EB [2021] QCAT 434
Date: 7 December 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonald
Human Rights Act 2019
(Qld) Sections: ss 9(4), 13, 19, 25, 31, 48
Rights Considered: Freedom of movement; Right to privacy and reputation; Right to a Fair Hearing
Other Legislation: Guardianship and Administration Act 2000 (Qld) s 129, Schedule 4
Keywords: Health, Mental Health and Guardianship; Public Law Considerations: Fair Trial
This matter concerned an application for an interim order seeking the appointment of the Office of the Public Guardian and the Public Trustee of Queensland. The Tribunal recognised that the right to freedom of movement (section 19) and right to privacy and reputation (section 25) under the Human Rights Act 2019 (Qld) may be affected by the appointment of a guardian for accommodation matters. The Tribunal noted that these rights, in addition to the right to a fair hearing (section 31) under the Human Rights Act 2019, would be limited in the short-term pending a hearing held at a later date.
This matter arose out of an application made by JT, a social worker at the local hospital, to have the Office of the Public Guardian and the Public Trustee of Queensland appointed as guardian and administrator, respectively, for EB.
EB, an 87 year old woman diagnosed with severe dementia, lived in an aged care facility. She had previously appointed her son, RB, as her Enduring Power of Attorney for financial, personal and health matters: at [4]. RB sought to move EB from her current placement because the fees were unaffordable and he did not want to sell EB’s assets to pay for her care: at [9]. In support of the application, JT raised concerns about the level of care needed by EB and argued the interim orders were necessary to prevent EB’s family from removing her from the aged care facility which would be ‘physically painful’ to EB and ‘detrimental to her cognitive state’: at [6].
The Tribunal was satisfied that EB had impaired capacity for decisions around her health, lifestyle, accommodation and finances: at [15]. The imminence of the proposed move supported the granting of the interim appointment of the Office of the Public Guardian for accommodation matters: at [16].
The Tribunal accepted that it was subject to the Human Rights Act 2019 (Qld) as a ‘public entity’ when making interim orders and was required under section 48 to consider the human rights that may be affected by the Tribunal’s decision: at [18]. The Tribunal recognised that EB’s right to freedom of movement and right to privacy and reputation may be limited by the appointment of a guardian for accommodation matters. The Tribunal noted that EB’s right to a fair hearing had also been limited in the interim, pending the hearing of the substantive guardianship and administration applications at a later date: at [18].
The Tribunal recognised the appointment of a guardian on an interim basis was only authorised where the Tribunal was satisfied there was an immediate risk of harm to the adult’s welfare: at [20]. The urgent nature of the application and the purpose of protecting EP from the risk of harm justified ‘the limit on the adult’s right to a fair hearing on a short-term basis, and limits on rights of free movement and privacy until the matter is heard’: at [20]. The Tribunal considered the object of protecting EB from the risk of harm outweighed the limitation of her rights in circumstances where the full hearing of the guardianship and administration applications would occur in less than three months: at [20]. On this basis, the limitations were reasonable and justifiable: at [20].
The Tribunal granted an interim order for the appointment of the Office of the Public Guardian for accommodation decisions for three months and dismissed the interim application for the appointment of an administrator: at [2].
Link: EB [2021] QCAT 434