TSL - [2024] QCAT 417

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TSL [2024] QCAT 417

PARTIES:

In applications about matters concerning TSL

APPLICATION NOS: GAA065-24, GAA066-24, GAA9952-24, GAA9957-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

20 September 2024

HEARING DATE:

17 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.     DTA and SNA are appointed jointly and severally as guardians for TSL for the following personal matters:

(a)     accommodation;

(b)     health care; and

(c)     giving or withholding informed consent to the use of restrictive practices under the Quality of Care Principles 2014 (Cth).

2.     The appointment of DTA and SNA as guardians is until further order. The appointment is reviewable. It will be reviewed in five years.

3.     The Public Guardian is appointed as guardian for TSL for the following personal matter:

(a)     with whom TSL has contact and visits.

4.     The appointment of the Public Guardian as guardian is until further order. The appointment is reviewable. It will be reviewed in five years.

5.     DTA and SNA are appointed jointly and severally as administrators for TSL for all financial matters.

6.     The appointment of DTA and SNA as administrators is until further order. The appointment is reviewable. It will be reviewed in five years.

7.     The financial management plan dated 19 March 2024 is approved.

8.     The tribunal directs the administrators to provide to the tribunal firstly by 30 September 2025; secondly within 40 days of being notified of a review of their appointment; and thirdly if requested to do so by the tribunal at any other time; the following documents:

(a)     a copy of the statements of the bank accounts and any other financial investments of TSL for the past year;

(b)     a copy of the latest invoice or receipt for TSL’s accommodation;

(c)     copies of receipts for any individual items purchased for more than $500 in the past year;

(d)     for any shares or superannuation, a copy of all dividend notices or statements received during the past year;

(e)     a list of TSL’s assets and liabilities and the value or estimated value of each item;

(f)      a fortnightly budget of TSL’s income and expenditure; and

(g)     signed declarations as to continuing appropriateness for appointment.

9.     The time for notification of the hearing of the application for a confidentiality order and the application for a non-publication order is reduced such that notification to persons at the hearing is sufficient.

10.     If SNB accesses documents on the tribunal’s file, the name and address of the aged care facility where TSL resides is to be redacted by the tribunal’s registry before access is permitted.

11.     The application for a non-publication order is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult unable to make financial decisions – whether certain children of the adult are appropriate for appointment

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where conflicting views between children of the adult about accommodation and health care – where one child prohibited from contacting adult by interstate guardian – whether there is ongoing need for a guardian – whether a local guardian should be appointed

Guardianship and Administration Act 2000 (Qld), s 5, s 11(1), s 11B, s 11C, s 12, s 15, s 81(2), s 104, s 108, s 109

Human Rights Act 2019 (Qld), s 13, s 17, s 19, s 22, s 24, s 25, s 29(3)

Quality of Care Principles 2014 (Cth)

APPEARANCES & REPRESENTATION:

TSL and DTA attended by video.

K Hume (an officer of the Public Trustee of Tasmania) attended by video.

D Shephard (on officer of the Public Guardian of Tasmania) attended by video.

SNA and SNB attended in person.

REASONS FOR DECISION

Introduction

These proceedings relate to a woman aged 83. For privacy reasons, she will be referred to only as TSL. Similarly, her children will be referred to by acronyms.
DTA (daughter of TSL) and SNA (a son of TSL) seek appointment as her administrators and guardians. DTA also seeks a confidentiality order and a non-publication order such that the name and address of the aged care facility where TSL lives are not disclosed to SNB (another son of TSL).
Until November 2023, TSL lived in Tasmania. For some years, SNB lived with TSL in the house she owns with her partner. SNB was her carer. She then went into hospital.
The Tasmanian Civil and Administrative Tribunal (‘TASCAT’) appointed an administrator and a guardian for TSL. Those appointments remain current. The Public Trustee of Tasmania is appointed as administrator. The Public Guardian of Tasmania is appointed to make decisions about accommodation, services, visits, and telephone communications.
One of the decisions made by the Public Guardian of Tasmania was that TSL should move to an aged care facility in Brisbane. DTA and SNA live in or around Brisbane. TSL moved into the aged care facility in November 2023. There have also been a series of decisions by the Public Guardian of Tasmania prohibiting contact of TSL by SNB.
DTA and SNA seek local appointments of administrators and guardians, now that TSL is living in Queensland. SNA supports DTA’s applications for a confidentiality order and a non-publication order.
The relevant legislation is the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) and the Human Rights Act 2019 (Qld) (‘Human Rights Act’). The Guardianship and Administration Act refers to the person for whom a guardian or an administrator might be appointed as the ‘adult’.
The main issues to be decided in relation to the proposed appointments of administrators and guardians, under section 12 of the Guardianship and Administration Act, are:
(a)whether TSL has impaired capacity for making her own decisions about relevant matters;
(b)if so, whether there is a need for relevant decisions to be made; and
(c)if so, whether the needs of TSL will be adequately met and whether the interests of TSL will be adequately protected without the appointment of an administrator or guardian.
The main issue to be decided in relation to the proposed confidentiality order and non-publication order, under sections 108 and 109 of the Guardianship and Administration Act, is whether such orders are necessary to avoid serious harm or injustice to a person.

