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- Unreported Judgment
KGN  QCAT 304
Guardianship and administration matters for adults
On the papers
Senior Member Endicott
21 April 2016
GUARDIANSHIP – where adult had been found to have impaired decision-making capacity for personal matters – where application made for a declaration about his decision-making capacity – where no evidence was provided supportive of a finding that the adult had capacity to make personal decisions – where adult notified that the application would be considered for dismissal unless supportive evidence was filed – whether the application should be dismissed as lacking in substance
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- A guardian was appointed for KGN on 13 February 2014 under the Guardianship and Administration Act 2000 (Qld) (GAA) for all personal matters. That appointment was to be reviewed in two years.
- A review of that appointment took place on 12 February 2016 and the appointment was changed so that a guardian was put in place to make decisions about accommodation and services for KGN only. That appointment is to be reviewed in two years.
- KGN applied to QCAT for a declaration that he had capacity to make his own personal decisions. Such a declaration would result in the Tribunal also revoking the appointment of the guardian for KGN. Although his application was received by QCAT on 8 February 2016, it did not come to the attention of the Member who conducted the review hearing on 12 February 2016 and so was not considered at the time of that review.
- The application was not accompanied by any evidence of any change in the decision-making capacity of KGN. The evidence which had been provided to the Tribunal as at 12 February 2016 revealed that KGN had been diagnosed with depression. Dr Abu el-kishik reported on 11 February 2016 that KGN blamed his mental health problems on his placement in a nursing home. He had a history of alcohol abuse problems and had been diagnosed with Wernicke-Korsakoff syndrome.
- The medical report stated that KGN scored 30 out of 30 on a Mini Mental State Examination but an assessment of his depression revealed that he had moderate depression. The report stated that KGN believes that returning home to his apartment would help him but he fails to appreciate that he cannot take care of himself independently in terms of cleaning, washing, cooking, shopping, self-hygiene, getting medications and taking his medications. He is also a moderate falls risk.
- KGN was examined by Dr Penny King, a psychogeriatrician, on 12 February 2016. Dr King noted a history of alcohol dependency for some years, living in squalor when he lived at home and refusal of services when at home. He could not give a clear account of his financial position and was not sure if his sister had sold his unit. He reported conflict with his neighbours and denied memory problems.
- Dr King reported that she suspected that KGN has a Korsakoff’s syndrome or alcohol related memory disorder. She was of the opinion that KGN did not have capacity to make lifestyle, health care and financial decisions that are complex. Even for day to day decisions, he requires some prompting. Dr King found severe impairments and complexities from the history presented about KGN.
- After receiving this report, the QCAT registry wrote to KGN informing him that his application was not accompanied by a medical report supporting the presence of capacity for him to make decisions about his personal affairs. The report of Dr King was sent to KGN on 26 February 2016. The registry informed KGN that unless a supportive medical report was received within three weeks, the Tribunal may dismiss his application under s 47 of the QCAT Act.
- No further information or reports were received by the Tribunal after 26 February 2016. The Tribunal is not required to hold a hearing of all applications that are filed. If an application lacks substance, the Tribunal has power under the QCAT Act to bring an early end to such an application. In this case, the evidence provided to QCAT revealed that KGN had demonstrated that he could not appreciate the consequences of decisions that he wanted to make about his accommodation and care.
- Prior to being placed into care, he was living in squalor and had an excessive intake of alcohol for some years. He had refused services and he was in conflict with his neighbours. KGN did not believe he needed the level of care that was provided in an aged care facility but the evidence clearly established that he did need that care.
- Dr Abu el-kishik and Dr King both stated that KGN had an alcohol related disorder and that he could not independently provide for his own care needs. KGN wanted to return to his unit but he did not always remember that the unit had been sold to pay for his care. Nevertheless, he maintained the intention of returning home and did not put forward any feasible alternatives to the examining doctors.
- In order for an application for a declaration about capacity to be determined at a hearing, there must be some appropriate evidence on which a declaration can be made. The ongoing appointment of the guardian is a consequence of the Tribunal finding that KGN had impaired decision-making capacity for personal matters. The finding was predicated on the basis that KGN did not understand the nature and the effect of decisions about personal matters. This conclusion arises from the evidence of Dr Abu el-kishik and was reinforced by the evidence of Dr King.
- Unless KGN had provided evidence that contradicted the opinions of the examining doctors or other evidence that established that he could understand the nature and the consequences of making decisions for himself about his future accommodation and care needs, there was insufficient evidence on which to proceed to a hearing of the application for a declaration about capacity. The application lacked substance as the only determination that could reasonably be made on the evidence before the Tribunal was a finding consistent with the outcome of 12 February 2016 that KGN had impaired capacity for making decisions about his accommodation and services.
- Under s 47 of the QCAT Act, the Tribunal had power to dismiss the application without proceeding to a hearing. KGN was informed that the Tribunal would consider such a course if he did not produce evidence supportive of the presence of decision-making capacity. He did not do so. It was appropriate to dismiss the application as it lacked substance.
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 QCAT 304
Senior Member Endicott
21 Apr 2016