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MEC[2017] QCAT 117

CITATION:

MEC [2017] QCAT 117

PARTIES:

MEC

APPLICATION NUMBER:

GAA7668-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

20 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

3 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for a declaration of capacity is refused.

CATCHWORDS:

DECLARATION OF CAPACITY – enduring mental illness – paranoid schizophrenia – extensive history of psychotic episodes and non-compliance with medication – adult has capacity when mental illness controlled – onus of proof – understanding the nature and effect of decisions – time when capacity must be assessed.

Guardianship and Administration Act 2000 (Qld), s 10, s 146, Schedule 2.

Aziz v Prestige Property Services Pty Ltd [2007] QSC 265

Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 QdR 402

Fehily v Atkinson [2016] EWHC 3069

McD v McD [1983] 3 NSWLR 81

Re Bridges [2001] 1 QdR 574

APPEARANCES:

 

APPLICANT:

MEC

REASONS FOR DECISION

  1. [1]
    MEC has made an application pursuant to s 146(2) of the Guardianship and Administration Act 2000 (Qld) (Guardianship Act) for a declaration that she has capacity.  Capacity is an important threshold issue under the Guardianship Act because it determines whether an adult will have autonomy over decisions in relation to a particular type of matter. Behind this application is a desire by MEC to regain control of decisions that need to be made regarding her financial affairs. 
  2. [2]
    There has been a long history of the Public Trustee being appointed administrator for MEC for financial decisions and then removed. I will here record the reasons which have led me to make the order refusing the declaration of capacity.
  3. [3]
    The Public Trustee was first appointed in 2002 and has been appointed and removed many times since then. The Tribunal made the most recent appointment on 17 April 2014, appointing the Public Trustee administrator for MEC for all financial matters until further order.  The Tribunal dismissed an application for a declaration about the capacity of MEC on 20 November 2015. A further application for a declaration about capacity was made in July 2016.  The matter was part heard and adjourned by me on 18 November 2016 to enable MEC to obtain any further medical reports assessing whether or not MEC has capacity for financial matters within the meaning of the Guardianship Act by 18 February 2017.[1]
  4. [4]
    MEC sent an email to the Tribunal on 8 February seeking an extension of time in which to obtain the report and a later hearing date.  MEC later elected to go ahead with the hearing as scheduled. 
  5. [5]
    The medical evidence obtained by MEC for the purposes of the hearing was a medical report by Dr Noel Saines dated 31 January 2017. Dr Saines is a neurologist who first saw MEC in December 2003.

The statutory test of capacity

  1. [6]
    Section 146(1) of the Guardianship Act provides that the tribunal may make a declaration about the capacity of an adult for a matter.[2]  The application may be made by the tribunal on its own initiative or on the application of the individual or another interested person.[3]
  2. [7]
    Section 7(a) provides that an adult is presumed to have capacity for a matter.[4]  The presumption also comprises the first General Principle contained in Schedule 1 of the Guardianship Act which must be complied with in the exercise of a power under the Act.[5]
  3. [8]
    The presumption is rebuttable. This means that an adult is presumed to have capacity unless there is evidence which shows this not to be the case. The standard of proof required to rebut the presumption is the balance of probabilities.[6]   The burden of proof is ordinarily on the person who is seeking to rebut the presumption. 
  4. [9]
    The issue has arisen as to whether the presumption applies when a court or Tribunal has, in a previous application, determined that the adult has impaired capacity.  At common law a presumption of continuance applied so that if a person has been proved to lack capacity, the lack of capacity was presumed to continue until proven otherwise.[7]  In relation to applications made under the Guardianship Act however it was held in Bucknall v Guardianship and Administration Tribunal (No 1)[8] that the Tribunal is required to apply the presumption when determining capacity, not only on an initial application but also on any subsequent application. There Byrne SJA held:

[28] There is nothing absurd about the Tribunal’s applying the presumption every time it investigates capacity. For one thing, cognitive functions sometimes improve over time; and an adult with impaired capacity at one time might not lack capacity a year or two later.

