance (‘PPPD’), and high anxiety levels.
There are a number of reports and other documents from health professionals and the MHRT on file. These include:
(a)27 August 2013 - Dr Maria Andrze Jewski, Consultant Psychiatrist;
(b)12 Mat 2018 - Dr Michael Walsh Neurologist;
(c)1 April 2019 - Dr Lorna Duggan Consultant Psychiatrist;
(d)7 January 2020 - Dr Lorna Duggan Consultant Psychiatrist;
(e)7 January 2020 - MHRT, FDO Review;[8]
(f)17 August 2020 - Dr Thet Htay, Consultant Psychiatrist;
(g)October 2020 - Carla Van Heerden, Occupational Therapist; and
(h)2 November 2020 - Amanda Green, Psychologist.
[8]A copy of the MHRT Decision, which confirmed the Forensic Order – Disability on 7 July 2020, is on file, but not a copy of the full report.
In addressing PJ’s ability to understand and make informed decisions, these basically concur with each other, and inform, that in their opinions, PJ can only make simple decisions or choices.
In terms of PJ’s communication, her advocate[9] writes:
It is not disputed that [PJ] lacks capacity to make all but simple health decisions. [PJ] requires significant support for all areas of life but can simply but effectively express her emotions to those around her, through a variety of ways.
[9]AR of ADA Law, written submission, 8 February 2021.
An email from the Public Guardian (‘the PG’)[10] dated 16 October 2020 advises that:
… [PJ] uses a mixture of verbal communication, English language signing, Auslan and Makaton and if there are communication difficulties she sometimes writes down on paper what she wants to get across.
[10]McPS, Principal Practice Officer, Pre-Advocacy Team, OPG
The relevant parties present on 11 February 2021 agreed that PJ is only able to understand and make simple decisions or choices. She requires significant levels of support across all domains.
In view of the consistent evidence of the medical practitioners which was confirmed by the parties as above, the Tribunal found that the presumption of capacity to which all Queensland adults are entitled is rebutted in relation to PJ’s decision-making ability for significant or complex matters.
Is there a need for the appointment of a guardian?
The Tribunal will only appoint a guardian when there is no other way to ensure that the adult’s interests are protected and that her needs are met.[11]
[11]The Act s 12.
PJ has lifelong complex disabilities, complicated medical conditions and very high support needs. She also has had a long history of assaultive behaviours commencing from early childhood and occurring in the context of frustration arising from her expressive and receptive language problems and long-standing intellectual disability.[12]
[12]As noted in the MHRT Review report dated 7 January 2020.
She continues to have significant challenges around communication, extremely limited emotional regulation skills, low frustration tolerance, and poor impulse control, all of which contribute to her ongoing moderate to high risk of violence towards others.[13] In the submission dated 8 February 2021, her advocate describes PJ’s circumstances as overwhelming.
[13]TS, Forensic Liaison Offer (Psychologist), email, 6 November 2020.
Although PL had been appointed by the Tribunal as PJ’s guardian for all personal matters since 2012, there was general agreement between the parties present at the hearing on 11 February 2021 that PJ’s personal matters which required a formal decision-maker were limited at present to accommodation and the provision of services, including those in relation to the National Disability Insurance Scheme (‘NDIS’). Health consents can be given informally, which is the least restrictive option. [14]
[14]See Powers of Attorney Act 1998 (Qld) s 62. The statutory health attorney regime allows an informal decisions maker (for example, in this case PL) to make decisions about a health matter. No party expressed a concern in this regard.
Accommodation
All relevant parties at the hearing agreed that the house in which PJ currently resides is no longer suitable, particularly on account of her PPPD. A comprehensive occupational therapy assessment, authored by HvC[15] in October 2020 recommends an alternative housing option. In January 2021, HvC made a recommendation for Specialist Disability Accommodation for PJ.
[15]Occupational Therapist, Minerva Allied Health Services, assessment report, October 2020.
However, on 7 December 2020, PJ’s order had been reviewed and confirmed by MHRT, with conditions, as a FDO. The first condition of this order is that PJ reside at a place approved in advance in writing by the treating psychiatrist.
The FDO is the dominant order; any accommodation decisions by a guardian appointed by the Tribunal under the Act would have no effect. There is therefore no need[16] for such an appointment.
