Queensland: Public Guardian Act 2014 (Qld)

Public Guardian Act 2014 An Act to provide for a Public Guardian to promote and protect the rights and interests of adults with impaired capacity for a matter, relevant children and children staying at visitable sites Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Public Guardian Act 2014. 2 Commencement (1) This Act, other than sections 252, 254 and chapter 8, part 17, commences on 1 July 2014. (2) Sections 252 and 254 commence on assent. (3) Chapter 8, part 17 commences on the commencement of the Disability Services (Restrictive Practices) and Other Legislation Amendment Act 2014, section 26. 3 Definitions The dictionary in schedule 1 defines particular words used in this Act. 4 Act 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. Part 2 Purpose and principles of Act 5 Purpose The purpose of this Act is to establish the public guardian to promote and protect the rights and interests of— (a) adults with impaired capacity for a matter; and (b) relevant children and children staying at visitable sites. 6 Principles for adults with impaired capacity for a matter (1) The principles to be applied by persons performing functions or exercising powers under this Act for a matter in relation to an adult with impaired capacity for the matter are— (a) the general principles stated in the Guardianship Act, section 11B (the general principles); and (b) for a health matter—the general principles and the health care principles stated in the Guardianship Act, section 11C (the health care principles). (2) Persons performing functions or exercising powers under this Act for a matter in relation to an adult with impaired capacity must also have regard to the acknowledgements stated in the Guardianship Act, section 5 when performing the functions or exercising the powers. 7 Principles for relevant children and children staying at visitable sites (1) The main principle to be applied by persons performing functions or exercising powers under this Act in relation to a relevant child or a child staying at a visitable site is that the best interests of the child are paramount. (2) The persons must also apply the following general principles when performing functions or exercising powers under this Act in relation to the child— (a) the child's family has primary responsibility for the child's upbringing and development and should be supported in that role; (b) the child is a valued member of society; (c) the child is— (i) to be treated in a way that respects the child's dignity and privacy; and (ii) to be cared for in a way that protects the child from harm, promotes the child's wellbeing and allows the child to reach his or her full potential; (d) the child's emotional, moral, social and intellectual development is important and must be taken into account; (e) the child is entitled to be heard, even if others may not agree with the views expressed by the child; (f) the child should be able to exercise his or her rights and participate in decisions that affect his or her life; (g) the child should be able to access available services necessary to meet his or her needs; (h) an ongoing relationship between the child and the child's family is important for the child's welfare and wellbeing and must be taken into account; (i) an ongoing connection with the child's culture, traditions, language and community is important for the child's welfare and wellbeing and must be taken into account. Part 3 Relationship with other Acts 8 Relationship with Guardianship and Administration Act 2000 and Powers of Attorney Act 1998 (1) This Act, to the extent it relates to an adult with impaired capacity for a matter, is to be read in conjunction with the Guardianship Act and the Powers of Attorney Act. (2) The Guardianship Act provides a scheme by which the tribunal may do the following— (a) appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; (b) appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; (c) consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care. (3) The Guardianship Act also provides a scheme for health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care. (4) The Powers of Attorney Act 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—Powers of Attorney Act, schedule 2, section 2. (b) by advance health directive, an adult may make directions for the adult's future 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. (5) If there is an inconsistency between this Act and the Guardianship Act, the Guardianship Act prevails. Chapter 2 Public guardian 9 Establishment There must be a Public Guardian. 10 Role (1) The public guardian's role in relation to adults who have impaired capacity for a matter is to protect their rights and interests. (2) The public guardian's role in relation to relevant children and children staying at a visitable site is to protect their rights and interests. 11 Functions—general The public guardian has the functions given to the public guardian by this Act or another Act. 12 Functions—adult with impaired capacity for a matter (1) The public guardian has the following functions (adult guardian functions) in relation to an adult with impaired capacity for a matter— (a) protecting the adult from neglect, exploitation or abuse; (b) providing a program called the community visitor program to protect the rights and interests of the adult if the adult resides at a visitable site; (c) investigating complaints and allegations about actions by— (i) an attorney; or (ii) a guardian or administrator; or (iii) another person acting or purporting to act under a power of attorney, advance health directive or order of the tribunal made under this Act or the Guardianship Act; (d) mediating and conciliating between attorneys, guardians or administrators or between attorneys, guardians or administrators and others, for example, health providers, if the public guardian considers this appropriate to resolve an issue; (e) acting as attorney— (i) for a personal matter under an enduring power of attorney; or (ii) under an advance health directive; or (iii) for a health matter if authorised as a statutory health attorney; or (iv) if appointed by the court or the tribunal; (f) acting as guardian if appointed by the tribunal; (g) approving, under the Guardianship Act, chapter 5B, part 4 the use of a restrictive practice in relation to an adult to whom that chapter applies; (h) consenting to a forensic examination under section 38; (i) seeking help (including help from a government agency, or other institution, welfare organisation or provider of a service or facility) for, or making representations for, an adult with impaired capacity; (j) educating and advising persons about, and conducting research into, the operation of this Act, the Guardianship Act and the Powers of Attorney Act. (2) 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; or (c) a statutory health attorney. power of attorney means— (a) a general power of attorney made under the Powers of Attorney Act; or (b) an enduring power of attorney; or (c) a power of attorney made otherwise than under the Powers of Attorney Act, whether before or after its commencement; or (d) a similar document under the law of another jurisdiction. 