WDJ
[2013] QCAT 14
•10 January 2013
| CITATION: | WDJ [2013] QCAT 14 |
| PARTIES: | WDJ |
| APPLICATION NUMBER: | GAA7085-12 / GAA7086-12 / GAA10296-12 / GAA241-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 10 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Information can be obtained by the Tribunal from WDJ in the absence of anyone else at the hearing of these applications. 2. For the purposes of paragraph 1, the hearing of the applications will commence at the Ipswich Hospital at 9:00am on 14 January 2013. 3. The hearing of the applications will then resume at the Ipswich Courthouse at 10:30am on 14 January 2013. |
| CATCHWORDS: | GUARDIANSHIP – limitation order – where need to obtain information from the adult – where likelihood relevant information would not be obtained in presence of other parties Guardianship and Administration Act 2000, s 06 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
WDJ is currently an inpatient in hospital. Assessments are being undertaken of his general functioning and health following surgery for removal of an intra-cerebral mass lesion and marked cognitive dysfunction, particularly impairment in executive functioning and language.
On 16 January 2012 QCAT had appointed the Adult Guardian as his guardian for all personal matters for one year and The Public Trustee of Queensland as his administrator for all financial matters until further order of the tribunal. Those appointments are being reviewed by QCAT together with an application for a declaration about WDJ’s capacity. The hearing of those applications is set for 14 January 2013.
On 7 January 2013 a geriatrician, being part of WDJ’s treating team at the Ipswich Hospital, applied for an order that information be obtained from WDJ in the absence of other persons connected with the applications. Dr Fluery stated that WDJ has dementia, likely frontotemporal dementia, and that he has significant language deficits because of this. Dr Fluery stated that she considered it was in the best interests of WDJ that the tribunal attended at the hospital and interview WDJ in person.
Dr Fluery stated that WDJ was likely to find attending the hearing to be very confrontational and that this may worsen his language difficulties. Dr Fluery stated that WDJ has intermittent anger directed towards his brothers and there is concern about WDJ’s wife having undue influence over him. Dr Fluery stated that obtaining information from WDJ in hospital would avoid any potential bias to information that WDJ may give with others present.
The active parties in the proceeding were informed of the application to obtain information from WDJ in the absence of other persons and were given an opportunity to be heard in relation to that application. WDJ’s wife, who is a proposed appointee in the review applications, told a tribunal registry staff member that if WDJ could not attend the hearing, then she supported the tribunal speaking to him at the hospital and she supported the application on the basis that this would give her husband a chance to have his say.
A representative of The Public Trustee of Queensland did not object to an order being made. The Adult Guardian supported the order being made. The Adult Guardian stated that medical evidence provided to the guardian indicated that WDJ did not have the capacity to understand that if he were to leave hospital in order to attend the hearing, he would then return back to hospital. If WDJ in those circumstances would not voluntarily return to hospital, then he would have to be transported on the directions of his medical team by ambulance back to hospital which would be a traumatic experience for him and which may require the use of force.
The Adult Guardian stated that obtaining information from WDJ in the hospital would be less traumatic for him and he would be able to provide his views while in a secure and familiar environment.
The Adult Guardian stated that the order would restrict the potential for undue influence being placed on WDJ by his wife. The Adult Guardian stated that WDJ’s wife has at times had a negative influence on WDJ’s views and perceptions of his illness. The Adult Guardian stated that the order would also limit WDJ’s exposure to any potential conflict between WDJ’s wife and other members of the family.
The tribunal was also informed that members of WDJ’s family supported or at least did not oppose the order being made.
Hearings of the tribunal must be in public and an active party to a proceeding before the tribunal may appear at a hearing and take part in the hearing. However participation in a hearing by an active party or attendance at a hearing by other persons can be limited by a specific order of the tribunal under the Guardianship and Administration Act 2000. One form of order limiting participation by persons at a hearing is an adult evidence order under section 106 of that Act.
The application made to QCAT was in essence an application for an adult evidence order. In considering whether to make such an order in this case, the tribunal must be satisfied that an adult evidence order is necessary to obtain relevant information that the tribunal would not otherwise receive.
I accept the evidence from Dr Fluery and from the Adult Guardian. I find that WDJ has significant language deficits and should WDJ attend the hearing at a courthouse, he is likely to react in a very confrontational manner and that this may worsen his language difficulties. I also find that WDJ would not understand that if he were to leave hospital in order to attend the hearing, he would have to return back to hospital after the end of the hearing.
I am satisfied that attending the hearing at a courthouse would be a traumatic experience for him which is likely to have an impact on the level of co-operation about his participation in the hearing and which is likely to adversely affect and restrict the information that could be obtained from him relevant to the proceedings.
I am also find that WDJ’s wife has had a negative influence on WDJ and that she has contributed to conflict arising between WDJ and his family.
I am satisfied that making an adult evidence order will provide WDJ with an opportunity to express his own views about the proceedings and to provide relevant information about the issues in the proceedings that the tribunal would not otherwise receive from WDJ should his evidence be given in the presence of his wife and his family members.
I accordingly ordered that information can be obtained by the Tribunal from WDJ in the absence of anyone else at the hearing of these applications.
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