Guardianship and Administration Act 2000

An Act to consolidate, amend and reform the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity, to confer jurisdiction on the Queensland Civil and Administrative Tribunal for particular purposes, to create an office of Public Advocate, and for other purposes

Long title amd 2009 No. 24s 1438; 2014 No. 26s 237

1Short title

This Act may be cited as the Guardianship and Administration Act 2000.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Definitions

The dictionary in schedule 4 defines particular words used in this Act.

4Act binds all persons

This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

5Acknowledgements

This Act acknowledges the following—

(a)an adult’s right to make decisions is fundamental to the adult’s inherent dignity;

(b)the right to make decisions includes the right to make decisions with which others may not agree;

(c)the capacity of an adult with impaired capacity to make decisions may differ according to—

(i)the nature and extent of the impairment; and

(ii)the type of decision to be made, including, for example, the complexity of the decision to be made; and

(iii)the support available from members of the adult’s existing support network;

(d)the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;

(e)an adult with impaired capacity has a right to adequate and appropriate support for decision-making.

s 5 amd 2010 No. 2s 96sch 1

6Purpose to achieve balance

This Act seeks to strike an appropriate balance between—

(a)the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and

(b)the adult’s right to adequate and appropriate support for decision-making.

s 6 amd 2010 No. 2s 96sch 1

7Way purpose achieved

This Act—

(a)provides that an adult is presumed to have capacity for a matter; and

(b)together with the Powers of Attorney Act 1998, provides a comprehensive scheme to facilitate the exercise of power for financial matters and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult; and

(c)states principles to be observed by anyone performing a function or exercising a power under the scheme; and

(d)encourages involvement in decision-making of the members of the adult’s existing support network; and

(e)confers jurisdiction on the tribunal to administer particular aspects of the scheme; and

(f)recognises the public trustee is available as a possible administrator for an adult with impaired capacity; and

(g)provides for the appointment of the public advocate for systemic advocacy.

s 7 amd 2009 No. 24s 1439; 2010 No. 2s 96sch 1; 2014 No. 26s 238

7ARelationship with Public Guardian Act 2014

This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor program (adult).

s 7A ins 2014 No. 26s 239

8Relationship with Powers of Attorney Act 1998

(1)This Act is to be read in conjunction with the Powers of Attorney Act 1998 which provides a scheme by which—

(a)by enduring power of attorney or advance health directive, an adult may authorise other persons to make particular decisions and do particular other things for the adult in relation to financial matters and personal matters at a time when the adult does not have capacity to do those things; and

Note—

Personal matters do not include special personal matters or special health matters—schedule 2, section 2.

(b)by advance health directive, an adult may make directions for the adult’s future health care and special health care; and

(c)a statutory health attorney is authorised to do particular things for an adult in particular circumstances in relation to health care.

(2)If there is an inconsistency between this Act and the Powers of Attorney Act 1998, this Act prevails.

s 8 amd 2010 No. 2s 96sch 1

9Range of substitute decision-makers

(1)This Act and the Powers of Attorney Act 1998 authorise the exercise of power for a matter for an adult with impaired capacity for the matter.

(2)Depending on the type of matter involved, this may be done—

(a)on an informal basis by members of the adult’s existing support network; or

Note—

Although this Act deals primarily with formal substituted decision-making, a decision or proposed decision of an informal decision-maker may be ratified or approved under section 154.

(b)on a formal basis by 1 of the following—

(i)an attorney for personal matters appointed by the adult under an enduring power of attorney or advance health directive under the Powers of Attorney Act 1998;

(ii)an attorney for financial matters appointed by the adult under an enduring power of attorney under the Powers of Attorney Act 1998;

(iii)a statutory health attorney under the Powers of Attorney Act 1998;

(iv)a guardian appointed under this Act;

Note—

A guardian may only be appointed for personal matters.

(v)an administrator appointed under this Act;

Note—

An administrator may only be appointed for financial matters.

(vi)the tribunal;

(vii)the court.

s 9 amd 2009 No. 24s 1440; 2010 No. 2s 96sch 1

10Types of matter

This Act categorises matters as follows—

•personal matter

•special personal matter

•special health matter

•financial matter.

Note—

Schedule 2 contains definitions of types of matters.

s 10 amd 2010 No. 2s 96sch 1

11Principles for adults with impaired capacity

(1)A person or other entity who performs a function or exercises a power under this Act for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in schedule 1 (the general principles and, for a health matter or a special health matter, the health care principle).

Example 1—

If an adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must—

(a)apply the general principles; and

(b)if the matter is a health matter, also apply the health care principle.

Example 2—

The tribunal in deciding whether to consent to special health care for an adult with impaired capacity for the special health matter concerned, must apply the general principles and the health care principle.

Note—

Function includes duty and power includes authority—see the Acts Interpretation Act 1954, schedule 1.

(2)An entity authorised by an Act to make a decision for an adult about prescribed special health care must apply the general principles and the health care principle.

(3)The community is encouraged to apply and promote the general principles.

s 11 amd 2001 No. 95s 4; 2010 No. 2s 96sch 1; 2013 No. 39s 110sch 3pt 1

11APrimary focus—adults

(1)Adults with impaired capacity are the primary focus of this Act.

(2)However, chapter 5A deals with children with an impairment.

s 11A ins 2003 No. 87s 3

12Appointment

(1)The tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the tribunal is satisfied—

(a)the adult has impaired capacity for the matter; and

(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

(c)without an appointment—

(i)the adult’s needs will not be adequately met; or

(ii)the adult’s interests will not be adequately protected.

(2)The appointment may be on terms considered appropriate by the tribunal.

(3)The tribunal may make the order on its own initiative or on the application of the adult, the public guardian or an interested person.

(4)This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.

Note—

Section 80ZD provides for the appointment of guardians for restrictive practice matters.

s 12 amd 2008 No. 23s 15; 2014 No. 26s 240(1)

13Advance appointment

(1)The tribunal may, by order, make an appointment of a guardian for a personal matter, or an administrator for a financial matter, for an individual who is at least 17¹/₂ years but not 18 years if the tribunal is satisfied—

(a)there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and

(b)there is a reasonable likelihood, when the individual turns 18—

(i)there will be a need to do something in relation to the matter; or

(ii)the individual is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the individual’s health, welfare or property; and

(c)there is a reasonable likelihood, without an appointment, when the individual turns 18—

(i)the individual’s needs would not be adequately met; or

(ii)the individual’s interests would not be adequately protected.

(2)This Act applies, with necessary changes, to an appointment under this section.

(3)The appointment begins when the individual turns 18.

(4)The appointment ends when the individual turns 19, unless the tribunal orders the appointment to be for a longer period.

(5)The tribunal may order the appointment for a longer period only if the tribunal considers—

(a)the need for an appointment will continue for the longer period; and

(b)the need for the tribunal to review the appointment is very limited.

(6)The longer period may be—

(a)if the administrator is the public trustee or a trustee company under the Trustee Companies Act 1968—the period decided by the tribunal; or

(b)otherwise—a period of not more than 5 years.

(7)The appointment may be on terms considered appropriate by the tribunal.

(8)The tribunal may make the order on its own initiative or on the application of the individual or an interested person.

(9)This section does not apply for the appointment of a guardian for a restrictive practice matter under chapter 5B.

s 13 amd 2007 No. 37s 74; 2008 No. 23s 16

13AAdvance appointment—guardian for restrictive practice matter

(1)The tribunal may, by order, make an appointment of a guardian for a restrictive practice matter under chapter 5B for an individual who is at least 17¹/₂ years but not 18 years if the tribunal is satisfied—

(a)there is a reasonable likelihood, when the individual turns 18, the individual will have impaired capacity for the matter; and

(b)the individual’s behaviour has previously resulted in harm to the individual or others; and

(c)there is a reasonable likelihood, when the individual turns 18—

(i)there will be a need for a decision about the restrictive practice matter; and

(ii)without the appointment—

(A)the individual’s behaviour is likely to cause harm to the individual or others; and

(B)the individual’s interests would not be adequately protected.

(2)This Act applies, with necessary changes, to an appointment under this section.

(3)The appointment begins when the individual turns 18.

(4)The appointment ends—

(a)on the day ordered by the tribunal, which must not be later than the day the individual turns 19; or

(b)if no day is ordered by the tribunal—when the individual turns 19.

(5)The appointment may be on terms considered appropriate by the tribunal.

(6)The tribunal may make the order on its own initiative or on the application of any of the following—

(a)the individual;

(b)an interested person for the individual;

(c)a relevant service provider under chapter 5B;

(d)the chief executive (disability services);

(e)the public guardian;

(f)if the individual is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health.

s 13A ins 2008 No. 23s 17

amd 2014 No. 26s 240(1)

14Appointment of 1 or more eligible guardians and administrators

(1)The tribunal may appoint a person as guardian or administrator for a matter only if—

(a)for appointment as a guardian, the person is—

(i)a person who is at least 18 years and not a paid carer, or health provider, for the adult; or

(ii)the public guardian; and

(b)for appointment as an administrator, the person is—

(i)a person who is at least 18 years, not a paid carer, or health provider, for the adult and not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(ii)the public trustee or a trustee company under the Trustee Companies Act 1968; and

(c)having regard to the matters mentioned in section 15(1), the tribunal considers the person appropriate for appointment.

(2)Despite subsection (1)(a)(ii), the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.

(3)Subject to section 74, no-one may be appointed as a guardian for a special personal matter or special health matter.

Note—

The tribunal may consent to particular special health care—see section 68 (Special health care).

(4)The tribunal may appoint 1 or more of the following—

(a)a single appointee for a matter or all matters;

(b)different appointees for different matters;

(c)a person to act as appointee for a matter or all matters in a stated circumstance;

(d)alternative appointees for a matter or all matters so power is given to a particular appointee only in stated circumstances;

(e)successive appointees for a matter or all matters so power is given to a particular appointee only when power given to a previous appointee ends;

(f)joint or several, or joint and several, appointees for a matter or all matters;

(g)2 or more joint appointees for a matter or all matters, being a number less than the total number of appointees for the matter or all matters.

(5)If the tribunal makes an appointment because an adult has impaired capacity for a matter and the tribunal does not consider the impaired capacity is permanent, the tribunal must state in its order when it considers it appropriate for the appointment to be reviewed.

Note—

Otherwise periodic reviews happen under section 28.

s 14 amd 2007 No. 37s 75; 2010 No. 2s 96sch 1; 2014 No. 26s 240(1)

15Appropriateness considerations

(1)In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)—

(a)the general principles and whether the person is likely to apply them;

(b)if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;

(c)the extent to which the adult’s and person’s interests are likely to conflict;

(d)whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;

(e)if more than 1 person is to be appointed—whether the persons are compatible;

(f)whether the person would be available and accessible to the adult;

(g)the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.

(2)The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(3)Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict.

(4)In considering the person’s appropriateness and competence, the tribunal must have regard to the following—

(a)the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult;

(b)the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else;

(c)if the proposed appointment is of an administrator and the person is an individual—

(i)the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and

(ii)the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and

(iii)the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved.

(5)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive or similar document under the law of another jurisdiction.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or

(d)a similar document under the law of another jurisdiction.

16Advice from proposed appointee about appropriateness and competence

(1)An individual who has agreed to a proposed appointment (a proposed appointee) must advise the tribunal before the tribunal makes an order appointing the proposed appointee whether he or she—

(a)is under 18 years; or

(b)is a paid carer or health provider for the adult; or

(c)has any criminal history, whether in Queensland or elsewhere; or

(d)has been, whether in Queensland or elsewhere, refused, or removed from, appointment as a guardian, administrator, attorney or other person making a decision for someone else; or

(e)for a proposed appointment as administrator—

(i)is bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(ii)has ever been bankrupt or taken advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(iii)is proposing to make, or has ever made, an arrangement with his or her creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; or

(iv)is or was a director, secretary or partner, or is or was involved in the management, direction or control of a corporation, partnership or other entity that is proposing to be, is or has been, under external administration.

Maximum penalty—40 penalty units.

(2)The proposed appointee must also advise the tribunal of any likely conflict between—

(a)the duty of the proposed appointee if appointed as guardian or administrator towards the adult; and

(b)either—

(i)the interests of the proposed appointee or a person in a close personal or business relationship with the proposed appointee; or

(ii)another duty of the proposed appointee as guardian or administrator for another person.

Maximum penalty—40 penalty units.

(3)The proposed appointee must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

(4)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive or similar document under the law of another jurisdiction.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or

(d)a similar document under the law of another jurisdiction.

17Guardian or administrator to update advice about appropriateness and competence

(1)After appointment, a guardian or administrator is under a continuing duty to advise the tribunal of anything of which the guardian or administrator—

(a)has not previously advised the tribunal; and

(b)would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.

Maximum penalty—40 penalty units.

(2)The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

18Inquiries about appropriateness and competence

(1)The tribunal, or the registrar acting either at the direction of the tribunal or on the registrar’s own initiative, may make inquiries about the appropriateness and competence to perform functions and exercise powers under an appointment order of a person who has agreed to a proposed appointment or who is a guardian or administrator.

(2)If asked by the tribunal or registrar, the commissioner of the police service must give the tribunal or registrar a written report about the criminal history of—

(a)a person who has agreed to a proposed appointment; or

(b)a person who is a guardian or administrator; or

(c)if the person mentioned in paragraph (a) or (b) is a corporation—a director, secretary or person involved in the management, direction or control of the corporation.

(3)If the registrar makes the inquiries, the registrar must advise the tribunal of the results of the inquiries before the tribunal makes an appointment order.

s 18 amd 2004 No. 43s 45

19Comply with other tribunal requirement

(1)The tribunal may impose a requirement, including a requirement about giving security, on a guardian or administrator or a person who is to become a guardian or administrator.

(2)A guardian or administrator or person who is to become a guardian or administrator must comply with the requirement.

Maximum penalty—200 penalty units.

20Financial management plan

(1)Unless the tribunal orders otherwise, a person who agrees to a proposed appointment as an administrator must give a financial management plan to the tribunal, or its appropriately qualified nominee, for approval.

(2)The tribunal, or its appropriately qualified nominee, may approve a financial management plan.

(3)In this section—

appropriately qualified, for a nominee in relation to a financial management plan, means having the qualifications or experience appropriate to approve the plan.

s 20 amd 2003 No. 87s 4; 2008 No. 54s 4

21Advice to registrar of titles if appointment concerns land

(1)If the tribunal appoints an administrator for a matter involving an interest in land, the tribunal and the administrator must each, within 3 months of the appointment, advise the registrar of titles.

(2)If the registrar of titles receives an advice, the registrar of titles must enter the advice in a file maintained for the purpose.

(3)The administrator must pay the fee payable to the registrar of titles.

Editor’s note—

Note section 47 (Payment of expenses).

s 21 amd 2003 No. 87s 5

22Attorney’s power subject to tribunal authorisation

(1)This section applies if—

(a)an adult’s enduring document gives power for a matter to an attorney; and

(b)after the enduring document is made, the tribunal, with knowledge of the existence of the enduring document, gives the power to a guardian or an administrator.

(2)The attorney may exercise power only to the extent authorised by the tribunal.

(3)Subsection (2) does not apply for power for a health matter.

Note—

For health matters, see section 66 (Adult with impaired capacity—order of priority in dealing with health matter).

s 22 amd 2012 No. 37s 51 sch

23Appointment without knowledge of enduring document

(1)This section applies if—

(a)the tribunal gives power for a matter for an adult to a guardian or an administrator without knowledge of the existence of an enduring document giving power for the matter to an attorney for the adult; and

(b)the guardian or administrator becomes aware of the existence or purported existence of the enduring document.

(2)If the guardian or administrator becomes aware of the existence or purported existence of the enduring document, the guardian’s or administrator’s power for the matter is suspended pending review of the appointment of the guardian or administrator.

Editor’s note—

Note section 56 (Protection if unaware of change of appointee’s power).

(3)The guardian or administrator must advise the tribunal in writing of the existence or purported existence of the enduring document as soon as practicable.

Maximum penalty—40 penalty units.

(4)If the tribunal receives an advice under subsection (3), the tribunal must review the appointment of the guardian or administrator.

(5)Part 3, division 2 applies to the review.

