REN - [2022] QCAT 313

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

REN [2022] QCAT 313

PARTIES:

In an application about matters concerning REN

In applications about matters concerning REN

APPLICATION NO/S:

GAA7011-22, GAA14149-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

23 August 2022

HEARING DATE:

21 July 2022

HEARD AT:

Southport

DECISION OF:

Member McDonald

ORDERS:

1.     RAD and SR are appointed jointly and severally as guardians for REN for the following personal matters:

(a)     Accommodation; and

(b)     Health care.

2.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

CATCHWORDS:

GUARDIANS, COMMITTEES, ADMINISTRATORS RECEIVERS AND MANAGERS, Review of Appointment- appropriateness considerations- where conflict between family members- where Public Guardian is removed- where communication strategy is proposed.

Guardianship and Administration Act 2000 (Qld), s 11, s 11B, s 15, s 16, s 31

Human Rights Act 2019 (Qld), s 13, s 19, s 37, s 58

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

The Tribunal is reviewing the appointment made on 31 January 2020, where the Public Guardian was appointed as Guardian for REN for decisions about accommodation, health and service decisions. This review first went to hearing on 16 May 2022. REN’s wife was not attendance at this proceeding despite a notice of hearing being sent to her. RAD, REN’s daughter, indicated a desire to be appointed as guardian for REN at this hearing but had not lodged an application. Since REN’s wife did not have notice of this application, the Tribunal adjourned the review hearing to ensure that all active interested parties had notice of RAD’s desire to be appointed as G for her father, together with REN’s nephew, SR.
Present the adjourned hearing on the 21 July was RAD, LR, with her legal representative FF who observed, and LR’s son CC, AM represented the Public Guardian. SR was present for the commencement of the hearing but due to a critical family emergency, had to leave in the early moments of the hearing, after provided the Tribunal his evidence. A Chinese Interpreter was booked for the hearing and assisted the Tribunal until it became clear that he was only present for the benefit of CC, who was an interested party visiting from China, and that LR, could speak fluent English. And had not previously required an interpreter at the previous proceedings.
The Tribunal was satisfied the REN, although not present at the hearing, had received notice of the hearing, sent on 7 July 2022 to his current address. I was satisfied that REN had received the requite 7 days’ notice specified in s 118 of the Guardianship and Administration Act (‘The Act’).
The following documents were considered by me to be credible relevant and significant to an issue in the proceeding in accordance with s103 of the Act:
Application filed 20 June 2022; Public Guardians Report, 11 May 2022; Submissions of RAD filed 13 May 2022. Health Professional Report GB, 13 October 2016.
Most recently, on 31 January 2020 the Tribunal continued the appointment of the Public Guardian as guardian for accommodation, health and service decisions.
When the Tribunal reviews an appointment, it must do so under s 31 of the Act.
This specifies that:
31 Appointment review process
(1)The tribunal may conduct a review of an appointment of a guardian or administrator (an
"appointee") for an adult in the way it considers appropriate.
(2)At the end of the review, the tribunal must 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.
(3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
(a) continue its order making the appointment; or
(b) change its order making the appointment, including, for example, by—
(i)changing the terms of the appointment; or
(ii)removing an appointee; or
(iii)making a new appointment.
…
(6)The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14(1) available for appointment.
The Tribunal must firstly turn its mind to whether the grounds for the appointment of a guardian continue to be made out in accordance with s 12 of Act.
The is no dispute amongst the parties that REN’s decision making for personal matters remains impaired by his diagnosis of dementia. His dementia was first diagnosed in 2016, and has progressed signicantly since that time. The medical evidence before the Tribunal
Pursuant to s11(2), the Tribunal is not required to apply the presumption of capacity in this review, where the REN has been determined to have impaired capacity for the personal matters.in this review. The medical evidence of GB clearly notes that REN’s dementia was classified as moderate to severe in his 2016 report,[1] and since then REN’s dementia has progressively deteriorated. I am satisfied that REN has impaired capacity for personal decision around his health accommodation and lifestyle.
Is there a need for decisions that require a guardian to ensure that REN’s needs are adequately met and interests are adequately protected?
[1]Health Professional Report GB, M1.
