RFG
[2016] QCAT 422
•4 August 2016
| CITATION: | RFG [2016] QCAT 422 |
| PARTIES: | RFG |
| APPLICATION NUMBER: | GAA8017-16 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 4 August 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Public Guardian is appointed guardian for RFG for the following personal matters only: (a) accommodation decisions; (b) with whom RFG has contact and/or visits; (c) health care of RFG; (d) provision of services for RFG; (e) legal matters not relating to RFG’s financial or property matters. 2. The Tribunal directs the guardian to provide a written account of their actions as guardian to the Tribunal no later than three (3) working days prior to the hearing. 3. This guardianship appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. 4. The Public Trustee of Queensland is appointed administrator for RFG for all financial matters. 5. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 6. This administration appointment remains current for three (3) months or, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner. 7. The following enduring power of attorney for RFG is overtaken by the making of these appointments and, in accordance with section 22(2) of the Act can no longer be acted upon to the extent that these appointments have been made: (a) The enduring power of attorney dated 19 November 2012 appointing CT as attorney for financial, personal and health matters. | ||
| CATCHWORDS: | GUARDIANS AND ADMINISTRATORS – APPOINTMENT – where adult had brain stem injury and was unable to communicate – where attorney was her decision-maker – where attorney demonstrated a lack of empathy for adult’s position – where comments made by attorney revealing some awareness of what adult had experienced leading up to her injury PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – PERSONS UNDER LEGAL INCAPACITY (OTHER THAN CHILDREN): JURISDICTION AND POWERS – where interim order sought for appointment of guardian and administrator – whether there was an immediate risk of harm Guardianship and Administration Act 2000 (Qld), s 129(1) | ||
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
A social worker at a regional hospital made an application to QCAT for the appointment of a guardian and administrator for RFG who was an inpatient following a stroke. According to medical evidence filed with the application, RFG was unable to understand and retain information and was unable to communicate due to the effects of the stroke and a brain stem injury.
The information provided in the application and medical report indicated that RFG had been subjected to domestic violence and that besides her husband, there was no-one to make decisions on her behalf. The application stated that there were concerns from the treating staff that RFG’s husband would not act in her best interests in view of the alleged history of domestic violence.
The applicant also applied for an interim order appointing decision-makers for RFG. QCAT can make an appointment of a decision maker on an interim basis for up to three months under s 129 (1) of the Guardianship and Administration Act 2000 (Qld) without holding a hearing. Before an interim order can be made, the Tribunal must be satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned because of the risk of abuse, exploitation or neglect of the adult.
The applicant stated that in April 2016 RFG presented at the emergency department of the hospital and had disclosed a history of domestic violence between herself and her partner, CT, in which CT was the perpetrator. RFG reported emotional and physical abuse and controlling behaviours. RFG returned home but had stated that she was concerned for her safety. RFG did not want a referral to DV Connect due to fear that her partner would find out. RFG did accept a referral to another domestic violence support service.
At the time of the current hospital admission, CT told the hospital that he had been out of town for a few days and had returned to the house to find RFG unresponsive on the floor on 31 July 2016. The applicant stated that CT was observed to stand over RFG and say: “this is all your fault. You asked for this.” CT had asked medical staff if RFG’s injury could have been caused by a twisting injury or head injury. The treating team contacted the police about these comments.
The applicant stated that RFG was deteriorating. Due to the known history of domestic violence, along with the observed behaviours of CT in hospital, the treating team had significant concerns about the appropriateness of CT as a decision-maker for RFG. It was submitted that RFG is at an immediate risk of harm as she is unable to communicate her wishes and currently decisions about the care of RFG must be referred to CT.
The evidence from the applicant and the treating team was concerning. It was a reasonable conclusion to draw from the evidence that RFG had been subjected to domestic violence from CT, during a period of some months prior to the end of July 2016. Prior to admission to hospital, she had sustained a brain stem injury and a stroke which had rendered RFG unable to communicate. The evidence did not reveal the circumstances in which the injury had been sustained. Comments made by CT about a twisting injury or head injury suggested that CT was aware of some facts that may be relevant to the injury sustained by RFG and that in his view, RFG had brought this injury on herself in some way. Those comments had been reported to the police.
The evidence established to the satisfaction of the Tribunal that RFG was at an immediate risk of harm. CT is RFG’s decision-maker for all personal, health and financial matters as he is her attorney. He was reported to be controlling of RFG so much so that she was fearful to have him learn that she had reported domestic violence to the hospital staff in April 2016 and had been referred to a domestic violence service.
It was inappropriate that RFG’s decision-maker at the very time that RFG was completely vulnerable and needed decision-making support for what may be life and death decisions was the reported perpetrator of violence against her. That same person had revealed by his comments a lack of empathy for RFG’s plight and a possible involvement in some undisclosed and even tangential way in what had happened to RFG. The Tribunal accepted that the concerns of the treating team that CT may not make decisions in the interests of RFG were well founded.
There were decisions needed about health care, protection of financial resources during RFG’s immediate incapacity and service and care decisions once RFG could move to rehabilitation following the stroke. Those decisions could not be delayed until a hearing was held of the applications for the appointment of a guardian and administrator. The existence of plenary decision-making powers of CT as the attorney for RFG gave rise to an immediate risk of harm to RFG’s welfare and financial position. While she was unable to communicate, the views of RFG about her attorney could not be sought. However, her fearfulness about his controlling and violent nature had been evident in April 2016 and it was a reasonable inference to make that her views would not have changed in the interim. The comments made at the hospital by CT about RFG would support that inference.
The Tribunal considered that the only way to provide adequate and appropriate decision-making support to RFG was to appoint the Public Guardian as her guardian and The Public Trustee of Queensland as her administrator and to overtake the powers invested in her attorney. Such appointments would respond to the immediate risk of harm to RFG’s welfare and financial resources until such time as a hearing of the applications could be held.
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