13 Functions—relevant child, etc. (1) The public guardian has the following functions in relation to a relevant child (child advocate functions)— (a) developing a trusting and supportive relationship with the child, so far as is possible; (b) providing advice and information to the child about matters the child is concerned about; (c) supporting the child at, and participating in— (i) conferences or mediations ordered or facilitated by a court or the tribunal at which the child may attend; or (ii) family group meetings; or (iii) any other meetings; (d) helping the child to resolve issues or disputes with others; (e) monitoring any plan prepared for the child's health, education or benefit to ensure it is being adhered to; (f) working with government agencies that provide a service or facility to the child and other non-government providers of a service or facility to the child; (g) seeking to resolve, with the chief executive (child safety), disputes about reviewable decisions as defined under section 128(1); (h) helping the child to make an official complaint about a matter to someone; (i) helping the child to seek, or respond to, the revocation or variation of an order made under, or taken to be an order for, the Child Protection Act affecting the child; (j) helping the child to initiate or, on the child's behalf, initiating an application to the tribunal for review of a child protection matter; (k) helping an independent Aboriginal or Torres Strait Islander entity for the child to support the child in referring a matter to the tribunal; (l) supporting the child at a proceeding before a court or the tribunal; (m) for a proceeding before a court relating to a court assessment order or child protection order—making submissions, calling witnesses and testing evidence in the proceeding, including by cross-examining witnesses; (n) for a proceeding before the tribunal relating to a child protection matter—making submissions, calling witnesses and testing evidence in the proceeding, including by cross-examining witnesses. (2) The public guardian also has the following additional functions (also child advocate functions)— (a) for a child under care staying at a visitable home or a child staying at a visitable site—providing a program called the community visitor program for the child to promote and protect the rights and interests of the child; (b) for a child mentioned in the Child Protection Act, section 74(1)—to help the child if the child considers that the charter of rights set out in the Child Protection Act, schedule 1 is not being complied with in relation to the child. (3) In this section— child protection order means a child protection order under the Child Protection Act, chapter 2, part 4, including— (a) an order extending, varying or revoking a child protection order; and (b) a child protection order that continues in force— (i) under a transition order made under section 65A of that Act; or (ii) by operation of section 65A(4) of that Act; and (c) an interim order under section 67 of that Act in relation to a proceeding for a child protection order. child under care see section 51. court assessment order see the Child Protection Act, schedule 3. visitable home see section 51. visitable site see section 51. 14 Powers (1) The public guardian has the powers given under this Act or another Act, including the powers of a community visitor, or child advocacy officer, given under this Act. (2) Also, the public guardian may do all things necessary or convenient to be done to perform the public guardian's functions. (3) Without limiting subsection (2), the public guardian may ask the NDIS agency or NDIS commissioner for information the public guardian considers necessary or convenient to perform the public guardian's functions. 15 Not under Ministerial control In performing the public guardian's functions and exercising the public guardian's powers, the public guardian is not under the control or direction of the Minister. Chapter 3 Provisions relating to adults with impaired capacity Part 1 Preliminary 16 Overview of ch 3 This chapter contains provisions relating to the public guardian's functions and powers for adults with impaired capacity for a matter. 17 Definitions for ch 3 In this chapter— adult means an adult with impaired capacity for a matter. power of attorney means— (a) a general power of attorney made under the Powers of Attorney Act; or (b) an enduring power of attorney; or (c) a power of attorney made otherwise than under the Powers of Attorney Act, whether before or after its commencement; or (d) a similar document under the law of another jurisdiction. Part 2 Advice and supervision 18 Public guardian may give advice and impose supervision (1) The public guardian may do any of the following— (a) give advice to an adult's attorney, guardian or administrator; (b) by written notice, make an adult's attorney, guardian or administrator subject to the public guardian's supervision for a reasonable period if the public guardian believes, on reasonable grounds, it is necessary in the adult's interests including, for example, because the attorney, guardian or administrator has contravened this Act, the Guardianship Act or duties, though not wilfully; (c) require an attorney who may exercise power for a financial matter for an adult or an adult's administrator to present a plan of management for approval. (2) An adult's attorney, guardian or administrator may apply to the tribunal to review the public guardian's decision relating to the advice, notice or requirement and the tribunal may make the order it considers appropriate. (3) In this section— administrator, in relation to an adult, means the administrator appointed for the adult under the Guardianship Act. attorney, in relation to an adult, means the adult's attorney authorised under an enduring document or the adult's statutory health attorney. guardian, in relation to an adult, means the guardian appointed for the adult under the Guardianship Act. Part 3 Investigations 19 Investigate complaints (1) The public guardian may investigate any complaint or allegation that an adult— (a) is being or has been neglected, exploited or abused; or (b) has inappropriate or inadequate decision-making arrangements. (2) The public guardian may investigate a complaint or allegation even after an adult's death. 20 Delegate for investigation (1) If the public guardian decides to investigate a complaint or allegation, the public guardian may delegate to an appropriately qualified person the public guardian's powers under this part, other than the power to give notice under section 25(1) or 29. (2) Subsection (1) does not affect the public guardian's authority to delegate power to someone else under section 146. (3) A delegate exercising power under this part must, if asked, produce evidence of the delegation. (4) If a delegate is given power to carry out an investigation, the delegate must, after carrying out the investigation, make a written report and give a copy of the report to the public guardian. (5) It is a lawful excuse for the publication of any defamatory statement made in the report that the publication is made in good faith and is, or purports to be, made for this Act. (6) A delegate (other than a delegate who is a member of the public guardian's staff) given power to carry out an investigation is entitled to the remuneration decided by the public guardian. 