Applying to QCAT for review of a Disability Worker Screening Clearance decision

The Queensland Civil and Administrative Tribunal (QCAT) can review certain decisions made under the Disability Services Act 2006 (Qld) (DS Act).

This factsheet is written for persons who are unfamiliar with that legislation.

Disability Worker Screening

• The Department of Child Safety, Seniors and Disability Services (Disability Services) is a public service unit responsible for regulating the issue of Disability Worker Screening Clearances (DWS Clearances), which are mandatory for people employed or volunteering in certain positions that involve working with people with disability.
• Under the DS Act, DWS Clearances are issued to eligible persons working or volunteering in regulated areas, including services provided by Disability Services, funded non-government service providers or NDIS non-government service providers.
• When Disability Services receives a DWS Clearance application, Disability Services must either issue a positive notice (granting DWS Clearance) or an exclusion (refusing to grant DWS Clearance) (sections 89 and 90 of the DS Act).
• In some cases, Disability Services must issue a positive notice unless the case is exceptional (section 92 of the DS Act). For example, this may occur if a person has been convicted of an offence that is not a serious offence (as defined in Schedule 2 of the Disability Services Regulation 2017 (Qld)).
• In other cases, Disability Services must issue an exclusion unless the case is exceptional (section 91 of the DS Act). For example, this may occur if a person has been convicted of a serious offence, is subject to a temporary offender prohibition order or an interim sexual offender order.
• Disability Services can impose an interim bar on an applicant when they apply for a disability screening clearance if they have been charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The applicant will receive a notice that states the interim bar is imposed, the reasons for imposing the interim bar and the effect of the interim bar (sections 81 to 85 of the DS Act).
• Disability Services can also suspend a clearance if a person who holds a clearance is charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The person will receive a suspension notice that states the person’s clearance is suspended, the reasons for the suspension, how long the suspension will continue and the effect of the suspension.
• All of the decisions described above are decisions that can be reviewed (sections 138ZR to 138ZY of the DS Act).

Who can apply for review?

• A person dissatisfied with a reviewable decision may apply for review. The review process includes:

1. 1. 1. An internal review undertaken by an independent, senior officer from Disability Services. Disability Services must notify the applicant of the outcome within 28 days of receiving the application (Disability Services may extend this time by a further 28 days).
      2. If a person remains dissatisfied with the outcome of the internal review, external review may be sought through QCAT. A QCAT review may only occur after an internal review has taken place.

• A disqualified person cannot apply to have the decision reviewed. The only exception to this is in the case of mistaken identity (see full list of disqualifying offences in Schedule 2 Disability Services Regulation 2017 (Qld)). If a person becomes disqualified during the internal or QCAT review process, the review application must be dismissed.

Applying to QCAT for review of a Disability Worker Screening Clearance decision

• The person who wants the decision reviewed by QCAT (the applicant) must complete a QCAT Form 23 – Application to review a decision. A copy of the decision and reasons must also be provided to QCAT with the Form 23;
• The applicant must file two (2) copies with QCAT. QCAT will return one of the copies, which must then be served on (given to) Disability Services;
• There is a filing fee for review of a Disability Services decision in QCAT and for filing an application for leave to appeal/appeal. QCAT’s filing fees can be found online.
• A fee waiver or reduction may be available in circumstances of financial hardship.

Costs

• Generally in QCAT, parties bear their own costs however in certain circumstances, a cost order may be made.
• For information about costs orders, refer to the Costs in QCAT factsheet on the LawRight website.

What is the limitation period to apply to QCAT?

• A limitation period is a length of time within which legal action must begin. If legal action is not started within that time, a person may be prevented from commencing any action, even if it has legal merit.
• A person applying to QCAT for review of a DWS Clearance decision must file a review application in QCAT within 28 days from the day the person receives notice of the decision (section 138ZW of the DS Act and section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)).
• QCAT may grant an extension of time for a person to file a review application in exceptional circumstances (section 61 of the QCAT Act).

