QLIE - [2012] QCAT 706

CITATION:

QLIE [2012] QCAT 706

PARTIES:

QLIE

APPLICATION NUMBER:

GAA10191-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

30 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for an interim order for QLIE is dismissed.

CATCHWORDS:

GUARDIANSHIP – where family member was prevented from visiting adult – where interim order sought – where no immediate risk of harm to the adult was established

Guardianship and Administration Act 2000, 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 (QCAT Act).

REASONS FOR DECISION

QLIE is 91 years of age. She was admitted into hospital after collapsing at her home. She had been cared for in her home by her stepson and allegations had been made that she was being abused by him. It was discovered that some of the food in her house was five years out of date, her house was unkempt and her bed linen was dirty. QLIE was heard expressing statements that her stepson no longer feeds her and he wants her dead. Allegations of financial abuse were also made against her stepson who is her attorney.
An application was made to QCAT for the appointment of a guardian and administrator for QLIE. The applicant, QR, also applied for an interim appointment as guardian and administrator until such time as a hearing of her applications could take place. QR stated that there was a history of severe family dysfunction that was still impacting on QLIE. As the tribunal was satisfied that arrangements were urgently needed to stabilise QLIE’s care in an appropriate aged care facility where her needs could be met, an interim appointment was made. The tribunal also took steps to hold a hearing as soon as a date could be arranged within the tribunal’s timetable.
QR provided further information to QCAT about the risk she perceived that her mother continued to face from the actions of her stepson and persons described as his associates. It was asserted that QLIE’s stepson had been verbally abusive to QLIE when she had been in hospital and that he had been removed by security staff from the hospital. QR had a concern that the stepson would seek to have further contact with QLIE after her discharge from hospital.
QCAT was informed that the staff at the aged care facility where QLIE was accommodated after her discharge from hospital had put into place visiting protocols to ensure that QLIE’s safety and wellbeing was maintained. Those protocols included no direct phone line in her room, no information would be made publicly available about her and her stepson and his known associates were not permitted to visit QLIE. QR informed QCAT that the visiting protocols did not place restrictions on QLIE’s close friends or on some members of her extended family such as her son CM.
It is within the authority of a care facility to make arrangements for the wellbeing of its residents and those arrangements do not require the consent of an appointed guardian or of family members. Complaints about the visiting arrangements can be made through the complaint processes which apply to aged care facilities.
On 22 November 2012 CM spoke to a staff member of QCAT and stated that he was being prevented from having contact with QLIE. He wanted to make an application so he could see his mother as he stated that QR had refused to allow him to visit QLIE. On 30 November 2012 CM filed an application for an interim order in which he sought access to QLIE. CM told the registry staff that he believed his mother was dying and he wanted to be with her at this time.
CM did not seek an interim appointment of a guardian for QLIE to make contact decisions nor did he seek any change to the current interim appointment made by QCAT whereby QR is the guardian to make decisions about accommodation, health care and services for QLIE.
The application by CM was misguided as to the specific outcome he was seeking. QCAT does not make decisions about who can have access to another adult. Under the Guardianship and Administration Act 2000 QCAT has authority to appoint a guardian to be the decision maker for an adult with impaired capacity about a range of personal matters. A guardian would have power to make decisions about who QLIE has contact with if the guardian is appointed to make contact decisions. If a guardian with specific power to make contact decisions refuses to make a contact decision, then QCAT can make a direction to the guardian to require the guardian to permit specific arrangements for contact.
Those circumstances were not present in this case. Applications for the appointment of a guardian and administrator for QLIE had been made to QCAT and a hearing date had been set for 6 December 2012. In the interim period before the hearing, QR had been appointed to be the guardian of QLIE to make accommodation, health care and service delivery decisions for QLIE. According to the information provided by CM, QR’s refusal to allow him to visit QLIE was supposedly based on her assessment that contact as this stage would have a deleterious impact on QLIE’s health and wellbeing.
Ultimately it is within the authority of the aged care facility to permit or to refuse visits to their residents. Even when there is a guardian appointed to make decisions about who can visit an adult with impaired capacity, those decisions are subject to the protocols and arrangements of the care facility which ensure the wellbeing and comfort of the residents. Before QCAT made a direction to a guardian to permit contact by a specified person with an adult, there should be satisfactory evidence available that such a direction would be able to be implemented and was practicable.
An ex parte application, supported by untested evidence, for an interim order for a direction to be given to a guardian would not be the appropriate medium for QCAT to make a decision as to whether a direction should be made to the guardian to withdraw her objection to the proposed visit of CM to QLIE on the weekend prior to the scheduled hearing. CM would have the opportunity at that hearing to put forward his views as to whether a guardian for contact decisions was required.
In any event the powers of QCAT to make an interim order under the Guardianship and Administration Act 2000 are very limited. Section 129 of that Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned.
CM did not provide evidence that QLIE was at an immediate risk of harm. His concerns that his mother was dying were not supported by the evidence as to her health supplied to the tribunal which was that QLIE was generally improving as a result of receiving appropriate care in the aged care facility. CM’s focus was not apparently on having an interim order in place to respond to immediate harm to QLIE. Instead the information he provided to QCAT was that he had made travel plans to come to Queensland on 30 November 2012 and 1 December 2012 to visit his mother and he wanted to carry through with those plans.
Making an interim order involves the exercise of discretionary power by the tribunal. I was not satisfied that the criteria in section 129 for exercising that power had been established by CM as I could not find any immediate risk of harm to QLIE that necessitated a response in the form of an interim order being made directing the guardian to permit CM to visit his mother less than a week before QCAT’s hearing. QCAT has no power to direct the aged care facility to permit the visit. I dismissed the application.