TS
[2014] QCAT 598
•10 November 2014
| CITATION: | TS [2014] QCAT 598 |
| PARTIES: | TS |
| APPLICATION NUMBER: | GAA5697–14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 11 August 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 10 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal dismisses the application of TS for a Declaration of Capacity; 2. The Public Guardian is appointed for TS for the following matters: (a) Accommodation; (b) Provision of services; (c) Health care; (d) Legal matters; and (e) Contact 3. Unless the Tribunal orders otherwise, this appointment remains current for one year. |
| CATCHWORDS: | Capacity of an adult suffering from Korsakoff's psychosis |
APPEARANCES:
| TS – the adult MA – interpreter MJ – social worker KA – Public Guardian |
REASONS FOR DECISION
Background
TS is a 38-year-old woman of Yugoslavian descent who has suffered from profound deafness since the age of 17 and has a diagnosis of Korsakoff's Psychosis.
Ms S has a history of multiple admissions to Drug and Alcohol Rehabilitation programs and has led an itinerant lifestyle up until approximately 3 years ago when she obtained social housing. However due to her poor living skills she was unable to maintain the unit and was eventually evicted. Ms S then returned to an itinerant lifestyle for a short period until she was supported at Centennial Lodge in conjunction with the Alcohol Tobacco and Other Drugs Service. She then moved into backpacker accommodation. Ms S was stable in this arrangement for approximately 6 months when she again consumed excess alcohol and returned to an itinerant lifestyle. She has most recently been a social admission at the Cairns Hospital commencing on 6 May 2014.
Ms S was assessed on the ward by the Psychiatric Registrar on 4 June 2014 after Ms S had repeatedly left the hospital and returned heavily intoxicated. The Psychiatric Registrar determined that Ms S had capacity to make her own decisions.
Does Ms S have capacity to manage her own decisions?
The Applicant has attached to the Application Progress Notes made by Dr B a Psychiatrist employed by the Mental Health Service of Queensland. Dr B under the heading ‘impression and recommendation’ notes: ‘no evidence of mental illness; able to make own decisions; recommend to stay under Public Trustee but Dr B does not feel Adult Guardian needed’. An addendum was provided which reads: ‘Retains capacity to make decisions (albeit bad ones) and it is our impression that Adult Guardian is not necessary’.
The Progress Notes also commented that: Ms S is ‘living nowhere’; has ‘no support’; and is ‘unaware of Disability Services Queensland’. It is also noted that Ms S ‘would benefit greatly from… securing accommodation’.
MJ – social worker
Mr J in his Health Professional Report notes at paragraph 4.1 that Ms S has an acquired brain injury – secondary to trauma and alcohol excess and a hearing impairment. He refers to the comments of Dr B and adds the following: ‘S does have impaired cognition secondary to her acquired brain injury and does lack family support’.
Mr J goes on to say in paragraph 5.2 in relation to personal health care that Ms S has used alcohol excessively resulting in multiple hospital admissions. He believes that she does not appreciate the consequences of her actions on her health.
Mr J says that the last couple of weeks she has been making good personal health decisions.
Mr J, in relation to lifestyle and accommodation decisions says at paragraph 5.1 of the report that Ms S has been unable to source any permanent accommodation. He says that she does not appreciate or understand that her previous behaviour has created difficulties for her finding accommodation.
Mr J concurs with Dr B that the Public Trustee of Queensland should support Ms S around financial decisions.
In the summary at paragraph 9.1 of his report, he says that Ms S cannot make any complex decisions.
Mr J in his oral evidence told the Tribunal that Ms S would not be able to find accommodation. Ms S does not know how to do so and it has been necessary for him and others to work on options for her. Ms S has not been able to do this for herself. He stated that this was an example of her lack of capacity.
Mr J said that he had met Ms S through the Emergency Department on many occasions. He has seen numerous accommodation arrangements fail. He accepts that Ms S’s ex-partner was domestically violent towards her and this was part of Ms S's problem with maintaining accommodation. However, outside of this he believes that there is still a significant problem with Ms S's ability to find and maintain her own accommodation.
Dr SJ – Department of Neurology
Dr SJ in his letter of 16 June 2014 writes: ‘S has previously been seen by Neurology and diagnosed with Korsakoff's psychosis; this is a permanent condition, which contributes to significant cognitive and functional disability’.
KA – Public Guardian
Ms K told the Tribunal that she accepts the report of Dr SJ and does not believe that Ms S has capacity to make informed decisions.
