TRS

[2022] QCAT 231

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TRS [2022] QCAT 231

PARTIES:

In applications about matters concerning TRS

APPLICATION NOS:

GAA4555-22
GAA5217-22

MATTER TYPE:

Guardianship and administration matters for adults

DATES OF ORDERS:

Order 1 was made on 17 May 2022. Order 2 was made on 26 May 2022.

REASONS DELIVERED ON:

28 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.     The application for a confidentiality order will be decided at the hearing together with the applications for the appointment of a guardian and for the appointment of an administrator.

2.     The application by DTA for an interim order is dismissed.

CATCHWORDS:

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – GENERALLY – where confidentiality order sought – whether pre-hearing confidentiality order required – whether statutory health attorney is active party

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where alleged history of financial exploitation – whether interim administrator required – whether immediate risk of harm

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – OTHER MATTERS – where adult in hospital – whether interim guardian required – whether immediate risk of harm

Guardianship and Administration Act 2000 (Qld), s 103, s 110(1), s 118(10), s 119(d), s 129(1)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

1. These applications concern an elderly woman who I will refer to, for privacy reasons, as TRS. Sadly, TRS has died since the decisions in question were made. She is survived by two daughters who I will refer to as DTA and DTB, and a son.

2. In early May 2022 DTA made applications to the tribunal for guardians and administrators to be appointed for TRS. She proposed that she and her brother be appointed to those roles. Those applications would, but for the death of TRS, have proceeded to hearing after some weeks or months.

3. DTA also made an interim application on 5 May 2022, seeking the appointment of interim guardians and administrators. That application was dismissed by another member on 12 May 2022.

4. DTA has also made two other applications:

   (a)one made on 12 May 2022 for a confidentiality order; and

   (b)the other made on 24 May 2022 being a further interim order application, again seeking interim appointments of guardians and administrators.

5. On 17 May 2022 I directed that the confidentiality order application would be decided at the hearing. On 26 May 2022 I dismissed the second application for an interim order. DTA has requested reasons, which I now provide.

Background

1. A doctor in a letter dated 9 May 2022 advised that TRS was in hospital after a neck of femur fracture. She was delirious in the context of ‘complicated medical conditions’.[1] It was unknown how long the delirium would persist.

   [1]Document M1 on the tribunal’s file.

2. The main concerns raised by DTA in the first interim application were:

   (a)DTB has been their mother’s live-in carer, but due to her own difficulties DTB has not been able to provide adequate care;

   (b)TRS had become exasperated by DTB keeping two large and unruly dogs in the house, and these would pose a real hazard to TRS if she were discharged home;

   (c)DTB was secretive about their mother’s health problems, and could not communicate rationally with her siblings; and

   (d)over the years their mother made financial decisions, under pressure, to benefit DTB.

3. The member who dismissed that interim application observed in his reasons, in effect, that the concerns raised by DTA did not indicate any immediate risks of harm other than long-established ones to which TRS had agreed.

4. By the time of the second interim application, TRS was still a patient of the hospital but was occupying a ‘virtual bed’ offsite in a nursing home.  

5. The second interim application relied again on the earlier concerns. Additionally, DTA argued that there was an immediate risk of harm to TRS because the hospital was treating DTB as TRS’s statutory health attorney. DTA said, in effect, that DTB was not fit for that role because of severe psychological disturbance and disordered thought patterns. DTA also said it appeared that DTB was not vaccinated against Covid-19, but had been visiting their mother in breach of regulations. DTA said the police were investigating. Meanwhile, according to DTA, DTB had been making every effort to alienate family members and friends from TRS. DTA was concerned that if their mother’s condition improved, DTB would move her home instead of to a permanent placement in a high-level nursing home as would be required.

6. In the confidentiality order application, DTA sought a prohibition on disclosure of certain documents or parts of documents to DTB.

Why was the application for an interim order dismissed?

1. An interim order can be made in respect of an adult only if the tribunal is satisfied, on reasonable grounds, that the adult has or may have impaired capacity for a matter, and that there is an immediate risk of harm to the health, welfare or property of the adult.[2]

   [2]Guardianship and Administration Act 2000 (Qld), s 129(1).

2. I was not satisfied that there was any immediate risk of harm to TRS, apart from visitation by DTB if DTB had indeed not been vaccinated against Covid-19. However, that concern had been reported to the authorities. It was a matter for the nursing home to ensure that visits by persons in breach of regulations were refused. The appointment of an interim guardian would not add any safeguard in that respect.

3. So far as other personal matters were concerned, I note that TRS remained a hospital patient. Had she been ready for discharge home, it would have been relevant to consider whether DTB could provide proper care, but that was not the situation.

4. The hospital may well have been treating DTB as TRS’s statutory health attorney under the Powers of Attorney Act 1998 (Qld), as DTB had been TRS’s long-term carer and she lived nearby. DTA provided no evidence from the hospital that it held concerns about any health decisions that DTB made or proposed to make. Had the hospital had serious concerns that could not be otherwise addressed, no doubt a staff member would have applied to the tribunal for the appointment of an interim guardian.

5. In relation to finances, it may be that TRS had been susceptible to financial pressure from DTB over the years. However, it was not apparent that DTB posed any present risk to TRS in this regard.

Why was the direction made about the confidentiality order application?

1. A confidentiality order can be made prior to a hearing,[3] but it is relevant to consider whether the person from whom a document is sought to be withheld has a right of access to the document before the hearing. In this case, I found that DTB did not have any right of access to documents before the hearing. Pre-hearing access to documents is available only to ‘active parties’.[4] Section 119 of the Guardianship and Administration Act 2000 (Qld) explains who is an active party. I do not consider that DTB fell within any of the listed categories. In particular, I do not consider that she was a current attorney for TRS. Even though she may have been treated by the hospital as TRS’s statutory health attorney, in my view the meaning of ‘attorney’ in section 119(d) must logically conform with the definition in section 118(10). This is because section 119 serves to identify as active parties only certain persons from a longer list in section 118. The section 118(10) definition limits the term ‘attorney’ to ‘an attorney under a power of attorney’ or ‘an attorney under an advance health directive or similar document under the law of another jurisdiction’. A statutory health attorney’s role arises, in contrast, simply from their relationship with the adult.

   [3]Ibid, s 110(1).

   [4]Guardianship and Administration Act 2000 (Qld), s 103(1)(a).

2. As DTB did not have a right to access the documents in question before the hearing, there was no reason to consider making a pre-hearing confidentiality order. Accordingly, I directed that the confidentiality order application would be decided at the hearing. At that point, a confidentiality order might be warranted, provided of course that the criteria for such an order were met. This is because for a reasonable time after a hearing, there is a right of access to documents not only for active parties but also for any person with a ‘sufficient interest in the proceeding’.[5]

   [5]Ibid, s 103(2).

Conclusion

1. In the absence of an immediate risk of harm that would be addressed by making interim appointments, I dismissed the application for an interim order. Further, as DTB was not an active party, I directed that the confidentiality order application be decided at the hearing, instead of making a pre-hearing confidentiality order.