The Public Guardian reported that they had since, their reappointment in 2020, made decision to move REN from his home to a residential aged care facility. And had accepted a permanent placement in this current facility following a period of respite. AM stated that a further accommodation decision is likely due to concerns expressed by RENS’ wife that she would prefer a placement in closer driving distance to herself, and RAD held similar views that an alternate facility should be sourced. AM reported that REN’s care needs have increased and community placement with the support of services in no longer financially sustainable, and therefore it would be unlikely that there would be a need for service decisions. She told the Tribunal that the statutory health attorney regime would likely not be effective in relation to health matters, given a longstanding history of conflict between LR and RAD, and she therefore stated she felt that there was a need for a guardian to make health decisions. She advised that there are no apparent health issues at present, but there have been decisions to provide consent for two covid 19 vaccinations on 20 August 2021 and for the booster on 3 February 2022, and had not been required to make any other health decisions. [2]
[2]Public Guardian’s report, 11 May 2022, H88
The parties are not in dispute that there continues to be decisions made in matters of health and accommodation, however, their discord focusses on who would be appropriate to act as guardian.
I am satisfied that there are decisions which need to be made around accommodation and health matters and without the appointment of a guardian for these matters, REN’s interested will not be adequately protected. On this basis I find that the grounds for a guardian’s appointment continue to be made out.
Appropriateness of the Guardian
The Tribunal may remove the Public Guardian as guardian if there as an appropriate person mentioned in s 14(1) available for appointment.
Pursuant s14(1)(a) The tribunal may appoint a person who is not the public guardian as guardian if the person is a person who is at least 18 years and not a paid carer, or health provider, for the adult;
The Tribunal must turn its mind to the considerations of the Appropriateness of the Proposed appointee, including matters specified at s15:
(a)      the general principles and whether the person is likely to apply them;
(b)      if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles;
(c)      the extent to which the adult’s and person’s interests are likely to conflict;
(d)      whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;
(e)      if more than 1 person is to be appointed—whether the persons are compatible;
(f)      whether the person would be available and accessible to the adult;
(g)      the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult.
(4)In considering the person’s appropriateness and competence, the tribunal must have regard to the following—
(a)      the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;
(b)      the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;
RAD gave evidence that she was appropriate for appointment for multiple reasons. She told the Tribunal that she had been very dissatisfied with delays in decisions being effected regarding her father’s vaccination for COVID 19, given that he was a frail aged man living in residential care. She indicated that she had pursued these concerns between June to August 2021, noting that she believed that the failure to provide consent was the reason for the delay. She was alarmed that her father had not had his second shot due in November 2021, and was in a facility which had cases of Covid infections. She communicated these concerns to the Public Guardian, and ultimately on 10 February 2022, he received his second vaccination.[3] She argues that the anonymity of the appointment of a public substitute decision maker was a factor in the delay around effecting the decision to consent to the vaccination, and that this would not occur under the watchful eye of family. The Tribunal is in receipt of a copy of correspondence between the Public Guardian and the home care provide dated 19 August 2021, which noted that the public guardian had provided consent to this vaccination by this date, but the home-based service provider experienced resistance from LR to REN’s attendance at the vaccination appointment.
[3]Submissions of RAD filed 13 May 2022, H90.
The Public Guardian noted that it had provide consent based on the medical opinions of Dr Van Zyl and Dr Jones, and in consultation with the Queensland health advice and encouraged the rescheduling of an appointment.[4] Shortly after that REN transitioned to residential care, without having had the vaccination. This posed particular concern to RAD, as medical doctor, and the correspondence before the Tribunal indicated that she advocated on behalf of her father for the decision to be effected in accordance with the medical advice.
[4]Email Public Guardian 19 August 2022 H79.
RAD indicated compliance with the health care principles in seeking to consider the medical advice in making decision.
RAD acknowledged a need for an accommodation decision that enabled LR to be closer to REN, and the decision around finding appropriate accommodation would need to take into account the significance of maintaining that relationship. She identified that REN had other significant relationships including his brother and his brother’s wife who were living in a residential aged care facility in Helensvale nearby LR, and she indicated that she would make a decision around appropriate accommodation which attempted to preserve each of these relationships. She particularly identified a need for accommodation to be near to LR so that she could maintain regular visits. RAD was very clear that her decision would reflect the need for REN to continue to have regular visits from LR and she would seek to make a decision which facilitated this.