24Protection if unaware of appointment

(1)An attorney who, without knowing power has been given by the tribunal to a guardian or administrator, purports to exercise the power does not incur any liability, either to the adult or anyone else, because of the appointment of the guardian or administrator.

(2)A transaction between—

(a)an attorney who purports to exercise power for a matter; and

(b)a person who does not know power for the matter has been given to a guardian or administrator;

      is, in favour of the person, as valid as if the power had not been given to the guardian or administrator.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

know, power has been given by the tribunal, includes have reason to believe power has been given by the tribunal.

25Protection if unaware power already exercised by advance health directive

(1)This section applies if—

(a)an adult’s advance health directive includes a direction about a matter; and

(b)after the advance health directive is made, but without reference to it, the tribunal gives power for the matter to a guardian.

(2)The guardian who, without knowing a direction about the matter is included in an advance health directive, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.

(3)If—

(a)the guardian purports to exercise power for a matter; and

(b)without knowing a direction about the matter is included in an advance health directive, a person acts in reliance on the purported exercise of power;

      the person does not incur any liability, either to the adult or anyone else, because of the direction being included in the advance health directive.

(4)In this section—

know, a direction about a matter is included in an advance health directive, includes have reason to believe the matter is dealt with by an advance health directive.

26Automatic revocation

(1)An appointment as a guardian or administrator for an adult for a matter ends if—

(a)the guardian or administrator becomes a paid carer, or health provider, for the adult; or

(b)the guardian or administrator becomes the service provider for a residential service where the adult is a resident; or

(c)if the guardian or administrator and the adult are married when the appointment is made—the marriage is dissolved; or

(d)if the guardian or administrator and the adult are in a civil partnership when the appointment is made—the civil partnership is terminated under the Civil Partnerships Act 2011, part 2, division 4; or

(e)the guardian or administrator dies; or

(f)the adult dies; or

(g)for a guardian for a restrictive practice matter under chapter 5B—the tribunal gives a containment or seclusion approval under chapter 5B in relation to the adult.

(2)Also, an appointment as an administrator ends if the administrator becomes bankrupt or insolvent.

(3)If an appointment as a guardian or administrator ends under subsection (1)(a), (b), (c), (d) or (f) or subsection (2), the former guardian or administrator must advise the tribunal in writing of the ending of the appointment.

(4)If an appointment as a guardian or administrator for a matter ends under subsection (1) or (2) and the guardian or administrator was a joint guardian or administrator for the matter—

(a)if, of the joint guardians or administrators, there is 1 remaining guardian or administrator, the remaining guardian or administrator may exercise power for the matter; and

(b)if, of the joint guardians or administrators, there are 2 or more remaining guardians or administrators, the remaining guardians or administrators may exercise power for the matter and, if exercising power, must exercise power jointly.

(5)In this section—

resident has the meaning given by the Residential Services (Accreditation) Act 2002.

residential service has the meaning given by the Residential Services (Accreditation) Act 2002.

service provider has the meaning given by the Residential Services (Accreditation) Act 2002.

s 26 amd 2004 No. 43s 46; 2008 No. 23s 18; 2011 No. 46s 58; 2012 No. 12s 59 sch pts 1–2; 2012 No. 37s 51 sch; 2015 No. 33 s 52(1)–(2) sch pts 1–2

27Withdrawal with tribunal’s leave

(1)An appointment as a guardian or administrator for an adult for a matter ends if, with the tribunal’s leave, the guardian or administrator withdraws as guardian or administrator for the matter.

(2)If the tribunal gives leave for a guardian or administrator to withdraw for a matter—

(a)the tribunal may appoint someone else to replace the withdrawing person as guardian or administrator for the matter; and

(b)for a withdrawing administrator notice of whose appointment was given to the registrar of titles under section 21, the registrar of the tribunal must take reasonable steps to advise the registrar of titles of the withdrawal.

(3)If the registrar of titles receives an advice of withdrawal, the registrar of titles must enter the advice in a file maintained for the purpose.

(4)The withdrawing administrator must pay the fee payable to the registrar of titles, unless the tribunal orders otherwise.

28Periodic review of appointment

(1)The tribunal must review an appointment of a guardian or administrator (other than the public trustee or a trustee company under the Trustee Companies Act 1968)—

(a)for an appointment made because an adult has impaired capacity for a matter but the tribunal does not consider the impaired capacity is permanent—in accordance with an order of the tribunal, but at least every 5 years; or

(b)otherwise—at least every 5 years.

(2)This section does not apply for a guardian for a restrictive practice matter under chapter 5B.

s 28 amd 2003 No. 87s 6; 2008 No. 23s 19

29Other review of appointment

(1)The tribunal may review an appointment of a guardian or administrator for an adult at any time—

(a)on its own initiative; or

(b)for a guardian (other than a guardian for a restrictive practice matter under chapter 5B) or an administrator—on the application of any of the following—

(i)the adult;

(ii)an interested person for the adult;

(iii)the public trustee;

(iv)a trustee company under the Trustee Companies Act 1968; or

(c)for a guardian for a restrictive practice matter under chapter 5B—on the application of any of the following—

(i)the adult;

(ii)an interested person for the adult;

(iii)a relevant service provider under chapter 5B providing disability services to the adult;

(iv)the chief executive (disability services);

(v)the public guardian;

(vi)if the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health;

(vii)if the adult is a forensic disability client—the director of forensic disability.

(2)However, the tribunal must review the appointment of a guardian for a restrictive practice matter under chapter 5B at least once before the term of the appointment ends.

s 29 sub 2003 No. 87s 7

amd 2008 No. 23s 20; 2009 No. 48s 216; 2011 No. 13s 192; 2014 No. 26s 240(1)

30Guardian or administrator to update advice about appropriateness and competence

(1)For a review of an appointment, the tribunal may require the guardian or administrator to advise the tribunal of anything of which the guardian or administrator—

(a)has not previously advised the tribunal; and

(b)would be required to advise the tribunal under section 16 if the tribunal were considering whether to appoint the guardian or administrator.

(2)The guardian or administrator must give the advice by statutory declaration or on oath or affirmation if required by the tribunal.

Maximum penalty—40 penalty units.

31Appointment review process

(1)The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate.

(2)At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.

(3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—

(a)continue its order making the appointment; or

(b)change its order making the appointment, including, for example, by—

(i)changing the terms of the appointment; or

(ii)removing an appointee; or

(iii)making a new appointment.

(4)However, the tribunal may make an order removing an appointee only if the tribunal considers—

(a)the appointee is no longer competent; or

(b)another person is more appropriate for appointment.

(5)An appointee is no longer competent if, for example—

(a)a relevant interest of the adult has not been, or is not being, adequately protected; or

(b)the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or

(c)the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or

(d)the appointee has otherwise contravened this Act.

(6)The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation.

s 31 amd 2003 No. 87s 8

32Tribunal to advise of change, revocation or ending of appointment

(1)This section applies if—

(a)the tribunal changes or revokes the appointment for an adult of a guardian or administrator; or

(b)the tribunal is given advice of the ending of an appointment under section 26 or 57.

(2)The registrar of the tribunal must take reasonable steps to advise the adult and any remaining guardians and administrators of the change, revocation or ending of the appointment.

s 32 sub 2003 No. 87s 9

32AAdditional requirements if change, revocation or ending of appointment and interest in land involved

(1)This section applies if—

(a)an administrator was appointed for a matter involving an interest in land; and

(b)either—

(i)the tribunal changes or revokes the appointment; or

(ii)the tribunal is given advice of the ending of the appointment under section 26 or 57.

(2)The registrar of the tribunal and any remaining administrator appointed for a matter involving an interest in land must, within 3 months of the change, revocation or ending of the appointment, advise the registrar of titles of the change, revocation or ending of the appointment.

(3)If the registrar of titles receives an advice, the registrar of titles must enter the advice in a file maintained for the purpose.

s 32A ins 2003 No. 87s 9

div 3 (s 32B) ins 2007 No. 37s 76

32BDirections to former guardian or administrator

(1)This section applies if an appointment as a guardian or administrator ends under section 26, 27 or 31.

(2)The tribunal may give directions to the former guardian or administrator that the tribunal considers necessary because of the ending of the appointment.

(3)The tribunal may give the directions to the former guardian or administrator—

(a)if the appointment ends under section 27—when the tribunal gives leave to withdraw as guardian or administrator for a matter; or

(b)if the appointment ends under section 31—when the tribunal revokes the order that made the appointment or makes an order removing the guardian or administrator; or

(c)in all cases—at any hearing of a proceeding relating to the adult for whom the person was formerly a guardian or administrator.

(4)However, the directions may relate only to a matter for which the former guardian or administrator was appointed immediately before the appointment ends.

div 3 (s 32B) ins 2007 No. 37s 76

33Power of guardian or administrator

(1)Unless the tribunal orders otherwise, a guardian is authorised to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised.

(2)Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised.

(3)For a guardian for a restrictive practice matter under chapter 5B, this section applies subject to sections 80ZE and 80ZF.

s 33 amd 2008 No. 23s 21

34Apply principles

(1)A guardian or administrator must apply the general principles.

Note—

See schedule 1 (Principles).

(2)In making a health care decision, a guardian must also apply the health care principle.

s 34 amd 2012 No. 37s 51 sch

35Act honestly and with reasonable diligence

A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect the adult’s interests.

Maximum penalty—200 penalty units.

36Act as required by terms of tribunal order

A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal.

Maximum penalty—200 penalty units.

37Avoid conflict transaction

(1)An administrator for an adult may enter into a conflict transaction only if the tribunal authorises the transaction, conflict transactions of that type or conflict transactions generally.

(2)A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between—

(a)the duty of an administrator towards the adult; and

(b)either—

(i)the interests of the administrator or a person in a close personal or business relationship with the administrator; or

(ii)another duty of the administrator.

Examples—

1A conflict transaction happens if an administrator buys the adult’s car.

2A conflict transaction does not happen if an administrator is acting under section 55 to maintain the adult’s dependants.

(3)However, a transaction is not a conflict transaction only because by the transaction the administrator in the administrator’s own right and on behalf of the adult—

(a)deals with an interest in property jointly held; or

(b)acquires a joint interest in property; or

(c)obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in paragraph (a) or (b).

(4)A conflict transaction between an administrator and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction.

(5)In this section—

joint interest includes an interest as a joint tenant or tenant in common.

38Multiple guardians or administrators are joint if not otherwise stated

Two or more guardians or administrators for a matter are appointed as joint guardians or joint administrators for the matter if the tribunal does not order otherwise.

39Act together with joint guardians or administrators

(1)Guardians or administrators for an adult who may exercise power for a matter jointly must exercise the power unanimously.

(2)If it is impracticable or impossible to exercise the power unanimously, 1 or more of the guardians or administrators, or another interested person for the adult, may apply for directions to the tribunal.

40Consult with adult’s other appointees or attorneys

(1)If there are 2 or more persons who are guardian, administrator or attorney for an adult, the persons must consult with one another on a regular basis to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.

(2)However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

41Disagreement about matter other than health matter

(1)If—

(a)a guardian, administrator or attorney for an adult disagrees with another person who is a guardian, administrator or attorney for the adult about the way power for a matter, other than a health matter, should be exercised; and

(b)the disagreement can not be resolved by mediation by the public guardian;

the public guardian or any person mentioned in paragraph (a) may apply for directions to the tribunal.

(2)In this section—

attorney means an attorney under an enduring document.

s 41 amd 2014 No. 26s 240(1)

42Disagreement about health matter

(1)If there is a disagreement about a health matter for an adult and the disagreement can not be resolved by mediation by the public guardian, the public guardian may exercise power for the health matter.

(2)If the public guardian exercises power under subsection (1), the public guardian must advise the tribunal in writing of the following details—

(a)the name of the adult;

(b)an outline of the disagreement;

(c)the name of each guardian, attorney or eligible statutory health attorney involved in the disagreement;

(d)the decision made by the public guardian.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

disagreement about a health matter means—

(a)a disagreement between a guardian or attorney for an adult and another person who is a guardian or attorney for the adult about the way power for the health matter should be exercised; or

(b)a disagreement between or among 2 or more eligible statutory health attorneys for an adult about which of them should be the adult’s statutory health attorney or how power for the health matter should be exercised.

eligible statutory health attorneys are persons eligible to be an adult’s statutory health attorney under the Powers of Attorney Act 1998, section 63(1)(a), (b) or (c).

s 42 amd 2014 No. 26s 240(1)

43Acting contrary to health care principle

(1)If a guardian or attorney for a health matter for an adult—

(a)refuses to make a decision about the health matter for the adult and the refusal is contrary to the health care principle; or

(b)makes a decision about the health matter for the adult and the decision is contrary to the health care principle;

the public guardian may exercise power for the health matter.

(2)If the public guardian exercises power under this section, the public guardian must advise the tribunal in writing of the following details—

(a)the name of the adult;

(b)the name of the guardian or attorney;

(c)a statement as to why the refusal or decision is contrary to the health care principle;

(d)the decision made by the public guardian.

(3)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

s 43 amd 2014 No. 26s 240(1)

44Right of guardian or administrator to information

(1)A guardian or administrator who has power for a matter for an adult has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.

(2)At the guardian’s or administrator’s request, a person who has custody or control of the information must give the information to the guardian or administrator, unless the person has a reasonable excuse.

(3)If a person who has custody or control of the information does not comply with a request by a guardian or administrator to give information, the tribunal may, on application by the guardian or administrator, order the person to give the information to the guardian or administrator.

(4)If the tribunal orders a person to give information to the guardian or administrator, the person must comply with the order, unless the person has a reasonable excuse.

(5)It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.

(6)Subject to subsection (5), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege, including a claim based on legal professional privilege.

s 44 amd 2003 No. 87s 10

45Execution of instrument etc.

(1)If necessary or convenient for the exercise of power given to a guardian or administrator (the appointee), the appointee may—

(a)execute an instrument with the appointee’s own signature or, if sealing is required or used, with the appointee’s own seal; and

(b)do any other thing in the appointee’s own name.

(2)An instrument executed by an appointee must be executed in a way showing the appointee executes it as guardian or administrator for the adult.

(3)An instrument executed, or thing done, in the way mentioned in this section is as effective as if executed or done by the adult—

(a)with the adult’s signature; or

(b)with the adult’s signature and seal; or

(c)in the adult’s name.

(4)This section applies subject to the Property Law Act 1974, section 46.

46Implied power to execute a deed

If a tribunal order gives a guardian or administrator power to do a thing, the guardian or administrator is given power to execute a deed to do the thing.

47Payment of expenses

A guardian or administrator for an adult is entitled to reimbursement from the adult of the reasonable expenses incurred in acting as guardian or administrator.

48Remuneration of professional administrators

(1)If an administrator for an adult carries on a business of or including administrations under this Act, the administrator is entitled to remuneration from the adult if the tribunal so orders.

(2)The remuneration may not be more than the amount the tribunal considers fair and reasonable, having regard to—

(a)the nature and complexity of the service; and

(b)the care, skill and specialised knowledge required to provide the service; and

(c)the responsibility displayed in providing the service; and

(d)the time within which the service was provided; and

(e)the place where, and the circumstances in which, the service was provided.

(3)Nothing in this section affects the right of the public trustee or a trustee company to remuneration or commission under another Act or the Corporations Act.

s 48 amd 2009 No. 49s 102

49Keep records

(1)An administrator for an adult must—

(a)keep records that are reasonable in the circumstances; and

(b)if required by the tribunal—produce records of dealings and transactions involving the adult’s property that are reasonable for inspection at the time the tribunal decides.

Maximum penalty—100 penalty units.

(2)An administrator must also, if required by the tribunal—

(a)keep the records the tribunal decides; and

(b)produce the records for inspection at the time and in the way the tribunal decides.

Maximum penalty—100 penalty units.

50Keep property separate

(1)An administrator for an adult must keep the administrator’s property separate from the adult’s property.

Maximum penalty—300 penalty units.

(2)Subsection (1) does not apply to property owned jointly by the adult and administrator.

(3)Subsection (1) does not affect another obligation imposed by law.

s 50 amd 2003 No. 87s 11

51Power to invest and continue investments

(1)This section applies if an administrator for an adult has power to invest.