TS
Ms S told the Tribunal that she could make her own decisions but needs support. She has made an effort over the last two months to change her behaviour. She acknowledged that she continued to consume alcohol. She blamed her ex-partner for the past problems that she had with maintaining her accommodation.
Discussion of the evidence
The Tribunal accepts the report of Dr SJ. The evidence of Mr J the social worker supports this. Dr B believes that Ms S has ‘largely ordered thoughts’. She also talks about the ‘albeit bad decisions’ that Ms S makes. Dr B believes that the Public Trustee needs to be involved and that Ms S needs accommodation. In other words, Ms S cannot manage her finances and needs help finding accommodation. The evidence of Mr J, which the tribunal accepts, is that Ms S cannot find accommodation through her own efforts, as she does not know how to do so.
The Tribunal makes the following findings: TS has a history of multiple admissions to Drug and Alcohol Rehabilitation programs and the Emergency Department of the Cairns Hospital and has led to an itinerant lifestyle. TS has been diagnosed with Korsakoff psychosis a permanent condition that contributes to significant cognitive and functional disabilities.
The Tribunal accordingly dismisses Ms S's application for a declaration of capacity. The Tribunal notes however, that Ms S has recently made efforts to change her behaviour and the tribunal applauds those efforts. If Ms S is able to sustain those changes over a period, this might create evidence to support an application for capacity.
Does TS need a Guardian?
KA – Public Guardian
Ms K told the Tribunal that Ms S was residing in temporary accommodation at the Red Cross Wellbeing Centre. Ms S is banned from all other temporary accommodation services in Cairns and surrounding regions due to her behaviour when intoxicated. Ms S will require alternative accommodation when her stay at the Red Cross ended. No rehabilitation service in the Cairns area is accepting of Ms S due to past behaviour due to her inability to adhere to the rules of programs/services. Ms S has an application for public housing with Department of Housing and Public Works, due to her very poor history with maintaining her past tenancy, Ms S would require significant supports to be in place before they would consider offering Ms S a placement. Ms S not having access to required identification documents and her reluctance to engage with support services in the past and presently has complicated obtaining services for Ms S.
Ms K told the tribunal that Ms S had a history of neglecting her physical health and dental health and had a history of non-compliance with treatment when intoxicated. She believed that it was likely that decisions in relation to health care would be required in the near future.
Ms K told the Tribunal that during the course of the Guardian's current appointment, Ms S had been regularly charged with multiple offences such as being drunk in a public place, commit public nuisance, breach farms taking, concerning liquid in a public place, urinating in a public place etc. The Guardian has been able to obtain legal aid for Ms S on some occasions and is of the view that there will be ongoing legal matters into the near future while Ms S’s alcohol addiction is unaddressed.
Ms K indicated that the Public Guardian was of the view that Ms S continued require a decision maker for the following personal matters: accommodation, service provision, health care; and legal matters.
Mr JM
He supported the Public Guardian supporting Ms S around: her health; accommodation; service provision; and legal matters. He told the tribunal that the Public Guardian had done a good job supporting TS.
Discussion of the evidence
The evidence before the tribunal is quite clear. Ms S needs to be supported finding accommodation. This will only be possible if there is a significant array of support services in place; and Ms S makes permanent changes to her behaviour. The fact that Ms S has taken some positive steps is encouraging however there is clearly much to be done if she is to obtain permanent accommodation and be re-integrated into the community. The Tribunal accepts the submissions of the Public Guardian that there is a need for an appointment in the following areas: health; accommodation; service provision; and legal matters.
The Tribunal makes the following findings. TS is unable to find accommodation without the support of the Public Guardian and social workers help. TS continues to get into trouble with the law over public drinking offences. TS has made an effort in the last two months to change. TS continues to consume alcohol despite the impact on her health.
The Tribunal notes that Ms S and Mr JM both talked about the negative impact that Ms S’s ex-partner had on her living arrangements. The Tribunal believes that Ms S is a vulnerable person who others are willing to exploit. Ms S must be given every reasonable support in order to succeed and having a guardian with the power to make contact decision could be very helpful given Ms S’s history of domestic violence.
The tribunal in relation to appropriateness notes that there are no family members or friends willing to help support Ms S. The Public Guardian is a professional Guardian willing to help Ms S with important personal decisions.
The Tribunal appoints the Public Guardian for a period of one year for the following matters: accommodation; health care; service provision; contact and legal matters.
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