LAB, Re [2008] QGAAT 64 (28 August 2008)

Guardianship and Administration Act 2000 (Qld) s12, s15, s31, Schedule 1

1. That the appointment of the Adult Guardian as guardian for LAB for decisions about the following personal matters is continued:

• (a) Accommodation
  • (b) With whom LAB has contact and/or visits
  • (c) Health care
  • (d) Provision of services.

2. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.

[1] LAB is 25 years old and has profound autistic spectrum disorder, chronic anxiety disorder and obsessive compulsive disorder. He has challenging behaviours and has been diagnosed recently with left temporal lobe epilepsy.

[2] On 14 October 2003 the Adult Guardian was appointed as guardian for LAB for a period of five years to make decisions about accommodation, health care, service provision and with whom LAB would have contact.

[3] At the time of the hearing LAB was living in a Disability Services Queensland (DSQ) housing facility and receiving 24-hour support from staff from a service provider.

[4] On 6 March 2008 the Tribunal received an application by LAB's mother, KD, proposing herself as guardian for LAB.

[5] The review of the appointment of the guardian for LAB is in accordance with section 31 of the Guardianship and Administration Act 2000, which provides that the Tribunal may conduct a review of the appointment of a guardian for an adult in the way it considers appropriate. The section provides as follows:

(1) The tribunal may conduct a review of an appointment of a guardian or administrator (an "appointee") for an adult in the way it considers appropriate.

(2) At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.

(3) _If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either - _

(a) continue its order making the appointment; or

(b) change its order making the appointment, including, for example,

(4) _However, the tribunal may make an order removing an appointee only if the tribunal considers - _

(b) another person is more appropriate for appointment.

(5) _An appointee is no longer competent if, for example - _

(a) a relevant interest of the adult has not been, or is not being, adequately protected; or

(b) the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power;

(c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or

(d) the appointee has otherwise contravened this Act.

(6) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation.

[6] As with any review under section 31 of the Guardianship and Administration Act 2000, the essential elements for the Tribunal are:

• (a) whether the Tribunal is satisfied there are appropriate grounds for the appointment of the current guardian to continue;

• (b) and if the appointment is to continue, whether the current appointee is no longer competent or another person is more appropriate to be guardian.

[7] To be satisfied that the Tribunal would make an appointment of a guardian if a new application for an appointment were made, the Tribunal must refer to section 12 of the Guardianship and Administration Act 2000 which sets out the essential requirements for such an appointment.

[8] Section 12 of the Guardianship and Administration Act 2000 provides that the Tribunal may appoint a guardian for a personal matter for an adult only if the Tribunal is satisfied that first, the adult has impaired capacity for the matter. Secondly, there must be a need for a decision in relation to the matter or because the adult is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult's health, welfare or property and that without an appointment the adult's needs are not adequately met or interests adequately protected. In this regard the reference in the Act to the adult is a reference to LAB. In making this decision the Tribunal is guided by the General Principles found in Schedule 1 of the Guardianship and Administration Act 2000 and by the appropriateness considerations found in Section 15 of the Guardianship and Administration Act 2000 for any appointment of a guardian.

[9] The issues to be decided by the Tribunal for LAB are therefore:

(a) Does he continue to lack capacity for the matter?

(b) If so, is there a continuing need to appoint a guardian?

(c) If so, should the current appointment of guardian be continued or is another appointment more appropriate?

[10] The matter was heard on 30 April 2008 and adjourned to 15 July 2008. Present at the hearings were the following:

FM from Carers Queensland was granted leave to appear and represent KD.

[11] In addition to the written material contained on the Tribunal file, all of the parties attending the hearing were given the opportunity to express their views. These views where, specifically relied upon by the Tribunal, are discussed below.

DOES LAB CONTINUE TO LACK CAPACITY FOR THE MATTER?

[12] LAB has multiple diagnoses which include a significant level of intellectual impairment. He continues to receive full support with personal decision-making. On 14 October 2003 the Tribunal made findings that LAB was incapable of making personal and financial decisions. All parties at the hearing agreed that LAB's level of capacity has not changed since the last hearing on 14 October 2003 and that LAB continues to lack capacity to make personal decisions.

[13] The Tribunal found the presumption of capacity contained in General Principle One of Schedule 1 to the Guardianship and Administration Act 2000 has been rebutted.

IS THERE A CONTINUING NEED FOR THE APPOINTMENT OF A GUARDIAN?

[14] LAB's accommodation is funded by DSQ and has remained stable since 2004. During LAB's occupancy the property has undergone extensive modifications to withstand potential damage due to his violent and self-harming behaviours. Prior to 14 April 2008 LAB was receiving 65 hours of support per week from the service provider, funded under an Adult Lifestyle Support Package (ALSP) through DSQ. From 14 April 2008 LAB has received 24-hour support from the service provider using emergency and crisis funding due to his unstable epilepsy. All parties agree there is a need for 24-hour support to continue.

[15] In addition to consultations with Dr R, neurologist, LAB regularly attends sessions with Dr W, psychiatrist. LAB receives group counselling at the hospital which is likely to be replaced with individual psychology sessions in the near future.

[16] LAB continues to exhibit challenging behaviours which place his safety and the safety of others at risk. Prior to receiving 24-hour support in April 2008 LAB was receiving valium on an "as required" basis, (prn), to control behaviour and to reduce anxiety levels. A guardian for restrictive practices will be required if this practice recommences. Dr W is to review the use of valium and an application to the Tribunal will be initiated if required. All parties agree there is a need for the continuing appointment of a guardian for health care decisions.