(2)The administrator may invest only in authorised investments.

(3)However, if, when the administrator is appointed, the adult had investments that were not authorised investments, the administrator may continue the investments, including by taking up rights to issues of new shares, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding.

54Gifts

(1)Unless the tribunal orders otherwise, an administrator for an adult may give away the adult’s property only if—

(a)the gift is—

(i)a gift or donation of the nature the adult made when the adult had capacity; or

(ii)a gift or donation of the nature the adult might reasonably be expected to make; and

(b)the gift’s value is not more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.

(2)The administrator or a charity with which the administrator has a connection is not precluded from receiving a gift under subsection (1).

55Maintain adult’s dependants

(1)An administrator for an adult may provide from the adult’s estate for the needs of a dependant of the adult.

(2)However, unless the tribunal orders otherwise, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the adult’s financial circumstances.

56Protection if unaware of change of appointee’s power

(1)This section applies if—

(a)the tribunal gives power for a matter to a guardian or administrator; and

(b)the power is changed.

(2)The guardian or administrator who, without knowing of the change, purports to exercise power for the matter does not incur any liability, either to the adult or anyone else, because of the change.

(3)A transaction between—

(a)the guardian or administrator who purports to exercise power for the matter; and

(b)a person who does not know of the change;

is, in favour of the person, as valid as if the power had not been changed.

(4)In this section—

change, of power for a matter, includes—

(a)suspension of power for the matter; and

(b)removal as guardian or administrator for the matter.

know, of a change of a power, includes—

(a)know of the happening of an event that changes the power; and

Note—

For an example of an event, an appointment ends if a guardian or administrator for an adult becomes a paid carer, or health provider, for the adult—see section 26 (Automatic revocation).

(b)have reason to believe the change has happened.

s 56 amd 2010 No. 2s 96sch 1

57Advice of change of successive appointee

(1)This section applies if the tribunal appoints successive guardians or administrators so power is given to a particular appointee only when the power of a previous appointee ends.

(2)If the power of a previous appointee ends—

(a)the previous appointee must advise the next successive appointee of the ending of the previous appointment; and

(b)the next successive appointee must advise the tribunal in writing of the change as soon as practicable.

58Power to excuse failure

If a guardian or administrator is prosecuted in a court for a failure to comply with this chapter, the court may excuse the failure if it considers the guardian or administrator has acted honestly and reasonably and ought fairly to be excused for the failure.

59Compensation for failure to comply

(1)A guardian or administrator for an adult (an appointee) may be ordered by the tribunal or a court to compensate the adult (or, if the adult has died, the adult’s estate) for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power.

(2)Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure.

(3)If the adult or appointee has died, the application for compensation must be made to the tribunal or a court within 6 months after the death.

(4)If the adult and appointee have died, the application for compensation must be made to the tribunal or a court within 6 months after the first death.

(5)The tribunal or a court may extend the application time.

(6)If security has been given under section 19 and the tribunal or a court makes an order for compensation under this section, the tribunal or court may also order that the security be applied in satisfaction of the order for compensation.

(7)Compensation paid under a tribunal or court order must be taken into account in assessing damages in a later civil proceeding in relation to the appointee’s exercise of the power.

(8)In this section—

court means any court.

60Power to apply to court for compensation for loss of benefit in estate

(1)This section applies if a person’s benefit in an adult’s estate under the adult’s will, on intestacy, or by another disposition taking effect on the adult’s death, is lost because of a sale or other dealing with the adult’s property by an administrator of the adult.

(2)This section applies even if the person whose benefit is lost is the administrator by whose dealing the benefit is lost.

(3)The person, or the person’s personal representative, may apply to the court for compensation out of the adult’s estate.

Editor’s note—

Court means the Supreme Court—see schedule 4 (Dictionary).

(4)The court may order that the person, or the person’s estate, be compensated out of the adult’s estate as the court considers appropriate, but the compensation must not be more than the value of the lost benefit.

(5)The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 apply to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.

61Purpose to achieve balance for health care

This chapter seeks to strike a balance between—

(a)ensuring an adult is not deprived of necessary health care only because the adult has impaired capacity for a health matter or special health matter; and

(b)ensuring health care given to the adult is only—

(i)health care that is necessary and appropriate to maintain or promote the adult’s health or wellbeing; or

(ii)health care that is, in all the circumstances, in the adult’s best interests.

Note—

See also section 11 (Principles for adults with impaired capacity).

s 61 amd 2001 No. 95s 5; 2012 No. 37s 51 sch

62Division’s scope

This division deals with when health care, other than special health care, may be carried out without consent.

63Urgent health care

(1)Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a)the adult has impaired capacity for the health matter concerned; and

(b)either—

(i)the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii)the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998.

(2)However, the health care mentioned in subsection (1)(b)(i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.

(3)However, the health care mentioned in subsection (1)(b)(ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a)the adult has minimal or no understanding of 1 or both of the following—

(i)what the health care involves;

(ii)why the health care is required; and

(b)the health care is likely to cause the adult—

(i)no distress; or

(ii)temporary distress that is outweighed by the benefit to the adult of the health care.

(4)The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

(5)In this section—

health care, of an adult, does not include withholding or withdrawal of a life-sustaining measure for the adult.

s 63 amd 2001 No. 95s 6

63ALife-sustaining measure in an acute emergency

(1)A life-sustaining measure may be withheld or withdrawn for an adult without consent if the adult’s health provider reasonably considers—

(a)the adult has impaired capacity for the health matter concerned; and

(b)the commencement or continuation of the measure for the adult would be inconsistent with good medical practice; and

(c)consistent with good medical practice, the decision to withhold or withdraw the measure must be taken immediately.

(2)However, the measure may not be withheld or withdrawn without consent if the health provider knows the adult objects to the withholding or withdrawal.

Editor’s note—

Object is defined in schedule 4 (Dictionary).

(3)The health provider must certify in the adult’s clinical records as to the various things enabling the measure to be withheld or withdrawn because of this section.

(4)For this section, artificial nutrition and hydration is not a life-sustaining measure.

s 63A ins 2001 No. 95s 7

64Minor, uncontroversial health care

(1)Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider—

(a)reasonably considers the adult has impaired capacity for the health matter concerned; and

(b)reasonably considers the health care is—

(i)necessary to promote the adult’s health and wellbeing; and

(ii)of the type that will best promote the adult’s health and wellbeing; and

(iii)minor and uncontroversial; and

(c)does not know, and can not reasonably be expected to know, of—

(i)a decision about the health care made by a person who is able to make the decision under this Act or the Powers of Attorney Act 1998; or

(ii)any dispute among persons the health provider reasonably considers have a sufficient and continuing interest in the adult about—

(A)the carrying out of the health care; or

(B)the capacity of the adult for the health matter.

Examples of minor and uncontroversial health care mentioned in paragraph (b)(iii)—

•the administration of an antibiotic requiring a prescription

•the administration of a tetanus injection

(2)However, the health care may not be carried out without consent if the health provider knows, or could reasonably be expected to know, the adult objects to the health care.

(3)The health provider must certify in the adult’s clinical records as to the various things enabling the health care to be carried out because of this section.

s 64 amd 2001 No. 95s 8

65Adult with impaired capacity—order of priority in dealing with special health matter

(1)If an adult has impaired capacity for a special health matter, the matter may only be dealt with under the first of the following subsections to apply.

(2)If the adult has made an advance health directive giving a direction about the matter, the matter may only be dealt with under the direction.

(3)If subsection (2) does not apply and an entity other than the tribunal is authorised to deal with the matter, the matter may only be dealt with by the entity.

(4)If subsections (2) and (3) do not apply and the tribunal has made an order about the matter, the matter may only be dealt with under the order.

Note—

However, the tribunal may not consent to electroconvulsive therapy or psychosurgery—see section 68(1).

s 65 amd 2010 No. 2s 96sch 1; 2012 No. 37s 51 sch

66Adult with impaired capacity—order of priority in dealing with health matter

(1)If an adult has impaired capacity for a health matter, the matter may only be dealt with under the first of the following subsections to apply.

(2)If the adult has made an advance health directive giving a direction about the matter, the matter may only be dealt with under the direction.

(3)If subsection (2) does not apply and the tribunal has appointed 1 or more guardians for the matter or made an order about the matter, the matter may only be dealt with by the guardian or guardians or under the order.

Note—

If, when appointing the guardian or guardians, the tribunal was unaware of the existence of an enduring document giving power for the matter to an attorney, see section 23 (Appointment without knowledge of enduring document), particularly subsection (2).

(4)If subsections (2) and (3) do not apply and the adult has made 1 or more enduring documents appointing 1 or more attorneys for the matter, the matter may only be dealt with by the attorney or attorneys for the matter appointed by the most recent enduring document.

(5)If subsections (2) to (4) do not apply, the matter may only be dealt with by the statutory health attorney.

(6)This section does not apply to a health matter relating to health care that may be carried out without consent under division 1.

s 66 amd 2001 No. 95s 9; 2010 No. 2s 96sch 1

66AWhen consent to withholding or withdrawal of life-sustaining measure may operate

(1)This section applies if a matter concerning the withholding or withdrawal of a life-sustaining measure is to be dealt with under section 66(3), (4) or (5).

Note—

If a matter concerning the withholding or withdrawal of a life-sustaining measure is to be dealt with under section 66(2), see the Powers of Attorney Act 1998, section 36(2) (Operation of advance health directive) as to when a direction to withhold or withdraw a life-sustaining measure can operate.

(2)A consent to the withholding or withdrawal of a life-sustaining measure for the adult can not operate unless the adult’s health provider reasonably considers the commencement or continuation of the measure for the adult would be inconsistent with good medical practice.

s 66A ins 2001 No. 95s 10

amd 2010 No. 2s 96sch 1

66BCertificate in clinical records if life-sustaining measure withheld or withdrawn

(1)This section applies if a life-sustaining measure is withheld or withdrawn for an adult other than because of section 63A.

(2)The adult’s health provider must certify in the adult’s medical records as to the various things enabling the measure to be withheld or withdrawn because of—

(a)for a withholding or withdrawal under a direction in the adult’s advance health directive—section 66(2) and the Powers of Attorney Act 1998, section 36; or

(b)for a withholding or withdrawal by consent—section 66(3), (4) or (5) and section 66A.

s 66B ins 2001 No. 95s 10

67Effect of adult’s objection to health care

(1)Generally, the exercise of power for a health matter or special health matter is ineffective to give consent to health care of an adult if the health provider knows, or ought reasonably to know, the adult objects to the health care.

Note—

Object is defined in schedule 4 (Dictionary). Note also the Powers of Attorney Act 1998, section 35(2)(a) (Advance health directives) provides that ‘by an advance health directive [a] principal may give a direction—

(a)consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided’.

(2)However, the exercise of power for a health matter or special health matter is effective to give consent to the health care despite an objection by the adult to the health care if—

(a)the adult has minimal or no understanding of 1 of the following—

(i)what the health care involves;

(ii)why the health care is required; and

(b)the health care is likely to cause the adult—

(i)no distress; or

(ii)temporary distress that is outweighed by the benefit to the adult of the proposed health care.

(3)Subsection (2) does not apply to the following health care—

(a)removal of tissue for donation;

(b)participation in special medical research or experimental health care or approved clinical research.

s 67 amd 2001 No. 95s 11; 2010 No. 2s 96sch 1

68Special health care

(1)The tribunal may, by order, consent to special health care, other than electroconvulsive therapy or psychosurgery, for an adult.

(2)To the extent another entity is authorised by an Act to make a decision for an adult about prescribed special health care, the tribunal does not have power to make the decision.

Note—

For the application of the general principles and the health care principle to the tribunal and to an entity authorised by an Act to make a decision for an adult about prescribed special health care, see section 11 (Principles for adults with impaired capacity).

s 68 amd 2003 No. 87s 13; 2010 No. 2s 96sch 1

69Donation of tissue

(1)The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to removal of tissue from the adult for donation to another person only if the tribunal is satisfied—

(a)the risk to the adult is small; and

(b)the risk of failure of the donated tissue is low; and

(c)the life of the proposed recipient would be in danger without the donation; and

(d)no other compatible donor is reasonably available; and

(e)there is, or has been, a close personal relationship between the adult and proposed recipient.

(2)The tribunal may not consent if the adult objects to the removal of tissue for donation.

Note—

Section 67, which effectively enables an adult’s objection to be overridden in some cases, does not apply.

(3)If the tribunal consents to removal of tissue for donation, the tribunal’s order must specify the proposed recipient.

s 69 amd 2010 No. 2s 96sch 1

70Sterilisation

(1)The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to sterilisation of the adult only if the tribunal is satisfied—

(a)one of the following applies—

(i)the sterilisation is medically necessary;

(ii)the adult is, or is likely to be, sexually active and there is no method of contraception that could reasonably be expected to be successfully applied;

(iii)if the adult is female—the adult has problems with menstruation and cessation of menstruation by sterilisation is the only practicable way of overcoming the problems; and

(b)the sterilisation can not reasonably be postponed; and

(c)the adult is unlikely, in the foreseeable future, to have capacity for decisions about sterilisation.

(2)Sterilisation is not medically necessary if the sterilisation is—

(a)for eugenic reasons; or

(b)to remove the risk of pregnancy resulting from sexual abuse.

(3)Also, in deciding whether to consent for the adult to a sterilisation procedure, the tribunal must take into account—

(a)alternative forms of health care, including other sterilisation procedures, available or likely to become available in the foreseeable future; and

(b)the nature and extent of short-term, or long-term, significant risks associated with the proposed procedure and available alternative forms of health care, including other sterilisation procedures.

(4)An adult’s sterilisation, to which the tribunal has consented for the adult, is not unlawful.

71Termination of pregnancy

(1)The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to termination of the adult’s pregnancy only if the tribunal is satisfied the termination is necessary to preserve the adult from serious danger to her life or physical or mental health.

(2)Termination of an adult’s pregnancy, to which the tribunal has consented for the adult, is not unlawful.

72Special medical research or experimental health care

(1)The tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to the adult’s participation in special medical research or experimental health care relating to a condition the adult has or to which the adult has a significant risk of being exposed only if the tribunal is satisfied about the following matters—

(a)the special medical research or experimental health care is approved by an ethics committee;

(b)the risk and inconvenience to the adult and the adult’s quality of life is small;

(c)the special medical research or experimental health care may result in significant benefit to the adult;

(d)the potential benefit can not be achieved in another way.

Note—

Special medical research or experimental health care does not include—

(a)psychological research; or

(b)approved clinical research—see schedule 2, section 12(2).

(2)The tribunal may consent, for an adult with impaired capacity for the matter, to the adult’s participation in special medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the adult has or has had only if the tribunal is satisfied about the following matters—

(a)the special medical research or experimental health care is approved by an ethics committee;

(b)the risk and inconvenience to the adult and the adult’s quality of life is small;

(c)the special medical research or experimental health care may result in significant benefit to the adult or other persons with the condition;

(d)the special medical research or experimental health care can not reasonably be carried out without a person who has or has had the condition taking part;

(e)the special medical research or experimental health care will not unduly interfere with the adult’s privacy.

(3)The tribunal may not consent to the adult’s participation in special medical research or experimental health care if—

(a)the adult objects to the special medical research or experimental health care; or

Note—

Section 67, which effectively enables an adult’s objection to be overridden in some cases, does not apply.

(b)the adult, in an enduring document, indicated unwillingness to participate in the special medical research or experimental health care.

s 72 amd 2010 No. 2s 96sch 1

73Prescribed special health care

(1)Subject to section 68(2), the tribunal may consent, for an adult with impaired capacity for the special health matter concerned, to the adult having prescribed special health care.

(2)The tribunal may consent only if it is satisfied of the matters prescribed under a regulation.

74Subsequent special health care for adult

(1)If the tribunal consents to special health care for an adult, the tribunal may appoint 1 or more persons who are eligible for appointment as a guardian or guardians for the adult and give the guardian or guardians power to consent for the adult to—

(a)continuation of the special health care; or

(b)the carrying out on the adult of similar special health care.

(2)The appointment order may include a declaration, order, direction, recommendation, or advice about how the power given is to be used.

(3)The appointment order may be changed by the tribunal on its own initiative or on the application of an interested person.