21 Records and audit (1) The public guardian may, by written notice to an attorney for an adult who has power for a financial matter or to an administrator for an adult, require that, by the date stated in the notice, the attorney or administrator file with the public guardian a summary of receipts and expenditure, or more detailed accounts of dealings and transactions, for the adult for a specified period. (2) The date by which the summary or accounts must be filed must be a date that the public guardian considers gives the attorney or administrator reasonable time to comply with the notice. (3) The attorney or administrator must comply with the notice, unless the attorney or administrator has a reasonable excuse. Maximum penalty—100 penalty units. (4) The summary or accounts filed may be audited by an auditor appointed by the public guardian. Note— See the Powers of Attorney Act, section 122 (Records and audit) which gives the court similar power in relation to an attorney for a financial matter. (5) This section applies even after an adult's death. (6) In this section— attorney means an attorney under an enduring power of attorney. 22 Right to information (1) The public guardian has a right to all information necessary to investigate a complaint or allegation, or to carry out an audit, in connection with an adult. Note— In addition, the Powers of Attorney Act, section 81 (Right of attorney to information) gives the public guardian a right to information as an attorney. (2) The public guardian may, by written notice given to a person who has custody or control of the information, require the person— (a) to give the information to the public guardian; and (b) if the person is an attorney or administrator and the information is contained in a document—to give the document to the public guardian; and (c) if the person is not an attorney or administrator and the information is contained in a document—to allow the public guardian to inspect the document and take a copy of it. (3) The person must comply with the notice, unless the person has a reasonable excuse. Maximum penalty—100 penalty units. (4) It is a reasonable excuse for a person not to comply with the notice because complying with the notice might tend to incriminate the person. (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, including a person's personal information; and (b) any claim of confidentiality or privilege, including a claim based on legal professional privilege. (6) 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. personal information see the Information Privacy Act 2009, section 12. 23 Information by statutory declaration (1) If a person is required to give information to the public guardian under this chapter, the public guardian may, by written notice given to a person, require the person to give the information by statutory declaration. (2) The person must comply with the notice, unless the person has a reasonable excuse. Maximum penalty for subsection (2)—100 penalty units. 24 Protection from liability for giving information (1) This section applies to the giving of information to the public guardian under section 22 or 23. (2) A person may give the information despite any other law that would otherwise prohibit or restrict the giving of the information. (3) If a person, acting honestly, gives the information to the public guardian, the person is not liable, civilly, criminally or under an administrative process, for giving the information. (4) Also, merely because the person gives the information, the person can not be held to have— (a) breached any code of professional etiquette or ethics; or (b) departed from accepted standards of professional conduct. (5) Without limiting subsections (3) and (4)— (a) in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and (b) if the person would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the person— (i) does not contravene the Act, oath or rule of law or practice by giving the information; and (ii) is not liable to disciplinary action for giving the information. (6) In this section— giving, of information contained in a document, includes allowing the document to be inspected and a copy to be taken of it. 25 Witnesses (1) For the performance of adult guardian functions, the public guardian may, by written notice given to a person, require the person to attend before the public guardian at a stated time and place to give information and answer questions, or produce stated documents or things. (2) The person must comply with the notice, unless the person has a reasonable excuse. Note— See section 28 (Self-incrimination not a reasonable excuse). Maximum penalty—100 penalty units. (3) The public guardian may— (a) require the person to take an oath; and (b) administer an oath to the person, or, if technology allowing reasonably contemporaneous and continuous communication is to be used, make the arrangements the public guardian considers appropriate in the circumstances for administering an oath to the person; and (c) allow the person to give information by tendering a written statement, verified, if the public guardian directs, by oath. (4) The person must comply with a requirement under subsection (3)(a), unless the person has a reasonable excuse. Maximum penalty—100 penalty units. (5) The person is entitled to be paid by the public guardian an amount equivalent to the amount the person would receive under the Court Fees and Allowances Regulation if the person's attendance before the public guardian were attendance in a Magistrates Court as a witness. (6) In this section— Court Fees and Allowances Regulation means a regulation made under the Supreme Court of Queensland Act 1991 providing for the fees and allowances payable to witnesses attending before a court. 26 Power of court if noncompliance with attendance notice (1) This section applies if, without reasonable excuse, a person fails to comply with a notice given under section 25. (2) A Magistrates Court, at the request of the public guardian, may issue a subpoena requiring the attendance of the person before the court. (3) The Uniform Civil Procedure Rules 1999, other than rules 417, 418 and 420, apply in relation to the subpoena. Note— See the Uniform Civil Procedure Rules 1999, chapter 11, part 4. (4) The court may require the person to take an oath. (5) The public guardian may examine the person attending before the court under a subpoena issued under subsection (2). (6) In this section— subpoena means— (a) a subpoena for production; or (b) a subpoena to give evidence; or (c) a subpoena for production and to give evidence. 