[17] LAB has expressed strong and differing views about contact with his mother, KD, during the period under review. Initially, LAB did not want to have contact with his mother and brother, and was observed to increase anxious and self-injurious behaviour after contact with his family and on occasions when contact with his family was discussed with him. The Adult Guardian made a decision in November 2003 that LAB was not to have contact with his mother. The decision was made with regard to the General Principles and was considered against a background of recent allegations by LAB of physical and verbal abuse from KD.

[18] After a period of two years LAB initiated contact with his mother and then with his father. The Adult Guardian has made further decisions to permit limited contact between LAB and his mother over the period under review. The decisions continued to be made in accordance with LAB's views and wishes at the time and in accordance with the General Principles. KD insists she has had rapport with LAB during the period under review and has complied with requests from support workers under the direction of the Adult Guardian. There were also allegations of sexual abuse made by LAB against KD's former partner during an overnight visit at KD's home. The Adult Guardian considers that there remains a need for a guardian for decisions about LAB's contact with family. This view is shared by the service provider staff.

[19] LAB has a history of making statements alleging inappropriate sexual contact and abuse over a period of many years. LAB's recent allegations have been directed towards KD's former partner and a support worker from the service provider. To date police have found insufficient evidence to pursue these matters. KD considers there is a need for the appointment of a guardian for legal matters.

[20] All parties agree there is a continuing need for LAB to have a guardian appointed to make decisions about personal matters pertaining to accommodation, service provision and health care. There is disagreement concerning the formal appointment of a guardian for contact decisions and legal matters.

[21] The Tribunal is satisfied that LAB continues to need the appointment of a guardian for personal matters in the areas of accommodation, with whom he has contact and/or visits, health care and the provision of services.

SHOULD THE CURRENT APPOINTMENT OF GUARDIAN FOR LAB BE CONTINUED OR IS ANOTHER APPOINTMENT MORE APPROPRIATE?

[22] The representative from the Adult Guardian's office submitted that the Adult Guardian would be more appropriate by virtue of the Adult Guardian's independence and ability to consult with LAB and with family members, making particular reference to the continuing fragile relationship between LAB and his mother KD. The Adult Guardian's representative submitted that a continued appointment of the Adult Guardian as an independent party was necessary in the areas of accommodation, provision of services, health care and contact. This view was supported by the service provider staff.

[23] LAB presented midway through the earlier Tribunal hearing of 30 April 2008 and indicated at that time, in the presence of the representative of the Adult Guardian, that he did not want KD to make personal decisions for him and that he would like the Adult Guardian to continue to make personal decisions on his behalf. Although the presumption of capacity for personal matters has been rebutted in LAB's case, and the Tribunal has taken into account when assessing the weight to be attached to this evidence the fact that the Adult Guardian's representative was present when LAB's opinion was expressed, his views and wishes must be considered in accordance with the General Principles.

[24] KD stated she has a continuing supportive relationship with LAB and that she is accessible, available and willing to act. This view was supported by LAB's father, SL and SD, LAB's aunt.

[25] KD expressed disappointment that during the period under review she was not consulted in a timely manner by the service provider and the Office of the Adult Guardian prior to the guardian making decisions about health care, service delivery and contact. She submitted that she was unable to provide input into decisions made by the Adult Guardian in these matters.

[26] The representative of the Adult Guardian conceded that there was "a gap with the service provider" at the beginning of the period under review when information from the service provider was not readily provided and that consents to health care were not always requested by service provider staff and treating doctors. The representative advised that since EP has been in the role of support co-ordinator communication has significantly improved as EP has been diligent in keeping the Office of the Adult Guardian and family members updated.

[27] It is apparent on the evidence that during the period under review there has been insufficient consultation between service provider staff, the Office of the Adult Guardian and LAB's supportive family network. Consequently, all parties who are interested in LAB's welfare have not always had proper and meaningful input into recent personal decisions made on LAB's behalf.

[28] LAB has the advantage of a strongly supportive and available family who want to further assist him in all personal matters. For the contribution of the support network to be encouraged and enhanced there must be clear and frequent communication between service providers, family networks and decision-makers.

[29] The Tribunal notes that the steps taken by the Adult Guardian have been appropriate and that the Adult Guardian has taken into account the strongly held views of LAB about contact and visits with his mother, KD. The Tribunal is satisfied that the Adult Guardian has acted in accordance with the General Principles and remains competent to continue as the appointed guardian for LAB.

[30] There has been an ongoing fragility in the relationship between LAB and his mother KD. While there is evidence that the relationship has improved recently and may continue to improve in the future, the Tribunal is mindful of the risk, at the present time, to the relationship if such a significant support person were to become a decision-maker.

[31] In view of the history of the fragile relationship between LAB and his family and the need for contact decisions to be made by a guardian which will affect members of LAB's support network, an appointment of the applicant as guardian was not considered a more appropriate option than the continued appointment of the Adult Guardian.

[32] The Tribunal considers the Adult Guardian is best placed as an independent decision maker.

[33] That being the case, the Tribunal appoints the Adult Guardian as guardian for LAB for decisions about the following personal matters: accommodation, with whom he has contact and/or visits, health care and provision of services. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.

[34] The Tribunal anticipates that all parties will continue their efforts with each other in LAB's best interests with diligence, and to recognize, encourage and enhance the contribution of LAB's informal support network in providing proper and meaningful input into decisions made on his behalf.