QCAT review of Disability Worker Screening related decisions

• QCAT decides review applications by way of a fresh hearing (section 20 of the QCAT Act). This means that the Tribunal can consider new evidence which was not before the original decision-maker.
• The principal consideration QCAT must apply under the law is that people with a disability have the right to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation (section 41 of the DS Act).
• This means that the right of people with disability to be protected from risk of harm is given more importance than the impact not having a DWS Clearance may have on the applicant.
• QCAT applies the law set out in the DS Act. For example, if QCAT is reviewing a decision to cancel a DWS Clearance because a person’s police information has changed, QCAT must consider the matters set out in subdivision 3 of the DS Act). This includes:

• If the police information is about a conviction or a charge;
• If the alleged offence is a serious or disqualifying offence;
• When the offence is alleged to have been committed;
• The nature of the offence; and
• The sentence imposed by a court and the court’s reasons for its decision.

• When exercising its review jurisdiction, QCAT considers if Disability Services made the correct decision in assessing the risk of harm to people with disability if a DWS Clearance is granted to a person, based on the merits of each case (section 19 of the QCAT Act).

Risk and protective factors

• Each case is different. QCAT considers many factors to decide if a risk of harm to people with disability is likely to materialise if a DWS Clearance is granted to a person. These factors are called risk factors and protective factors.
• Examples of risk factors include a person’s:

• Offending behaviour;
• History of abuse, neglect, drugs or alcohol issues;
• History of fractured relationships; and
• Lack of remorse and insight into the offending behaviour.

• Examples of protective factors include:

• Evidence of steps taken by a person to manage the causes of the offending behaviour;
• Evidence from a doctor or psychologist that a person is suitable to work with people with disability;
• A person’s honesty and insight into the offending behaviour; and
• A person’s supportive and stable relationships.

• QCAT will not allow a person to hold a DWS Clearance if that would expose people with disability to an unacceptable risk of harm.

QCAT pre-hearing process

• When QCAT receives a valid application seeking review of a DWS Clearance decision (QCAT Form 23), QCAT will make directions.
• Within 28 days from receiving a copy of the review application, Disability Services must file in QCAT a written statement with reasons for the decision (section 21 of the QCAT Act).
• Disability Service’s statement of reasons includes all documents and information that Disability Services used to make its decision, including for example, information received from the police or disciplinary information.
• QCAT may make orders about how a review application will progress and direct the parties to attend one or more compulsory conferences.
• QCAT cannot suspend a Disability Service decision until a review application is decided (section 109 of the DS Act). This means that the filing of a review application in QCAT does not affect the operation of the decision of Disability Service.

QCAT hearing

• The hearing of a DWS Clearance review application is held in public, unless a specific order is sought and granted by QCAT.
• The parties present at a hearing are usually the applicant, a representative from Disability Services, lawyers if the parties are legally represented, support persons and witnesses while they give evidence.
• QCAT decisions involving vulnerable people are de-identified if they are published, to protect the identity of these parties. However, other details of the case may be published unless QCAT makes a non-publication order.

Post hearing process

• QCAT may decide a review application at the hearing or deliver its decision at a later date.
• When deciding the application, QCAT may either:

• Confirm or amend the exclusion;
• Set aside the decision and make a substitute decision; or
• Set aside the decision and return the matter to the Department for reconsideration.

• If QCAT grants a review application, the applicant must liaise with Disability Services to have a DWS Clearance issued. A QCAT decision to grant a review application does not automatically issue a person’s DWS Clearance.

Appeals

• Appeals are very technical legal proceedings. Appeal rights, either to the QCAT Appeal Tribunal or to the Queensland Court of Appeal, will depend on whether the appeal relates to a question of law or fact, and whether a matter was heard by a judicial member.
• If a person is considering appealing a QCAT decision, it is strongly recommended that the person apply for reasons for the decision and obtain legal advice before filing an appeal.
• A person can request reasons for a QCAT decision within 14 days from the decision taking effect (section 122 of the QCAT Act). A decision generally takes effect on the date it is made, unless QCAT provides otherwise.
• For more information, refer to the Appealing a QCAT decision factsheet on the LawRight website.

Other resources

• QCAT decisions about DWS Clearance review proceedings are published by the Queensland Supreme Court Library and can be found here.

This resource is current as of 21 February 2024

GAA – Guardianship and Administration toolkit

This fact sheet is part of a set of fact sheets about guardianship, administration and other substituted decision making in relation to adults with impaired capacity. It does not relate to decision making for children and minors. The fact sheets are written for Queensland persons who are unfamiliar with guardianship and administration laws in this jurisdiction.