(4)In deciding whether to consent, a guardian must apply the general principles and the health care principle.

75Use of force

A health provider and a person acting under the health provider’s direction or supervision may use the minimum force necessary and reasonable to carry out health care authorised under this Act.

76Health providers to give information

(1)The purpose of this section is to ensure—

(a)a guardian or attorney who has power for a health matter for an adult has all the information necessary to make an informed exercise of the power; and

(b)the tribunal, in deciding whether to consent to special health care for an adult with impaired capacity for a special health matter, has all the information necessary to make an informed decision.

(2)At the guardian’s or attorney’s request, a health provider who is treating, or has treated, the adult must give information to the guardian or attorney unless the health provider has a reasonable excuse.

(3)At the tribunal’s request, a health provider who is treating, or has treated, the adult must give information to the tribunal unless the health provider has a reasonable excuse.

(4)The information to be given by a health provider who is treating, or has treated, the adult includes information about—

(a)the nature of the adult’s condition at the time of the treatment; and

(b)the particular form of health care being, or that was, carried out; and

(c)the reasons why the particular form of health care is being, or was, carried out; and

(d)the alternative forms of health care available for the condition at the time of the treatment; and

(e)the general nature and effect of each form of health care at the time of the treatment; and

(f)the nature and extent of short-term, or long-term, significant risks associated with each form of health care; and

(g)for a health provider who is treating the adult—the reasons why it is proposed a particular form of health care should be carried out.

(5)If a health provider does not comply with a request by a guardian or attorney to give information, the tribunal may, on application by the guardian or attorney, order the health provider to give the information to the guardian or attorney.

(6)If the tribunal orders a health provider to give information, the health provider must comply with the order, unless the health provider has a reasonable excuse.

(7)It is a reasonable excuse for a health provider to fail to give information because giving the information might tend to incriminate the health provider.

(8)Subject to subsection (7), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege.

(9)This section does not limit—

(a)a guardian’s right to information under section 44; or

(b)the tribunal’s right to information under section 130; or

(c)an attorney’s right to information under the Powers of Attorney Act 1998, section 81.

(10)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

s 76 amd 2003 No. 87s 14

77Protection of health provider

(1)To the extent a health provider giving health care to an adult complies with a purported exercise of power for a health matter or special health matter by a person who represented to the health provider that the person had the right to exercise the power, the health provider is taken to have the adult’s consent to the exercise of power.

(2)Subsection (1) does not apply if the health provider knew, or could reasonably be expected to have known, the person did not have the right to exercise the power.

78Offence to exercise power for adult if no right to do so

It is an offence for a person who knows he or she has no right to exercise power for a health matter or special health matter for an adult, or who is recklessly indifferent about whether he or she has a right to exercise power for a health matter or special health matter for the adult, to—

(a)purport to exercise power for a health matter or special health matter for the adult; or

(b)represent to a health provider for the adult that the person has a right to exercise power for a health matter or special health matter for the adult.

Maximum penalty—

(a)for special health matter—300 penalty units; or

(b)for health matter—200 penalty units.

79Offence to carry out health care unless authorised

(1)It is an offence for a person to carry out health care of an adult with impaired capacity for the health matter concerned unless—

(a)this or another Act provides the health care may be carried out without consent; or

Note—

See sections 63 (Urgent health care), 63A (Life-sustaining measure in an acute emergency) and 64 (Minor, uncontroversial health care).

(b)consent to the health care is given under this or another Act; or

(c)the health care is authorised by an order of the court made in its parens patriae jurisdiction.

Note—

Court means the Supreme Court—see schedule 4 (Dictionary). The parens patriae jurisdiction is based on the need to protect those who lack the capacity to protect themselves. It allows the Supreme Court to appoint decision-makers for people who, because of mental illness, intellectual disability, illness, accident or old age, are unable to adequately safeguard their own interests.

Maximum penalty—

(a)if special health care is carried out—300 penalty units; or

(b)if other health care is carried out—200 penalty units.

(2)This section has effect despite the Criminal Code, section 282.

s 79 amd 2001 No. 95s 12; 2010 No. 2s 96sch 1; 2012 No. 37s 51 sch

80No less protection than if adult gave health consent

A person carrying out health care of an adult that is authorised by this or another Act is not liable for an act or omission to any greater extent than if the act or omission happened with the adult’s consent and the adult had capacity to consent.

ch hdg ins 2003 No. 87s 15

pt hdg ins 2003 No. 87s 15

80ADefinitions for ch 5A

In this chapter—

active party see section 80K.

alternative forms of health care includes menstrual management strategies and alternative forms of sterilisation.

chapter 5A application means an application under this chapter for consent to the sterilisation of a child with an impairment.

Note—

Child, if age rather than descendancy is relevant, means an individual who is under 18—Acts Interpretation Act 1954, schedule 1 (Meaning of commonly used words and expressions).

def chapter 5A application amd 2010 No. 2s 96sch 1; 2013 No. 39s 110sch 3pt 1

child representative see section 80L.

confidentiality order ...

def confidentiality order om 2008 No. 54s 5

health care, of a child, is care or treatment of, or a service or a procedure for, the child—

(a)to diagnose, maintain, or treat the child’s physical or mental condition; and

(b)carried out by, or under the direction or supervision of, a health provider.

impairment means a cognitive, intellectual, neurological or psychiatric impairment.

sterilisation see section 80B.

s 80A ins 2003 No. 87s 15

80BSterilisation

(1)

Sterilisation is health care of a child who is, or is reasonably likely to be, fertile that is intended, or reasonably likely, to make the child, or to ensure the child is, permanently infertile.

Examples of sterilisation—

endometrial oblation, hysterectomy, tubal ligation and vasectomy

(2)However, sterilisation does not include health care without which an organic malfunction or disease of the child is likely to cause serious or irreversible damage to the child’s physical health.

Example—

If the child has cancer affecting the reproductive system and, without the health care, the cancer is likely to cause serious or irreversible damage to the child’s physical health, the health care is not sterilisation.

s 80B ins 2003 No. 87s 15

pt 2 (ss 80C–80D) ins 2003 No. 87s 15

80CWhen tribunal may consent and effect of consent

(1)On an application made under part 3, the tribunal may, by order, consent to the sterilisation of a child with an impairment.

(2)The tribunal may consent to the sterilisation only if the tribunal is satisfied the sterilisation is in the best interests of the child.

(3)A child’s sterilisation, to which the tribunal has consented, is not unlawful.

pt 2 (ss 80C–80D) ins 2003 No. 87s 15

80DWhether sterilisation is in child’s best interests

(1)The sterilisation of a child with an impairment is in the child’s best interests only if—

(a)one or more of the following applies—

(i)the sterilisation is medically necessary;

(ii)the child is, or is likely to be, sexually active and there is no method of contraception that could reasonably be expected to be successfully applied;

(iii)if the child is female—the child has problems with menstruation and cessation of menstruation by sterilisation is the only practicable way of overcoming the problems; and

(b)the child’s impairment results in a substantial reduction of the child’s capacity for communication, social interaction and learning; and

(c)the child’s impairment is, or is likely to be, permanent and there is a reasonable likelihood, when the child turns 18, the child will have impaired capacity for consenting to sterilisation; and

(d)the sterilisation can not reasonably be postponed; and

(e)the sterilisation is otherwise in the child’s best interests.

(2)Sterilisation is not in the child’s best interests if the sterilisation is—

(a)for eugenic reasons; or

(b)to remove the risk of pregnancy resulting from sexual abuse.

(3)In deciding whether the sterilisation is in the child’s best interests, the tribunal must—

(a)ensure the child is treated in a way that respects the child’s dignity and privacy; and

(b)do each of the following—

(i)in a way that has regard to the child’s age and impairment, seek the child’s views and wishes and take them into account;

(ii)to the greatest extent practicable, seek the views of each of the following persons and take them into account—

(A)any parent or guardian of the child;

(B)if a parent or guardian is not the child’s primary carer, the child’s primary carer;

(C)the child representative for the child;

(iii)take into account the information given by any health provider who is treating, or has treated, the child; and

(c)take into account—

(i)the wellbeing of the child; and

(ii)alternative forms of health care that have proven to be inadequate in relation to the child; and

(iii)alternative forms of health care that are available, or likely to become available, in the foreseeable future; and

(iv)the nature and extent of short-term, or long-term, significant risks associated with the proposed sterilisation and available alternative forms of health care.

(4)The child’s views and wishes may be expressed in the following ways—

(a)orally;

(b)in writing;

(c)in another way including, for example, by conduct.

pt 2 (ss 80C–80D) ins 2003 No. 87s 15

pt hdg ins 2003 No. 87s 15

div hdg ins 2003 No. 87s 15

80ERelationship with ch 7

(1)The following provisions of chapter 7 apply in relation to a chapter 5A application and a proceeding under this part—

•part 1 (other than sections 102 and 106)

•section 122

•part 3 (other than section 125)

•part 4 (other than sections 128, 129, 134, 138 and 138A)

•part 6

•part 8 (other than section 163).

(2)The remaining provisions of chapter 7 do not apply in relation to a chapter 5A application or a proceeding under this part.

(3)However, this part contains additional provisions that apply in relation to a chapter 5A application and a proceeding under this part.

s 80E ins 2003 No. 87s 15

amd 2008 No. 54s 6; 2009 No. 24s 1441

80FMembers constituting tribunal

(1)At a hearing of a chapter 5A application, the tribunal must be constituted by 3 members.

(2)To the extent practicable, the tribunal must include the following members who have, in the president’s opinion, knowledge and experience of persons with impaired capacity for matters—

(a)either—

(i)a senior member who is an Australian lawyer; or

(ii)an ordinary member who is an Australian lawyer;

(b)a member who is a paediatrician;

(c)another member.

(3)In this section—

paediatrician means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession as a specialist registrant in the specialty of paediatrics and child health, other than as a student.

s 80F ins 2003 No. 87s 15

amd 2009 No. 24s 1442; 2010 No. 14s 124 sch

div hdg ins 2003 No. 87s 15

80HWho may apply

(1)An application may be made to the tribunal for consent to the sterilisation of a child with an impairment.

(2)The application may only be made by—

(a)a parent or guardian of the child; or

(b)another interested person.

Note—

See schedule 4 (Dictionary), definition interested person.

s 80H ins 2003 No. 87s 15

amd 2012 No. 37s 51 sch

80IHow to apply

(1)Unless the tribunal directs otherwise, a chapter 5A application must—

(a)be written; and

(b)be signed by the applicant; and

(c)be filed with the tribunal; and

(d)comply with subsections (2) to (5).

(2)The application must include all of the following information—

(a)the reason for the application, including information about why the proposed sterilisation would, in the applicant’s view, be in the child’s best interests;

Note—

See section 80C (When tribunal may consent and effect of consent).

(b)a detailed description of—

(i)the child’s impairment; and

(ii)how the child communicates; and

(iii)the impact of the impairment on the child’s capacity for communication, social interaction and learning;

(c)whether the child has been informed of the application;

(d)whether the child has indicated the child does not wish to have the proposed sterilisation;

Note—

See section 80D(4) (Whether sterilisation is in child’s best interests).

(e)information about the help, if any, the child might need at the hearing of the application;

(f)if urgent action is required—an explanation of the urgency;

(g)any other information in relation to the wellbeing of the child the applicant considers relevant;

(h)to the best of the applicant’s knowledge, information about the following persons—

(i)the applicant;

(ii)the child;

(iii)any parent or guardian of the child;

(iv)if a parent or guardian of the child is not the primary carer of the child, the primary carer of the child;

(v)a doctor who is treating the child.

(3)The information required under subsection (2)(h) is to enable the tribunal to give notice of the hearing and must consist of—

(a)each person’s name; and

(b)either—

(i)details the applicant knows of the person’s address and telephone and facsimile number; or

(ii)if the applicant does not know the details—a way known to the applicant of contacting the person.

(4)The application must also include a report by a doctor who is treating the child.

(5)The report must state in detail information about—

(a)the child’s impairment and the impact of the impairment on the child’s capacity for communication, social interaction and learning; and

(b)the proposed sterilisation, including information about—

(i)the reason for the proposed sterilisation, including information about why the proposed sterilisation would, in the doctor’s view, be in the child’s best interests; and

(ii)whether the child is, or is reasonably likely to be, fertile; and

(iii)the type of proposed sterilisation and a description of the procedure; and

(iv)when and where the proposed sterilisation would be carried out; and

(v)why the sterilisation can not be reasonably postponed; and

(vi)any alternative forms of health care that have proven to be inadequate in relation to the child; and

(vii)alternative forms of health care that are available, or likely to become available, in the foreseeable future; and

(viii)any risks to the child if the proposed sterilisation is carried out; and

(ix)any risks to the child if the proposed sterilisation is not carried out; and

(x)the likely long-term social and psychological effects of the sterilisation on the child; and

(xi)whether the child’s impairment is, or is likely to be, permanent.

s 80I ins 2003 No. 87s 15

amd 2012 No. 37s 51 sch

80JTribunal advises persons concerned of hearing

(1)At least 7 days before the hearing of a chapter 5A application, the tribunal must give notice of the hearing to the child and, as far as practicable, to—

(a)the applicant; and

(b)any parent or guardian of the child; and

(c)if a parent or guardian of the child is not the primary carer of the child, the primary carer; and

(d)a doctor who is treating the child; and

(e)the child representative for the child; and

(f)anyone else the tribunal considers should be notified.

(2)However, the tribunal is not required to give notice to the child if the tribunal considers that notice to the child might be prejudicial to the physical or mental health or wellbeing of the child.

(3)Also, if the president or presiding member of the tribunal is satisfied urgent action is required, the president or presiding member may, by direction under the QCAT Act, direct that the time stated in subsection (1) be reduced.

s 80J ins 2003 No. 87s 15

amd 2009 No. 24s 1443

80KWho is an active party

Each of the following persons is an active party for a proceeding in relation to a chapter 5A application—

(a)the child;

(b)the applicant;

(c)any parent or guardian of the child;

(d)if a parent or guardian of the child is not the primary carer of the child, the primary carer of the child;

(e)a doctor who is treating the child;

(f)the child representative for the child;

(g)a person joined as a party to the proceeding by the tribunal.

s 80K ins 2003 No. 87s 15

80LChild representative must be appointed

(1)As soon as possible after a chapter 5A application is made, the tribunal must appoint a person to separately represent the child before the tribunal (a child representative).

(2)A person is eligible for appointment as a child representative only if the person is a lawyer who has experience in dealing with children with an impairment.

Note—

Lawyer means a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State—Acts Interpretation Act 1954, schedule 1 (Meaning of commonly used words and expressions).

Editor’s note—

The definition lawyer in the Acts Interpretation Act 1954 was replaced by the Justice and Other Legislation Amendment Act 2013, section 6 with the following—
lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007.

(3)The child representative must—

(a)act in the child’s best interests; and

(b)have regard to any expressed views or wishes of the child; and

(c)to the greatest extent practicable, present the child’s views and wishes to the tribunal.

(4)To ensure the child representative has all the information necessary to act in the child’s best interests, the tribunal may order a person, for example, a parent or a doctor who is treating, or has treated, the child, to give the child representative information about the child.

(5)If the tribunal orders a person to give information under subsection (4), the person must comply with the order unless the person has a reasonable excuse.

(6)It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.

(7)Subject to subsection (6), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege, including a claim based on legal professional privilege.

s 80L ins 2003 No. 87s 15

amd 2012 No. 37s 51 sch; 2013 No. 39s 110sch 3pt 1

div 3 (s 80M) ins 2003 No. 87s 15

80MAdvice, directions and recommendations

(1)Once a chapter 5A application is made to the tribunal, the tribunal may—

(a)give the advice or directions about the application it considers appropriate; or

(b)make the recommendations it considers appropriate about action an active party should take.

(2)If the tribunal gives advice or a direction or makes a recommendation, it may also—

(a)continue with the application; or

(b)adjourn the application; or

(c)dismiss the application.

(3)The tribunal may also give leave for an active party to apply to the tribunal for directions about implementing the recommendation.

div 3 (s 80M) ins 2003 No. 87s 15

div 5 (s 80O) ins 2003 No. 87s 15

80OAppellant

(1)An active party for a proceeding under this part may, by notice, appeal to the court against a tribunal decision in relation to the proceeding.