[16]The Act s 12.
Services
There was nevertheless a clear need for the appointment of a guardian for services.
Since at least 2012, PJ has had significant support services funded initially by the Queensland Department of Disability Services[17] (‘Disability Services’) and more recently, by the National Disability Insurance Agency (‘NDIA’) including those for a Supported Independent Living (‘SIL’) arrangement.. The funded supports for PJ for 4 February 2021 to 4 February 2022 totalled $560,239.63.
[17]Currently, the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships referred hereafter in these reasons as ‘Disability Services’.
PJ’s advocate writes:
This remains an area of need, as there are multiple agencies involved and negotiations ongoing. [PJ’s] … and her supporters are working to secure a home care service provider, initially as respite … This has been complex and difficult, and could not be resolved without an appointment of a decision maker.
There was no contention in this regard. The Tribunal was satisfied that there is a need for the appointment of a guardian for provision of services, including those in relation to the NDIS.
Has the current guardian acted competently and has she managed matters in PJ’s interests and in accordance with the legislation?
Informally, PL has acted as a determined advocate for her daughter for some years.
Formally, PL has been appointed by the Tribunal as PL’s guardian for all personal matters since 2012. The latest appointment was made on 6 January 2020.
She had also been appointed as PJ’s guardian for restrictive practices (general) since July 2013. The appointment was last reviewed on 18 September 2020, with the new appointment to remain current until 2 November 2020; this appointment expired on 1 November 2020.[18]
[18]As discussed later in these reasons.
The introduction of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDISA’)[19] into the Central Queensland region in recent years meant that the appointment of PL as plenary guardian for PJ including services was now responsible for decisions in relation to the NDIS.
[19]The NDISAestablished the NDIS, and the National Disability Insurance Scheme Launch Transition Agency (known as the National Disability Insurance Agency or the NDIA) as well as the Rules
PJ has had a number of service providers, initially in Rockhampton in 2012 and more recently in Gladstone. There has been a significant history of difficulties in the relationship between PL and the various service providers and stakeholders. Some of these concerns, views and opinions are summarized below.
Integrated Family and Youth Service Ltd (Rockhampton) (‘IFYS’): November 2012- 2015
A range of issues between PL and IYFS were recorded in correspondence from IFYS dated April 2013.
Multicap: 1 April 2016 – February 2019
Various communications between Multicap and PL in 2018/2019 indicate that there had been a breakdown in the three year working relationship between the Multicap support staff and PL with a ‘copious number of unresolved issues’.[20]
[20]Email dated 12 March 2019 from PL to Multicap.
On 8 November 2018, PL gave Multicap three months’ notice, noting in an email dated 12 March 2019 that she considered that:
due to [PJ’s] Auslan and her PBSP training not been implemented then this was a breach of the contract signed for looking after [PJ] in regards to her Restrictive Practice under mental health.
A ‘notifier’ at Multicap also advised the Public Guardian of allegations that, in relation to PJ’s FDO, PL was falsifying behavioural incident reports to the MHRT in an attempt to ensure that PJ continues to receive 24/7 support.[21]
[21]SM, Manager, Community Visiting and Advocacy, Office of the Public Guardian, written submission, 22 October 2020.
Magenta Community Services: February 2019 – December 2019
The ten-month engagement of Magenta as PJ’s accommodation support provider was terminated in December 2019 as Magenta, according to PL, was unable to undertake Positive Behaviour Support Plan (‘PBSP’) development and to lodge appropriate restrictive practice documents for six months and to organise communication training for staff.
UQC: 2 December 2019 – 10 October 2020, NDIS (SIL) and day service
The relationship between PL and UQC also broke down within about ten months. PL terminated the service agreement with UQC on 9 October 2020.[22]
[22]PL informed that she had undertaken the responsibility for accommodation support for PJ as from 9 October 2020.
In a Guardian’s Report to the Tribunal dated 18 August 2020, PL lists a number of concerns about UQC. PJ’s advocate, AR, summarises that issues such as poor food management practices, lack of appropriately trained staff, and a reluctance to continue PJ’s usual community activities, such as bowling, were the key reasons for the termination.[23]
[23]Written submission, 8 February 2021.