27 Power of court if failure to cooperate under subpoena (1) This section applies if a person subpoenaed under section 26 attends before a Magistrates Court and without reasonable excuse— (a) refuses to take an oath; or (b) refuses to answer a question put to the person; or (c) fails to give an answer to the court's satisfaction. (2) The court may treat the person's refusal or failure as a contempt of court. 28 Self-incrimination not a reasonable excuse (1) This section applies to— (a) a person who fails to comply with a notice under section 25(1) to give information and answer questions or to produce documents or things; or (b) a person subpoenaed under section 26 who attends before a Magistrates Court and refuses to answer a question put to the person or fails to give an answer to the court's satisfaction. (2) It is not a reasonable excuse for the person to— (a) fail to comply with the notice; or (b) refuse to answer the question or fail to give an answer to the court's satisfaction; because compliance with the notice, answering the question or giving an answer to the court's satisfaction might tend to incriminate the person. (3) However, evidence of, or directly or indirectly derived from, information given by a person or 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 an offence about the falsity of the information, answer, document or thing; or (b) if the information, 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 information, answer or production is relevant to the person's professional registration or licence—a proceeding about the registration or licence; or (d) if the information, 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. 29 Cost of investigations and audits (1) If— (a) the public guardian undertakes an investigation concerning a financial matter or an audit at the request of a person; and (b) the public guardian is satisfied the request was frivolous or vexatious or otherwise without good cause; the public guardian may, by written notice, require the person to pay to the public guardian the amount the public guardian considers appropriate for the cost of the investigation or audit. (2) If— (a) the public guardian undertakes an investigation concerning a financial matter or an audit; and (b) the public guardian considers the attorney or administrator concerned has contravened this Act, the Guardianship Act or the Powers of Attorney Act; the public guardian may, by written notice, require the attorney or administrator to personally pay to the public guardian the amount the public guardian considers appropriate for the cost of the investigation or audit. (3) The public guardian may, by written notice, require a person who requests an investigation or audit to pay to the public guardian the amount the public guardian considers appropriate as security for a payment under subsection (1). (4) A person given notice under this section may apply to the tribunal to review the public guardian's decision to require the payment, or the amount of the payment required, and the tribunal may make the order it considers appropriate. (5) In this section— attorney means an attorney under a power of attorney. 30 Obstructing investigation or audit (1) A person must not obstruct or improperly influence the conduct of an investigation or audit. Maximum penalty—100 penalty units. (2) In this section— influence includes attempt to influence. obstruct includes hinder, resist and attempt to obstruct. 31 Report and information after investigation or audit (1) After the public guardian has carried out an investigation or audit in relation to an adult, the public guardian— (a) must make a written report; and (b) must inform each of the following persons, in a way the public guardian considers appropriate, of the results of the investigation or audit— (i) the person at whose request the investigation or audit was carried out; (ii) every attorney, guardian or administrator for the adult; (iii) if the adult has died—the adult's personal representative; and (c) may give a copy of the report to a person mentioned in paragraph (b). (2) It is a lawful excuse for the publication of a defamatory statement made in the report that the publication is made in good faith and is, or purports to be, made for this Act. (3) If an interested person asks to be informed of the results of the investigation or audit, the public guardian must inform the interested person in a way the public guardian considers appropriate. (4) If a report made by the public guardian contains information about a person and the public guardian considers it appropriate to protect the person's identity, the public guardian may remove, from the copy of the report given under subsection (1), information likely to result in the person's identification. (5) In this section— attorney means— (a) an attorney under a power of attorney; or (b) an attorney under an advance health directive. 32 Prohibited use of report after investigation or audit (1) This section applies if— (a) a report contains information about a person but does not identify the person (the de-identified person); and (b) another person accesses the report. (2) The other person must not, unless the other person has a reasonable excuse, publish information contained in the report to the public, or a section of the public, if the publication is likely to result in the identification of the de-identified person 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. (3) However, subsection (2) does not apply if the other person is a person who has access to the report because of being, or an opportunity given by being— (a) a relevant person; or (b) the public guardian; or (c) a member of the public guardian's staff; or (d) an attorney; or (e) a community visitor; or (f) a person consulted or employed by the public guardian for this Act; or (g) a public guardian's delegate for an investigation. Note— For the confidentiality requirements for a relevant person, see the Guardianship Act, section 249A. For the confidentiality requirements for an attorney, see the Powers of Attorney Act, section 74A. For the confidentiality requirements for a person mentioned in paragraph (b), (c), (e), (f) or (g), see section 140. (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. relevant person see the Guardianship Act, section 246. Part 4 Protective powers 33 Proceedings for protection of property If the public guardian considers— (a) property of an adult is wrongfully held, detained, converted or injured; or (b) money is payable to the adult; the public guardian, either in the name of the public guardian or the adult, may claim and recover possession of the property, damages for conversion of or injury to the property, or payment of the money, by application to the Supreme Court. 