(2)The court’s leave is required for an appeal other than an appeal on a question of law only.

(3)In this section—

tribunal decision includes a declaration, order or direction of the tribunal.

div 5 (s 80O) ins 2003 No. 87s 15

pt 4 (ss 80P–80Q) ins 2003 No. 87s 15

80PHealth providers to give information

(1)The purpose of this section is to ensure the tribunal, in deciding whether to consent to sterilisation of a child, has all the information necessary to make an informed decision.

(2)The tribunal may order a health provider who is treating, or has treated, the child to give information to the tribunal, including—

(a)the type of information mentioned in section 80I(5); and

(b)any other relevant information.

(3)The health provider must comply with the order, unless the health provider has a reasonable excuse.

(4)It is a reasonable excuse for a health provider to fail to give information because giving the information might tend to incriminate the health provider.

(5)Subject to subsection (4), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege.

pt 4 (ss 80P–80Q) ins 2003 No. 87s 15

80QNo less protection than if adult gave consent

A person carrying out sterilisation of a child to which the tribunal has consented under this part is not liable for an act or omission to any greater extent than if the child were an adult with capacity to consent and the act or omission happened with the adult’s consent.

pt 4 (ss 80P–80Q) ins 2003 No. 87s 15

ch hdg ins 2008 No. 23s 22

pt hdg ins 2008 No. 23s 22

80RApplication of ch 5B

This chapter applies to an adult with an intellectual or cognitive disability who receives disability services from a funded service provider within the meaning of the DSA (a relevant service provider).

s 80R ins 2008 No. 23s 22

80SPurpose of ch 5B

(1)The purpose of this chapter is to enable the tribunal to—

(a)give approval for a relevant service provider to contain or seclude an adult, and to review the approval; and

(b)if the tribunal has given, or proposes to give, an approval mentioned in paragraph (a) in relation to an adult—give approval for a relevant service provider to use restrictive practices other than containment or seclusion in relation to the adult, and to review the approval; and

(c)appoint a guardian for a restrictive practice matter for an adult, and to review the appointment.

(2)Also, this chapter—

(a)enables the public guardian to approve the use of particular restrictive practices on a short-term basis; and

(b)provides criteria for guardians for a restrictive practice matter and informal decision-makers for deciding whether to consent to the use of particular restrictive practices.

s 80S ins 2008 No. 23s 22

amd 2014 No. 26s 240(1)

80TEffect of ch 5B on substitute decision-maker’s ability to make health care decision

This chapter does not limit the extent to which a substitute decision-maker is authorised under a provision of this Act or the Powers of Attorney Act 1998 to make a health care decision in relation to an adult to whom this chapter does not apply.

s 80T ins 2008 No. 23s 22

80UDefinitions for ch 5B

In this chapter—

active party see section 80ZQ.

adult with an intellectual or cognitive disability see the DSA, section 144.

def adult with an intellectual or cognitive disability amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

assessment, of an adult, see the DSA, section 144.

def assessment amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

authorised psychiatrist see the Mental Health Act 2000, schedule.

def authorised psychiatrist amd 2011 No. 13s 193(2)

chemical restraint see the DSA, section 144.

def chemical restraint amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

chemical restraint (fixed dose) see the DSA, section 144.

def chemical restraint (fixed dose) amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

community access services see the DSA, section 144.

def community access services amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

contain see the DSA, section 144.

def contain amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

containment or seclusion approval—

(a)means approval given by the tribunal under part 2, division 1 for a relevant service provider to contain or seclude an adult; and

(b)includes an approval given under that part for a relevant service provider to use a restrictive practice other than containment or seclusion in relation to the adult.

director of forensic disability means the director of forensic disability under the Forensic Disability Act 2011.

def director of forensic disability ins 2011 No. 13s 193(1)

disability services see the DSA, section 12.

DSA means the Disability Services Act 2006.

forensic disability client means a forensic disability client under the Forensic Disability Act 2011.

def forensic disability client ins 2011 No. 13s 193(1)

forensic disability service means the forensic disability service under the Forensic Disability Act 2011.

def forensic disability service ins 2011 No. 13s 193(1)

harm see the DSA, section 144.

def harm amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

informal decision-maker, for an adult, see the DSA, section 144.

def informal decision maker amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

least restrictive see the DSA, section 144.

def least restrictive amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

mechanical restraint ...

def mechanical restraint om 2012 No. 37s 51 sch

physical restraint ...

def physical restraint om 2012 No. 37s 51 sch

positive behaviour support plan see the DSA, section 144.

def positive behaviour support plan amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

relevant service provider see section 80R.

respite/community access plan see the DSA, section 144.

def respite/community access plan amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

respite services see the DSA, section 144.

def respite services amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

restrictive practice see the DSA, section 144.

def restrictive practice amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

restrictive practice (general) matter, for an adult, means a matter relating to the use of a restrictive practice in relation to the adult by a relevant service provider, other than—

(a)containment or seclusion; or

(b)any restrictive practice used in the course of providing respite services or community access services to the adult.

restrictive practice matter means—

(a)a restrictive practice (general) matter; or

(b)a restrictive practice (respite) matter.

restrictive practice (respite) matter, for an adult, means a matter relating to the use of a restrictive practice in relation to the adult by a relevant service provider in the course of providing respite services or community access services to the adult.

seclude see the DSA, section 144.

def seclude amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

senior practitioner means a senior practitioner under the Forensic Disability Act 2011.

def senior practitioner ins 2011 No. 13s 193(1)

short term plan ...

def short term plan om 2014 No. 5s 40

s 80U ins 2008 No. 23s 22

pt hdg ins 2008 No. 23s 22

div hdg ins 2008 No. 23s 22

80VWhen tribunal may approve use of containment or seclusion

(1)The tribunal may, by order, give approval for a relevant service provider to contain or seclude an adult, subject to the conditions stated in the order.

(2)The tribunal may give the approval only if the tribunal is satisfied—

(a)the adult has impaired capacity for making decisions about the use of restrictive practices in relation to the adult; and

(b)there is a need for the relevant service provider to contain or seclude the adult because—

(i)the adult’s behaviour has previously resulted in harm to the adult or others; and

(ii)there is a reasonable likelihood that, if the approval is not given, the adult’s behaviour will cause harm to the adult or others; and

(c)a positive behaviour support plan has been developed for the adult that provides for the containment or seclusion; and

(d)containing or secluding the adult in compliance with the approval is the least restrictive way of ensuring the safety of the adult or others; and

(e)the adult has been adequately assessed by appropriately qualified persons, within the meaning of the DSA, section 144, in the development of the positive behaviour support plan for the adult; and

(f)if the positive behaviour support plan for the adult is implemented—

(i)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(ii)the adult’s quality of life will be improved in the long term; and

(g)the observations and monitoring provided for under the positive behaviour support plan for the adult are appropriate.

(3)The tribunal may make the order on its own initiative or on an application under section 80ZO.

s 80V ins 2008 No. 23s 22

amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

80WMatters tribunal to consider

(1)In deciding whether to give a containment or seclusion approval, the tribunal must consider each of the following—

(a)the suitability of the environment in which the adult will be contained or secluded;

(b)if the tribunal is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—

(i)the terms of the order; and

(ii)the views of the authorised psychiatrist responsible for treatment of the adult under that Act about the containment or seclusion of the adult;

(c)if the tribunal is aware the adult is a forensic disability client—

(i)the terms of the forensic order under the Mental Health Act 2000 for the adult’s detention in the forensic disability service; and

(ii)the views of a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011 about the containment or seclusion of the adult;

(d)any strategies, including restrictive practices, previously used to manage or reduce the behaviour of the adult that causes harm to the adult or others, and the effectiveness of those strategies;

(e)the type of disability services provided to the adult.

(2)Also, in deciding whether to give the containment or seclusion approval, the tribunal may consider the following—

(a)the findings, theories and recommendations of each person who assessed the adult;

(b)if there was a difference of opinion between the persons who assessed the adult—how this difference was taken into account in developing the positive behaviour support plan for the adult;

(c)the views of each person consulted during the assessment of the adult and the development of the positive behaviour support plan about the use of containment or seclusion;

(d)the way in which the relevant service provider will support and supervise staff involved in implementing the positive behaviour support plan.

s 80W ins 2008 No. 23s 22

amd 2011 No. 13s 194; 2012 No. 37s 51 sch; 2014 No. 5s 41

80XWhen tribunal may approve use of other restrictive practices

(1)This section applies if—

(a)an approval given under section 80V is in effect in relation to an adult; or

(b)the tribunal proposes to give an approval under section 80V in relation to an adult.

(2)The tribunal may, by order, give approval for a relevant service provider to use a restrictive practice other than containment or seclusion (the other restrictive practice) in relation to the adult, subject to the conditions stated in the order.

(3)The tribunal may make the order only if the tribunal is satisfied of the matters stated in section 80V(2)(a) to (g) in relation to the other restrictive practice.

(4)In deciding whether to make the order, the tribunal—

(a)must consider—

(i)the matters stated in section 80W(1); and

(ii)if the other restrictive practice is chemical restraint—the views of the adult’s treating doctor about the use of the chemical restraint; and

(b)may consider the matters stated in section 80W(2).

(5)For subsections (3) and (4)(a)(i) and (b), sections 80V(2)(a) to (g) and 80W apply as if a reference in the sections to containing or secluding the adult were a reference to using the other restrictive practice in relation to the adult.

(6)An order made under this section is taken to be part of the approval given under section 80V in relation to the adult.

(7)The tribunal may make the order on its own initiative or on an application under section 80ZO.

s 80X ins 2008 No. 23s 22

amd 2014 No. 5s 42

div 2 (ss 80Y–80Z) ins 2008 No. 23s 22

80YPeriod for which containment or seclusion approval has effect

(1)A containment or seclusion approval has effect for the period stated in the order.

(2)The total period for which the approval has effect must be not more than 12 months from the day the order is made.

(3)This section applies subject to sections 80Z and 80ZB.

div 2 (ss 80Y–80Z) ins 2008 No. 23s 22

80ZAutomatic revocation of containment or seclusion approval

(1)A containment or seclusion approval ends if—

(a)the adult dies; or

(b)for a relevant service provider—the adult stops receiving disability services from the provider.

(2)The relevant service provider must notify the tribunal in writing if an event mentioned in subsection (1)(a) or (b) happens.

div 2 (ss 80Y–80Z) ins 2008 No. 23s 22

div hdg ins 2008 No. 23s 22

80ZAWhen containment or seclusion approval may be reviewed

The tribunal may review a containment or seclusion approval at any time—

(a)on its own initiative; or

(b)on the application of any of the following—

(i)the adult;

(ii)an interested person for the adult;

(iii)a relevant service provider to which the approval applies;

(iv)the chief executive (disability services);

(v)the public guardian;

(vi)if the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health;

(vii)if the adult is a forensic disability client—the director of forensic disability.

s 80ZA ins 2008 No. 23s 22

amd 2011 No. 13s 195; 2014 No. 26s 240(1)

80ZBReview process

(1)The tribunal may conduct a review of a containment or seclusion approval in the way it considers appropriate.

(2)At the end of the review, the tribunal must revoke the containment or seclusion approval unless it is satisfied it would give the containment or seclusion approval if a new application for the approval were made.

(3)If the tribunal is satisfied it would give the containment or seclusion approval if a new application for the approval were made, it may—

(a)continue its order giving the containment or seclusion approval; or

(b)change its order giving the containment or seclusion approval; or

(c)make an order giving a new containment or seclusion approval.

s 80ZB ins 2008 No. 23s 22

pt hdg ins 2008 No. 23s 22

80ZCApplication of pt 3

This part does not apply if a containment or seclusion approval is in effect in relation to an adult.

s 80ZC ins 2008 No. 23s 22

80ZDAppointment

(1)The tribunal may, by order, appoint a guardian for a restrictive practice matter for an adult if the tribunal is satisfied—

(a)the adult has impaired capacity for the matter; and

(b)the adult’s behaviour has previously resulted in harm to the adult or others; and

(c)there is a need for a decision about the matter; and

(d)without the appointment—

(i)the adult’s behaviour is likely to cause harm to the adult or others; and

(ii)the adult’s interests will not be adequately protected.

(2)The appointment may be on terms considered appropriate by the tribunal.

(3)The appointment has effect for the period stated in the order.

(4)The period for which the appointment has effect must not be more than 2 years from the day the order is made.

(5)Subsections (3) and (4) apply subject to sections 26 and 31.

(6)The tribunal may make the appointment on its own initiative, or on an application under section 80ZP.

(7)This section does not limit the application of chapter 3 to the appointment.

s 80ZD ins 2008 No. 23s 22

amd 2014 No. 5s 43

80ZERequirements for giving consent—guardian for restrictive practice (general) matter

(1)The purpose of this section is to state requirements for a guardian for a restrictive practice (general) matter about consenting to the use of a restrictive practice in relation to the adult by a relevant service provider.

(2)The guardian may consent to use of the restrictive practice by the relevant service provider in compliance with a positive behaviour support plan for the adult.

(3)The consent may be given subject to conditions.

(4)The guardian may give the consent only if satisfied—

(a)the adult’s behaviour has previously resulted in harm to the adult or others; and

(b)there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others; and

(c)using the restrictive practice in compliance with the positive behaviour support plan mentioned in subsection (2) is the least restrictive way of ensuring the safety of the adult or others; and

(d)the adult has been adequately assessed for developing or changing the positive behaviour support plan; and

(e)use of the restrictive practice is supported by the recommendations of the person who assessed the adult; and

(f)if the restrictive practice is chemical restraint—in developing the positive behaviour support plan, the relevant service provider consulted the adult’s treating doctor; and

(g)if the positive behaviour support plan is implemented—

(i)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(ii)the adult’s quality of life will be improved in the long term; and

(h)the observations and monitoring provided for under the positive behaviour support plan are appropriate.

(5)In deciding whether to give the consent, the guardian must consider the following—

(a)if the guardian is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—

(i)the terms of the order; and

(ii)the views of the authorised psychiatrist responsible for treatment of the adult under that Act about the use of the restrictive practice;

(b)if the guardian is aware the adult is a forensic disability client—

(i)the terms of the forensic order under the Mental Health Act 2000 for the adult’s detention in the forensic disability service; and

(ii)the views of a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011 about the use of the restrictive practice;

(c)any information available to the guardian about strategies, including restrictive practices, previously used to manage the behaviour of the adult that causes harm to the adult or others, and the effectiveness of those strategies;

(d)the type of disability services provided to the adult;

(e)the suitability of the environment in which the restrictive practice is to be used;

(f)if the restrictive practice is chemical restraint—the views of the adult’s treating doctor about the use of the chemical restraint.

(6)Also, in deciding whether to give the consent, the guardian may consider the following—

(a)the findings, theories and recommendations of each person who assessed the adult;

(b)if there was a difference of opinion between the persons who assessed the adult—how this difference was taken into account in developing the positive behaviour support plan for the adult;

(c)the views of each person consulted during the assessment of the adult and the development of the positive behaviour support plan about the use of the restrictive practice;

(d)the way in which the relevant service provider will support and supervise staff involved in implementing the positive behaviour support plan.

s 80ZE ins 2008 No. 23s 22

amd 2011 No. 13s 196; 2012 No. 37s 51 sch; 2014 No. 5s 44

80ZFRequirements for giving consent—guardian for restrictive practice (respite) matter

(1)The purpose of this section is to state requirements for a guardian for a restrictive practice (respite) matter about consenting to the use of a restrictive practice in relation to the adult by a relevant service provider.

(2)The guardian may consent to use of the restrictive practice by the relevant service provider in compliance with a respite/community access plan for the adult.

(3)The consent may be given subject to conditions.

(4)The guardian may give the consent only if satisfied—

(a)there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others; and

(b)the relevant service provider has complied with the DSA, part 6, division 5; and

(c)if the respite/community access plan is implemented—

(i)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(ii)the adult’s quality of life will be improved in the long term; and

(d)the observations and monitoring provided for under the respite/community access plan are appropriate.

