SZ - [2010] QCAT 641 | CaseChat AU

CITATION:

SZ [2010] QCAT 641

PARTIES:

APPLICATION NUMBER:

GAA6575-10

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

15 November 2010

HEARD AT:

Brisbane

DECISION OF:

C Endicott, senior member

DELIVERED ON:

15 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

Enduring Power of Attorney dated 24 January 2007 is overtaken and the Adult Guardian is appointed as guardian for decisions about health care, provision of services and legal matters not relating to financial or property matters for one year.

CATCHWORDS :

GUARDIANSHIP – where attorney refusing to allow services to assist an adult with tetraplegia.

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties.

REASONS FOR DECISION

On 26 February 2010 the tribunal made findings that SZ had impaired capacity for making decisions about a claim for damages for personal injuries commenced on her behalf in 2007. SZ had sustained spinal injuries in a motor vehicle accident on 4 November 2006 which resulted in tetraplegia.
By February 2010 her claim for damages had to be progressed or risk being permanently halted if further necessary steps in the litigation were not taken. Liability had been admitted by the insurer of the defendant who was SZ’s husband.
The tribunal had been satisfied that SS was preventing SZ from freely and voluntarily making decisions in the claim. The Public Trustee of Queensland was appointed as the administrator for SZ to make decisions about her claim and the Adult Guardian was appointed as her guardian to seek help and to make representations about her health and care needs.
On 31 May 2010 The Public Trustee of Queensland applied to the tribunal to review the appointment of the administrator in order to seek an extension of the administrator’s decision making powers to include decisions about an award of damages expected to be recovered for SZ. On 24 August 2010 the tribunal changed the terms of the appointment of the administrator to include management of any damages recovered by SZ in her claim.
At the hearing held on 24 August 2010 the tribunal initiated an application for the review of the appointment of the guardian and made an interim order for three months appointing the Adult Guardian to make decisions about health care, services and legal matters not relating to the finances or property resources of SZ.
On 15 November 2010 the tribunal conducted a hearing of the application to review the appointment of the guardian. Notice of the hearing had been given to SZ and to her husband but neither person attended the hearing or contacted the tribunal registry to make their views known to the tribunal about the need for the appointment of a guardian or the extent of any decision making authority that should be given to a guardian for SZ.
A representative of the Adult Guardian and a solicitor from the firm representing SZ in her damages claim attended the hearing. The representative of the Adult Guardian told the tribunal that their office had not been able to have any meaningful contact with SZ. The contact to that date had consisted of a conversation with SS on the door step of their home when entry into the home was refused. Enquiries made by the guardian had revealed that SS had been taking his wife for medical treatment whenever required.
The Adult Guardian had not been able to convince SS to allow service providers to come into their house to support or care for SZ or to improve her quality of life. The tribunal was told that funding was available from the insurer that could provide a range of rehabilitation services for SZ but offers of this type of practical assistance had been refused by SS on behalf of his wife.
The lawyer acting for SZ in her damages claim told the tribunal that a partner in their firm had spoken to SS and had explained to him that funding for these services was available and the family did not have to find the funds to pay for these services themselves. The partner had visited SZ in her home in October 2010 and had formed the opinion that she was generally in good health and was being cared for by her husband.
The tribunal was told that no updated medical assessments of SZ and her care needs had been arranged and the most recent medical assessment obtained for the damages claim had been based on information obtained in 2007 and 2008.
Lesley Stephenson, an occupational therapist, reported on 15 June 2010 (from an assessment conducted in 2008) that SZ mobilises with a powered wheelchair due to paralysis of her upper and lower limbs. She is unable to sit without postural supports. She cannot reach, push pr pull due to reduced function of her upper limbs. SZ is totally dependant on her husband and family for all transfers and all personal care tasks. She cannot change her position in bed and has an electric adjustable bed. She requires assistance with eating and is at risk of choking due to paralysis and the effect of a throat operation.
Lesley Stephenson expressed an opinion that SZ requires further treatment and therapy such as hand splinting and regular physiotherapy for limb manipulation, to reduce muscle cramps, to check for joint deformity and for advice on muscle wasting and exercise routine for carers. It was further recommended that SZ should have annual assessments with an occupational therapist to provide case management input, to monitor equipment needs and to monitor the mental health needs of SZ. It was recommended that psychological counselling be provided to support an adjustment to the major lifestyle changes following her accident and that ongoing education and support for spinal care be made available to SZ and her husband.
Ms Stephenson’s report also recommended a wide range of equipment and modifications to the house to meet the care needs of SZ including an intercom to permit SZ to alert others when in danger, automatic doors to permit easier access and exit from the house, air conditioning, environmental controls, a larger bedroom to accommodate her equipment, a ramp to the front of the house, an exercise room and equipment and a room for a carer.
It is unlikely that any of the recommendations have been implemented despite the presence of funding to act on at least some of these recommendations made with a view to improving the quality of life of SZ and indeed to make her daily life more secure from harm. The block in action has arisen from the refusal of SS to permit services into their home or to permit ongoing input from rehabilitation experts. The hearing considered whether a guardian should be appointed to make decisions about health care and services for SZ in the event that the tribunal determined that SS, as the attorney for personal matters for his wife, was not complying with the general principles and the health care principle.
In conducting a review of the appointment of the guardian, the tribunal is required by section 31 of the Guardianship and Administration Act 2000 (the Act) to revoke the appointment unless it is satisfied that it would make an appointment if a new application for an appointment were to be made. Section 12 of the Act sets out the criteria that must be satisfied before an appointment of a decision maker can be made by the tribunal.
The starting point for the tribunal’s consideration is whether SZ has impaired capacity to make decisions about her personal affairs, in particular whether she can make decisions about services and health care to respond to her needs. No additional information had been provided to the tribunal about the current state of SZ’s decision making capacity since the original hearing conducted in February 2010 when the tribunal made findings that SS was exerting control and influence over SZ such that she could not freely and voluntarily make decisions about her damages claim.
After analysing the evidence once more, the tribunal finds that SS is not permitting his wife to make decisions about the level of services and care required to respond adequately to her needs. SZ is dependant on her husband and to a lesser extent on other members of her family for all activities of daily living including personal care, eating, transfers, bed adjustment and communication to the world outside her home. This reliance has extended from a merely physical dependence on her husband to a more pervasive dependence that involves SS assuming the role of making all decisions for his wife leaving her without decision making capacity as defined in the Act[1]. In addition, SZ can no longer effectively communicate with other people as all communication appears to take place via her husband.