34 Suspension of attorney's power (1) The public guardian may, by written notice to an attorney, suspend the operation of all or some of an attorney's power for an adult if the public guardian suspects, on reasonable grounds, that the attorney is not competent. (2) An attorney 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 attorney has neglected the attorney's duties or abused the attorney's powers, whether generally or in relation to a specific power; or (c) the attorney has otherwise contravened this Act, the Guardianship Act or the Powers of Attorney Act. (3) The suspension may not be for more than 3 months. (4) The public guardian may not— (a) extend the suspension; or (b) suspend the attorney more than once on the same ground arising from the same circumstances. (5) The public guardian may lift the suspension on the terms the public guardian considers appropriate. (6) The attorney whose power has been suspended may apply to the tribunal to review the public guardian's decision to suspend the attorney or the terms on which the suspension is lifted and the tribunal may make the order it considers appropriate. (7) In this section— attorney means an attorney under an enduring document. 35 Exercise of power during suspension (1) During the suspension of the operation of power of an attorney, the attorney must not exercise the power. Maximum penalty—100 penalty units. (2) During the suspension of the operation of power of an attorney for a personal matter, the public guardian is taken to be the attorney for the adult for the exercise of the power. (3) During the suspension of the operation of power of an attorney for a financial matter, the public trustee is taken to be the attorney for the adult for the exercise of the power. 36 Power to apply for entry and removal warrant (1) This section applies if the public guardian considers 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. (2) The public guardian may apply to the tribunal for a warrant under the Guardianship Act, section 148 to enter a place and to remove the adult. 37 Health providers may advise public guardian (1) This section applies if a health provider who is treating a person over the age of 18 reasonably considers— (a) the person has impaired capacity for a matter; and (b) the person does not have an attorney, guardian or administrator for the matter. (2) The health provider may advise the public guardian of the following details— (a) the person's name; (b) the person's current location and contact address; (c) the contact details for the person's nearest relative; (d) the health provider's opinion about the person's capacity. (3) This section overrides— (a) any restriction, in an Act or under the common law, about the disclosure or confidentiality of information; and (b) any claim of confidentiality or privilege. (4) In this section— attorney means an attorney under an enduring document. contact details, for a relative, means the relative's address and telephone number or a way of contacting the relative. Part 5 Power to consent to forensic examination 38 Consent to forensic examination The public guardian may consent to the forensic examination of an adult with impaired capacity for consenting to the examination if— (a) the public guardian reasonably considers the examination is in the adult's best interests; and (b) any of the following apply— (i) no guardian or attorney for the adult is appointed or available to consent for the adult to the examination; (ii) any guardian or attorney for the adult who is available has failed to consent; (iii) the public guardian reasonably considers the adult's interests would not be adequately protected if the consent of any guardian or attorney for the adult were sought. Example of forensic examination that may be in an adult's best interests— a forensic examination to obtain evidence that a criminal offence has been committed against the adult Note— See also the Guardianship Act, section 248A (Protection for person carrying out forensic examination with consent). Part 6 Community visitor program (adult) Division 1 Interpretation 39 Definitions for pt 6 In this part— chapter 5B approval means an approval given under the Guardianship and Administration Act 2000, chapter 5B. complaint means a complaint about a matter mentioned in section 41(2) made by or for a consumer at a visitable site. consumer means— (a) for a visitable site that is an authorised mental health service under the Mental Health Act 2016—any person who lives or receives services at the visitable site; or (b) for a visitable site that is the forensic disability service—any person who lives or receives services at the visitable site; or (c) for another visitable site—an adult, with impaired capacity for a personal matter or a financial matter or with an impairment, who lives or receives services at the visitable site. forensic disability service means the forensic disability service under the Forensic Disability Act 2011. funded adult participant means an adult— (a) with impaired capacity for a personal matter or a financial matter, or with an impairment; and (b) who is a participant under the National Disability Insurance Scheme Act 2013 (Cwlth) and has a participant's plan. impairment means a cognitive, intellectual, neurological or psychiatric impairment. private dwelling house means premises at which an adult, with impaired capacity for a personal matter or a financial matter or with an impairment, lives if the premises are used, or used principally, as a separate residence for— (a) if a restrictive practice is being used at the premises in relation to the adult under a chapter 5B approval—the adult and 1 or more of the adult's relations; or (b) if specialist positive behaviour support is being provided at the premises under the adult's participant's plan and the support involves the use of a restrictive practice—the adult and 1 or more of the adult's relations; or (c) if specialist disability accommodation is being provided at the premises under the adult's participant's plan—the adult and 1 or more of the adult's relations; or (d) if paragraphs (a), (b) and (c) do not apply—the adult and 1 or more of the adult's relations, or the adult only. relation, of an adult, means— (a) a person who is related to the adult by blood, spousal relationship, adoption or a foster relationship; or (b) if the adult is an Aboriginal person—a person who, under Aboriginal tradition, is regarded as a relative of the adult; or (c) if the adult is a Torres Strait Islander—a person who, under Island custom, is regarded as a relative of the adult. relevant class of supports means any of the following classes of supports under the National Disability Insurance Scheme Act 2013 (Cwlth)— (a) high intensity daily personal activities; (b) assistance with daily life tasks in a group or shared living arrangement; (c) specialist positive behaviour support that involves the use of a restrictive practice; (d) specialist disability accommodation. specialist disability accommodation means SDA within the meaning of the national disability insurance scheme rules made for the National Disability Insurance Scheme Act 2013 (Cwlth), section 35 about the funding of SDA. specialist positive behaviour support has the same meaning as in the National Disability Insurance Scheme Act 2013 (Cwlth). visitable site means— (a) an authorised mental