[29] Even if the issue is revisited soon after impaired capacity is found, no particularly inconvenient consequences would attend a fresh application of the presumption. The Tribunal is empowered to gather the evidence needed to make an informed decision.  And, as with Mrs  Bucknall ’s case, a Tribunal that revisits capacity may take into account, if still relevant, evidence adduced in the earlier proceeding when the impaired capacity was declared.

[30] For the Tribunal to give effect to the presumption more than once is not so bothersome that the Parliament is unlikely to have intended that to be done.

[31] In any event, the Act contains an explicit indication that the legislature did expect that the presumption would apply in such circumstances.

  1. [10]
    “Capacity” is defined in the Guardianship Act in terms of whether a person has capacity for a matter. This means that the issue of whether a person lacks capacity is issue specific, to be judged in relation to the particular decision or type of decision in question and not globally.[9]
  2. [11]
    A person will have capacity for a matter if the person is capable of:
    1. understanding the nature and effect of decisions about the matter; and
    2. freely and voluntarily making decisions about the matter; and
    3. communicating the decisions in some way.[10]
  3. [12]
    These elements are interdependent. If any of those requirements are missing a person is described as having “impaired capacity” for the matter. This definition has been said to reflect a functional approach[11] to defining decision-making capacity which focuses on a person’s understanding in relation to a particular task.[12] 
  4. [13]
    The Act acknowledges that the capacity of an adult with impaired capacity to make decisions may differ depending on:
    1. The nature and extent of the impairment;
    2. The type of decision to be made, including, for example, the complexity of the decision to be made; and
    3. The support available from members of the adult’s existing support network.[13]
  5. [14]
    This reflects the notion that impaired capacity for the purposes of the guardianship legislation is a spectrum or sliding-scale which is to be applied in the context of decisions in relation to a particular matter or type of matter.  Impaired capacity may, therefore, be partial and is not to be assessed by the application of an “all or nothing” approach. 
  6. [15]
    Once it is determined that an adult has impaired capacity the tribunal can take into account the level of the adult’s impairment, the type of decision to be made and the adult’s support network in determining the extent of the adult’s capacity.  This gives the tribunal the flexibility to determine that an adult has capacity for decisions in relation to one type of matter but not another.
  7. [16]
    The Act categorises matters as follows:
    1. personal matter
    2. special personal matter
    3. special health matter
    4. financial matter.[14]
  8. [17]
    The relevant matter here is financial matter.  Financial matter is defined in Schedule 2, Part 1 as follows:

A financial matter, for an adult, is a matter relating to the adult's financial or property matters, including, for example, a matter relating to 1 or more of the following—

  1. (a)
    paying maintenance and accommodation expenses for the adult and the adult's dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult;
  1. (b)
    paying the adult's debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law;
  1. (c)
    receiving and recovering money payable to the adult;
  1. (d)
    carrying on a trade or business of the adult;
  1. (e)
    performing contracts entered into by the adult;
  1. (f)
    discharging a mortgage over the adult's property;
  1. (g)
    paying rates, taxes, insurance premiums or other outgoings for the adult's property;
  1. (h)
    insuring the adult or the adult's property;
  1. (i)
    otherwise preserving or improving the adult's estate;
  1. (j)
    investing for the adult in authorised investments;
  1. (k)
    continuing investments of the adult, including 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;
  1. (l)
    undertaking a real estate transaction for the adult;
  1. (m)
    dealing with land for the adult under the Land Act 1994 or Land Title Act 1994;
  1. (n)
    undertaking a transaction for the adult involving the use of the adult's property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult;
  1. (o)
    a legal matter relating to the adult's financial or property matters;
  1. (p)
    withdrawing money from, or depositing money into, the adult's account with a financial institution.
  1. [18]
    The issue is whether MEC has impaired capacity in relation to decisions concerning any of the matters described from (a) to (p). If she does, MEC will have impaired capacity and her application will be dismissed. In considering this issue I will be determining whether MEC has the ability to understand the nature and effect of those decisions. I do not find, on the evidence before me, that MEC lacks capacity to make decisions freely and voluntarily or to communicate decisions.