(5)For giving consent to the use of chemical restraint (fixed dose)—

(a)subsections (2) and (4) do not apply; and

(b)the guardian may give the consent only if satisfied there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others.

s 80ZF ins 2008 No. 23s 22

amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

pt hdg ins 2008 No. 23s 22

amd 2014 No. 26s 240(1)

80ZHWhen public guardian may give short-term approval for use of containment or seclusion

(1)This section does not apply for an adult if—

(a)there is a containment or seclusion approval in relation to the adult; or

(b)both of the following apply—

(i)there is a guardian for a restrictive practice (respite) matter for the adult;

(ii)a relevant service provider proposes to contain or seclude the adult in the course of providing respite services or community access services to the adult.

(2)The public guardian may give approval for a relevant service provider to contain or seclude the adult if satisfied—

(a)the adult has impaired capacity for making decisions about the use of restrictive practices in relation to the adult; and

(b)the adult’s behaviour has previously resulted in harm to the adult or others; and

(c)there is an immediate and serious risk that, if the approval is not given, the adult’s behaviour will cause harm to the adult or others; and

(d)using the restrictive practice is the least restrictive way of ensuring the safety of the adult or others.

(3)In deciding whether to give the approval, the public guardian must, unless it is not practicable in the circumstances, consult with and consider the views of the following persons about the use of the restrictive practice—

(a)the adult;

(b)a guardian or informal decision-maker for the adult;

(c)if the public guardian is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the authorised psychiatrist responsible for treatment of the adult under that Act;

(d)if the public guardian is aware the adult is a forensic disability client—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011.

(4)If the public guardian has previously given an approval under this section in relation to the adult, the public guardian may give the approval only if satisfied exceptional circumstances justify giving a subsequent approval under this section.

(5)The public guardian may give the approval subject to the conditions the public guardian considers appropriate.

(6)An approval given under this section may not have effect for more than 6 months.

(7)The relevant service provider or a person consulted under subsection (2) may apply to the tribunal in relation to a decision of the public guardian to give, or refuse to give, the approval, and the tribunal may make the order it considers appropriate.

s 80ZH ins 2008 No. 23s 22

amd 2010 No. 5s 214; 2011 No. 13s 197; 2014 No. 5s 46 (amd 2014 No. 26s 227); 2014 No. 26s 240(1)

80ZIWhen public guardian may give short-term approval for use of containment or seclusion—new relevant service provider

(1)This section applies for an adult in relation to a relevant service provider if the relevant service provider is not providing, and proposes to provide, disability services to the adult.

(2)The public guardian may give approval for the relevant service provider to contain or seclude the adult if the public guardian is satisfied of the matters in section 80ZH(2)(a) to (d).

(3)Section 80ZH(3) to (7) applies in relation to the approval.

s 80ZI ins 2008 No. 23s 22

sub 2014 No. 5s 47 (amd 2014 No. 26s 228)

amd 2014 No. 26s 240(1) (amdt could not be given effect)

80ZKWhen public guardian may give short-term approval for use of other restrictive practices

(1)While an approval given under section 80ZH or 80ZI is in effect, the public guardian may give approval for a relevant service provider to use another restrictive practice in relation to the adult if satisfied of the matters stated in section 80ZH(2)(a) to (d) for the restrictive practice.

(2)Also, if the restrictive practice is chemical restraint, the public guardian must be satisfied the relevant service provider has consulted with, and considered the views of, the adult’s treating doctor.

(3)The public guardian may not give approval under this section for use of a restrictive practice if a guardian for a restrictive practice (general) matter for the adult has given, or refused to give, consent to the use of the restrictive practice for the adult.

(4)An approval given under this section ends—

(a)if a guardian for a restrictive practice (general) matter for the adult gives, or refuses to give, consent to the relevant service provider to use the restrictive practice in relation to the adult; or

(b)otherwise—on the day the approval given under section 80ZH or 80ZI ends.

s 80ZK ins 2008 No. 23s 22

amd 2010 No. 42s 73; 2014 No. 5s 48 (amd 2014 No. 26s 229); 2014 No. 26s 240(1)

80ZLRight of public guardian to information for making decision

(1)This section applies to the public guardian for deciding whether to give approval under this part for a relevant service provider to use a restrictive practice in relation to an adult.

(2)The public guardian has a right to all the information that—

(a)the adult would have been entitled to if the adult had capacity; and

(b)is necessary for the public guardian to make an informed decision.

(3)At the public guardian’s request, a person who has custody or control of the information must give the information to the public guardian, unless the person has a reasonable excuse.

(4)If a person who has custody or control of the information does not comply with a request by the public guardian to give information, the tribunal may, on application by the public guardian, order the person to give the information to the public guardian.

(5)If the tribunal orders a person to give information to the public guardian, the person must comply with the order, unless the person has a reasonable excuse.

(6)It is a reasonable excuse for a person to fail to give information because giving the information might tend to incriminate the person.

(7)Subject to subsection (6), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege, including a claim based on legal professional privilege.

s 80ZL ins 2008 No. 23s 22

amd 2014 No. 26s 240

80ZMRequirement for public guardian to give notice of decision

(1)As soon as practicable after the public guardian decides to give, or refuse to give, an approval under this part, the public guardian must give written notice of the decision to the following—

(a)the relevant service provider;

(b)the adult;

(c)the tribunal;

(d)the chief executive (disability services);

(e)a guardian for a restrictive practice (general) matter for the adult;

(f)any other person consulted by the public guardian under section 80ZH(3).

(2)The notice must state the following—

(a)the name of the adult;

(b)the name of the relevant service provider;

(c)the public guardian’s decision, including, if the decision is to give the approval, the terms of the approval;

(d)the reasons for the public guardian’s decision.

s 80ZM ins 2008 No. 23s 22

amd 2014 No. 5s 49 (amd 2014 No. 26s 230); 2014 No. 26s 240

pt hdg ins 2008 No. 23s 22

div hdg ins 2008 No. 23s 22

80ZNRelationship with ch 7

(1)The following provisions of chapter 7 apply for a proceeding under this chapter—

•part 1

•part 2 (other than section 119)

•part 3

•part 4 (other than section 129)

•sections 154 and 155

•parts 6 and 8.

(2)The remaining provisions of chapter 7 do not apply for a proceeding under this chapter.

(3)This part contains additional provisions that apply for a proceeding under this chapter.

s 80ZN ins 2008 No. 23s 22

amd 2009 No. 24s 1444

div hdg ins 2008 No. 23s 22

80ZOWho may apply for a containment or seclusion approval

An application for a containment or seclusion approval may be made—

(a)if the department responsible for administering the DSA is not the relevant service provider to which the application relates—jointly by the chief executive (disability services) and the relevant service provider; or

(b)otherwise—by the chief executive (disability services).

s 80ZO ins 2008 No. 23s 22

80ZPWho may apply for appointment of guardian for restrictive practice matter

An application for appointment of a guardian for a restrictive practice matter may be made by any of the following—

(a)an adult;

(b)an interested person for an adult;

(c)a relevant service provider providing disability services to an adult;

(d)the chief executive (disability services);

(e)the public guardian;

(f)if the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health;

(g)if the adult is a forensic disability client—the director of forensic disability.

s 80ZP ins 2008 No. 23s 22

amd 2011 No. 13s 198; 2014 No. 26s 240(1)

div hdg ins 2008 No. 23s 22

80ZQWho is an active party

Each of the following persons is an active party for a proceeding under this chapter—

(a)the chief executive (disability services);

(b)the applicant;

(c)the adult concerned in the proceeding;

(d)any current guardian or administrator for the adult;

(e)if the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health;

(f)if the adult is a forensic disability client—the director of forensic disability;

(g)a relevant service provider providing disability services to the adult;

(h)the public guardian;

(i)a person joined as a party to the proceeding by the tribunal.

Example of a person who might be joined as a party—

a member of the adult’s family

s 80ZQ ins 2008 No. 23s 22

amd 2011 No. 13s 199; 2012 No. 37s 51 sch; 2014 No. 26s 240(1)

80ZRInterim orders

(1)This section applies for a proceeding under this chapter if the tribunal is satisfied, on reasonable grounds—

(a)there is an immediate risk of harm to the adult concerned in the proceeding or others; and

(b)using a restrictive practice is the least restrictive way of ensuring the safety of the adult or others.

(2)The tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.

(3)The interim order has effect for the period stated in the order.

(4)The period stated in the order must not be more than 3 months.

(5)In this section—

tribunal means the tribunal constituted by the president, a deputy president or a legal member.

s 80ZR ins 2008 No. 23s 22

pt hdg ins 2008 No. 23s 22

80ZSRequirements for informal decision-makers—consenting to use of restrictive practices

(1)This section applies to an informal decision-maker for deciding whether to consent to—

(a)a relevant service provider restricting access of an adult other than in the course of providing respite services or community access services to the adult; or

(b)the use of a restrictive practice in relation to an adult by a relevant service provider in the course of providing respite services or community access services to the adult.

(2)For giving consent to use of a restrictive practice mentioned in subsection (1)(a), the informal decision-maker must—

(a)apply the general principles; and

(b)be satisfied—

(i)the adult’s behaviour has previously resulted in harm to the adult or others; and

(ii)there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others; and

(iii)using the restrictive practice in compliance with the positive behaviour support plan for the adult is the least restrictive way of ensuring the safety of the adult or others; and

(iv)if the positive behaviour support plan for the adult is implemented—

(A)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(B)the adult’s quality of life will be improved in the long term; and

(v)if the informal decision-maker is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the authorised psychiatrist responsible for treatment of the adult under that Act has been given an opportunity to participate in the development of the positive behaviour support plan; and

(vi)if the informal decision-maker is aware the adult is a forensic disability client—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011 has been given an opportunity to participate in the development of the positive behaviour support plan.

(3)For giving consent to use of a restrictive practice mentioned in subsection (1)(b), the informal decision-maker must—

(a)apply the general principles; and

(b)be satisfied—

(i)the adult’s behaviour has previously resulted in harm to the adult or others; and

(ii)there is a reasonable likelihood that, if the consent is not given, the adult’s behaviour will cause harm to the adult or others; and

(iii)using the restrictive practice in compliance with the respite/community access plan for the adult is the least restrictive way of ensuring the safety of the adult or others; and

(iv)if the respite/community access plan for the adult is implemented—

(A)the risk of the adult’s behaviour causing harm will be reduced or eliminated; and

(B)the adult’s quality of life will be improved in the long term.

(4)However, subsection (3)(b)(iii) and (iv) do not apply for giving consent to the use of chemical restraint (fixed dose) in the course of providing respite services to the adult.

(5)In this section—

restricting access, of an adult, see the DSA, section 144.

s 80ZS ins 2008 No. 23s 22

amd 2011 No. 13s 200; 2012 No. 37s 51 sch; amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

80ZTInformal decision-makers must maintain confidentiality

(1)This section applies if an informal decision-maker gains confidential information under the DSA, part 6 about an adult with an intellectual or cognitive disability.

Note—

A guardian who gains confidential information is subject to confidentiality requirements under section 249.

(2)The informal decision-maker must not disclose the information to anyone other than under subsection (3).

(3)The informal decision-maker may disclose the information to someone else—

(a)for this Act or the DSA; or

(b)to discharge a function under another law; or

(c)for a proceeding in a court or tribunal; or

(d)if authorised under another law or a regulation made under this Act; or

(e)if authorised in writing by the adult to whom the information relates; or

(f)to protect a person with a disability, within the meaning of the DSA, section 11, from abuse, neglect or exploitation.

(4)In this section—

confidential information includes information about a person’s affairs but does not include—

(a)information already publicly disclosed unless further disclosure of the information is prohibited by law; or

(b)statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates.

s 80ZT ins 2008 No. 23s 22

amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

80ZUReview of ch 5B

The DSA, section 241 provides for the efficacy and efficiency of this chapter to be reviewed by the Minister and the Minister responsible for administering that Act, acting jointly.

Note—

The review must be conducted when the DSA is reviewed under section 240 of that Act.

s 80ZU ins 2008 No. 23s 22

amd 2006 No. 12s 333sch 2 (amd 2014 No. 12s 74)

ch hdg sub 2009 No. 24s 1445

pt 1 hdg ch 6 pt 1 hdg om 2009 No. 24s 1445

pt 2 hdg ch 6 pt 2 hdg om 2009 No. 24s 1445

81Tribunal’s functions for this Act

(1)The tribunal has the functions given to it by this Act, including the following functions—

(a)making declarations about the capacity of an adult, guardian, administrator or attorney for a matter;

(b)considering applications for appointment of guardians and administrators;

(c)appointing guardians and administrators if necessary and reviewing the appointments;

(d)making declarations, orders or recommendations, or giving directions or advice, in relation to the following—

(i)guardians and administrators;

(ii)attorneys;

(iii)enduring documents;

(iv)related matters;

(e)ratifying an exercise of power, or approving a proposed exercise of power, for a matter by an informal decision-maker for an adult with impaired capacity for the matter;

(f)consenting to the withholding or withdrawal of a life-sustaining measure for adults with impaired capacity for the health matter concerned;

(g)subject to section 68, consenting to special health care for adults with impaired capacity for the special health matter concerned;

(h)consenting to the sterilisation of a child with an impairment;

(i)giving approvals under chapter 5B for the use by a relevant service provider of a restrictive practice in relation to an adult to whom the chapter applies, and reviewing the approvals;

(j)registering an order made in another jurisdiction under a provision, Act or law prescribed under a regulation for section 167;

(k)reviewing a matter in which a decision has been made by the registrar.

(2)In this section—

attorney means an attorney under an enduring document or a statutory health attorney.

s 81 sub 2009 No. 24s 1445

82Jurisdiction

(1)Subject to section 245, the tribunal has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity for matters.

(2)The tribunal has concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents.

(3)The tribunal has the other jurisdiction given under this Act.

s 82 amd 2001 No. 95s 13; 2003 No. 87s 16; 2008 No. 23s 23

sub 2009 No. 24s 1445

83Annual report by president

The president must include in the tribunal’s annual report under the QCAT Act for the previous financial year—

(a)the number and type of limitation orders made by the tribunal during the year; and

(b)the number of applications, approvals and orders made under chapter 5B of this Act during the year.

s 83 sub 2009 No. 24s 1445

pt hdg sub 2009 No. 24s 1446

99Definitions for pt 1

In this part—

document includes a photograph, drawing, model or other object.

health information for a person means—

(a)information about the person’s physical or mental condition; or

(b)information about the person’s health care, including the person’s expressed wishes about the person’s health care; or

(c)information about the person collected to provide, or in providing, health care to the person; or

(d)information about the person collected in relation to the donation, or intended donation, of the person’s body parts, organs or bodily substances; or

(e)genetic information about the person in a form that is, or could be, predictive about the health of the person or of a sibling, relative or descendant of the person.

significant health detriment to a person means significant identifiable detriment to any of the following—

(a)the person’s physical or mental health or wellbeing;

(b)the person’s health care;

(c)the person’s relationship with a health provider, including the person’s willingness to fully disclose relevant information to the health provider.

s 99 sub 2009 No. 24s 1446

100Types of limitation order

A limitation order means an order of the following type—

(a)an adult evidence order;

(b)a closure order;

(c)a non-publication order;

(d)a confidentiality order.

s 100 sub 2009 No. 24s 1446

101Relationship with the QCAT Act

The following provisions of the QCAT Act do not apply in relation to proceedings under this chapter—

(a)section 66;

(b)section 90;

(c)section 99;

(d)section 100;

(e)section 102 (except to the extent it applies for section 103 of that Act);

(f)section 142(3)(a)(ii);

(g)section 222.

s 101 sub 2003 No. 87s 17; 2009 No. 24s 1446

102Members constituting tribunal

At a hearing, the tribunal must be constituted by 3 members unless the president considers it appropriate for the proceeding to be heard by the tribunal constituted by 2 members or a single member.

s 102 amd 2003 No. 87s 18

sub 2009 No. 24s 1446

103Access

(1)Each active party in a proceeding must be given a reasonable opportunity to present the active party’s case and, in particular—

(a)to access, before the start of a hearing, a document before the tribunal that the tribunal considers is relevant to an issue in the proceeding; and

(b)to access, during a hearing, a document or other information before the tribunal that the tribunal considers is credible, relevant and significant to an issue in the proceeding; and

(c)to make submissions about a document or other information accessed under this subsection.

