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NJ [2022] QCAT 283

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Date: 25 October 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Justice Mellifont, President Senior Member Guthrie, Member Joachim
Human Rights Act 2019 (Qld) Sections: s 9, 13, 15, 17, 29, 30, 48, 58
Rights Considered: Right of recognition and equality before the law; right of protection from torture, cruel, inhuman or degrading treatment; right to liberty and security of person; right to humane treatment when deprived of liberty; right to a fair hearing.
Other Legislation: Acts Interpretation Act 1954 (Qld) s14; Aged Care Act 1997 (Cth) s 54-1, 54-3, 54-9, 54-10, 96-1; Aged Care Quality and Safety Commission Act 2018 (Cth), Disability Services Act 2006 (Qld) s 140(2), 143, 144, 146; Disability Services Regulation 2017 (Qld) s 12; Guardianship and Administration Act 2000 (Qld) s 3, 4 5, 6, 7A, 11A, 11B, 12, 15, 27, 28, 29, 80R, 80S, 80V, 80ZD, 81, 125, 138, 210, ch 5B, sch 2, sch 4; Mental Health Act 2000 (Qld); Quality of Care Principles 2014 (Cth) s 4, 15, 15E, 15FA, 15FB; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164; Public Guardian Act 2014 (Qld) s 12.
Keywords: Health, Mental Health, Guardianship; Public Entity.

This case concerned an application seeking appointment of the Public Guardian for approval of restrictive practice, containment and seclusion in a memory support unit for people who suffer dementia: at [3]. The Tribunal were satisfied that the decision to appoint the Public Guardian pursuant to s 12 of Guardianship and Administration Act 2000 (Qld) for the personal matter of giving consent was compatible with the human rights.

Aged care facility sought an appointment of the Public Guardian for restrictive practices substitute decision-maker who can give consent for the use of ‘environmental restraint’ on behalf of NJ who suffers from dementia and lacks the capacity to provide consent under s 17FA(f)(ii) of the Quality of Care Principles 2014 (Cth): at [4].

For the purposes of appointing a guardian the Tribunal is a public entity as defined in s 9 of the Human Rights Act 2019 (Qld) as it is acting in their administrative capacity, thus bound by s 48 and 58 of the Human Rights Act 2019 (Qld): at [164], [166]. The Tribunal noted that it is unlawful for them to make a decision in a way that is not compatible with human rights and must give proper consideration to a human right by identifying the human right that may be affected by the decision: at [163].

The Tribunal identified that the decision may affect the person’s right of recognition and equality before the law (s 15); right of protection from torture, cruel, inhuman or degrading treatment (s 17); right to liberty and security of person (s 29); right to humane treatment when deprived of liberty (s 30); and the right to a fair hearing (s 31). The tribunal held that the decision is compatible with the human rights, noting that the substitute decision-maker was to ensure that NJ is treated with humanity and with respect for her inherent dignity: at [168].

The Tribunal also mentioned that limits to human rights must be reasonable and reasonably justified under s 13 of the Human Rights Act 2019 (Qld): at [170]. The Tribunal was satisfied that any limits to human rights of NJ are reasonable and justifiable, although they did not engage in further substantive discussion: at [174].

The Public Guardian was appointed for NJ for the personal matter of giving in informed consent for the use of environmental restraint.

Visit the judgment: NJ [2022] QCAT 283