UQC’s increasing concerns about PL and her actions, or lack thereof, cumulated in UQC’s decision to submit applications to the Tribunal for interim orders and a review of the appointment of PL as guardian and administrator for PJ.[24] A referral for investigation was also made to the PG.[25]
[24]Subsequent to the submission of this application, PL gave UQC two weeks’ notice of the termination of their service agreement.
[25]Declined by the Public Guardian as an application for a review had been submitted to the Tribunal.
In a covering email to the interim order applications dated 11 September 2020 MA[26] writes:
Our service holds sincere concern that [PJ] being constantly subjected to sabotaging and abusive behaviour from her mother [PL] could result in aggressive behaviour from herself towards herself and/or members of her staff or group.
[26]MA, owner and founder of UQC, covering email to interim order applications, 11 September 2020.
The UQC applications dated 21 August 2020 include concerns about PL’s emotional abuse, and risk of abuse, of PJ, her inappropriate actions and decisions, failure to visit as promised, eating in front of PJ to motivate and that the support coordinator (NDIS) does what PL wants. UQC is convinced that PJ can make decisions regarding diet and clothing, but PL does not allow PJ to make these decisions and wants PJ to do as she says.
The UQC application dated 11 September 2020 includes the following statements:
Erratic and abusive behaviour of current guardian, [PL], resulting in continuous changes for [PJ]. [PJ] experiences high anxiety over unprepared for changes. Staff in [PJ’s] house and administration staff are also feeling extremely overwhelmed by the swiftly changing mood swings and erratic behaviours displayed by [PL]. Vital information and training has also been kept for staff in ensuring [PJ] is adequately cared for under her restrictive practices PBSP. …
The current antagonist and abusive behaviours of [PL] poses a very real risk of emerging behaviours for [PJ]. At this time, staff have a very positive and productive relationship with [PJ]. We are extremely concerned that placing her in such a vulnerable position day in and may have a negative effect on her and her relationship with her support team.
Sabotage and abuse by [PL] have presented an almost daily barrier to providing a safe and supportive environment for [PJ] to achieve her goal of independence and emotional regulation.
Every attempt to communicate or rectify situations with [PL] is met with another burst of erratic and abusive behaviour.
Other Stakeholders
Several individual UQC staff members have made submissions[27] to the Tribunal describing their opinions of the ‘toxic environment’ in working in PJ’s house. There are also a series of case notes/incident reports from UQC expressing concerns as to inappropriate behaviours of PL.
[27]MD - submission, 14 September 2020; D - submission, 10 September 2020; PR - submission, 13 September 2020.
Several other agencies and stakeholders have also expressed some significant apprehensions about PL as guardian for her daughter.
LJ, psychologist
LJ, a well renowned[28] psychologist and behavioural practitioner had, by April 2020, provided a draft copy of a PBSP to PL. There was then seemingly very little communication between these two parties for several months.
[28]As attested by McPS in the hearing on 11 February 2021
In a Health Professional Report dated 1 September 2020, LJ informs that she has known PJ since March 2020 and has had ongoing liaison with PL via phone and email, face to face with UQC. The report reads in part:
… [PL] makes a number of decisions that have been noted to be in contrast to [PJ’s] wishes. This is documented in Behaviour recording sheets and support workers shift notes. It is to be noted that at times [PJ’s] decisions or expressions of what she needs or wants are not considered specially in relation to difficulties she experiences with her PPPD.
It is to be noted that her current guardian also makes decisions that are in contrast to [PJ’s] expressed wishes in relation to engagement with activities both at home and within the community.
By September 2020, PL informed that she had:
Finished with [LJ] – meant to do the PBSP and do the training. Dragged out since May 2020.
Community Visitor, the OPG[29]and the PG
[29]See Public Guardian Act 2014 (Qld) s 41. Queensland’s Community Visitor Program (visiting program) forms part of the statutory framework of this Act. The program protects the rights and interests of adults living in visitable sites.
In a report following a (zoom) visit to PJ’s home on 6 August 2020, a Community Visitor, in discussion with the support staff, identified several concerns.
The report states:
…there have been many instances in which [PJ’s] anxiety has been triggered by her mother not informing [PJ] of where they were going, choosing inappropriate venues and compelling [PJ] to exit the vehicle against her wishes.
In support of the Community Visitor’s trepidations, a detailed submission was made to the Tribunal on 22 October 2020 by SM which includes the following comments:
The OPG is concerned [PL] has subjected [PJ] to psychological and emotional abuse.