The fact sheets in this series are:

GAA – Purpose of Act and general principles

GAA – Types of substituted decision making

GAA – Capacity

GAA – Functions and powers of the Tribunal

GAA – Application for appointment of a Guardian or Administrator

GAA – Duties of appointees and remedies in case of breach

GAA – End of appointment

GAA – Review of appointment

What is guardianship and administration?

Guardianship and administration refers to the mechanisms which apply when an adult can no longer make decisions for themselves because they have lost the capacity to do so (see GAA – Capacity fact sheet).

In those circumstances another person may be authorised to act on the Adult’s behalf under the Guardianship and Administration Act 2000 (Qld) (GAA Act)or the Powers of Attorney Act 1998 (Qld) (POA Act). This may be:

• On an informal basis by members of the Adult’s existing support network (whose decision may then be ratified or approved by the Queensland Civil and Administrative Tribunal under s154 of the GAA Act);
• By the appointment of a Guardian or Administrator by the Queensland Civil and Administrative Tribunal under the GAA Act;
• By an appointment made by the Adult under an enduring power of attorney or advance health directive under the POA Act;
• By a statutory health attorney under the POA Act; or
• By the Supreme Court of Queensland.

Substituted decision-making also occurs under the Mental Health Act 2016 (Qld), in relation to medical treatment for mental illness, and under the Uniform Civil Procedure Rules 1999 (Qld), in relation to people involved in civil legal proceedings.

The focus of the guardianship and administration regime is on adults, not children, although there are provisions under the GAA Act for children regarding sterilisation.

Relevant Queensland legislation

Guardianship and Administration Act 2000 (Qld)

This Act is focused on adults with impaired capacity. It seeks to strike a balance between an adult’s autonomy in decision making and an adult’s right to adequate and appropriate support for decision making.

Public Guardian Act 2014 (Qld)

This Act establishes the Public Guardian, an agency to promote and protect the rights and interests of adults with impaired capacity, as well as certain children. It is to be read in conjunction with the Guardianship and Administration Act 2000.

Powers of Attorney Act 1998 (Qld)

This Act relates to substituted decision making under powers of attorney, enduring powers of attorney, advance health directives and by statutory health attorneys. It is to be read in conjunction with the Guardianship and Administration Act 2000.

Disability Services Act 2006 (Qld)

This Act concerns the rights of people with a disability and the services provided to aid their health and wellbeing. A funded service provider who is providing services to an adult with an intellectual or cognitive disability may be authorised by the Queensland Civil and Administrative Tribunal (QCAT) to contain, seclude, restrain or restrict access to the Adult (restrictive practices).

Public Trustee Act 1978 (Qld)

This Act establishes the office of the Public Trustee who may be appointed by the Tribunal as administrator for Adult’s financial matters.

Mental Health Act 2016 (Qld)

This Act may authorise the involuntary assessment and treatment of a person with a mental illness, to the exclusion of substituted decision making under the Guardianship and Administration Act 2000, the Public Guardian Act 2014 or the Powers of Attorney Act 1998.

Trusts Act 1973 (Qld)

This Act regulates the functions and powers of trustees, including the Public Trustee, and provides the standard for authorised investments by administrators appointed under the Guardianship and Administration Act 2000.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (formerly the Residential Services (Accommodation) Act 2002)

This Act regulates the giving of a notice under a rooming accommodation agreement to a person with impaired capacity for financial matters or limited capacity to manage their own affairs.

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

This Act establishes QCAT which has jurisdiction to make decisions in relation to people with impaired capacity, such as the appointment of a guardian under the GAA Act.

This legislation can be accessed here.

Principal government entities

The principal government entities are:

• The Public Guardian, established under the Public Guardian Act 2014 (Qld);
• The Public Trustee of Queensland, established under the Public Trustee Act 1978 (Qld);
• The Public Advocate (the systemic advocate for people with impaired capacity), established by the Guardianship and Administration Act 2000;
• The Queensland Civil and Administrative Tribunal, established under the Queensland Civil and Administrative Tribunal Act 2009.

The Queensland Civil and Administrative Tribunal

From 1 December 2009, all matters under the Guardianship and Administration Act 2000 (GAA Act) are heard by the Queensland Civil and Administrative Tribunal (QCAT).

The Tribunal’s functions and powers include the appointment of substitute decision makers for adults with impaired capacity where informal supports no longer work.

See GAA – Functions and powers of the Tribunal fact sheet for more information.

Key principles

• Any person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles.
• If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principle.
• It is important when applying the GAA Act to always keep in mind the purpose of the Act.

