PMD

[2011] QCAT 312

CITATION: PMD [2011] QCAT 312

PARTIES: PMD

APPLICATION NUMBER:   GAA4253-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 3 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Application for an interim appointment of a guardian and of a guardian for restrictive practices is dismissed.

CATCHWORDS:

GUARDIANSHIP – where guardians for restrictive practices already appointed – where review sought of that appointment – where appointment of guardian sought – where tribunal not satisfied immediate risk of harm to adult if interim appointment not made

Guardianship and Administration Act 2000, s 129

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. HM and SN have been appointed as guardians for restrictive practices (general) for PMD until 28 September 2011.  They are responsible for giving consent to the use of restrictive practices by the service provider which provides 24 hour support to PMD.  Any use of restrictive practices must be in accordance with a positive behaviour support plan agreed to by HM and SN.

2. On 16 May 2011 Patricia Occelli from the Department of Communities (Disability Services) applied to the tribunal for an interim appointment of a guardian to make decisions about lifestyle matters, accommodation, health, restrictive practices and general matters.  The applicant requested that the Adult Guardian be appointed. 

3. Ms Occelli stated in her application that PMD had been experiencing a rapid escalation of challenging behaviours resulting in a series of critical incidents from February 2011 to March 2011.  Ms Occelli stated that the Department was concerned about PMD’s well-being and safety as her behaviour places her at risk of accidental death and police charges.  Ms Occelli stated that PMD has been a public nuisance by begging for money or cigarettes and by standing in the middle of the road trying to get a lift.  Ms Occelli stated that PMD has attempted to light a fire within her home for which she faces a police charge.

4. The applicant decided to seek an interim appointment of a guardian to allow decisions to be made that align with the positive behaviour support plan so that a reduction in challenging behaviour could occur.  The applicant stated that the current guardians for restrictive practices have previously opposed the appointment of the Adult Guardian on the basis that they are already making the best decisions for PMD.  The applicant stated that the advocate for PMD also holds this opinion.

5. Ms Occelli stated in her application that the reason for seeking an interim appointment of the Adult Guardian as guardian for restrictive practice was to have the formal involvement of the Adult Guardian to assist with the development of decision making trees for PMD based on the hypotheses that PMD’s challenging behaviour should then decline. 

6. The application revealed that a referral had been made on 8 March 2011 to a clinician with Positive Futures program funds to provide aspects of Dialectical Behaviour Therapy to counselling and education for PMD but this was on hold until PMD was less escalated.  On 5 April 2011 a meeting was held with PMD’s family and with her service provider to review the positive behaviour support plan and discuss decision making impacts on PMD’s behaviour.   

7. The application further revealed that on 7 April 2011 the Department and the service provider discussed the need for containment and seclusion practices to reduce risk and how the current accommodation setting could be modified for safe use of these practices.  On 13 April 2011 the service provider applied to the Adult Guardian for a short term approval of the use of containment and seclusion practices.  The application did not state the outcome of that request.    

8. It can be inferred from the application for an interim appointment of a guardian for restrictive practices that the Department does not agree with the decisions being made by the current guardians for restrictive practices for PMD.  The Department seeks to have the Adult Guardian appointed as guardian and as guardian for restrictive practices for six months so that decisions can be made to align with the positive behaviour support plan. 

9. However the application for an interim appointment is misconceived. Under section 129 of the Guardianship and Administration Act 2000 an interim appointment of a decision maker can only be made if the tribunal is satisfied there is an immediate risk of harm to the welfare of the adult.  Although the applicant referred to escalated incidents of challenging behaviour, these incidents were started to have occurred between February and March 2011.  There was no evidence provided to satisfy the tribunal that the escalated challenging behaviours were still continuing at a level giving rise to an immediate risk to the welfare of the adult.   

[10]  The thrust of the application was rather that the Adult Guardian’s formal input was required to develop alternative methods to respond to aspects of PMD’s behaviour and her own decision making capacity.  The tribunal was asked to appoint the Adult Guardian for six months in the interim application to allow personal decisions to be made that would result in the strategies in the positive behaviour support plan being implemented.   The tribunal considered that the applicant was proceeding on the basis of a misunderstanding as the tribunal cannot make an interim appointment for a six month period.  To achieve that result, there must be a full hearing.    

[11] An interim appointment is made for the purpose of responding to a prima facie need for a decision maker until such time as the tribunal can hold a hearing to determine whether such an appointment is warranted under the relevant legislation. Interim appointments can be seen as an exception to the statutory requirement that the tribunal must accord procedural fairness and the power inherent in section 129 of Guardianship and Administration Act 2000 is carefully exercised by the tribunal.  It is not a power to be exercised merely because a party does not agree with the decisions being made by an appointed decision maker and would prefer another appointee.  

[12]  It was clear from the application that the current appointees and the advocate for the adult were opposed to the replacement of the current guardians for restrictive practices by the Adult Guardian.  They must have the opportunity to put their views to the tribunal before any change in appointment is made by the tribunal.  A review of the appointment of current guardians will only result in a change of appointees if it can be proven that the current appointees are no longer competent or another person is more appropriate for appointment.  The information supporting the application for an interim order did not satisfy the tribunal on any of those issues.      

[13] The application for an interim appointment under section 129 of the Guardianship and Administration Act 2000 was refused as the requirements of that section were not satisfied.