When is the issue of capacity to be determined

  1. [19]
    Although the functional approach requires an assessment to be made at the time of the relevant hearing,[15] a common sense approach must be applied to that assessment.  It does not mean, for example, that the Tribunal, in making its assessment at that time, can not take into account any relevant medical history and, based on that history, what is likely to occur in the foreseeable future. 
  2. [20]
    Relevantly, it is appropriate to take into account the nature and extent of the adult’s mental illness and the probability that, in the foreseeable future the adult will suffer a relapse and be unable to make decisions regarding financial matters. The concept of capacity is not, in other words to be assessed in a vacuum or in a “shutterbox” way, taking a short term and inevitably unrealistic view of a person’s capacity.
  3. [21]
    The issue of whether a person with a mental illness is capable of managing his or her affairs has been considered in the context of applications under Mental Health legislation.
  4. [22]
    In considering whether to appoint a committee to manage the property and affairs of the plaintiff under s 38 of the Mental Health Act 1958 (NSW) it was held by Powell J of the New South Wales Supreme Court, in relation to a person suffering from schizophrenia:

Notwithstanding that J be found to be “mentally ill”, an order for the appointment of a committee of her property and affairs cannot be made unless she is, as well, found to be “incapable of managing (her) affairs”. Although such incapacity must be shown to exist at the time when the application comes on for hearing, it seems to me that, in determining whether a person is, or is not, capable of managing her or his affairs, one is not restricted to a consideration of matters as they stand on the day of the hearing. On the contrary, so it seems to me, one is both entitled, and required to consider what the position will be in the reasonably foreseeable future.[16]

  1. [23]
    Here, instead of having to assess whether MEC is capable of managing her property and affairs I must assess whether she has capacity to make decisions in relation to financial matters.  The difference in the nature of that enquiry does not require a difference in approach to the issue of when to assess that ability.
  2. [24]
    In my view, for the same reasons expressed by Powell J, this question must be assessed by taking into account what the position will be in the reasonably foreseeable future. Such an approach does not, in my view, conflict with the general principles in the Guardianship Act which require a balance to be drawn between respecting the autonomy of an individual and his or her right to make decisions and ensuring that those who require assistance to make decisions are provided with it.

What is required by understanding the nature and effect of decisions

  1. [25]
    As stated above, the definition of capacity requires, amongst other things, that a person understand the nature and effect of decisions about a matter. In the context of determining whether a person has capacity to understand a transaction at common law it has been held:

…in order to understand a proposed transaction, a person needs the mental capacity to recognise the issues that need to be considered, to obtain, receive, understand and retain relevant information, including advice, and to weight the information (including that derived from advice) in the balance in reaching a decision: Masterman-Lister at [26], see Cooper at [24], where Lady Hale said that, to be able to make a decision, a person must not only be able to understand the information relevant to making it but also be able to weigh that information in the balance to arrive at a choice.[17]

  1. [26]
    Similar considerations, in my view, apply in assessing whether a person understands the nature and effect of decisions.  Whether a person is capable of understanding a transaction or a decision involves an ability to weigh relevant information to reach a decision.  It is not necessary that the Tribunal agree with the decision that is made but rather that the adult has sufficient ability to undertake a process of reasoning necessary to make a decision about the matter in question.
  2. [27]
    I turn now to consider MEC’s circumstances in the context of addressing the issue of capacity as defined in the Guardianship Act.