She stated that she and LR did not have good communication, but that as guardians, RAD and SR would be able to develop a communication strategy that ensured that LR’s views were taken into account, and that she was informed of decisions.
RAD told the Tribunal of the relevant history and indicated that conflict around the decision whether to provide care for REN at his home or in residential care had been resulted in the Public Guardian being appointed. Ultimately, the Public Guardian decided for REN’s care to be self-funded until such time as he was no longer able to sustain funding for 24-hour care in his home. She indicated that she had now accepted that residential care is the only option moving forward, and this was no longer in dispute. She indicated that she could make decisions around which facility was more appropriate to his needs, having regard to the significance of him sustaining his relationship with his wife and other family, and that she would make a decision that brought him proximate to both of them.
LR’s evidence was that she did not believe that it was appropriate for RAD to be appointed because there has been a long history of conflict between them and she sought the continuation of the Public Guardian to make decisions for REN. She said that she trusts the Public Guardian, and does not share this sentiment should RAD be appointed. She said that RAD had “never been nice to me- that she would not be nice in the future to her”. She said that she held doubts that RAD would communicate with her in relation to decisions.
LR was asked why she failed to attend the originally scheduled review hearing of the 16 May 2022. She stated that she had not been informed of the hearing, yet a notice of hearing had been sent to the same address as had been recorded on the file, and was the same address that the notice of the adjourned hearing had been sent to.
Although LR objects to RAD’s appointment due to conflict between them, I find that RAD’s evidence indicates that the proposed appointees will work to ensure that LR is consulted in decisions and kept informed, and that decisions will be made which facilitate REN and LR’s ongoing relationship. SR has told the tribunal he will work with his co-appointee to facilitate communication. There is a clear strategy to overcome the conflict and manage communication.
RAD has been actively involved in advocating for decisions around her father’s health care. Based on this, having regard to the considerations of the appropriateness of the prosed appointees, I find that there is no conflict of interest between REN’s interests and RAD and SR’s.
I am satisfied that the proposed appointees are likely to apply the General Principles, noting in particular a commitment to ensuring decisions made around accommodation are made from a frame which maintain REN’s close relationships.
The proposed co-appointees are in regular communication by phone and email despite geographical separation, with SR on the Gold coast near REN, and RAD in England. I find the co-appointees compatible to collaborate in decision making. RAD indicates if urgent health decisions need to be made, SR based locally can be sourced for those decision, if international time differences would cause any barriers. I find that given the co-location locally of a proposed appointee in where a joint and several appointments is made, no barrier is posed by availability of the guardian.
The proposed appointees are family members who have never been paid carers. RAD is a medical doctor and has demonstrated through her advocacy a concern for REN’s human rights, in his access to preventative treatment when exposed to risk of infection.
SR and RAD have signed the declaration indicating that there is nothing within s 16(1) (2) of the Act which excludes them from appointment.
Having regard to these considerations, I find that RAD and LR are appropriate to be appointed as guardians for REN for decisions about accommodation and health within the meaning of s 14(1).
The Tribunal must when acting as a public entity, such as in the appointment of a guardian, turn its mind to any human rights which may be affected by the decision.[5] I consider that REN’s rights to freedom of movement[6] and access to health services[7] may be limited this decision. Human Rights may only be limited where it can be demonstrated that the limitation is reasonable and justifiable.[8] Having regard to the considerations at s 13(1) of the Human Rights Act, given that the purpose of this appointment is to ensure that REN’s interests are adequately protected in relation to his accommodation and health, in circumstances where his unable to due to his cognitive impairment, unable to protect his own interests; and further that this appointment is limited to the least restrictive grounds for the appointment, and is subject to review, I consider that the limitations to these rights posed by the appointment is both reasonable and justifiable.
[5]s 58 Human Rights Act 2019 (Qld).
[6]s 19 Human Rights Act 2019 (Qld).
[7]s 37 Human Rights Act 2019 (Qld).
[8]s 13 Human Rights Act 2019 (Qld).