UQC advises that when [PL] is away and not in frequent communication with [PJ], [PJ] is more relaxed, independent and shows initiative with daily chores and chooses activities she wants to do. UQC advised that [PJ] has even been seen to walk for a short distance beside her house without staff support. However, according to UQC when [PJ’s] mother is in communication with [PJ] she is usually contacting her by phone calls or texts throughout the day and [PJ] appears anxious, shows less initiative, and insists that she must seek permission from her mother before doing anything.
The OPG is concerned [PL] has demonstrated a pattern of persistently escalating [PJ’s] negative emotions, such as fear and anger and triggering her challenging behaviour’s such that this negatively impacts [PJ’s] quality of life. Additionally, [PL] has shown a pattern of intruding on [PJ’s] opportunities to connect with peers and staff and also spend time alone.
The OPG is concerned [PL’s] actions not only make it more difficult for [PJ] to build independence and form relationships but also increases the likelihood of her demonstrating behaviours of harm.
As recorded in the Public Guardian’s email dated 16 October 2020, the Community Visitor has advised her that:
I think it’s clear in the submissions but [PJ] is usually compliant with and does not want to upset her mother, and her mother has allegedly told her that the QCAT matter is an attempt to take [PJ] away from her. [30]
[30]MS, Principal Practice Officer, Pre-Advocacy Team, the Office of the Public Guardian, email to the Tribunal from the Office of the Public Guardian, 16 October 2020.
The Public Guardian, in the email dated 16 October and her submissions in the hearing on 11 February 2021 clearly agreed with the views of SM and the Community Visitor.
TS, Forensic Liaison Officer
Another indicator of the limitations of PL’ understanding of her overall role and responsibility as substitute decision maker for her daughter is recorded in a communication to the Tribunal dated 11 November 2020 from TS, PJ’s Forensic Liaison Officer with the Forensic Mental Health Team in Rockhampton.
Given that the FDO ensured that the mental health service would have an ongoing role in overseeing and supporting the required care arrangements that are necessary to keep PJ and the community safe, the use of restricted practices to manage PJ’s behaviours in the community was seen as essential.
In the week ending 6 November 2020, PL advised TS that the Tribunal had informed her that ongoing restrictive practices will not be continued by the Tribunal.
As PL was unable to explain the situation in any detail, and given her significant concern (and responsibility) in this regard, TS resorted to contacting the Tribunal directly.
The Tribunal also notes that the MHRT Review dated 7 July 2020 comments:
The PBSP is overdue for review and is now in progress.
It has been advised by [PL] that an Interim order had been approved until the Restrictive Practice Behavioural Support Plan can be completed.[31]
[31]See the section on restrictive practices in these reasons.
The views of the Forensic Liaison Officer and the mental health team in regard to the decision of PL that she herself would provide accommodation support for PJ is unknown.
PL’s Response
PL has provided to the Tribunal copies of numerous documents in her response to various concerns from service providers and other stakeholders.
She routinely denied the allegations and attempted to shift the blame back onto the support staff.
In a Guardian’s Report to the Tribunal dated August 2020, PL is clearly convinced that the service providers (UQC) were not doing their job. PL considered:
service providers not fulfilling their obligation - paid money up front for reports on training. They then never follow through;
staff training in Auslan and restrictive practices not happening;
staff too scared to support PJ;
UQC staff: a range housekeeping and cooking issues. No supervision;
staff leaving keys alone on cupboard;
PJ having access to sharp knives and medication;
reports not given to staff from MHRT Report;
staff not aware what PJ restrictive practice for;
UQC not given staff documents or training; and
scared staff.
She considers that the risk of PJ’s behaviours of harm had been reduced, and her quality of life improved, by:
Me being a constant at [PJ’s] house I have to continually giving guidance to staff. No procedurs outside my basic one.
PL is convinced that, in three years, service providers were not learning and rectifying their mistakes and that management do not understand restrictive practices. She sees a continuing need for a guardian for restrictive practices to protect PJ from poorly trained staff and service providers and requests an oral hearing on the grounds that she wishes:
Both the Guardian & Restrictive practice joined together. Find out new updates and how we can sort out this continued lack of sign language & training on PBSB for 3 years.