Capacity

Decision-making capacity is presumed until the contrary is proven.[1]
[1]Guardianship and Administration Act, s 11(1).
General practitioner Dr Monsour has provided a report dated 9 January 2024 to the effect that TSL has dementia severe enough to leave her unable to understand the nature and effect of decisions about personal and financial matters, to make decisions about those matters freely and voluntarily, and to communicate any decisions she might make.
That evidence is unchallenged. SNB attributes the cause of dementia to the involuntary administration to TSL of ‘hypno-sedatives’,[2] but he still accepts that an administrator and a guardian are required. Presumably that acknowledges ongoing incapacity.
[2]SNB’s oral evidence at the hearing.
TSL attended the hearing by video but, consistent with Dr Monsour’s report, her communication was limited to ‘looks and gazes’.[3]
[3]Document M1 on the tribunal’s file, 8.
An earlier report, by geriatrician Dr Razay in Tasmania, dated 22 August 2022, describes TSL as disoriented and scoring only 4/30 on a cognitive screening test. Dr Razay notes evidence of severe atrophy in a CT scan of TSL’s brain.
I find that the presumption of capacity for both personal and financial decision-making is rebutted in TSL’s case.

Should an administrator be appointed?

The Public Trustee of Tasmania advises that TSL’s main assets are her one-third share in the house in Tasmania, and superannuation. The other two-thirds share of the house is owned by her partner. He is not living there any more, as he has moved into an aged care facility. The two families are attending to the sale of the house, though the Public Trustee of Tasmania will need to give final approval to any proposed sale, and it will need to sign transfer documents on behalf of TSL.
Clearly, there is a need for financial decisions to be made. Currently, financial decisions are being made by the Public Trustee of Tasmania. Future decisions will include ensuring that bills are paid and expenses met, deciding whether to pay or part-pay the refundable accommodation deposit from the proceeds of sale of the house for the aged care placement, deciding whether the current superannuation arrangements are appropriate, and investing any surplus funds.
The Public Trustee of Tasmania could continue to make financial decisions, but that would come at a cost because of its entitlement to charge fees. A family member in Queensland appointed as administrator cannot charge fees. Also, I accept DTA’s point that she is more accessible to TSL, whom she visits often, and can therefore more easily respond to the need for any additional purchases.
The Public Trustee of Tasmania explained that if DTA and SNA are appointed administrators, then it would seek a review of its appointment by TASCAT and ask for revocation of the appointment. Meanwhile, no doubt, the two sets of administrators would liaise.
The appointment of an administrator affects a person’s freedom to enjoy their assets and income as they see fit. Further, it affects their privacy because an administrator (as well as a guardian) has a right to information about the adult required for carrying out their tasks.[4] However, I do not consider that the relevant rights as protected by the Human Rights Act, in sections 24 and 25, are infringed. Those sections protect against arbitrary interference with property and privacy rights respectively. I consider that the limitations upon property and privacy rights involved in the appointment of an administrator are not arbitrary interferences. The appointment is made under a statutory process. Further, an administrator is required to comply with the Guardianship and Administration Act, including observing the general principles set out in section 11B.
[4]Guardianship and Administration Act, s 44.