health service under the Mental Health Act 2016 that provides inpatient services; or (b) the forensic disability service; or (c) premises, other than a private dwelling house, at which a funded adult participant lives and receives services or supports that— (i) are paid for wholly or partly from funding under the national disability insurance scheme; and (ii) are provided under the adult's participant's plan; and (iii) are provided by a registered NDIS provider that is registered under the National Disability Insurance Scheme Act 2013 (Cwlth), section 73E to provide a relevant class of supports; and (iv) are within the relevant class of supports; or (d) a place, other than a private dwelling house, that is prescribed under a regulation. visitable site document, for a visitable site, means— (a) a document relating to the visitable site, including the visitable site's records, policies and procedures; or (b) a document relating to a consumer at the visitable site, including a document in the consumer's personal or medical file, regardless of who owns the file. Division 2 Purpose 40 Purpose and allocation of community visitors (adult) (1) The purpose of providing a program involving community visitors (adult) for visitable sites is to protect the rights and interests of consumers at the visitable sites. (2) The public guardian may allocate 1 or more community visitors (adult) for a visitable site. Division 3 Functions 41 Inquiry and complaint functions (1) A community visitor (adult) has inquiry and complaint functions. (2) The inquiry functions of a community visitor (adult) for a visitable site are to inquire into, and report to the public guardian on— (a) the adequacy of services for the assessment, treatment and support of consumers at the visitable site; and (b) the appropriateness and standard of services for the accommodation, health and wellbeing of consumers at the site; and (c) the extent to which consumers at the site receive services in the way least restrictive of their rights; and (d) the adequacy of information given to consumers at the site about their rights; and (e) the accessibility and effectiveness of procedures for complaints about services for consumers at the site; and (f) at the request of the public guardian, another matter about the visitable site or consumers at the site. (3) The complaint functions of a community visitor (adult) for a visitable site are to— (a) inquire into, and seek to resolve, complaints; and (b) identify and make appropriate and timely referrals of unresolved complaints to appropriate entities for further investigation or resolution; and (c) refer any other matter in relation to a complaint to the NDIS commissioner if the community visitor (adult) considers the NDIS commissioner has functions in relation to the matter. (4) If a community visitor (adult) reasonably considers that the visitor can discharge the visitor's functions or a particular function by contacting a consumer or someone else at a visitable site by using relevant technology, the visitor may discharge the functions or function in that way. (5) In this section— relevant technology means a telephone or any other technology that reasonably allows persons using the technology to communicate effectively. Examples— • video conferencing • text messaging • email 42 Requirement to regularly visit visitable site (1) A community visitor (adult) for a visitable site must regularly visit the visitable site to perform the visitor's functions. (2) The public guardian may decide priorities for visiting particular visitable sites that affect the frequency of visits to a visitable site by a community visitor (adult). 43 Requirement to visit visitable site if asked (1) A consumer at a visitable site, or a person for the consumer, may— (a) ask the public guardian to arrange for a community visitor (adult) to visit the site to perform the visitor's functions; or (b) ask a staff member at the visitable site to arrange for a community visitor (adult) to visit the site to perform the visitor's functions. (2) The following entities may also make a request under subsection (1)(a) or (b)— (a) a consumer's administrator; (b) a consumer's attorney under an enduring power of attorney; (c) a consumer's attorney under an advance health directive; (d) a consumer's statutory health attorney; (e) a consumer's guardian; (f) an interested person for the consumer; (g) an organisation that provides advocacy for consumers. (3) If the request is made to a staff member at the visitable site, the staff member must, within 3 business days after the request is made, tell the public guardian about the request. Maximum penalty—40 penalty units. (4) A community visitor (adult) for the visitable site must visit the site as soon as practicable if informed of a request to visit. Division 4 Powers 44 Power to do all things necessary or convenient (1) A community visitor (adult) for a visitable site may do all things necessary or convenient to be done to perform the visitor's functions, including, for example, the following things— (a) enter the site during normal hours without notice; (b) with the public guardian's authorisation, enter the site outside normal hours without notice; (c) require a staff member at the site to answer questions, and produce visitable site documents, relevant to the visitor's functions; (d) inspect and take extracts from, or make copies of, any visitable site document; (e) confer alone with a consumer or a staff member at the site; (f) require a staff member at the site to give the visitor reasonable help, if it is practicable to give the help, to enable the visitor to do the things mentioned in paragraphs (a) to (e); (g) ask the NDIS agency or NDIS commissioner for information the visitor considers necessary or convenient to perform the visitor's functions. (2) A person who complies with a requirement under subsection (1)(c) or (f) does not incur any liability, either to the consumer or anyone else, because of the compliance. (3) A person must comply with a requirement under subsection (1)(c) or (f), unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (4) It is a reasonable excuse for a person not to comply with a requirement under subsection (1)(c) or (f) because compliance with the requirement might tend to incriminate the person. 45 Public guardian may authorise access outside normal hours (1) This section applies if the public guardian considers a community visitor (adult) can not adequately inquire into a complaint by entering a visitable site during normal hours. (2) The public guardian may authorise the visitor to enter the site outside normal hours to inquire into the complaint. (3) In authorising an entry outside normal hours, the public guardian must specify a period of not more than 2 hours during which the entry is authorised. 