QZR

[2024] QCAT 408

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

QZR [2024] QCAT 408

PARTIES:

In an application about a matter concerning QZR

APPLICATION NO/S:

GAA11005-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

28 August 2024 (ex tempore)

HEARING DATE:

28 August 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne (Presiding)

Senior Member Aughterson

ORDERS:

1.     The appointment of the Public Guardian as guardian for QZR for the following personal matters is revoked:

(a)     Accommodation;

(b)     Health care;

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

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – REVIEW, REVOCATION ETC – whether a decision to appoint a guardian for personal matters should be revoked – whether the adult’s existing informal networks can support the adult – where the adult identifies as an Aboriginal woman – where the adult lives in a remote area – where the decision to appoint a guardian for personal matters is revoked

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION –where the Tribunal considered the decision was compatible with human rights – whether the decision to revoke the appointment limited or engaged the adult’s human rights – where the tribunal recognises the adult’s right to engage and enjoy cultural rights

Human Rights Act 2019 (Qld), s 48

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 7, s 11, s 11B, s 12, s 31

APPEARANCES & REPRESENTATION

Adult  Self-represented

Public Guardian               Self-represented

Public Trustee                   Self-represented

REASONS FOR DECISION

1. Senior Member Browne: This was a hearing in Brisbane concerning QZR. The hearing, on the 28^th of August 2024 before Senior Member Browne and Senior Member Aughterson, was a review of an existing order made by the Tribunal on the 27^th of July 2021. In particular, on that day, the Tribunal changed a guardianship order made by the Tribunal on the 16^th of July 2019 by appointing the Public Guardian as a guardian for QZR to make decisions about her accommodation, healthcare and provision of services including in relation to the National Disability Insurance Scheme. That appointment was to remain current until further order of the Tribunal. The appointment is reviewable, and it is to be reviewed in two years.

2. In reviewing the existing order appointing a guardian, section 31 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’) requires the Tribunal, at the end of the review, to revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. This requires the Tribunal to go back to the requirements set out under section 12 of the Act that gives the Tribunal the power to, by order, appoint a guardian for a personal matter, for an adult, only if satisfied certain requirements are met. Amongst other things, in performing a function or exercising a power under the Act, the Tribunal is required to consider the section 5 ‘Acknowledgments’, section 6, section 7 and also section 11. Importantly, the Tribunal is also required to apply the General Principles under section 11B.

3. Relevant to the review hearing today is, as set out under section 5 of the Act, QZR’s right to make decisions that should be restricted and interfered with to the least possible extent and also that QZR has a right to adequate and appropriate support for decision making. This really goes to the heart of the matter and why the Tribunal has decided to revoke the existing appointment of a guardian, relevantly to the Public Guardian, to make decisions about QZR’s accommodation, healthcare and provision of services including in relation to the National Disability Insurance Scheme (‘NDIS’). The requirements under section 12 have not been met because the Tribunal is satisfied that QZR has supports around her such that where there is a need for decisions to be made, JTR, who QZR recognises as part of her network of people and as legal guardian for her daughter, who recognises her as an important person in her life who is available, can step in and assist her when decisions are necessary about her personal matters, in particular accommodation and provision of services including the NDIS and healthcare.

4. There is medical evidence before the Tribunal that is relevant to the requirements under section 12. It is not necessary for the Tribunal to make findings of fact about QZR’s capacity because, as I have said, all of the requirements under section 12 have not been met in reviewing the order today and the Tribunal is not satisfied that the appointment of a substituted decision-maker is necessary. However, the medical evidence is relevant to the extent that the Tribunal is required to consider whether, without an appointment, QZR’s needs will not be adequately met or her interests will not be adequately protected. There is a report of Jamie-Lee Smith, Psychologist, dated the 1^st of December 2023, and there is also a report of Tracy Richards, Psychologist, dated the 3^rd of December 2018. The reports refer to QZR as being an indigenous woman who resides in Mount Isa. She has two children under the care of the Department of Child Safety. She presently has her financial matters managed by the Public Trustee of Queensland. There is a history of disengagement from services and QZR requiring assistance in problem solving and decision-making. The Tribunal has also considered the Public Guardian’s report dated the 27^th of August 2024. That is important because it identifies areas of decision-making for which QZR will require assistance, and, as the Tribunal has said, those areas are in relation to accommodation, provision of services including the National Disability Insurance Scheme and healthcare. Importantly, however, there is an NDIS support coordinator in QZR’s life [Lynn White].

5. The Tribunal has heard from Lynn White who says there are services in place and, importantly, JTR, who is recognised as a significant and important person in QZR’s life, is available and has in fact been assisting QZR in securing accommodation and connecting her to services. The Tribunal has heard that there has been some delay in earlier decisions made where the Public Guardian is appointed given the distance with QZR being in a remote area, namely Mount Isa, and this has in fact presented an opportunity for those informal networks to be available and utilised by QZR. The Tribunal is satisfied that QZR is able to nominate JTR as her NDIS nominee and accepts the information provided in the hearing today that those informal networks are available for accommodation, provision of services including the NDIS and healthcare. Relevantly, the Public Guardian is also available to step in as a guardian of last resort for healthcare if necessary. The Tribunal concludes that there is no longer a need for decisions to be made about QZR’s personal matters and that should there be a change in QZR’s circumstances, an application for the appointment of a guardian can be made at any time.

6. The Tribunal has also considered QZR’s human rights under the Human Rights Act 2019 (Qld) and the requirement under section 48 to interpret all statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.

7. Indeed, the order that the Tribunal is making today is to revoke the existing appointment of the Public Guardian and this aligns with QZR’s human rights. Therefore, there are no human rights that are limited and engaged by the making of this order. The Tribunal has recognised QZR as a person before the law and her entitlement to equal protection of the law without discrimination. Also, it has recognised that QZR has a right to engage and enjoy cultural rights and that she identifies as an Aboriginal person who holds a distinct cultural right to enjoy, maintain, control, protect and develop her identity and kinship ties and maintain and strengthen distinctive relationships with the land that should not be subjected to forced assimilation or destruction of her culture. Also, the Tribunal has recognised QZR’s right to a fair hearing. She has told the Tribunal in her own words that she would like autonomy in her decision making with supports and has indicated that JTR is a person who is important to her in her support network.

8. The orders made by the Tribunal today are that the appointment of the Public Guardian as guardian for QZR to make decisions about the following personal matters: accommodation; healthcare; and provision of services including in relation to the National Disability Insurance Scheme, is revoked.

9. The following documents were considered by the Tribunal to be credible, relevant, and significant to an issue in the proceeding. In accordance with section 103 of the Act, these were the H18 notice of hearing, the Public Guardian’s report dated the 27^th of August 2024, the Tribunal’s order made on the 27^th of July 2021 and the two medical reports, M1 and M2 documents.