The General Principles, the Health Care Principle and the purpose of the Act are set out in full in our GAA – Purpose of Act and general principles factsheet.

Further information

The QCAT website is an excellent source of information, and includes an outline of the Tribunal’s procedures and forms.

The Tribunal has also prepared a list (by subject category) of cases published on Austlii that best represents the law and procedures of the Tribunal.

Legislation is available here.

The Guardianship section of the Department of Justice and Attorney-General website may also be of assistance.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

GAA – Types of substituted decision making

This fact sheet outlines types of substituted decision making authorised by:

• The Guardianship and Administration Act 2000 (Qld) (GAA Act)
• The Public Guardian Act 2014 (Qld) (PG Act)
• The Powers of Attorney Act 1998 (Qld) (POA Act)
• The Mental Health Act 2016 (Qld) (MHA); and
• The Uniform Civil Procedure Rules 1999 (Qld) (UCPR)

In most cases, before a substituted decision maker can be appointed or exercise their powers under the relevant Act, the Adult must first have impaired capacity.

A person may have capacity for one ‘matter’ but not another. For example, a person who lacks capacity to consent to assessment or treatment under the MHA may not necessarily have impaired capacity for financial matters and require an administrator under the GAA Act.

It should also be remembered that impaired capacity is often only one of several criteria to be satisfied before a substituted decision-maker can be appointed under the GAA Act.

A person with impaired capacity can have several substituted decision-making mechanisms in place at the same time.

Under the Guardianship and Administration Act 2000

The Queensland Civil and Administrative Tribunal (the Tribunal) may appoint a guardian and/or administrator for an adult with impaired decision-making capacity. Under the GAA Act, a person has impaired capacity for a matter if they are incapable of: understanding the nature and effect of decisions about the matter, freely and voluntarily making decisions about the matter and communicating the decisions in some way (Schedule 4 GAA Act – See GAA – Capacity fact sheet). However, a guardian or administrator will only be appointed if there is a need for a decision and, without the appointment, the Adult’s needs or interests would suffer.

Most Adults who have family, friends or other support will not need a formally appointed substituted decision-maker, as Adults with these networks are considered to be capable of carrying on their lives. The Tribunal will only intervene when there is no other way to guarantee the protection of an Adult’s interests.

Guardianship order (ss 12 and 33 GAA Act)

A guardian is someone appointed by the Tribunal to make decisions regarding the Adult’s personal matters, but not a ‘special personal matter’. A personal matter can relate to the Adult’s care, health, welfare, where they live, who they live with, services provided to the Adult, whether they work, what education or training they undertake, application for a licence, day to day issues such as diet and dress, health care, whether to consent to a forensic examination, legal matter (so long as the legal matter does not concern the Adult’s finances or property), restrictive practices, who they have visits or contact with, and advocacy relating to their care and welfare. The extent of the guardian’s powers to make decisions in relation to these matters on behalf of the Adult is detailed in the particular order.

A special personal matter includes making or revoking a will or power of attorney, voting, adopting, consenting to marriage or registered relationship and decisions concerning surrogacy.

A guardianship order will usually specify the date upon which the appointment ends. An order is also subject to review by the Tribunal at least every 5 years.

Administration order (ss 12 and 33 GAA Act)

An administrator is someone appointed by the Tribunal to make decisions regarding the Adult’s financial matters. A financial matter relates to the Adult’s financial or property matters, for example paying the Adult’s accommodation expenses or debts, receiving or recovering money payable to the Adult, performing contracts, legal matters relating to the Adult’s financial or property matters and operating the Adult’s bank account. The extent of an administrator’s powers to make decisions on behalf of the Adult is detailed in the particular order.

Like a guardianship order, an administration order will often specify the date upon which the appointment ends and is subject to review by the Tribunal at least every 5 years.

Under the Powers of Attorney Act 1998

Under the POA Act, a person may, while they have capacity, appoint a person to make decisions on their behalf should they later lose capacity. These are known as enduring documents. There are also provisions for the automatic appointment of a substituted decision maker in relation to health matters (see health matter).

The definition of impaired capacity under the POA Act is the same as that used under the GAA Act. Key terms such as personal matter and financial matter also have similar meanings under the two acts.

Enduring Power of Attorney (s32 POA Act)

An enduring power of attorney (EPA) must be made by the Adult while they have capacity. They give people the opportunity to make decisions about who will take care of them when they no longer have capacity to take care of themselves.

