Date: 10 February 2023
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Kanowski
Human Rights Act 2019 (Qld) Sections: ss 13, 17, 19
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Freedom of movement
Other Legislation: Disability Services Act 2006 (Qld) ss 12, 12A, 140, 178; Disability Services Regulation 2017 (Qld) r 12; Guardianship and Administration Act 2000 (Qld) ss 5(d), 12, 80R, 80ZD, 80ZR, 129(1); Statutory Instruments Act 1992 (Qld) s 37
Keywords: Health, Mental Health, Guardianship

The case concerned an application for interim orders for the appointment of a guardian and a guardian for restrictive practices. The adult was aged 49 years, resided in a Blue Care aged care facility and wished to move into a supported living home. A regional general manager for Blue Care had made the application due to concerns that VTA’s family members had impeded the preparation of a comprehensive positive behaviour support plan and that family involvement would also negatively impact any future transition into a supported living home. The Tribunal considered that the appointment of an interim substitute decision-maker was likely to impact the adult’s human rights under the Human Rights Act 2019 (Qld), with the most relevant in the case being protection from torture and cruel, inhuman or degrading treatment (section 17) and freedom of movement (section 19). The Tribunal noted that section 13 of the Human Rights Act 2019 (Qld) provided that rights could be subject to reasonable limits where demonstrably justified. The Tribunal highlighted the importance of those rights and emphasised that the Tribunal should have regard to this when exercising the discretion to appoint a substitute decision-maker. The application for interim orders was dismissed due to the absence of immediate risk of harm to the adult. The Tribunal held that all concerns were best addressed by a full hearing.

Visit the judgment: VTA [2023] QCAT 68