Background to the application

  1. [28]
    MEC has had paranoid schizophrenia for nearly twenty years.
  2. [29]
    The illness is chronic and there is a long history of recurring relapse over that time. Between 1999 and 2015, a period of 16 years, MEC has had approximately 17 admissions to hospitals or other mental health facilities as a result of a relapse of her schizophrenia.[18]  On at least five of these occasions, MEC required significant inpatient stays for a period of more than 3 months.
  3. [30]
    This history has, in turn, resulted in a long history of urgent applications to the Tribunal for the appointment of an administrator, followed, in some cases less than a year later, by an application by MEC to review the appointment on the basis she has capacity. 
  4. [31]
    This is a pattern which, in my view, reflects the fluctuating nature of MEC’s mental illness.
  5. [32]
    A chronology of orders made by the Tribunal over the past 15 years is as follows:

24 September 2002

GAAT – urgent interim order

Public Trustee appointed for 28 days

22 October 2002

GAAT – further interim order

Public Trustee appointed for 28 days

4 November 2002

GAAT

Public Trustee appointed for 3 years

2 February 2005

 

GAAT

Declaration of capacity.

Public Trustee revoked

17 July 2007

GAAT – urgent interim order

Public Trustee appointed for 6 months

20 September 2007

GAAT

Public Trustee appointed UFO

29 August 2008

GAAT

Declaration of capacity

Public Trustee revoked.

25 September 2009

GAAT

Public Trustee appointed UFO

1 March 2011

QCAT

Declaration of capacity

Public Trustee revoked

22 June 2012

QCAT

Withdrawal of application for appointment of Guardian and Administrator approved

30 January 2014

QCAT – urgent interim order

Public Trustee appointed for 3 months

17 April 2014

QCAT

Public Trustee appointed UFO

20 November 2015

QCAT

Application for declaration of capacity dismissed

7 July 2016

QCAT

Adult makes application for a declaration of capacity

  1. [33]
    MEC is currently subject to an Involuntary Treatment Order. A previous Involuntary Treatment Order was revoked in September 2015 but shortly after MEC ceased taking prescribed treatment and suffered a serious relapse, requiring a lengthy hospital admission in December 2015. A similar pattern of circumstances occurred in 2013 requiring a four month admission from December 2013 to March 2014.
  2. [34]
    The preponderance of medical opinion on file is that MEC lacks insight into her condition. When giving evidence at the Mental Health Tribunal in May 2016 (following her December 2015 admission to the Mental Health Unit) she said of that admission that it was due to blood pressure issues which were now well managed. She also said that the clinical report was “old evidence” and that it is quite common in the Catholic Church for papal honours to be given at birth (which she claims to have received) and that she did not see that as evidence of relapse.  MEC was very reluctant to admit she had been mentally unwell when admitted in 2015 and insisted before the Mental Health Tribunal that there had been a mix up with papers leading to the, suggesting that the hospital had admitted the wrong person. MEC repeated that assertion to me.
  3. [35]
    In the hearing MEC said that her trouble (with QCAT and the appointment of the Public Trustee) all began due to “professional jealousies”.  When questioned by me as to how she came to be admitted in December 2015 she said that her friend had been responsible for it by contacting the hospital but that her admission for 3 months was completely unfounded and that there was nothing wrong with her.
  4. [36]
    MEC clearly resents the involvement of the Public Trustee in her financial affairs. She says that the Public Trustee causes her embarrassment by being late in paying her professional memberships.  She also complained that the appointment stifles her in terms of her ability to start a business or to earn consultancy fees.  MEC described the Public Trustee as lacking in creativity and having archaic practices. She claimed to have experienced frustration at having to wait 4-5 days for an email to be answered, having bills paid late and having them paid by cheque rather than electronically.
  5. [37]
    Mr David Granzien from the Public Trustee attended the Hearing.  Although there was no formal review of the appointment of the Public Trustee, Mr Granzien provided an overview of its management of MEC’s finances. Broadly, MEC is paid a fortnightly amount in two instalments from which MEC pays her expenses.  Some expenses are paid by way of direct debit following a deposit by the Public Trustee of that amount into MEC’s account.