Through an EPA, an Adult may authorise one or more other persons to do anything in relation to one or more financial matters or personal matters (see financial matter and personal matter) for the Adult, as if the Adult could lawfully do if he or she had capacity. The EPA also sets out the terms or information about exercising that power.

Unlike a general power of attorney, an EPA is not revoked upon the Adult’s capacity becoming impaired and often powers under the EPA can only be exercised once a person has lost capacity.

Advance Health Directive (s35 POA Act)

An advance health directive is an enduring document in which an Adult may specify their wishes in relation to future health care.

By an advance health directive, an Adult principal may:

• give directions, about health matters and special health matters, for his or her future health care; and
• give information about his or her directions; and
• appoint one or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate; and
• provide terms or information about exercising the power.

An advance health directive operates only while the Adult has impaired capacity for the matter covered by the direction (s 36(1) POA Act). Special criteria must be met if a direction to withhold or withdraw a life sustaining measure is to be followed (s 36(2) POA Act).

Statutory Health Attorneys (ss 62 and 63 POA Act)

A statutory health attorney may make a decision for an adult with impaired capacity in relation to a health matter. It is an automatic appointment made under the POA Act.

A statutory health attorney is the first of the following people who is readily available and culturally appropriate to exercise power for a health matter:

• The spouse of the Adult if the relationship is close and continuing
• A person who is 18 years or more and who has the care of the Adult and is not a paid carer of the Adult, health provider of the Adult, or service provider for a residential service where the Adult lives;
• A person who is 18 years or more and is a close friend or relation of the Adult and is not a paid carer of the Adult, health provider of the Adult, or service provider for a residential service where the Adult lives.

If no one is readily available and culturally appropriate then the Public Guardian is the statutory health attorney.

If there is disagreement between two or more people concerning who should be the statutory health attorney which cannot be resolved by mediation, then the Public Guardian may exercise power for the health matter (see s42 of the GAA Act).

Under the Mental Health Act 2016 (Qld)

The Mental Health Act 2016(Qld) (MHA) sets out the mechanisms by which people with mental illness may be compelled to receive medical treatment. A mental illness is defined by that Act as a condition characterised by a clinically significant disturbance of thought, mood, perception or memory (s10 MHA).

Treatment Authorities (s18 and 413 MHA)

A treatment authority (TA) imposes treatment on a mentally ill person without their consent. An authorised doctor may make a TA only if they are satisfied that all the treatment criteria set out in s12 of the MHA apply to the patient. This includes:

• that the person has a mental illness,
• does not have capacity to consent to be treated for the illness,
• is at either imminent harm to themselves or others, or suffers serious mental or physical deterioration without treatment, and
• there is no less restrictive way of ensuring the person receives appropriate treatment.

TAs are reviewed initially within 28 days after the authority is made, every 6 months for the first year, and thereafter at intervals of not more than 12 months.

Under the Uniform Civil Procedure Rules 1999 (Qld)

The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides for the appointment of a substituted decision maker called a ‘litigation guardian’ in civil legal proceedings where a person is “under a legal incapacity”, defined in Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) to mean “a person with impaired capacity” or “a young person” (an individual under 18 years).

A “person with impaired capacity” is then defined as:

• A person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.

A person under a legal incapacity cannot commence or defend civil legal proceedings without a litigation guardian. A litigation guardian may be appointed by a court or by filing in the court registry the person’s written consent to be litigation guardian of a party in the proceedings. For example, a person’s administrator may be appointed as their litigation guardian.

The litigation guardian’s role is to stand in the place of the party under the legal incapacity and do anything in the proceedings required or permitted to be done by that party. A litigation guardian must have a solicitor or must themselves be a solicitor.

The litigation guardian (rather than the litigant) will bear the risk of costs if the litigation is unsuccessful.

Priorities

The appointment of a substituted decision maker is not exclusive. For example, a person can have an appointed guardian, an appointed administrator and be subject to a TA all at the same time. What happens if the wishes of the substituted decision makers conflict?

Guardianship or administration order vs enduring document

Generally, the appointment of guardians and administrators under the GAA Act take precedence over enduring documents except where the Adult has impaired capacity for a health matter (s22 G AA Act). For example, if a guardian or administrator has been appointed, an EPA can only be exercised to the extent authorised by the Queensland Civil and Administrative Tribunal.

