SI

[2012] QCAT 577

CITATION: SI [2012] QCAT 577

PARTIES: SI

APPLICATION NUMBER: GAA8865-12

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 17 October 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application for an interim order for SI is dismissed.

CATCHWORDS:

GUARDIANSHIP – where adult had informal decision making support – where adult not at immediate risk of harm

Guardianship and Administration Act 2000, ss 9, 129

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

1. SI is 77 years of age.  She had been living in her own home until she was admitted to hospital on 11 September 2012.  Her medical treatment team assessed that SI could not safely return home to live.  SI had been diagnosed with dementia and her memory, planning and problem solving skills were found to be impaired.  As a result of problems she manifested with decision making, her stepson provided SI with informal support for decision making after she was admitted to hospital.

2. SI proved not to be a candidate for rehabilitation in hospital due to her cognitive impairments and arrangements had to be made for post discharge care and accommodation appropriate to SI’s needs.  As part of the process involved in placing SI into care, her stepson applied to QCAT for the appointment of a guardian and administrator for SI.  A member of the hospital staff applied for an interim appointment of a guardian and administrator. 

3. Appointments of decision makers for adults with impaired decision making capacity under the Guardianship and Administration Act 2000 (GAA Act) involve in most cases an oral hearing taking place when the applicant and proposed appointees can satisfy the tribunal that an appointment should be made.  However the GAA Act does have provisions that permit QCAT to make appointments on an interim basis without a hearing and without deciding the issues in the proceeding.

4. Section 129 of the GAA Act states that the tribunal can make an interim appointment if the tribunal is satisfied, on reasonable grounds, that there is an immediate risk of harm to the welfare or property of the adult concerned. The making of an interim appointment is a discretionary remedy that is designed to meet immediate needs for decision making support arising from specific circumstances of immediate harm.

5. In considering the application for an interim appointment, there was evidence that it would be beneficial to SI’s wellbeing if she were to be moved to a care facility.  The applicant stated that SI was quite distressed at being in hospital.  The applicant also stated that SI was at risk of hospital acquired infections by remaining in hospital.

6. SI’s stepson had not referred to his stepmother being distressed in his application for the appointment of a guardian and administrator.  He stated in his application that SI was not in any immediate danger.  He confirmed that he was informally making decisions for SI and he was taking steps to arrange for her placement into an aged care facility.  He did not mention any circumstance of urgency in relation to the arrangements he was making. 

7. While there is always a level of risk that patients in hospitals may contract infections, there was no evidence that there was any specific or higher risk for SI than any other patient or that she was at an immediate risk of harm from hospital acquired infection. 

8. As SI had adequate informal decision making support in place and as she was not at an immediate risk of harm, there were no grounds on which any interim appointment of a decision maker could be made for SI.  

9. Decisions about where a person with impaired decision making capacity should live and what health care they should have do not need to be made by a guardian appointed by QCAT. Section 9 of the GAA Act authorises the exercise of decision making power for an adult with impaired capacity on an informal basis by members of an adult’s existing support network.

10. Decisions made informally by members of the support network are validly made decisions when there is no guardian appointed by the tribunal to make decisions for an adult about the matter in question.  SI has a family member available who was already making decisions about her discharge from hospital for her on an informal basis.  There was no immediate risk that her decision making needs were not being met. 

11. One final point should be addressed in these reasons.  The applicant for the interim orders had referred to the need for an appointment of a guardian as soon as possible so that an assessment by the Aged Care Assessment Team (ACAT) could be undertaken.  This assertion ignores the fact that the appointment of a guardian is not a prerequisite for the carrying out of such an assessment. 

12. Given the provisions in section 9 of the GAA Act which authorises the exercise of power by informal decision makers, SI’s stepson had authority to consent on behalf of SI to the assessment taking place. This position is also recognised in the published guidelines for the ACAT assessment which state “where a person is not able to understand the assessment process, consent should be obtained from their legal representative. If they do not have a legally appointed representative, such as a guardian, consent from next of kin or carer should be obtained.”[1]

    [1]See website of Department of Health and Ageing – Aged Care Assessment Teams – Assessment and Approval Guidelines – September 2006.

13. In SI’s case, her next of kin was her stepson who was available to give that consent.