Re: SM
[2013] QCAT 139
| CITATION: | Re: SM [2013] QCAT 139 |
| PARTIES: | SM |
| APPLICATION NUMBER: | GAA10535-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 26 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for directions is dismissed |
| CATCHWORDS: | GUARDIANSHIP – where guardian appointed to make contact decisions – where decision made to refuse contact with a family member – where directions sought from Tribunal to override the decision of the guardian – where application without substance Guardianship and Administration Act 2000 (Qld), s 5, s 138 |
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
On 6 February 2012 the Tribunal appointed the Adult Guardian to make decisions about whom MS has contact with for a period of five years. The appointment was made following a finding that MS had impaired decision making capacity for personal decisions.
Based on the Tribunal’s appointment, the Adult Guardian has made a decision which has prevented MS’s daughter, CS, from having contact with MS. An application has been made to the Tribunal seeking orders that the Tribunal direct the Adult Guardian to permit contact between MS and CS.
At about the same time as the application for directions was filed in the Tribunal, a senior guardian from the Office of the Adult Guardian wrote to CS setting out the reasons why contact was not to be arranged at that time. In a letter dated 24 September 2012 the senior guardian confirmed that the guardian had to take into account the health care Principle and the General Principles set out in the Guardianship and Administration Act 2000.
The senior guardian informed CS that consultation had occurred with MS and key parties to gain a clear understanding of MS’s needs and wishes. It was stated by the senior guardian that MS has consistently declined to spend time with CS and her family. It was also stated that MS has not had an ongoing relationship with CS and has not consistently had contact with CS during CS’ adult life.
The senior guardian stated that a decision had been made not to consent to contact at that time but to review that decision in three months or when new information was received in relation to MS’s contact.
The reasons for that decision were set out in the letter. MS had told a delegate of the Adult Guardian that she did not want to have any visitors at that time. MS had a right of choice and her wishes were respected by the Adult Guardian who supported the contribution made by MS in making her own decisions. It was stated that CS continues to breach previous contact decisions which reportedly causes distress to MS.
The Adult Guardian has provided a report dated 11 January 2013 to the Tribunal on the actions taken as the guardian for MS. It was stated in that report that a delegate of the Adult Guardian had made a decision on 23 May 2012 that prior consent is required by the Adult Guardian before any contact or visits can occur between MS and CS. A decision was made that SQ, the son of MS who resides with her, is to allow phone calls from CS to MS to occur according to scheduled contact decisions from the Adult Guardian.
In addition to having telephone calls with MS, a delegate from the Adult Guardian had visited MS on four occasions during 2012 to ascertain her views about requests from CS to have contact with her. MS had expressed to the delegate on a number of separate occasions that she did not wish to have a visit with MS. The delegate had sought MS’s views both in the presence of her son, SQ, and in his absence.
On four occasions MS was visited by the delegate at a respite centre and MS was asked on her own and in the presence of the facility manager about her views about her daughter and family visiting her. The senior guardian reported that MS advised that she did not wish to have a visit with MS and her family or any other visits at the time.
The senior guardian also reported that attempts were made by the delegate to ascertain whether MS would prefer telephone contact with CS but this was also declined by MS. The report stated that MS indicated that she will not attempt to answer the phone at home. A supervised visit had been offered earlier in 2012 by the guardian but MS had declined that offer.
The delegate consulted with SQ about the request for contact by CS and her family. SQ indicated he had no objections to contact as long as MS agrees to contact and only if the contact does not take place at the family home.
The delegate consulted with the manager at the respite centre who has known MS for many years, from when MS had been a volunteer at the centre before her stroke. The manager had not heard MS mention that she had a daughter. The manager expressed the view that contact should not occur at the respite centre as MS attends there for socialising time and it would not be fair to disrupt the time she has with her friends. A concern was noted in the report that using the respite centre for unwanted contact with CS may distress MS and alter her comfort and positive familiarity at the respite centre.