The order of priority where the Adult has impaired capacity for a health matter is:

• Direction given in an advance health directive
• Guardian appointed by the Tribunal
• Attorney appointed by the most recent enduring document (i.e., enduring power of attorney or advance health directive)
• Statutory health attorney (s66 GAA Act).

This order of priority does not apply where the health matter relates to health care which is considered urgent and which may be carried out without consent (Ch 5, Pt 2 Div 1, GAA Act).

The GAA Act is to be read in conjunction with the POA Act and the GAA Act will prevail if there is an inconsistency (s8 GAA Act, s6A POA Act, s8 PG Act).

Treatment Authority (TA) vs enduring document

An EPA will not stop treatment under a properly made TA. This is because a person’s own consent is only relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (ss12(2), (3) MHA). Therefore, a substituted decision maker’s consent under an EPA is ineffective.

However, to the extent practicable, the decisions in relation to the treatment and care of the patient must be made in consultation with the patient, the patient’s family, carers and other support persons, subject to the patient’s right to privacy (s 23(5) MHA).

In deciding the nature and extent of the treatment and care to be provided to a person under a treatment authority, the doctor must discuss the treatment and care to be provided to the person and have regard to the views, wishes and preferences of the person, including those in an advance health directive (s 53(2) MHA). If a doctor decides not to follow an advanced health directive they must provide reasons to the person why they came to that decision (s 54(2 MHA)).

Furthermore, if an involuntary patient under the MHA has given a direction about their health care or special health care under an advance health directive or otherwise, then an interpretation of the MHA that is consistent with the POA Act and the direction is to be preferred to any other meaning. The MHA prevails in the case of inconsistency (s 38 POA Act).

TA vs guardianship order

As noted above, in assessing whether a TA is appropriate, a person’s own consent is only relevant for determining whether the person lacks capacity to consent to the treatment or has unreasonably refused treatment (s 12(2), (3) MHA). Therefore, if a guardian has been appointed under the GAA Act, the guardian’s consent to the person’s treatment is not effective.

Enduring document vs common law

The POA Act does not affect the common law recognition of instructions about health care given by an Adult that is not given in an advance health directive (s39 POA Act).

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

GAA – Purpose of Act and general principles

If you are unfamiliar with guardianship and administration law, you may want to first read the GAA – Guardianship and Administration toolkit.

It is important when applying the Guardianship and Administration Act 2000 (Qld) (GAA Act) to always keep in mind the purpose of the Act. It is also important to understand that anyone who purports to perform a function or exercise a power under the Act must apply the General Principles, and if appropriate, the Health Care Principle.

This fact sheet sets out the purpose of the GAA Act, the General Principles and the Health Care Principle.

Intent of the Guardianship and Administration Act 2000

Section 5 of the GAA Act acknowledges the following:

• an Adult’s right to make decisions is fundamental to the Adult’s inherent dignity;
• the right to make decisions includes the right to make decisions with which others may not agree;
• the capacity of an Adult with impaired capacity to make decisions may differ according to:

• the type of decision to be made, including, for example, the complexity of the decision to be made; and
• the support available from members of the Adult’s existing support network;

• the right of an Adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
• an Adult with impaired capacity has a right to adequate and appropriate support for decision making.

Section 6 provides that the GAA Act seeks to strike an appropriate balance between:

• the right of an Adult with impaired capacity to the greatest possible degree of autonomy in decision making; and
• the Adult’s right to adequate and appropriate support for decision making.

Application of general principles and health care principles

Section 11B provides that a person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles. For example, if an Adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must apply the general principles. The Tribunal is also bound to apply the general principles when making a decision in relation to an Adult.

If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principles.

General principles – s 11B(3)

The general principles, which can be found in s 11B(3) of the GAA Act, are set out below.

1 Presumption of capacity

An Adult is presumed to have capacity for a matter.

2 Same human rights

1. An Adult’s inherent dignity and worth, and rights, must be recognised and taken into account.
2. The right of all adults to the same human rights and fundamental freedoms, regardless of a particular Adult’s capacity, must be recognised and taken into account.
3. There are principles on which an Adult’s human rights and fundamental freedoms are based, and these principles should inform the way those rights and freedoms are taken into account.