The Guardianship and Administration Act itself seeks to safeguard the autonomy of the adult as much as possible. It acknowledges that the right of an adult with impaired capacity to make their own decisions should be restricted to the least possible extent.[5] It requires the tribunal to seek and take into account, to the greatest practicable extent, the views, wishes and preferences of the adult and the views of any members of the adult’s support network.[6]
[5]Ibid, s 5(d).
[6]Ibid, s 81(2).
TSL was not able to articulate any views, wishes and preferences about whether an administrator (or a guardian) should be appointed. All three of her children who attended the hearing consider that an administrator (and a guardian) should be appointed, though SNB considers that the administrators and guardians should not be DTA and SNA. He has not sought appointment himself, so the only other candidates would be the Public Trustee (and the Public Guardian as guardian), presumably of whichever state TSL lives in.
Without the appointment of an administrator, TSL’s needs will not be adequately met and her interests will not be adequately protected, as she is unable to make her own financial decisions.
Despite the limitation on TSL’s autonomy, I consider that the discretion to appoint an administrator should be exercised. The limitation is theoretical rather than practical, because if there was no administrator, TSL would not be making financial decisions of her own. She would also be vulnerable to exploitation.
SNB considers that DTA and SNB are not appropriate for appointment. He says they had little to do with TSL for most of the time he was caring for her, and then they sought to take over. He says they would harm TSL and take away her autonomy.
DTA and SNA, for their part, say that SNB is prone to believing in conspiracy theories, and has a habit of getting into intense conflict with people.
The Public Guardian of Tasmania and the Public Trustee of Tasmania have a favourable impression of the suitability of DTA and SNA to be substitute decision-makers. Examples they gave included their efforts to enable TSL to move into the same aged care facility as her partner (which failed when the facility refused to accept her because of SNB’s disruptiveness), their cooperation with the family of TSL’s partner over the sale of the house, and their efforts to try to facilitate supervised contact between SNB and TSL.
The financial management plan submitted by DTA and SNA contemplates, unremarkably, setting up direct debits, purchasing a prepaid funeral plan, moving excess funds into a term deposit, and so on. I approve the financial management plan under section 20 of the Guardianship and Administration Act.
DTA and SNA have provided declarations to the effect that they do not have criminal histories or past bankruptcies etc. which would give rise to scrutiny under section 15(4) of the Guardianship and Administration Act. I am satisfied that they are appropriate having regard to the other factors set out in section 15 such as likelihood of applying the general principles, availability, accessibility, compatibility and competence. They are not likely to engage in conflict transactions without first seeking the approval of the tribunal. I appreciate that SNB does not share this favourable assessment of them, but I regard his perception as distorted by family conflict. The assessments of the Tasmanian public officers are more independent and reliable.
The appointment of family members as administrators will save TSL money. DTA and SNA can make more timely decisions. They can pre-empt needs because of their familiarity with TSL.
Such an appointment must be reviewed at least every five years. Accordingly, a review will occur in five years, or at an earlier time if some reason arises to conduct an earlier review. There will be a requirement for the administrators to provide certain financial records from time to time for monitoring and review purposes.

Should a guardian be appointed?

