YUL - [2024] QCAT 260

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

YUL [2024] QCAT 260

PARTIES:

In an application about matters concerning YUL

APPLICATION NO: GAA2862-24 Appointment of a Guardian

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

20 May 2024 (ex tempore)

HEARING DATE:

20 May 2024

HEARD AT:

Townsville

DECISION OF:

Senior Member Browne (Presiding)

Member Roseby

ORDERS:

1. The Public Guardian is appointed as guardian pursuant to section 12 of the Guardianship and Administration Act2000 (Qld) to make decisions about the following personal matters:

(a)     To give informed consent or withhold consent for the use of environmental restraint as that term is defined in section 15E of the Quality of Care Principles 2014 (Cth).

2.     That appointment is conditional upon:

(a)     Consent being given only for the sole purpose of the safety of YUL;

(b)    The power to consent being limited to the aged care facility that YUL currently resides at;

(c)     Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the Quality of Care Principles 2014 (Cth) with respect to YUL.

3.     The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – where adult resides in a residential aged care facility – where a guardian was appointed to give informed consent or withhold consent for the use of “environmental restraint” – where the aged care provider is required to have the informed consent of a restrictive practices substitute decision-maker for an adult who lacks capacity to give that consent – where the Tribunal found that giving of informed consent to the use of the environmental restraint is a personal matter as defined in the Guardianship and Administration Act 2000 (Qld) – where appointment conditional on consent being given for the sole purpose of the safety of adult – where appointment conditional on consent being limited to the aged care facility that adult resides in

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal identified human rights affected by the decision – where the Tribunal considered the decision was compatible with human rights – where the Tribunal considered limits to human rights were reasonable and justified

Aged Care Act 1997 (Cth)

Disability Services Regulation 2017 (Qld)
Human Rights Act 2019 (Qld), s 15, s 17, s 19, s 25, s 31, s 48
Guardianship and Administration Act 2000 (Qld), s 11B, s 12, s 15, Sch 4

Quality of Care Principles 2014 (Cth), s 15E, s 15FA

NJ [2022] QCAT 283

APPEARANCES & REPRESENTATION:

Adult:

Self-represented

Applicant:

Self-represented

Public Guardian:

Self-represented

REASONS FOR DECISION

Senior Member Browne: This is a hearing in Brisbane on the 20^th of May 2024 concerning YUL, file reference [Redacted]. The Tribunal has an application for the appointment of a guardian filed on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading YUL

Details

AGLC: YUL [2024] QCAT 260
Case: [2024] QCAT 260
Decision Date: 20 May 2024 (ex tempore)

CaseChat Overview and Summary

In the case, YUL, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with appointing a guardian to give informed consent or withhold consent for the use of "environmental restraint" for an adult residing in a residential aged care facility. The Tribunal found that giving informed consent to the use of the environmental restraint was a personal matter as defined in the Guardianship and Administration Act 2000 (Qld). The Tribunal appointed the Public Guardian as the guardian for the adult, with certain conditions attached to the appointment.

The key legal issues the Tribunal had to decide were whether the giving of informed consent to the use of the environmental restraint was a personal matter, and if so, what conditions should be attached to the appointment of the guardian. The Tribunal also considered the impact of the decision on human rights and whether the limits to those rights were reasonable and justified.

In its reasoning, the Tribunal found that the giving of informed consent to the use of the environmental restraint was indeed a personal matter. The Tribunal also considered the human rights affected by the decision and found that the decision was compatible with human rights, with the limits to those rights being reasonable and justified. The Tribunal then appointed the Public Guardian as the guardian for the adult, with conditions attached to the appointment. These conditions included that consent be given only for the sole purpose of the safety of the adult, that the power to consent be limited to the aged care facility the adult resides in, and that consent be given only if the Public Guardian is satisfied that there is compliance with the relevant quality of care principles.

The Tribunal made several orders, including the appointment of the Public Guardian as guardian, conditions attached to the appointment, and that the appointment remains current until further order of the Tribunal. The appointment is also reviewable and is to be reviewed in one year.

Orders

Orders of the court

1. The Public Guardian is appointed as guardian pursuant to section 12 of the Guardianship and Administration Act 2000 (Qld) to make decisions about the following personal matters:

(a) To give informed consent or withhold consent for the use of environmental restraint as that term is defined in section 15E of the Quality of Care Principles 2014 (Cth).

2. That appointment is conditional upon:

(a) Consent being given only for the sole purpose of the safety of YUL;

(b) The power to consent being limited to the aged care facility that YUL currently resides at;

(c) Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with section 15FA of the Quality of Care Principles 2014 (Cth) with respect to YUL.

3. The appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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