46 Consumer's views and wishes (1) To the greatest extent practicable, a community visitor (adult) must seek and take into account the views and wishes of a consumer before— (a) asking a staff member at the visitable site a question relevant to a function of the visitor in relation to the consumer; or (b) inspecting, taking extracts from, or making copies of, a visitable site document relevant to a function of the visitor in relation to the consumer. (2) A consumer's views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct. (3) However, regardless of the consumer's views and wishes, the visitor must act in a way consistent with the consumer's proper care and protection. 47 Reports by community visitors (adult) (1) As soon as practicable after a visit to a visitable site by a community visitor (adult) for the visitable site, the visitor must— (a) prepare a report on the visit; and (b) give a copy of the report to the public guardian. (2) If the visitor entered the site outside normal hours, the visitor must state the authority for the entry in the report. (3) As soon as practicable after receiving a copy of a report in relation to the site, the public guardian must give a copy of the report to a person in charge of the site. (4) The public guardian may also give a copy of the report to any of the following— (a) if the report relates to a complaint—the consumer; (b) the public advocate; (c) the chief psychiatrist under the Mental Health Act 2016; (d) the director of forensic disability under the Forensic Disability Act 2011; (e) if a restrictive practice is being used at the visitable site under a chapter 5B approval— (i) the tribunal; or (ii) a guardian or administrator for a consumer in relation to whom the restrictive practice is used; or (iii) the chief executive (disability services); (f) an interested person for the consumer; (g) if the report relates to a visit requested by a person mentioned in section 43(2)(a), (b), (c), (d), (e) or (g)—the person who made the request; (h) if the report relates to the provision of services or supports by a registered NDIS provider at the visitable site and section 49A applies to the provider in relation to the services or supports—the NDIS commissioner. 48 Public guardian's directions about the exercise of powers A community visitor (adult) is subject to the public guardian's directions in the exercise of a power. Division 5 Miscellaneous 49 Privacy of correspondence between community visitor (adult) and consumers A staff member at a visitable site must not open, read, copy or remove any correspondence sent, or being sent, between a community visitor (adult) and a consumer residing at the site, unless the consumer asks the staff member to do so. Maximum penalty—20 penalty units. 49A Requirement for particular registered NDIS providers to give information to public guardian (1) This section applies to a registered NDIS provider that provides services or supports to a consumer under the consumer's participant's plan at a visitable site if— (a) the services or supports are paid for wholly or partly from funding under the national disability insurance scheme; and (b) the registered NDIS provider is registered under the National Disability Insurance Scheme Act 2013 (Cwlth), section 73E to provide a relevant class of supports; and (c) the services or supports are within the relevant class of supports. (2) The registered NDIS provider must give the public guardian, in the way and at the times prescribed by regulation, required information that is in the provider's custody or control, unless the provider has a reasonable excuse. Maximum penalty—25 penalty units. (3) In this section— required information means information about the provision of the services or supports prescribed by regulation. Chapter 4 Provisions relating to relevant children and children staying at visitable sites Part 1 Preliminary 50 Overview of ch 4 This chapter contains provisions relating to the public guardian's functions and powers for relevant children and children staying at visitable sites. 51 Definitions for ch 4 In this chapter— authorised mental health service see the Mental Health Act 2016, schedule 3. child accommodation service means a service the main purpose of which is to provide accommodation, but does not include— (a) the care of children by an approved carer under the Child Protection Act acting in that capacity; or (b) the provision of accommodation to children under residential tenancy agreements under the Residential Tenancies and Rooming Accommodation Act 2008. child under care, staying at a visitable home, means— (a) a child in the custody or guardianship of the chief executive (child safety) under the Child Protection Act who, under section 82 of that Act, has been placed in the care of someone other than a parent of the child; or (b) a child who, under a care agreement under the Child Protection Act, has been placed in the care of someone other than a parent of the child. corrective services facility see the Corrective Services Act 2006, schedule 4. detention centre means a detention centre under the Youth Justice Act 1992. prescribed department means— (a) the child safety department; or (b) the community services department; or (c) the disability services department; or (d) the health department; or (e) the housing department; or (f) the youth justice department. residential facility means a place at which a child accommodation service is provided— (a) by a prescribed department; or (b) under funding provided by a prescribed department; or (c) under funding provided by the Commonwealth and administered by a prescribed department; or (d) under a licence under the Child Protection Act; or (e) to a child who is, under the Child Protection Act, in the custody or guardianship of the chief executive (child safety), if the place is prescribed under a regulation for this paragraph; or (f) to a child, under the child's participant's plan, for the purpose of providing respite services in relation to the child. visitable home, for a child under care, means— (a) if the child is in the custody or guardianship of the chief executive (child safety) under the Child Protection Act and, under section 82 of that Act, has been placed in the care of someone other than a parent of the child—the home or other accommodation where the child is staying with the other person; or (b) if the child, under a care agreement under the Child Protection Act, has been placed in the care of someone other than a parent of the child—the home or other accommodation where the child is staying with the other person. visitable location means a visitable home or visitable site as defined in this section. visitable site, for a child, means— (a) a residential facility where the child is staying; or (b) a detention centre where the child is staying; or (c) a corrective services facility where the child is staying; or (d) an authorised mental health service where the child is staying. visitable site document, for a visitable site, means— (a) a document relating to the visitable site, including the visitable site's records, policies and procedures; or (b) a document relating to a child staying at the visitable site, including a document in the child's personal or medical file, regardless of who owns the file. 52 When is a child a relevant child (1) A child is a relevant child if— (a) the child is subject to any of the following— (i) a temporary assessment order under the Child Protection Act, section 27(1); (ii) a court assessment order under the Child Protection Act, section 44; (iii) a temporary custody order under the Child Protection Act, section 51AE; (iv) a child protection order under the Child Protection Act, section 61, including a child protection order that continues in force— (A) under a transition order made under section 65A of that Act; or (B) by operation of section 65A(4) of that Act; (v) an intervention, with the child's parents' agreement, by the chief executive (child safety) under the Child Protection Act, chapter 2, part 3B, division 2; (vi) a care agreement under the Child Protection Act, section 51ZE; or (b) the child is the subject of an application for an order mentioned in subsection (1)(a)(i) to (iv). (2) A child stops being a relevant child if— (a) subject to subsection (3)— (i) the child stops being subject to an order, intervention or agreement mentioned in subsection (1)(a)(i) to (vi); or (ii) if the child is the subject of an application mentioned in subsection (1)(b)—the application is withdrawn or refused; or (b) subject to subsection (4), the child turns 18. (3) A child to whom subsection (2)(a) refers continues to be a relevant child if— (a) immediately before the child stopped being subject to the order, intervention or agreement, or the application in relation to the child was withdrawn or refused, the public guardian was providing particular help to the child and the public guardian believes— (i) it is appropriate to finish providing the help to the child; or (ii) the child— (A) may be the subject of a further application for an order mentioned in subsection (1)(a)(i) to (iv) or a further intervention or agreement; and (B) continues to be in need of particular help during the period before the application is made, the intervention starts or the agreement is entered into; or (b) the public guardian believes the child requires particular help to review— (i) a decision ending the order, intervention or agreement; or (ii) a decision to withdraw or refuse an application mentioned in subsection (1)(b). (4) A person to whom subsection (2)(b) refers continues to be a relevant child if— (a) the person asks the public guardian for help in the person's transition from being a relevant child; and (b) the public guardian is satisfied the person continues to be in need of particular help for the transition. (5) A person stops being a relevant child under subsection (3) or (4) when the public guardian— (a) has finished providing the particular help mentioned in subsection (3)(a) or (b) or (4)(b); and (b) advises the person that he or she is no longer a relevant child for this Act. 53 Who is a parent (1) A parent of a child is the child's mother, father or someone else, other than the chief executive (child safety), having or exercising parental responsibility for the child. (2) However, a person standing in the place of a parent of a child on a temporary basis is not a parent of the child. (3) A parent of an Aboriginal child includes a person who, under Aboriginal tradition, is regarded as a parent of the child. (4) A parent of a Torres Strait Islander child includes a person who, under Island custom, is regarded as a parent of the child. 54 Child's views and wishes (1) To the greatest extent practicable, the public guardian or another entity who performs a child advocate function or exercises a power under this Act in relation to a child must seek, and take into account, the views and wishes of the child when performing the function or exercising the power. (2) The child's views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct. (3) The child's views and wishes should be taken into account in a way that has regard to the child's age and maturity. (4) In this section— child means a relevant child or a child staying at a visitable site. Part 2 Community visitor program (child) Division 1 Purpose 55 Purpose and allocation of community visitors (child) (1) The purpose of providing a program involving community visitors (child) for visitable locations is to protect the rights and interests of children staying at visitable locations. (2) The public guardian may allocate 1 or more community visitors (child) for a visitable location. Division 2 Functions 56 Functions of community visitor (child), etc. (1) A community visitor (child) has the following functions relating to a child under care staying at a visitable home or a child staying at a visitable site— (a) to develop a trusting and supportive relationship with the child, so far as is possible; (b) to advocate on behalf of the child by listening to, giving voice to, and facilitating the resolution of, the child's concerns and grievances; (c) to seek information about, and facilitate access by the child to, support services appropriate to the child's needs provided by service providers; (d) to inquire into and report on the adequacy of information given to the child about the child's rights; (e) to inquire into and report on the physical and emotional wellbeing of the child; (f) for a visitable home— (i) to inspect the home and report on its appropriateness for the accommodation of the child; and (ii) to ensure the child's needs are being met by persons caring for the child at the home; (g) for a visitable site— (i) to inspect the site and report on its appropriateness for the accommodation of the child or the delivery of services to the child, having regard to relevant State and Commonwealth laws, policies and standards; and (ii) to ensure the child's needs are being met by staff members at the site; (h) at the request of the public guardian, to inquire into and report on any other matter relating to a child under care staying at a visitable home or a child staying at a visitable site. (2) A community visitor (child) may perform any other child advocate function if directed by the public guardian. (3) A community visitor (child) also has the function of giving advice and reports to the public guardian about anything relating to the visitor's functions and powers. (4) Without limiting subsection (1)(b), the function of a community visitor (child) mentioned in that subsection includes referring a matter in relation to a child's concerns and grievances to the NDIS commissioner if the visitor considers the NDIS commissioner has functions in relation to the matter. (5) If a community visitor (child) reasonably considers that the visitor can discharge the visitor's functions or a particular function by contacting a child or someone else at a visitable home or visitable site by using relevant technology, the visitor may discharge the functions or function in that way. (6) In this section— relevant technology means a telephone or any other technology that reasonably allows persons using the technology to communicate effectively. Examples— • video conferencing • text messaging • email service provider includes an entity providing a service under an arrangeme