At first glance, there seems to be no need for the appointment of a guardian. TSL is in settled accommodation that, according to DTA, she likes. A family member can act as her statutory health attorney under the Powers of Attorney Act1998 (Qld) if a health care decision is required, without any appointment as guardian being required. There have been concerns about potential interactions between SNB and TSL, but he has not contacted her. Apparently, he does not know which aged care facility she is in. She is unable to answer a phone without assistance.
However, DTA and SNA seek the appointment of a guardian to make decisions about accommodation, health care and contact / visits, because they say they are concerned about the potential actions of SNB if he locates TSL. They point to a decision made by the Public Guardian of Tasmania on 4 December 2023 prohibiting contact by SNB with TSL for three months. The reasons given in the decision notice were to the effect that contact would disrupt, rather than support, TSL’s settling into the aged care facility. The notice referred to an inability on SNB’s part to communicate with family members and the guardian, as well as ‘heightened and abusive behaviours’[7] in his contact with the guardian. The notice discussed the possibility of future phone contact in ‘the presence of an appropriate person to support your mother’.[8]
[7]Document H2 on the tribunal’s file.
[8]Ibid.
DTA told the tribunal that efforts to arrange such supervised contact between SNB and TSL had proved unsuccessful as SNB was unwilling to agree to terms. The Public Guardian of Tasmania told the tribunal that it has also made subsequent decisions, after the one on 4 December 2023, prohibiting contact by SNB.
DTA and SNA say that SNB strongly opposed the admission of TSL into aged care. They say he is verbally abusive toward people who disagree with him. They are concerned that he will find out where TSL is living, upset her by his constant discussion of conspiracy theories, agitate to remove her, and cause angst amongst facility staff that will jeopardise TSL’s placement. They say SNB has unorthodox views about health, including about Covid and vaccination. They are concerned that if he is closely involved in TSL’s life, he will seek to make decisions as statutory health attorney in line with his unorthodox views.
SNB in explaining his views to the tribunal at the hearing referred to efforts by someone to poison various people including himself, a ‘high-tech lab’, and ‘insane crime’. He does not regard vaccination as a good idea. He had opposed TSL’s admission into aged care. She wanted to stay home with him. He cannot comment on whether she now needs to remain in aged care because he does not know her present condition as contact has been blocked. He would not do anything to upset TSL. DTA is trying to keep him out of TSL’s life because of spite, SNB says.
I found the evidence of DTA and SNA more inherently credible than that of SNB, and it was corroborated by the evidence of the agency representatives. I accept the version of events given by DTA and SNA. I find that if SNB contacts or visits TSL without supervision, disruption and uncertainty are likely to follow because SNB has strong views about various issues including views about the suitability of aged care placement and health care which conflict with the views of his siblings.
There will be an ongoing need for decisions to be made about whether TSL should receive contact and/or visits from SNB. Such decisions involve a weighing up of various factors including TSL’s wishes (or, if relevant, her wishes when she had capacity)[9] and whether the relationship between SNB and TSL is supportive.[10]
[9]See Guardianship and Administration Act, s 11B, general principle 10.
[10]Ibid, general principle 4.
There will be an ongoing need for health care decisions to be made. I do not consider that the statutory health attorney system will be sufficient because of the uncertainty and conflict that would result if SNB reestablishes contact with TSL and asserts his views about health care.
There is also an ongoing need for an accommodation decision because of the simmering conflict amongst TSL’s children about where TSL should live.
Further, although not raised by the parties, I consider that there is a need for decisions about whether restrictive practices should be used. Dr Monsour’s report indicates that environmental restraint is used by the aged care provider because TSL ‘has advanced dementia, wanders’.[11] Presumably this means that TSL is in a secure unit, and permitted to leave only if accompanied. Restrictive practices in aged care are regulated under the Quality of Care Principles 2014 (Cth). They provide that a restrictive practices substitute-decision maker – relevantly a person appointed under a state law – may give consent to the use of a restrictive practice provided strict conditions are met.
[11]Document M1 on the tribunal’s file, 7.
Without the appointment of a guardian or guardians to provide stability in the areas of accommodation and health care, to regulate contact / visits by SNB, and to decide whether consent should be given to the use of any restrictive practices, TSL’s interests will not be adequately met.
The appointment of a guardian in these areas of decision-making affects TSL’s privacy. However, as discussed in relation to administration, I do not consider that it infringes her privacy right under section 25 of the Human Rights Act. An appointment would, though, affect TSL’s right not to be subjected to medical treatment without her full, free and informed consent (protected by section 17 of the Human Rights Act), her freedom to choose where to live (protected by section 19 of the Human Rights Act), and her freedom of association with others (protected by section 22 of the Human Rights Act). The Human Rights Act contemplates that rights may be limited, provided that the limitation is lawful, reasonable and demonstrably justified.[12] I consider that the limitations flowing from the appointment of a guardian or guardians in this case meets those criteria. The limitations are necessary to safeguard TSL’s interests. Further. it is not apparent that the exercise of powers by a guardian or guardians is likely to conflict with TSL’s current views and wishes.
[12]Human Rights Act, s 13.