Parties in support of PL
Several parties have expressed support for PL.
A friend and a friend/past support worker for PJ have both provided submissions to the Tribunal in this regard[32].
[32]LA – 1 September 2020 and LB – 30 September 2020
PJ’s advocate informs that it has been asserted that the basis for terminating the support agreement[33] was justified and supported by other stakeholders including the Mental Health treating team, NDIS care coordinator, and MMS.
[33]By PL, of UQC.
The position of the mental health team is unclear, as is that of the care coordinator. MMS is PJ’s sister, and PL’s daughter.
Restrictive Practices
The Tribunal acknowledges that in this case, there is a significant and complicated overlap/interrelationship between PL’s duties under various Acts. Her competencies as guardian for personal matters had therefore to be considered inclusively and comprehensively.
This section on restrictive practices is included in this document for three reasons:
(a)To address the confusion and uncertainty with regards to PJ’s guardianship and restrictive practices issues;
(b)To allow some further clarity as to PL’s understandings, competencies and her roles as substitute decision maker for her daughter; and
(c)To address the apparent lack of understanding and knowledge by several parties about restrictive practices under the legislation, seemingly ongoing.
PL has been appointed as PJ’s guardian for restrictive practices (general) since July 2013. The latest appointment was made on 18 September 2020.
In 2017, PL, as guardian for restrictive practices, gave consent to Multicap for the use of chemical restraint (‘CR’) and restricted access to objects (‘RATO’) in accordance with a PBSP dated 20 April 2017.
Magenta applied for and received short term approval[34] for the use of CR and RATO from the Chief Executive of Disability Services [35] on 24 October 2019. This approval was current when Magenta’s services were terminated in December 2019.
[34]DSA s 178(1). A relevant service provider may request a short term approval for a restrictive practice other than containment or seclusion from the Chief Executive, Disability Services.
[35]Then the Department of Community, Disability Services and Seniors.
UQC, commencing service support for PJ on 2 December 2019, also applied for and received short term from Disability Services for the use of CR and RATO from 19 January 2020 to 18 July 2020.
When PL terminated the engagement of UQC as the service provider for the SIL and day care, she took on the responsibility for 24/7 accommodation support for PJ from 10 October 2020. Section 140 of the Disability Services Act 2006 (Qld) (‘the DSA’) provides that the legislation does not apply to an adult residing or accommodated at home being cared for by a family member[36] (and not receiving funded services). Hence, the Tribunal allowed the appointment of a guardian for restrictive practices to lapse by 1 November 2020 on the grounds that the provisions of the legislation had not been satisfied.
[36]Explanatory Notes, Disability Services and Other Legislation Amendment Bill 2008 (Qld).
Choice, Passion, Life (‘CPL’) engaged in September 2020[37] to provide a day service for PJ, applied and received, two short term approvals from Disability Services which remain current until 10 July 2021.[38] The approvals are for RATO only as the day service does not administer any chemical restraint to PJ and there is not currently an agreement for CPL to take on SIL management.
[37]By PL, replacing UQC as day service provider.
[38]DSA s 178(3). The approval was extended due to exceptional circumstances.
Once PJ returns to a SIL arrangement with in-home services, the new service provider will be required to seek short term approval for restrictive practices, prepare a PBSP[39] and apply to the Tribunal for the appointment of a guardian for restrictive practices in order to obtain ongoing consent for the use of those practices.
[39]ibid s 173.
The Tribunal notes with concern that from 19 July 2020 until the termination of their services on 9 October 2020, UQC was apparently using restrictive practices on PJ in the absence of a compliant PBSP and without the consent of a relevant decision-maker.
Discussion
There is no doubt that PL had, as she submited, acted in several ways as a very determined and assertive advocate for her daughter.
She has negotiated successfully with the NDIA for increased funding, including staff training, for her daughter.
She writes[40]:
I have also advocated for [PJ] and looked out for her best interest. Reflecting upon my mannerisms, my passion for [PJ’s] rights can come across at times abrupt but my passion is to maintain my daughters dignity and ensure that she is properly cared for and has the best life possible. I rely heavily on the guidance of [PJ’s] many health professionals. However the nature of [PJ’s] disabilities and PPPD are very challenging. I don’t believe anyone would have the same passion as I have do for advocating for my daughter. I believe that removing me as [PJ’s] guardian would cause her great distress and increase her challenging behaviours.