3 Empowering the Adult to exercise human rights and fundamental freedoms

1. An adult’s right to exercise their human rights and fundamental freedoms must be taken into account.
2. The importance of encouraging and supporting an adult to perform social roles valued in society, to live a life in the general community and to take part in activities enjoyed by the community and to achieve maximum potential and to become as self-reliant as practicable, must be taken into account.
3. An Adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity must be taken into account.

4 Maintenance of the Adult’s existing supportive relationships

1. The importance of maintaining an Adult’s existing supportive relationships must be taken into account.
2. The role of families, carers and other significant persons in the Adult’s life to support the Adult to make decisions should be acknowledged and respected.

5 Maintenance of the Adult’s cultural and linguistic environment and values

1. The importance of maintaining an Adult’s cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account.
2. For an Adult who is an Aboriginal or a Torres Strait Islander, the importance of maintaining the Adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account.

Notes:

• Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, Schedule 1.
• Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships-see the Acts Interpretation Act 1954, section 36.

6 Respect for privacy

1. An Adult’s privacy must be taken into account and respected.
2. An Adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7 Liberty and security

1. An Adult’s right to liberty and security on an equal basis with others must be taken into account.
2. An Adult should not be deprived of the Adult’s liberty except in accordance with the law.

8 Maximising an Adult’s participation in decision making

1. An Adult’s right to participate, to the greatest extent practicable, in decisions affecting the Adult’s life must be recognised and taken into account.
2. An Adult must be given support and access to information necessary to enable the Adult to make or participate in decisions affecting the Adult’s life.
3. An Adult must be given the support necessary to enable the Adult to communicate the Adult’s decisions.
4. To the greatest extent practicable, a person or other entity, in exercising power for a matter for an Adult, must seek the Adult’s views, wishes and preferences.
5. An Adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.
6. An Adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the Adult with the support and access to information necessary to make and communicate a decision.

9 Performance of functions and exercise of powers

A person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must do so in a way that promotes and safeguards the Adult’s rights, interests and opportunities; and in the way that is least restrictive of the Adult’s rights, interests and opportunities.

10 Structured decision making

In applying general principle 9, a person or other entity, in performing a function or exercising a power in relation to an Adult, or in making a decision for an Adult on an informal basis, must:

1. Firstly, recognise and preserve, to the greatest extent practicable, the Adult’s right to make the adult’s own decision; and if possible, support the Adult to make a decision.
2. Secondly, recognise and take into account any views, wishes and preferences expressed or demonstrated by the Adult.
3. Thirdly, if the Adult’s views, wishes and preferences cannot be determined, use the principle of substituted judgment so that if, from the Adult’s views, wishes and preferences, expressed or demonstrated when the Adult had capacity, it is reasonably practicable to work out what the Adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.
4. Fourthly, once the person or other entity has recognised and taken into account the matters mentioned above, the person or other entity may perform the function, exercise the power or make the decision

Health Care Principles – s 11C

The health care principles can be found in s 11C of the GAA Act.

The health care principles must be applied by a person or other entity that performs a function or exercises a power for a health matter or a special health matter.

The health care principles must be applied to make a decision for an Adult about prescribed special health care.

Health care principles

1 Application of general principles

A person or other entity that performs a function or exercises a power for a health matter or a special health matter in relation to an Adult must also apply the general principles.

2 Same human rights and fundamental freedoms

The principle of non-discrimination requires that all Adults be offered appropriate health care, including preventative care, without regard to a particular Adult’s capacity; and any consent to or refusal of health care for an Adult must take into account the principles of respect for inherent dignity and worth, individual autonomy and independence of persons.

3 Performance of functions and exercise of powers

A person or other entity must take into account:

1. Information given by the Adult’s health provider; and
2. If the Adult has a medical condition, the nature of the medical condition and the Adult’s prognosis; and
3. Any alternative health care that is available; and
4. The nature and degree of any significant risks associated with the proposed health care; and
5. Whether the health care can be postponed because a better health care option may become available within a reasonable time or the Adult is likely to become capable of making the Adult’s own decision about the health care; and
6. The consequences for the Adult if the proposed health care is not carried out; and
7. Consideration of the benefits versus the burdens of the proposed health care; and
8. The effect of the proposed health care on the Adult’s dignity and autonomy.

4 Substituted judgement

The views and wishes of an Adult expressed when the Adult had capacity may also be expressed in an advanced health directive; or by a consent to, or refusal of, health care given at a time when the Adult had capacity to make decisions about the health care.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.