TSL’s liberty is potentially affected by appointing a guardian who may consent to her confinement within a secure unit except when accompanied. However, I do not consider this would involve an infringement of TSL’s right under section 29(3) of the Human Rights Act. That section says that ‘a person must not be deprived of the person’s liberty except on grounds, and in accordance with procedures, established by law’. Environmental restraint is regulated by Commonwealth law.
In relation to accommodation, health care and restrictive practices, I consider that DTA and SNA are appropriate for appointment. They are likely to apply the general principles set out in section 11B of the Guardianship and Administration Act, including respecting TSL’s rights, safeguarding her interests, and taking into account her views, wishes and preferences. They are likely to apply the health care principles set out in section 11C of the Guardianship and Administration Act. These involve matters such as assessing risks, benefits and alternatives when making health care decisions. Contrary to SNB’s views, I find that they are also appropriate having regard to the other factors in section 15 of the Guardianship and Administration Act, including availability, accessibility and competence.
The discretion in section 12 of the Guardianship and Administration Act should be exercised to appoint DTA and SNA as guardians for accommodation, health care, and restrictive practice decision-making under the Quality of Care Principles 2014 (Cth).
I do not, however, consider DTA and SNA appropriate for appointment in relation to contact / visits. They are too involved in the long-running conflict with their brother to objectively evaluate the nature of the relationship between SNB and TSL, or to objectively take into account the views, wishes and preferences of TSL (or, if relevant, any views, wishes and preferences she had when she retained decision-making capacity). The same would apply to SNB, if he were proposing that he be appointed. The Public Guardian is appropriate for appointment having regard to the factors in section 15 of the Guardianship and Administration Act.
Accordingly, the discretion in section 12 of the Guardianship and Administration Act should be exercised to appoint the Public Guardian as guardian in relation to contact / visits.
Such appointments must be reviewed at least every five years. The appointments will be reviewed in five years unless a need arises for an earlier review.
The appointments overlap to a considerable extent with the TASCAT appointment. However, I do not anticipate that this will create difficulties. While the TASCAT appointment remains in force, I am confident that the guardians will liaise cooperatively when required.

Notification of applications for a confidentiality order and a non-publication order

The tribunal must give notice of the hearing of an application to a range of people at least seven days before the hearing, under section 118(1) of the Guardianship and Administration Act. The tribunal has power to reduce the notice period: section 118(6).
Notice of the hearing of the application for the appointment of an administrator and the application for the appointment of a guardian was sent out to the active parties and other persons on 21 August 2024. However, the applications for a confidentiality order and a non-publication order were filed only on 9 September 2024, and notified to the active parties and other persons by directions dated 13 September 2024. This was less than seven days before the hearing on 17 September 2024.
At the hearing, SNB told the tribunal that he had not seen the email attaching the 13 September 2024 directions. This meant he had no prior notice of the applications for a confidentiality order and a non-publication order.
However, I consider it appropriate to reduce the time for notice such that the oral notice at the hearing suffices. TSL and SNB are the persons most affected by the proposed orders. Both were present at the hearing. The issue of withholding information from SNB about TSL’s whereabouts was not novel. A central part of his submissions in relation to the guardianship application was that he should be able to once again contact and visit TSL.
Nothing would be gained by reconvening on a later date to decide the application for a confidentiality order. Accordingly, I have reduced the notice time under section 118(6).

Should a confidentiality order be made?

A confidentiality order is a type of limitation order.[13] In considering whether to make a limitation order, the tribunal must take as one of the bases of its consideration that each active party is entitled to access a document or other information before the tribunal that is credible, relevant and significant to an issue in the proceeding.[14] However, that provision does not apply because SNB is not an active party, which is a term defined in section 119 of the Guardianship and Administration Act.
[13]Guardianship and Administration Act, s 100.
[14]Ibid, s 104.
SNB is a person who may be able to access, ‘within a reasonable time after the hearing’,[15] documents before the tribunal that the tribunal considered credible, relevant and significant to an issue in the proceeding. He will have that right of access if he has a ‘sufficient interest in the proceeding’.[16] Some of the documents include the name and address of the aged care facility where TSL lives.
[15]Ibid, s 103(2).
[16]Ibid.
I consider that a confidentiality order, to the effect that any documents accessed by SNB under section 103(2) are to be redacted so that the name and address of the facility is not shown, is necessary to avoid serious harm to TSL in the form of turbulent disruption to her stability. Such disruption would be particularly harmful to a person with advanced dementia. Disclosure of the address would also undermine the no-contact decision of the Public Guardian of Tasmania.
Accordingly, I will make a confidentiality order.

Should a non-publication order be made?

I am not satisfied that a non-publication order is necessary. Tribunal records in proceedings under the Guardianship and Administration Act are not accessible by the general public or the media.[17] There is no real risk that someone other than SNB will access the tribunal’s documents and convey the name and address of the aged care facility to SNB.
[17]Access to documents is strictly limited under s 103 of the Guardianship and Administration Act.
Accordingly, the application for a non-publication order is dismissed.

Conclusion

For the above reasons, I have decided to appoint administrators and guardians for TSL; to make a confidentiality order; and to dismiss the application for a non-publication order.