[40]PL, August 2020
The Tribunal acknowledges that there are several ongoing factors related to PJ’s care and support which have caused a significant amount of frustration to many stakeholders. These include:
(a)The very high support needs of PJ and the difficulties of finding suitable support staff;
(b)Regional disadvantage in the availability of NDIS registered service providers; and
(c)Regional disadvantage in the availability of experienced support workers with appropriate knowledge of restrictive practices.
(d)The need for ongoing training of support staff in Auslan and in restrictive practices.
Is PL making decisions in PJ’s best interest?
Numerous parties have expressed significant doubts as to the appropriateness of a range of decisions made and actions (or lack thereof) undertaken by PL with regards to her daughter.
The Tribunal is particularly concerned by the allegations from various parties that psychological and emotional abuse is being perpetrated on PJ by PL.
Some of the comments from UQC correlate to the written and verbal submissions from the Community Visitor, the Manager, Community Visiting and Advocacy of the OPG, the PG, and LJ.
References are made in these to emotional abuse of PJ by PL as well as decisions that are in contrast to PJ’s expressed wishes, a pattern of persistently escalating PJ’s negative emotions, and a view that PJ does not want to upset her mother.
Although the Tribunal puts some weight on the views and opinions of all stakeholders, the Tribunal puts considerable weight on the evidence from the independent parties as described above.
The Tribunal considers that PJ is vulnerable, and is especially susceptible to influence by her mother.
Does PL understand the role and responsibilities of a guardian for personal matters and of a guardian for restrictive practices?
The Tribunal recognises that when a guardian is appointed for services, including those in relation of the NDIS, additional layers of complexities are added to the role.
However, it became apparent to the Tribunal through the written submissions and discussion in the hearing that PL had demonstrated a singular lack of understanding as to the role and responsibility of a guardian (and of that of a relevant service provider) with regard to the provisions of the Act, the DSA and the NDISA.
PL had been appointed by the Tribunal as guardian for personal matters and as guardian for restrictive practices. The role and responsibilities of both types of guardians are provided in the Act and in the DSA.
A guardian has the following general duties:
(a)to apply the General Principles;
(b)to exercise power honestly and with reasonable diligence to protect the adult’s interests; and
(c)to exercise power as required by the terms of any Tribunal order.[41]
[41]The Act Schedule 1, 34(1).
The guardian for personal matters, appointed under the Act, is expected to make decisions for personal matters when required.
The role of a guardian for restrictive practices is to consent to the use of the restrictive practice by the relevant service provider in compliance with a PBSP for the adult.[42] It is the responsibility of the guardian to be satisfied that the plan complies with the legislation before consent is given for the use of the restrictive practices in accordance with that plan.
[42]DSA s 166.
Section 150 of the DSA provides for the requirement of a PBSP.
In addition, where a NDIS participant’s behaviours of concern place themselves or others at risk of harm, and subsequently, a regulated restrictive practice is required, a behaviour support plan[43] must be developed and lodged with the NDIS Commission.
[43]Although the requirements for the plan under the Act and under the NDIS Act are different, it is possible to combine them, with care, into one plan which satisfies the requirements of both.
Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) certain restrictive practices are subject to regulation. These include chemical restraint and environmental restraint.[44]
[44]The equivalent of restricted access to objects.
When an adult, subject to restrictive practices, receives funding from the NDIA, registered NDIS providers and NDIS behaviour support practitioners have obligations under the NDISA and relevant Rules. Any behaviour support plan containing a regulated restrictive practice must be lodged with the NDIS Commission and NDIS service providers must regularly report the use of a regulated restrictive practice with a NDIS participant.
In both cases however, it is reiterated that it is the responsibility of the service provider, not the guardian, to engage the appropriate author to generate the plan.
It is very unclear to this Tribunal why PL, as guardian and as guardian for restrictive practices, was instructing the generation of a PBSP and/or a behaviour support plan (and the relevant lodgements) and was so actively involved in most aspects of the development. Under the Commonwealth and Queensland legislation, this was clearly the responsibility of the relevant service provider; most recently, UQC.
