SN
[2011] QCAT 362
•25 July 2011
| CITATION: | SN [2011] QCAT 362 |
| PARTIES: | SN |
| APPLICATION NUMBER: | GAA5680-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 25 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for interim appointment of a guardian is refused. |
| CATCHWORDS: | GUARDIANSHIP – interim appointment of guardian sought – no immediate risk of harm established Guardianship and Administration Act 2000, s 129 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
TE lodged an application in the tribunal seeking the appointment of a guardian and an administrator for SN. The applicant sought interim appointments of a guardian and administrator.
The grounds for seeking an interim appointment were contained in a letter from the applicant dated 6 July 2011. The applicant submitted that SN was an inpatient at a hospital. He had had 11 presentations/admissions to hospital in the past 12 months. On each occasion his hygiene was poor at the time of presentation at the hospital.
It was submitted that SN does not have a permanent address. He has been offered support to find accommodation but he had declined that support. He has declined transfer to supported accommodation options. He has a son but there is conflict between them. The applicant submitted that SN withdraws his entire pension but it is not known how he spends his money.
The applicant submitted that SN is medically well and he is keen to be discharged from hospital and there is an increasing risk of self discharge. SN is becoming aggressive towards hospital staff and his behaviour is getting difficult to manage. He is likely to be transferred to an outlying facility which the applicant submitted will increase the risk of self discharge.
The tribunal has the power to appoint decision makers for adults with impaired decision making capacity. Appointments of decision makers are generally made after a hearing of the application and after the adult in question has an opportunity to state their views about the proposed appointment. However the Guardianship and Administration Act 2000 does provide power for the tribunal to make appointments on an interim basis prior to a hearing and without prior notice being given to the adult.
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. That harm could arise because of the risk of abuse, exploitation or neglect or self neglect by the adult.
The tribunal was not satisfied on the evidence that SN was at immediate risk of harm. He was an inpatient in hospital, he was receiving appropriate care and he was not going to be discharged by the hospital without adequate accommodation arrangements being made.
The applicant submitted that there was a risk of self discharge but there was no evidence that SN had made any attempt to leave the hospital without permission or contrary to medical advice.
The tribunal could not make any interim appointments when the criteria in section 129 had not been met.
[10] Less than two weeks after the tribunal had refused the request for interim appointments, the applicant lodged a second request for interim orders. The evidence provided in support of the second application was essentially the same evidence that had already been considered by the tribunal. It was stated that the hospital was operating at 100% capacity and could no longer sustain SN remaining in one of its beds and that he was likely to be transferred to an outlying facility. It was submitted as before that the risk of self discharge would increase in that event.
[11] The second application was not accepted as a valid application as it sought the same relief based on essentially the same facts as the first application that had been determined and refused. The applicant cannot merely repeat her request in the hope that there would be a different outcome. The position was that no new evidence had satisfied the tribunal that an immediate risk of harm existed and that an interim appointment was necessary.
[12] The tribunal informed the applicant that the second request would not be actioned but did make arrangements for an early hearing to be scheduled for her applications for the appointment of a guardian and administrator. The tribunal recognised that it would be in the interests of SN that he had the opportunity to place his views before the tribunal and that a determination could be made on the applications as early as possible and informed by his input.
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