[1] “capacity”, for a person for a matter, means the person is capable of-

(a) understanding the nature and effect of decisions about the matter; and

(b)freely and voluntarily making decisions about the matter; and

(c)communicating the decisions in some way.

The tribunal is satisfied that the evidence rebuts the presumption of capacity and that the tribunal can conclude on the evidence that SZ has impaired capacity to make decisions about personal matters.
Returning to the provisions of section 12 of the Act, the tribunal has considered whether there are decisions that need to be made for SZ. Recommendations have been made by a health professional about the level of services and care required to be provided to SZ to respond to her significant needs. The tribunal accepts the evidence of Lesley Stephenson. The tribunal finds that a range of decisions need to be made about services and care required by SZ to keep her safe at home and to improve her quality of life.
Information about SZ and her needs must be shared with a range of service providers and health professionals before relevant services and care can be delivered. A decision maker is needed to provide consent to the release of information and to arrange services and care as required.
There is already a decision maker appointed by SZ in the event that she does not have capacity for making decisions about personal matters – her attorney, SS. A guardian cannot be appointed in those circumstances unless the tribunal concludes that without a guardian the decision making needs of SZ cannot be adequately met.
The evidence provided to the tribunal reveals that SS is refusing to make decisions to allow services and care into their house. General Principle 7 as set out in the Powers of Attorney Act 1998 and in the Guardianship and Administration Act 2000 requires an attorney to exercise the powers granted to an attorney in a way consistent with the adult’s proper care and protection. The health care principle as set out in those Acts requires an attorney to exercise the health care powers granted to an attorney in the adult’s best interests.
The tribunal finds that the position adopted by SS in refusing to permit services and care from outside providers into his home for the benefit of SZ amounts to a breach of his obligations as an attorney to abide by the General Principles and the health care principle. He has in the view of the tribunal abrogated his responsibilities as a decision maker for his wife about service delivery and health care and the tribunal can only surmise that he has been motivated by understandable and deeply felt factors such as pride, grief or guilt that do not however assist his wife in meeting her significant needs.
The tribunal concludes that only by the appointment of a guardian can the decision making needs of SZ be met in this case. SZ has missed out over the past 2 years on having services provided that could materially improve her involvement in daily living activities and increase her quality of life. It is essential that the means are put into place as soon as possible to redress that loss of opportunity. It is the view of the tribunal that a guardian must be appointed to make decisions about the provision of services to SZ, about health care and about legal matters unrelated to her financial position in order to support effective decision making about services and health care.
The tribunal is confidant that the Adult Guardian is best paced to continue in the role of guardian at this stage by bringing independence and skills about decision making that are needed right now. The existing powers assigned to the guardian by the original order made on 26 February 2010 are inadequate to meet SZ’s needs. The guardian is needed to make decisions and not just to seek help and make representations for SZ.
The appointment of the guardian is made for one year as the tribunal anticipates that all relevant decisions should be able to be made in that period. On review in a year’s time, members of SZ’s family may consider it appropriate to put themselves forward as likely decision makers on an ongoing basis but that remains to be seen.