The Tribunal considers that this reflects that PL (and seemingly UQC) did not have a comprehensive understanding of the legal responsibilities of the various parties. PL seemingly made no effect to inform herself of these. In the view of this Tribunal, PL was never able to differentiate between the requirements of the Act, the DSA and the NDISA.
The Tribunal is of the view that this lack of understanding impacted negatively on the relationship between PL and the various stakeholders, particularly the service providers and a high level of animosity, tension and dispute developed and prevailed between PL and several of the parties involved.
PL’s relationship with a number of agencies and particular service providers
Since 2012, there have been difficulties in the working relationship between PL and the service provider, with a continuous number of complaints about PL’s attitude towards the staff of the support service and her treatment of PJ. These have not been isolated incidents: the reports of PL’s behaviours have been persistent and protracted over several years, resulting in a series of service providers being engaged to provide services to PJ.
The concerns articulated in recent months by UQC indicate that there has been very limited trust but substantial disagreement and conflict between PL and UQC over almost every aspect of PJ’s care and wellbeing. In the view of this Tribunal, this must have had a significant and negative impact on PJ herself.
The Tribunal recognises that UQC probably carries some responsibility for the challenges to and the breakdown of the relationship with PL. It is unclear to this Tribunal, for example, as to why UQC did not exert their authority with regards to the generation of a PBSP or behaviour support plan.
However, PL is the Tribunal’s appointed substitute decision-maker for PJ, and she is accountable under law to this Tribunal. This is a review of her appointment.
In regard to this section, the Tribunal cannot agree with the view of PJ’s advocate who writes:
There have been no concerns raised by any of the current and ongoing services and government agencies involved in [PJ’s] life, about [PL’s] appropriateness as [PJ’s] decision maker. [45]
[45]AR of ADA Law, written submission, 8 February 2021.
Moving Forward
PL had undertaken the responsibility for accommodation support at home for PJ from 10 October 2020. Given, however, the high level and complexity of PJ’s support needs and her long history of assaultive behaviours, the viability of this arrangement, over even a short term, is at least dubious, and possibly presents some risk to PJ and other parties.
GA of Renew Psychology and Rehabilitation was engaged by PL in late August in regards to a new PBSP or behaviour support plan. Although GA authored an ‘Interim PBSP’ dated 2 November 2020, this plan could not be completed at the time due to the lack of a SIL service provider. Whether the plan complies with the requirements of the Act and the DSA, and intends to cover the requirements of the NDIS, is unclear.
Several initiatives, which may address some of the issue raised, have recently been introduced:
(a)A communication strategy has been implemented by PL and the NDIS care coordinator, whereby any time PL has concerns about a service provider’s quality of care, she now raises these concerns directly with coordinator or the service provider manager, rather than carers, and the coordinator undertakes to address the service and resolve the concerns on PJ’s behalf[46]; and
(b)The NDIA provided approval to the coordinator and PL for them to hire and train individual staff directly[47].
[46]PJ’s advocate’s written submission, 8 February 2021.
[47]Ibid.
Again, however, the Tribunal is concerned about the sustainability of these.
Given PL’s track record of very poor working relationships with service providers, particularly those with whom she has had to have a close working relationship, there is a sizeable risk that the first strategy may well be fraught.
Although the Tribunal agrees with the views of PJ’s advocate about the latter that it is hoped this extra flexibility will allow prompt and appropriate recruitment, the Tribunal has doubts about the viability of this arrangement.
Finding about the competence of PL as guardian
In making these determinations, the Tribunal has considered, and weighted, the views and opinions of all parties as mentioned in these reasons.
The Tribunal considers that there has been a high level of disruption, turmoil and disorder in PJ’s life and circumstances over several years. PJ herself is highly unlikely to have been immune to this turbulence.
The Tribunal finds that the guardian, PL:
(a)Is not consistently making decisions in PJ’s best interest and in accordance with her views and wishes;
(b)Is not adequately understanding the role and responsibilities of a guardian for personal matters (as well as those of a guardian for restrictive practices); and
(c)Has a history of inability to develop good enduring working relationships with service providers and other stakeholders, particularly those with whom she needs to have close contact and involvement. She also has habitually demonstrated a disinclination to investigate, negotiate and compromise.
The Tribunal finds that:
(a)PJ’s needs are not being be adequately met; and
(b)PJ’s interests are not being be adequately protected.