(2)Each active party in a proceeding, or person the tribunal considers has a sufficient interest in the proceeding, must be given a reasonable opportunity to access, within a reasonable time after a hearing, a document before the tribunal that the tribunal considered credible, relevant and significant to an issue in the proceeding.

(3)For subsections (1) and (2), something is relevant only if it is directly relevant.

(4)On request, the tribunal must give access to a document or other information in accordance with this section.

(5)The tribunal may displace the right to access a document or other information only by a confidentiality order.

(6)To remove any doubt, it is declared that the right to access a document or other information is not affected by an adult evidence order, a closure order or a non-publication order.

s 103 sub 2009 No. 24s 1446

104Basis of consideration for limitation order

(1)In considering whether to make a limitation order, the tribunal must take as the basis of its consideration—

(a)that each active party in the proceeding is entitled to access a document or other information before the tribunal that is credible, relevant and significant to an issue in the proceeding; and

(b)that it is desirable that tribunal hearings be held in public and be able to be publicly reported.

(2)For subsection (1), something is relevant only if it is directly relevant.

s 104 sub 2009 No. 24s 1446

105Open

(1)A hearing by the tribunal of a proceeding must be in public.

(2)However, the tribunal may make an adult evidence order or a closure order.

Note—

See also section 101.

s 105 amd 2003 No. 87s 19

sub 2009 No. 24s 1446

106Adult evidence order

(1)If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person or to obtain relevant information the tribunal would not otherwise receive, the tribunal may, by order (an adult evidence order), obtain relevant information from the adult concerned in the matter at a hearing in the absence of anyone else, including, for example—

(a)members of the public; or

(b)a particular person, including an active party.

(2)To the extent relevant information is health information for a person, serious harm to the person includes significant health detriment to the person.

(3)For subsection (1), something is relevant only if it is directly relevant.

(4)The tribunal may make an adult evidence order on its own initiative or on the application of an active party.

(5)A person must not contravene an adult evidence order, unless the person has a reasonable excuse.

Maximum penalty for subsection (5)—200 penalty units.

s 106 sub 2009 No. 24s 1446

107Closure order

(1)If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a closure order), do either or both of the following—

(a)close the hearing or part of the hearing to all or some members of the public;

(b)exclude a particular person, including an active party, from a hearing or part of a hearing.

(2)To the extent the hearing or the part of the hearing concerns health information for a person, serious harm to the person includes significant health detriment to the person.

(3)The tribunal may make a closure order on its own initiative or on the application of an active party.

(4)A person must not contravene a closure order, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)—200 penalty units.

s 107 sub 2009 No. 24s 1446

108Non-publication order

(1)If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a non-publication order), prohibit publication of information about a tribunal proceeding the publication of which is not prohibited under section 114A.

(2)To the extent information about a tribunal proceeding is health information for a person, serious harm to the person includes significant health detriment to the person.

(3)The tribunal may make a non-publication order on its own initiative or on the application of an active party.

(4)If information about a tribunal proceeding discloses information prepared or provided by an entity, the tribunal may make a non-publication order on the application of the entity.

(5)If information about a tribunal proceeding discloses health information for the person—

(a)without limiting subsection (3) or (4), the tribunal may make a non-publication order on the application of—

(i)the person; or

(ii)an interested person for the person; and

(b)an application may be made by an interested person for the person even after the person’s death.

(6)If a non-publication order is made prohibiting publication of information about a tribunal proceeding and the information about the tribunal proceeding discloses health information for the person, the person’s death does not affect the non-publication order.

(7)A person must not contravene a non-publication order, unless the person has a reasonable excuse.

Maximum penalty for subsection (7)—200 penalty units.

Note—

See also section 101.

s 108 amd 2003 No. 87s 21

sub 2008 No. 54s 10; 2009 No. 24s 1446

109Confidentiality order

(1)If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a confidentiality order)—

(a)withhold from an active party or other person a document, or part of a document, before the tribunal; or

(b)withhold from an active party or other person other information before the tribunal.

(2)To the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.

(3)The tribunal may make a confidentiality order on its own initiative or on the application of an active party.

(4)Also, the tribunal may make a confidentiality order in relation to a document or other information on the application of the entity who prepared or provided the document or other information.

(5)A person must not contravene a confidentiality order, unless the person has a reasonable excuse.

Maximum penalty for subsection (5)—200 penalty units.

s 109 sub 2008 No. 54s 10; 2009 No. 24s 1446

110Non-publication or confidentiality order made before hearing

(1)In a proceeding, a non-publication order or confidentiality order may be made before a hearing of the proceeding starts.

(2)However, a non-publication order or confidentiality order made before a hearing is vacated at the start of the hearing.

(3)Sections 111 to 113 do not apply in relation to a non-publication order or confidentiality order made before the hearing of the proceeding starts.

s 110 amd 2003 No. 87s 22

sub 2009 No. 24s 1446

111Standing for limitation order

Each active party, and any entity that would be adversely affected by a proposed limitation order, has standing to be heard in relation to the making of the order.

Example—

A journalist who would be excluded from a hearing by a proposed closure order would be an entity that would be adversely affected by the proposed order.

s 111 amd 2004 No. 43s 50

sub 2009 No. 24s 1446

112Making and notifying decision for limitation order

(1)The tribunal must give its decision on the making of a limitation order as soon as practicable after hearing any submissions on the making of the order.

(2)As soon as practicable after making its decision, the tribunal must notify, and give a copy of its decision to—

(a)the adult concerned in the matter; and

(b)each other active party in the proceeding; and

(c)each entity heard in relation to the order; and

(d)the public advocate.

(3)The tribunal must also give a copy of its decision to anyone else who requests a copy.

(4)For subsection (3), it is sufficient for the tribunal to give a copy of the decision in a form that does not contravene section 114A.

(5)Also, within 45 days after making its decision, the tribunal must give the public advocate all information before the tribunal in its consideration of making the limitation order, including, for a confidentiality order, the document or other information being considered as the subject of the confidentiality order.

s 112 amd 2005 No. 70s 107B

sub 2008 No. 54s 11; 2009 No. 24s 1446

113Written reasons for limitation order and copy of reasons

(1)This section applies if the tribunal decides to make a limitation order.

(2)The tribunal must give written reasons for its decision to make the limitation order (other than an adult evidence order) and may give reasons for its decision to make an adult evidence order.

(3)If the tribunal gives written reasons for its decision, it must give a copy of the reasons within 45 days after making the decision to—

(a)the adult concerned in the matter; and

(b)each other active party in the proceeding; and

(c)each entity heard in relation to the order; and

(d)the public advocate.

(4)The tribunal must also give a copy of its written reasons to anyone else who requests a copy.

(5)For subsection (4), it is sufficient for the tribunal to give a copy of the written reasons in a form that does not contravene section 114A.

(6)The QCAT Act, sections 121 and 122 do not apply to limitation orders.

s 113 sub 2009 No. 24s 1446

114Procedural directions

(1)The tribunal may—

(a)direct a person to undergo examination by a doctor or psychologist in the ordinary course of the doctor’s medical practice or the psychologist’s practice; or

(b)direct the person the subject of the proceeding to be brought before the tribunal.

(2)The tribunal may change or revoke a direction under subsection (1).

(3)A person must comply with a direction under subsection (1), unless the person has a reasonable excuse.

(4)If the tribunal gives a direction under subsection (1)(a), the tribunal may direct that a party pay for the examination.

(5)In this section—

psychologist means a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession, other than as a student.

s 114 sub 2009 No. 24s 1446

amd 2010 No. 14s 124 sch

114APublication about proceeding that discloses adult’s identity

(1)Generally, information about a guardianship proceeding may be published.

(2)However, a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult by a member of the public, or by a member of the section of the public to whom the information is published.

Maximum penalty—200 penalty units.

Notes—

•The publication of information about a tribunal proceeding may also be prohibited by a non-publication order—see section 108.

•Also see the Child Protection Act 1999, section 189 (Prohibition of publication of information leading to identity of children).

(3)Subsection (2) does not apply—

(a)to publication of information by the public guardian, or the public advocate, if the public guardian, or the public advocate, considers it is necessary in the public interest to publish the information in response to a prohibited publication by another entity; or

(b)to publication of information after the relevant adult has died; or

(c)to publication of information authorised by an order made under this section.

Note—

A non-publication order may prohibit publication of information about a tribunal proceeding disclosing health information about a person even after the person’s death.

(4)The court may make an order authorising publication of information about a guardianship proceeding that is otherwise prohibited under subsection (2).

(5)The tribunal may make an order authorising publication of information about a tribunal proceeding that is otherwise prohibited under subsection (2).

(6)The court or tribunal may make an order under subsection (4) or (5) authorising publication only if the court or tribunal is satisfied the publication is in the public interest or the relevant adult’s interest.

(7)The QCAT Act, section 125 does not apply for the purposes of this section.

(8)In this section—

prohibited publication means publication of information about a guardianship proceeding to the public, or a section of the public, that is likely to lead to the identification of the relevant adult by a member of the public, or by a member of the section of the public to whom the information is published.

relevant adult means the adult concerned in the matter, whether or not the court or tribunal decides the adult is an adult with impaired capacity.

s 114A ins 2009 No. 24s 1446

amd 2014 No. 26s 240(1)

114BNo filing fee payable

(1)A fee is not payable to the tribunal for making an application, or filing another document, under this Act.

(2)Subsection (1) does not apply in relation to an appeal to the appeal tribunal under the QCAT Act chapter 2, part 8, division 1.

s 114B ins 2009 No. 24s 1446

115Scope of applications

(1)An application may be made, as provided under the QCAT Act, to the tribunal for a declaration, order, direction, recommendation or advice in relation to an adult about something in, or related to, this Act or the Powers of Attorney Act 1998.

(2)The application may be made by—

(a)the adult concerned; or

(b)unless this Act or the Powers of Attorney Act 1998 states otherwise—another interested person.

s 115 amd 2009 No. 24s 1447

118Tribunal advises persons concerned of hearing

(1)At least 7 days before the hearing of an application about a matter, the tribunal must give notice of the hearing to the adult concerned in the matter and, as far as practicable, to the following—

(a)if the adult concerned is not the applicant—the applicant;

(b)the members of the adult’s family;

(c)any primary carer of the adult;

(d)all current guardians, administrators and attorneys for the adult;

(e)the public guardian;

(f)the public trustee;

(g)for a proceeding under chapter 5B—

(i)the chief executive (disability services); and

(ii)a relevant service provider providing disability services to the adult; and

(iii)if the tribunal is aware the adult is subject to a forensic order or involuntary treatment order under the Mental Health Act 2000—the director of mental health; and

(iv)if the tribunal is aware the adult is a forensic disability client—the director of forensic disability;

(h)anyone else the tribunal considers should be notified.

(2)However, the tribunal is not required to give notice to the adult if any of the following apply—

(a)the tribunal considers that notice to the adult might be prejudicial to the physical or mental health or wellbeing of the adult;

(b)the tribunal considers the adult is evading the hearing;

(c)the adult is—

(i)temporarily or permanently unconscious; or

(ii)unable to be located after the tribunal has made reasonable inquiries into the adult’s whereabouts.

(3)Notice to the adult must be given in the way the tribunal considers most appropriate having regard to the person’s needs.

(4)However, the adult’s failure to understand the notice does not affect its validity.

(5)The tribunal may, by direction under the QCAT Act, section 62—

(a)dispense with the requirement to give notice to all or any of the persons mentioned in subsection (1)(a) to (g); and

(b)reduce the time stated in subsection (1).

(6)Subject to subsection (2), failure to comply with the requirement to give notice to the adult invalidates a hearing and the tribunal’s decision about an application.

(7)Failure to comply with the requirement to give notice to all or any of the persons mentioned in subsection (1)(a) to (g) does not affect the validity of a hearing or the tribunal’s decision about an application.

(8)The QCAT Act, section 37 does not apply for the purposes of this section.

(9)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive or similar document under the law of another jurisdiction.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or

(d)a similar document under the law of another jurisdiction.

s 118 amd 2003 No. 87s 23; 2008 No. 23s 25; 2009 No. 24s 1449; 2011 No. 13s 201; 2012 No. 37s 51 sch; 2014 No. 26s 240(1)

119Who is an active party

Each of the following persons is an active party for a proceeding in relation to an adult—

(a)the adult;

(b)if the adult is not the applicant—the applicant;

(c)if the proceeding is for the appointment or reappointment of a guardian, administrator or attorney for the adult—the person proposed for appointment or reappointment;

(d)any current guardian, administrator or attorney for the adult;

(e)the public guardian;

(f)the public trustee;

(g)a person joined as a party to the proceeding by the tribunal.

s 119 sub 2003 No. 87s 24

amd 2014 No. 26s 240(1)

121Protection if unaware of invalidity

(1)A person appointed as a guardian or administrator for an adult by an invalid tribunal order who, without knowing of the order’s invalidity, purports to use power given by the order does not incur any liability, either to the adult or anyone else, because of the invalidity.

(2)A transaction between—

(a)a person appointed as guardian or administrator by an invalid tribunal order; and

(b)a person who does not know of the invalidity;

is, in favour of the second person, as valid as if the tribunal order were valid.

(3)In this section—

know, of a tribunal order’s invalidity, includes have reason to believe notice of the hearing of an application was not given to the adult as required.

122Withdrawal by leave

(1)This section applies if the tribunal gives leave to an applicant to withdraw an application under the QCAT Act, section 46.

(2)The tribunal must give notice of the withdrawal to the parties to the proceeding that the tribunal considers should receive notice of the withdrawal.

(3)The QCAT Act, section 46(2) does not apply to an applicant under this Act.

s 122 sub 2003 No. 87s 26; 2009 No. 24s 1450

123Right of active party to appear

An active party in a proceeding before the tribunal may appear in person.

s 123 amd 2009 No. 24s 1451

124Representative may be used with tribunal’s leave

(1)An active party may, with the tribunal’s leave, be represented by a lawyer or agent.

(2)A person given notice to attend at a hearing to give evidence or produce things may, with the tribunal’s leave, be represented by a lawyer or agent.

125Representative may be appointed

(1)If, in a proceeding before the tribunal—

(a)the adult concerned in the proceeding is not represented in the proceeding; or

(b)the adult is represented in the proceeding by an agent the president or presiding member considers to be inappropriate to represent the adult’s interests;

the president or the presiding member may appoint a representative to represent the adult’s views, wishes and interests.

(2)A proceeding may be adjourned to allow the appointment to be made.

126Tribunal to decide who are interested persons

(1)If necessary, the tribunal may decide whether a person is an interested person for another person under this Act or the Powers of Attorney Act 1998.

Note—

See interested person—schedule 4 (Dictionary).

(2)If the tribunal decides a person is not an interested person for the other person and the person asks for the tribunal’s reasons, the tribunal must give the person written reasons for its decision.

(3)This section does not limit a court’s power to decide whether a person is an interested person for another person under the Powers of Attorney Act 1998.

s 126 amd 2012 No. 37s 51 sch

127Costs

(1)Each party in a proceeding is to bear the party’s own costs of the proceeding.

(2)However, the tribunal may order an applicant to pay an active party’s costs and the costs of the tribunal in exceptional circumstances, including, for example, if the tribunal considers the application is frivolous or vexatious.

(3)Also, the following provisions of the QCAT Act, chapter 2, part 6, division 6 in relation to costs apply to the tribunal for proceedings under this Act—

(a)section 101;

(b)sections 103 to 109.

Note—

See also section 101.

s 127 amd 2009 No. 24s 1452

128Tribunal may stay decision pending hearing

(1)If a person applies to the tribunal in relation to a decision for an adult about a matter, the person may also apply to the tribunal for a stay of the decision.

(2)The tribunal may, by order, stay the decision to secure the effectiveness of the application.

(3)A stay—

(a)may be given on the terms the tribunal considers appropriate; and

(b)operates for the period specified by the tribunal.

(4)The period of a stay must not extend past the time when the tribunal decides the application.

(5)The tribunal may amend or revoke its order staying a decision.

129Interim order

(1)This section applies if the tribunal is satisfied, on reasonable grounds, there is an immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult.