Medical Evidence

  1. [38]
    Dr Noel Saines, neurologist, provided a medical report for the purposes of the hearing dated 31 January 2017. Dr Saines reports he has known MEC since December 2003.  He says that she has a number of medical conditions, including, relevantly, schizophrenia.
  2. [39]
    Dr Saines describes her ability to understand and act on information relevant for making decisions as being from Low – Full. In relation to financial affairs and her ability to undertake financial related tasks he states that, again, her ability is Low - Full “when psychiatric condition under good control.”[19]
  3. [40]
    Dr John Keim, psychiatrist, provided a report dated 20 June 2016 where he states that MEC is non-compliant when not subject to an ITO.  In answer to a question about MEC’s ability to understand and act on information relevant for making decisions and understanding the consequences of decisions about her financial affairs he states:

good when not psychotic.

  1. [41]
    Dr Keim also reports that the use of restrictive practices is appropriate as she “tends to be non-compliant”. Finally he concludes by ticking the boxes on the pro forma Report to indicate that she is capable of making complex decisions.
  2. [42]
    I have also had regard to the latest decision of the Mental Health Review Tribunal of 17 May 2016 which confirmed the Involuntary Treatment Order. In the Statement of Reasons accompanying that decision it is said:

[MEC]’s illness is characterised by rapid decline, disorganisation, delusion and impulsivity. With each relapse, there is concern that [MEC] is at risk that she will not return to her baseline level of functioning.

….

[MEC] is an articulate and educated woman, however her understanding of her illness, the need for treatment and consequences of non-compliance with treatment is very poor.

The Tribunal is satisfied that without the Involuntary Treatment Order, [MEC] would quickly discontinue treatment and suffer relapse.

At the hearing [MEC] gave ambiguous evidence about whether she believes she needs treatment or would continue treatment. She made clear, however, that she does not believe that she has a psychiatric illness. In her application for review [MEC] says clearly that she does not require medication and believes that there was never a need for an Involuntary Treatment Order. The Tribunal is satisfied that [MEC] has not since developed insight into her illness or the need for treatment and finds that she lacks the capacity to consent to treatment.[20]

  1. [43]
    The Clinical Report dated 10 May 2016 signed by Dr Adrian Neligan , VMO and Dr Paul Schneider, Consultant Psychiatrist, state:

Her relapses are occurring more rapidly post revocation and are taking longer for the treating team to assist the client to return to her functional baseline.

[MEC]’s lack of insight into the illness initially impacted on establishing a therapeutic alliance with her after discharges from hospital. At times [MEC] has consistently refused to answer the door to community clinicians, resulting in the MH Act being utilised, with Police assistance and even locksmiths to facilitate depot administration. She has been recently discharged and is again under a Community ITO but not quite recovered and has put in a request for review of her status under the MH Act.

Consideration of the capacity issue

  1. [44]
    The evidence of Dr Saines and Dr Keim is that, when well, MEC has capacity. 
  2. [45]
    However, it is clear from MECs’ medical history, her illness is only controlled when she is compliant with her medication regime and that she is only compliant, generally speaking, when subject to an Involuntary Treatment Order.
  3. [46]
    Although currently MEC is on an Involuntary Treatment Order, there is no guarantee that this will remain.  In 2013 and again in 2015 following revocation of the Involuntary Treatment Order, MEC ceased treatment and became very unwell, in both cases requiring lengthy hospital admissions.  There were serious financial ramifications for MEC on each occasion.
  4. [47]
    In any event, even with the Involuntary Treatment Order in place, MEC seemed affected by her mental illness in a way that led me to conclude that she did not, at this point in time, have capacity to make complex financial decisions.
  5. [48]
    Her continued insistence that she was admitted to hospital due to her neighbour’s interference rather than due to her mental illness indicated, in my view, that she still had a significant lack of insight into her mental illness. This, in my view, was of such a degree that it would necessarily have affected her judgment and consequently her ability to make financial decisions about her future.  This is because her lack of insight into her mental illness and the delusional beliefs that she still holds would distort her decision-making ability so that MEC would not properly be able to apply relevant information to, and weigh the consequences of decisions in relation to her financial affairs.  She would also be vulnerable to financial mismanagement, thereby putting her property at risk.
  6. [49]
    I have also taken into consideration MEC’s conduct and responses to questions put to her in the Hearing. When questioned about why she wanted access to her accounts MEC said it was so she could start a business as an agricultural scientist and become a financial member of certain professional associations in order to attend conferences promoted by those organisations. These proposals, in my view, evidence MEC’s financial vulnerability, particularly in view of her relatively modest income and savings.
  7. [50]
    There is also material on the file, sent by MEC in the lead up to the application, which supports my finding that she does not currently have capacity to make complex financial decisions.  For example, in an email to the Appeals Manager at QCAT on 29 September 2016 MEC writes:

Dear Julie

I require full restitution. My case is against the crown and the Church. An employee (Civil) of the Qld Police Service and a State MP are responsible for fraudulent Centrelink and Department of Housing records. I have full documentation.

Thankyou but no!

Yours sincerely

[MEC]

  1. [51]
    Further, on 3 October 2016 MEC writes to QCAT:

I have always been fully reconciled with the Church, Bank, police and doctor etc. I was put on a QCAT administration order and mental health order. This is fraudlent. My accounts were all hacked and my vocation as a paid worker suppressed while on orders. I would like to take those responsible for the orders to court. I know who they are and I have evidence. I think they have already been taken to court but QCA whoT [sic] would not release the information or pay. I am celibate by law and always will be.

  1. [52]
    In conclusion, I am of the view that MEC does not have capacity for financial matters relating to the preservation or improvement of her estate or in making investments.  I have concluded that MEC is not able to make or implement decisions about her capital and income in a reasonable, rational and orderly way with due regard to her present and prospective wants and needs without undue risk of neglect, abuse, or exploitation.
  2. [53]
    I have considered the past and present experience as a predictor of the future course of events. I have also considered the absence of effective support systems for financial decision-making available to MEC.
  3. [54]
    Although I find MEC has impaired capacity for complex financial decisions at the present time when subject to an Involuntary Treatment Order, I note that I have particular concern for MEC’s financial vulnerability when self-managed.  The evidence from the medical records is that MEC has regular relapses in her condition and that when she is unwell has impaired capacity in relation to financial matters within the meaning of that term in Schedule 2 of the Act. 

Conclusion

  1. [55]
    The application for a declaration of capacity is dismissed.

Footnotes

[1] Guardianship Act, s 130.

[2] Guardianship Act, s 82(3).

[3] Guardianship Act, s 146(2).

[4] Re Bridges [2001] 1 Qd R 574.

[5] Guardianship Act, s 11.

[6] Re Bridges [2001] 1 Qd R 574, 583.

[7] White v Wilson (1806) 13 Ves 87, 88-89; 33 ER 227, 228.

[8] [2009] 2 Qd R 402.

[9] Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, [24]; Gregory v Nominal Defendant [2005] QSC 308; Fehily v Atkinson [2016] EWHC 3069 (Ch).

[10] Guardianship Act, Schedule 4.

[11] As opposed to a status approach as applied in other jurisdictions, sometimes in combination with the functional approach: see for example, the Guardianship and Administration Act 1993 (SA), s 3.

[12] Shaping Queensland’s Guardianship Legislation: Principles and Capacity, Discussion Paper, Queensland Law Reform Commission, WP No 64, September 2008, 109.

[13] Guardianship Act, s 5(c).

[14] Guardianship Act, s 10.

[15] Re SWV [2005] QGAAT 68, [40].

[16] McD v McD [1983] 3 NSWLR 81, 86 citing CF v TCML [1983] 1 NSWLR 138, 141.

[17] Fehily v Atkinson [2016] EWHC 3069, 15-16.

[18] A record of hospital admissions appears in the Clinical Report of Dr Schneider and Dr Hewage dated 1 October 2014 at 2-3.

[19] Medical health Report by Dr Saines dated 31 January 2017, 6.

[20] Statement of Reasons, Mental Health Review Tribunal, 17 May 2016.

Close

Editorial Notes

  • Published Case Name:

    MEC

  • Shortened Case Name:

    MEC

  • MNC:

    [2017] QCAT 117

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    03 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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