The report concluded with the assertion that a decision to refuse contact at this time was made with great weight placed on the views of MS whose wishes have been upheld by the guardian.
The Tribunal made directions requiring CS to provide submissions as to why her application should proceed to a hearing and not be dismissed under s 47 of the QCAT Act. CS provided submissions together with evidence and submissions from her family and other persons.
CS submitted that the Adult Guardian continually takes the word of a woman suffering dementia who cannot make her own decisions. CS submitted that SQ continues to coach MS into believing that she does not want contact and that as a consequence the stated wishes of MS are not of her own thought. However this submission is unable to be either verified or rejected. It is clear however from the information provided by the Adult Guardian that delegates from the guardian have consulted with MS on four occasions in the absence of her son and on each of those occasions MS has expressed the view that she does not want to have contact with CS and her family.
In her submissions, MS refers to her rights to visit her mother. There is no right at law that requires an adult to have contact with their family members. It is however the right of an adult to make their own decisions about whom they see and communicate with. The right to make decisions is fundamental to an adult’s inherent dignity. That right includes the right to make decisions with which others may not agree.[1]
[1] See ss 5(a) - (b) of the Guardianship and Administration Act 2000.
It is acknowledged that MS has impaired capacity to make decisions about personal matters. However that finding does not mean that MS cannot rightfully contribute to decisions made on her behalf. It is recognised in the law that the capacity of an adult with impaired capacity to make decisions may differ according to the nature and extent of the impairment and the type of decision to be made.[2] The diagnosis of dementia should not prevent meaningful consultation taking place with MS about proposed arrangements that will directly affect her. Her right to make her own decisions should be restricted and interfered with to the least possible extent.
[2] Section 5(c) of the Guardianship and Administration Act 2000.
CS asks the Tribunal to give a direction to the Adult Guardian which will effectively override the decision made by the guardian to refuse contact between MS and CS. The Tribunal will have to apply the same General Principles as the Adult Guardian when coming to a decision about contact. The Tribunal must also acknowledge the right of MS, as a person with impaired capacity, to the greatest possible degree of autonomy in decision making. Her views have already been sought and expressed to the Adult Guardian as recently as September 2012. MS has exercised her right not to have any contact with her daughter.
The submissions made by CS have not satisfied me that the decision already made by the appointed guardian should be interfered with or set aside by directions from this Tribunal. Much of the evidence and submissions by CS seek to refute the statement made by the guardian that MS has not consistently had contact with CS over the years. Even accepting that statement may not be entirely accurate, the current position is not of a close relationship between MS and her daughter and her request to re-establish a bond with he mother is understandable. However a loving and supportive bond must be formed by the mutual efforts of two people and cannot be unilaterally imposed on a person.
Section 47 of the QCAT Act gives the Tribunal power to bring a proceeding to an early end if the Tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The exercise of such a power in an appropriate case is consistent with the statutory objects of the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick
I am satisfied that the application for directions should not proceed to a hearing and should be dismissed under s 47 of the QCAT Act. The guardian has been appointed to make contact decisions. The guardian has made a contact decision that is not accepted by CS. This is not a case where the appointed decision maker has declined or delayed in making a decision and where intervention by the Tribunal would have some benefit for an adult with impaired capacity. The decision to refuse contact has been made in accordance with the law.
There are no cogent reasons established for that decision to be set aside by a direction of the Tribunal. Under s 138 of the Guardianship and Administration Act 2000 the making of directions by the Tribunal to an appointed decision maker is a discretionary remedy. Neither the application nor the submissions made in support of that application provide a basis for the exercise of discretion by the Tribunal, especially when to do so the Tribunal will have to ignore the stated views and wishes of the adult with impaired capacity. Discretion under s 138 is more likely to be exercised by the Tribunal when a decision maker declines to make a decision and less likely to be exercised when the decision maker merely makes a decision that is not accepted by another person.
The application for directions is without substance and should not proceed to a hearing. Accordingly it is dismissed.
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