The Tribunal finds that PL, as guardian for PJ, is not:
(a)applying the General Principles;
(b)adequately exercising her power honestly and with reasonable diligence to protect PJ’s interests.
The Tribunal was concerned that an ongoing appointment as guardian would put PJ’s health and wellbeing at serious risk. The Tribunal concluded that PL is not competent.
The only option for appointment as guardian in this matter was the PG. Under s 14(2) of the Act, the Tribunal may appoint the PG as guardian for a matter only if it is satisfied that no other appropriate person is available for appointment for that matter. No other person was identified.
The PG is an independent decision-maker with extensive skills and experience, is available and willing to act and will comply with the General Principles contained in the Act. The PG was therefore considered the appropriate appointee as guardian in this case.
The Tribunal notes the views of PJ’s advocate who writes:
Introducing additional layers of bureaucracy would not serve to meet [PJ’s] needs any better than is currently being met, and in fact would further complicate an already overwhelming set of circumstances.
Although the Tribunal respects these views, it cannot agree. The Tribunal considers that the appointment of a comptent guardian will introduce and maintain a level of stability, security and transparency for PJ and her informal and formal supports, so sorely missing over the past few years.
The Tribunal also notes that a submission in the hearing on 1 February advised that, if PJ’s services (including those in regard to restrictive practices), were stable and secure, there might be some argument for the MHRT to consider revoking the FDO. This, in the opinion of the Tribunal, is a goal worth pursuing.
Is there a need for the appointment of an administrator?
The evidence on file supports that PJ has income and regular expenditure to be managed and has some savings. Ongoing decisions are required about expenditure for her daily needs and for more occasional ones.
The relevant parties attending the hearing agreed that there is a need for the appointment of an administrator.
The Tribunal determined that without an appointment of an administrator, PJ’s needs would not be adequately met or her interests adequately protected.
Has the current administrator acted competently and has she managed the estate in PJ’s best interests and in accordance with the legislation?
The Tribunal may only appoint a person as an administrator if the person satisfies the requirements set out in ss 14 and 15 of the Act. In deciding whether a person is appropriate for appointment as an administrator for an adult, the Tribunal must consider various matters; in particular, the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.
When a person is appointed by the Tribunal as an administrator, that appointee becomes subject to the duties and responsibilities prescribed by the Act for all administrators.
The functions and power of administrators are set out in Chapter 4 of the Act, as are the duties of an administrator.
An administrator has the following general duties to:
(a)Apply the General Principles[48];
(b)Exercise their power honestly and with reasonable diligence to protect the adult’s interests;[49] and
(c)Exercise their power as required by the terms of any Tribunal order.[50]
[48]The Act s 34.
[49]Ibid s 35.
[50]Ibid s 36.
PL has been PJ’s administrator for some years and has been directed to provide various financial documents to the Tribunal on an annual basis. She has had a history of tardy, inaccurate, incomplete and generally unsatisfactory returns; reminders and requests for more information have been habitual.
On the positive side however, PJ’s estate is simple and reasonable savings have been made most years, with an overall growth in assets over the years. In addition, and importantly, the applicants from UQC informed the Tribunal in the hearing that they had no current concerns about PL’s management of PJ’s estate.
The Tribunal accepts that, initially, the accounts per se do not necessarily indicate that an administrator had not performed competently. Nevertheless, some concerns remained.
Present at the hearing was PJ’s sister, MMS. MMS was able to demonstrate at least a reasonable understanding of the role and responsibility of an administrator, had some bookkeeping experience, and was amenable to a joint and several appointment with PL as PJ’s administrators, as was PL.
The Tribunal accepted that such an appointment should overcome the concerns in terms of adequate record keeping and the provision of simple financial documents to the Tribunal every year. Under these circumstances, the Tribunal considered that the two family members should be given the opportunity to demonstrate that together they are competent.
Human Rights
In making its decision, the Tribunal has taken into account the Human Rights Act 2019 (Qld), in particular section 48(1), which reads:
All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
The Tribunal recognises that some of PJ’s rights are engaged by these appointments. Taking into account the Tribunal’s findings in relation to capacity, need and appropriateness in accordance with the Act, the Tribunal is satisfied that the limits imposed by the guardianship order are reasonable and justified in accordance with s 13 of the Human Rights Act 2019 (Qld).
Orders are made accordingly.
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