(2)The tribunal may make an interim order in the proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.

(3)An interim order may not include consent to special health care.

(4)An interim order has effect for the period specified in the order.

(5)The maximum period that may be specified in an interim order is 3 months.

(6)An interim order may be renewed, but only if the tribunal is satisfied there are exceptional circumstances justifying the renewal.

(7)To exercise jurisdiction under subsection (6), the tribunal must be constituted by a legal member.

s 129 amd 2003 No. 87s 27; 2007 No. 37s 78; 2009 No. 24s 1453

130Tribunal to ensure it has all relevant information and material

(1)To hear and decide a matter in a proceeding, the tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material.

(2)At the tribunal’s request, a person who has custody or control of information or material that the tribunal considers is necessary to make an informed decision about the matter must give the information or material to the tribunal, unless the person has a reasonable excuse.

(3)The tribunal may order a person to give information or material to the tribunal.

(4)If the tribunal orders a person to give it information or material, the person must comply with the order, unless the person has a reasonable excuse.

(5)It is a reasonable excuse for a person to fail to give information or material because giving the information or material might tend to incriminate the person.

(6)Subject to subsection (5), this section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)any claim of confidentiality or privilege, including a claim based on legal professional privilege.

s 130 amd 2003 No. 87s 28

131Tribunal may proceed without further information

(1)If the tribunal considers urgent or special circumstances justify it doing so, the tribunal may proceed to decide a matter on the information before it without receiving further information.

(2)If all the active parties in a proceeding agree, the tribunal may also proceed to decide a matter in the proceeding on the information before it when the agreement was reached without receiving further information.

(3)Before the active parties agree, the tribunal must ensure they are aware of the material on which the matter will be decided.

134Report by tribunal staff

(1)The tribunal may—

(a)receive in evidence in a proceeding a written report by tribunal staff on a matter in the proceeding; and

(b)have regard to the report.

(2)Generally, if the tribunal receives the report in evidence in a proceeding, the adult concerned in the proceeding and each other active party in the proceeding must be—

(a)advised of the contents of the report; and

(b)upon request, given a copy of the report.

(3)However, the right to be given a copy may be displaced in a confidentiality order.

136Witness fees and expenses

(1)The tribunal may make an order as to fees and expenses to be paid to a witness.

(2)Despite the QCAT Act, section 97(3), a witness is entitled to fees and expenses only if the tribunal makes an order under subsection (1).

s 136 amd 2009 No. 24s 1456

137Offences by witnesses

(1)A witness at a hearing must not, unless the person has a reasonable excuse—

(a)fail to answer a question the person is required to answer by the presiding member; or

(b)fail to produce a document or thing the person is required to produce by notice given by the tribunal under the QCAT Act, section 97(1)(b).

Maximum penalty—100 penalty units.

(2)It is not a reasonable excuse for a person to fail to answer a question because answering the question might tend to incriminate the person.

(3)It is not a reasonable excuse for a person to fail to produce a document or thing because producing the document or thing might tend to incriminate the person.

(4)However, evidence of, or directly or indirectly derived from, a person’s answer or production of a document or thing that might tend to incriminate the person is not admissible in evidence against the person in a civil or criminal proceeding, other than—

(a)a proceeding for any of the following offences—

(i)an offence against the QCAT Act, section 216 or 217;

(ii)another offence about the falsity of the answer, document or thing; or

(b)if the answer or production is relevant to the person’s employment—a proceeding brought by or for the person against the person’s employer; or

(c)if the answer or production is relevant to the person’s professional registration or licence—a proceeding about the registration, licence or approval; or

(d)if the answer or production is relevant to the person’s registration, licence or approval as proprietor or operator of a service or facility involved in the care of adults with impaired capacity for a matter—a proceeding about the registration, licence or approval.

s 137 amd 2009 No. 24s 1457

138Advice, directions and recommendations

(1)Once an application about a matter has been made to the tribunal, the tribunal may—

(a)give advice or directions about the matter it considers appropriate; or

(b)make recommendations it considers appropriate about action an active party should take.

Note—

For disobeying a direction of the tribunal, see the QCAT Act, section 213(1).

(2)If the tribunal gives advice or a direction or makes a recommendation, it may also—

(a)continue with the application; or

(b)adjourn the application.

(3)The tribunal may also give leave for an active party to apply to the tribunal for directions about implementing the recommendation.

(4)A guardian, administrator or attorney who acts under the tribunal’s advice, directions or recommendations is taken to have complied with this Act or the Powers of Attorney Act 1998 unless the person knowingly gave the tribunal false or misleading information relevant to the tribunal’s advice, directions or recommendations.

(5)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive; or

(c)a statutory health attorney.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement.

s 138 amd 2003 No. 87s 29; 2008 No. 54s 12; 2009 No. 24s 1458

138AA Directions to former attorney

(1)At any hearing of a proceeding relating to an adult, the tribunal may give directions to a person who was formerly an attorney for a matter for the adult.

Note—

For disobeying a direction of the tribunal, see the QCAT Act, section 213(1).

(2)However—

(a)the directions may only be directions the tribunal considers necessary because of the ending of the person’s appointment as attorney for the matter; and

(b)the directions may relate only to a matter for which the person was appointed as attorney immediately before the appointment ended.

(3)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive.

s 138AA ins 2008 No. 54s 13

amd 2009 No. 24s 1459

138ARepeated applications for orders

(1)This section applies if the tribunal dismisses an application because it considers the application is frivolous, vexatious, misconceived or lacking in substance.

(2)The QCAT Act, section 49(2) does not apply to another application of the same kind in relation to the same matter.

s 138A ins 2003 No. 87s 30

sub 2009 No. 24s 1460

146Declaration about capacity

(1)The tribunal may make a declaration about the capacity of an adult, guardian, administrator or attorney for a matter.

(2)The tribunal may do this on its own initiative or on the application of the individual or another interested person.

(3)In deciding whether an individual is capable of communicating decisions in some way, the tribunal must investigate the use of all reasonable ways of facilitating communication, including, for example, symbol boards or signing.

Note—

See definition capacity—schedule 4 (Dictionary).

(4)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive; or

(c)a statutory health attorney.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement.

s 146 amd 2012 No. 37s 51 sch

147Effect of declaration about capacity to enter contract

A declaration about whether a person had capacity to enter a contract is, in a subsequent proceeding in which the validity of the contract is in issue, evidence about the person’s capacity.

148Application for entry and removal warrant

(1)An application by the public guardian for a warrant to enter a place and to remove an adult must be sworn and state the grounds on which the warrant is sought.

(2)Section 118 does not apply to the application and the tribunal may issue a warrant without notice of the application having been given to the adult or any other person.

(3)The tribunal may refuse to consider the application until the public guardian gives the tribunal all the information the tribunal requires about the application in the way the tribunal requires.

Example—

The tribunal may require additional information supporting the application be given by statutory declaration.

s 148 amd 2009 No. 24s 1463; 2014 No. 26s 240(1)

149Issue of entry and removal warrant

(1)The tribunal may issue a warrant only if the tribunal is satisfied there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect (including self neglect), exploitation or abuse, to an adult with impaired capacity for a matter.

(2)The warrant must state—

(a)that the public guardian may, with necessary and reasonable help and force, enter the place, and any other place necessary for entry, and remove the adult; and

(b)that the public guardian may ask a police officer to help in the exercise of the public guardian’s powers under the warrant; and

(c)the hours of the day or night when the place may be entered; and

(d)the date, within 14 days after the warrant’s issue, the warrant ends.

s 149 amd 2014 No. 26s 240

150Role of occupier if entry and removal warrant

(1)The public guardian may require the occupier of the place or another person at the place to help in the exercise of the public guardian’s powers under the warrant.

(2)When making the requirement, the public guardian must warn that it is an offence to fail to comply with the requirement, unless a person has a reasonable excuse.

(3)A person required to give reasonable help must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—100 penalty units.

s 150 amd 2014 No. 26s 240

151Reporting requirement after removal of adult

(1)As soon as practicable after the adult has been removed under the warrant, the public guardian must apply to the tribunal for the orders the public guardian considers appropriate about the following—

(a)the adult’s personal welfare;

(b)a power of attorney or advance health directive of the adult;

(c)a guardian, administrator or attorney of the adult.

(2)In this section—

attorney means—

(a)an attorney under a power of attorney; or

(b)an attorney under an advance health directive; or

(c)a statutory health attorney.

power of attorney means—

(a)a general power of attorney made under the Powers of Attorney Act 1998; or

(b)an enduring power of attorney; or

(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement.

s 151 amd 2014 No. 26s 240(1)

152Tribunal authorisation or approval

(1)The tribunal may authorise a conflict transaction, a type of conflict transaction or conflict transactions generally.

(2)The tribunal may approve an investment as an authorised investment.

s 152 amd 2003 No. 87s 32

153Records and audit

(1)The tribunal may order an adult’s administrator or adult’s attorney for a financial matter to file in the tribunal, and serve on the applicant, a summary of receipts and expenditure for the adult or more detailed accounts of dealings and transactions for the adult.

(2)The tribunal may—

(a)order that the summary or accounts filed be audited by an auditor appointed by the tribunal and a copy of the auditor’s report be given to the tribunal and the applicant; and

(b)make an order about payment of the auditor’s costs.

(3)The tribunal may make an order under subsection (1) or (2) on its own initiative or on the application of the adult or another interested person.

(4)In this section—

attorney means an attorney under an enduring power of attorney.

154Ratification or approval of exercise of power by informal decision-maker

(1)The tribunal may, by order, ratify an exercise of power, or approve a proposed exercise of power, for a matter by an informal decision-maker for an adult with impaired capacity for the matter.

(2)The tribunal may only approve or ratify the exercise of power for a matter if—

(a)it considers the informal decision-maker proposes to act, or has acted, honestly and with reasonable diligence; and

(b)the matter is not a special personal matter, a health matter or a special health matter.

(3)The tribunal may make the order on its own initiative or on the application of the adult or informal decision-maker.

(4)If the tribunal approves or ratifies the exercise of power for an adult for a matter—

(a)the exercise of power is as effective as if the power were exercised by the adult and the adult had capacity for the matter when the power is or was exercised; and

(b)the informal decision-maker does not incur any liability, either to the adult or anyone else, for the exercise of power.

(5)In this section—

informal decision-maker, for a matter for an adult, means a person who is—

(a)a member of the adult’s support network; and

(b)not an attorney under an enduring document, administrator or guardian for the adult for the matter.

155Suspension of guardianship order or administration order

(1)The tribunal may, by order, suspend the operation of all or some of the power of a guardian or administrator (an appointee) for an adult if the tribunal suspects, on reasonable grounds, that the appointed person is not competent.

(2)An appointee is not competent if, for example—

(a)a relevant interest of the adult has not been, or is not being, adequately protected; or

(b)the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or

(c)the appointee has otherwise contravened this Act.

(3)The tribunal may make an order under subsection (1) in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act.

(4)The suspension may not be for more than 3 months.

(5)During the suspension of the operation of power of a guardian, the public guardian is taken to be the guardian for the adult for the exercise of the suspended power.

(6)During the suspension of the operation of power of an administrator, the public trustee is taken to be the administrator for the adult for the exercise of the suspended power.

s 155 amd 2014 No. 26s 240(1)

pt hdg sub 2009 No. 24s 1464

156Making and notifying decision

(1)This section does not apply in relation to the making of a limitation order.

Note—

In relation to the making of a limitation order, see section 112.

(2)Subject to section 157, as soon as practicable after making its decision, the tribunal must notify, and give a copy of its decision to, each relevant person.

(3)The tribunal must also give a copy of its decision to anyone else who requests a copy.

(4)For subsection (3), it is sufficient for the tribunal to give a copy of the decision in a form that does not contravene section 114A.

(5)If the tribunal’s decision does not include its reasons, the tribunal must give each relevant person a written notice stating that the relevant person may request the tribunal to give written reasons for its decision under the QCAT Act, section 122.

(6)The QCAT Act, section 122 applies to a request made by a relevant person for written reasons as if a reference in that section to a party to the proceeding were a reference to a relevant person.

(7)In this section—

relevant person means—

(a)the adult concerned in the matter; or

(b)another active party in the proceeding; or

(c)another person given notice of the hearing of the application.

s 156 sub 2008 No. 54s 15; 2009 No. 24s 1464

157Order postponing giving copy of decision

(1)The tribunal may, by order (a postponement order), postpone notifying, and giving a copy of its decision to, a particular person under section 156.

(2)The tribunal may make a postponement order only if the tribunal is satisfied, on reasonable grounds, that making the order is necessary to avoid—

(a)serious harm to a person; or

(b)the effect of the decision being defeated.

(3)A postponement order has effect for the period specified in the order.

(4)The maximum period that may be specified in a postponement order is 14 days.

(5)A postponement order may be renewed, but only if the tribunal is satisfied there are exceptional circumstances justifying the renewal.

s 157 amd 2007 No. 37s 80

sub 2008 No. 54s 15; 2009 No. 24s 1464

158Copy of reasons to be given

(1)This section does not apply in relation to a decision to make a limitation order.

Note—

In relation to a decision to make a limitation order, see section 113.

(2)This section applies if the tribunal gives written reasons for its decision on an application about a matter.

(3)The tribunal must give a copy of the written reasons to—

(a)the adult concerned in the matter; and

(b)each other active party in the proceeding.

(4)The tribunal must also give a copy of its written reasons to anyone else who requests a copy.

(5)For subsection (4), it is sufficient for the tribunal to give a copy of the written reasons in a form that does not contravene section 114A.

s 158 sub 2008 No. 54s 15; 2009 No. 24s 1464

163Appellant

(1)An eligible person may appeal against a tribunal decision, other than a non-appellable decision, in a proceeding as provided under the QCAT Act and for that purpose the person is taken to be a party to the proceeding.

Note—

See also section 101.

(2)A non-appellable decision can not be appealed under the QCAT Act.

(3)In this section—

eligible person—

(a)means—

(i)the person whose capacity for a matter was under consideration in the proceeding; or

(ii)the applicant in the proceeding; or

(iii)a person proposed for appointment by the proceeding; or

(iv)a person whose power as guardian, administrator or attorney was changed or removed by the tribunal decision; or

(v)the public guardian; or

(vi)the public trustee; or

(vii)the Attorney-General; or

(viii)a person given leave to appeal by the appeal tribunal, or the Court of Appeal, under the QCAT Act; and

(b)for a tribunal decision to make a limitation order, other than a non-appellable decision, also means an active party, or an entity adversely affected by the limitation order.

non-appellable decision means a tribunal decision to make a limitation order under section 110.

s 163 amd 2003 No. 87s 33

sub 2009 No. 24s 1466 (amd 2009 No. 48s 106)

amd 2014 No. 26s 240(1)

164Filing notice of appeal in particular circumstances

If the tribunal makes 1 or more orders under section 157 postponing notifying, and giving a copy of, its decision for a specified period, the notice of appeal may be filed within 28 days after the later of the following days—

(a)the last day of the specified period or periods;

(b)the date of the written reasons for the tribunal’s decision.

s 164 amd 2003 No. 87s 34; 2008 No. 54s 16

sub 2009 No. 24s 1466

166Definitions for pt 9

In this part—

recognised provision means a provision, Act or law prescribed under a regulation for section 167.

registrable order means an order made under a recognised provision.

167Regulation prescribing recognised provision

If an Act, or provision of an Act, of the Commonwealth or another State, or a law, or provision of a law, of a foreign jurisdiction, allows an order to be made that is similar to an order that may be made under this Act or the Powers of Attorney Act 1998, the provision, Act or law may be prescribed under a regulation for this section.

168Application to register

A person may apply to the tribunal to register a registrable order.

169Registration

The tribunal may register a registrable order only if the original order or a certified copy of the order has been filed with the tribunal.

170Effect of registration

The effect of registration of a registrable order is the order is treated, other than for an appeal, as if it were an order made by the tribunal.

171Notice of registration and subsequent action to original maker

(1)As soon as reasonably practicable after registering a registrable order, the tribunal must advise the entity that originally made the order of the registration.

(2)As soon as reasonably practicable after the tribunal takes any subsequent action about the order, including, for example, making a further order, the tribunal must advise the entity that originally made the order of the action.