MBL[2017] QCAT 217

REASONS FOR DECISION

1. [1]
   MBL is a 72 year-old woman who lives in her own home. She was the subject of an order of the Tribunal made on 19 January 2015, which appointed the Public Guardian for decisions about with whom she has contact/visits and the Public Trustee of Queensland as her administrator for all financial matters.
2. [2]
   The Tribunal made this order satisfied that MBL had impaired capacity for personal and financial matters as a result of the effects of a left temporal brain haemorrhage on 27 October 2014. This haemorrhage (commonly referred to as a cerebrovascular accident (CVA) or stroke) had resulted in severe receptive and expressive aphasia and impacted on her communication. At that time, according to medical reports (15 January 2015 and 16 January 2015) from Dr Catherine Yelland, she was observed to have difficulty comprehending spoken language, or doing simple arithmetic, and was reading at a single word level only. At that time she was assessed as requiring assistance with complex decisions.
3. [3]
   The Tribunal received an application from MBL on 9 November 2015 for a declaration about her capacity. This application was part heard on 21 January 2016 and directions were made by the Tribunal for MBL to undergo an assessment of capacity by a neuropsychologist. This matter was considered on 10 May 2017.
4. [4]
   In the process of this matter, applications were also received for a Confidentiality Order and for Directions. Mr Gerber (Barrister) representing MBL applied orally at the hearing on 10 May 2017 for these applications to be withdrawn, as he was of the view there was no longer a need for them to be considered by the Tribunal. The Tribunal approved the withdrawal of these applications.
5. [5]
   Notwithstanding the order of the Tribunal in regard to capacity, some time has passed since the original order and a number of more recent medical and professional reports have become available regarding MBL’s decision-making capacity. These have been considered in the context of the Application for a Declaration of Capacity.
6. [6]
   The Tribunal may make a declaration about the capacity of an adult for a matter in accordance with s 146 of the Guardianship and Administration Act 2000 (Qld) (GAA Act). MBL is presumed to have capacity for each matter in accordance with s 7 of the GAA Act and General Principle 1 of Schedule 1. The Tribunal also takes into account the requirements of s 31 which applies to the appointment review process, and states specifically that orders should be revoked unless the Tribunal were satisfied that it would make a new appointment, should a new application were to be made.
7. [7]
   The Tribunal in making its decision considers the definition of capacity as defined in the GAA Act to mean the person is capable of:

   1. Understanding the nature and effect of the matter; and
   2. Freely and voluntarily making decisions about the matter; and
   3. Communicating them in some way.
8. [8]
   In regards to MBL’s capacity, except for the original medical reports of Dr Catherine Yelland dated 15 January 2015 and 16 January 2015, all other medical and other professional reports, although acknowledging ongoing language and communication difficulties,  indicate that MBL has full capacity for decision making.
9. [9]
   Dr Penelope McBride (GP) is MBL’s treating general practitioner. In her report dated 16 January 2017 her opinion is that in respect to health care MBL has good capacity to understand and act on information relevant to decision making, attending medical appointments alone, giving a history of symptoms and has understood and complied with medical treatments. When considering lifestyle decisions she is fully competent, lives within her budget, arranges her own schedule and maintains her own household. In regards to financial decision-making, she can understand the issues of budgeting, paying bills and the consequences of not paying. Although her aphasia means her processing speed is slower than average, she can understand complex verbal information and expresses complex ideas if given time and she is in a relaxed setting. She has minimal impairments in daily life. Dr McBride’s opinion in that MBL has capacity for complex health, lifestyle and financial decision-making.
10. [10]
    Dr Ea Stewart is a Clinical Psychologist who has treated MBL since 2015 and has provided a number of reports and letters (7 October 2015, 7 December 2015, 9 August 2016, and 16 January 2017). According to Dr Stewart, MBL has shown good progress in therapy with evidence of improvements in anxiety and aphasia. She has shown problem solving ability, comprehension of complex concepts and self-awareness of deficits. Despite her aphasia, MBL has communicated effectively regarding her health and mental health needs. In respect of lifestyle matters she is fully competent, understanding issues and able to find solutions. Similarly, she shows ability to understand her finances. She is able to communicate verbally in a way that is easy to comprehend. She is able to make complex health, lifestyle and financial decisions
11. [11]
    Psychologist Anne Berquier has also seen MBL for psychological treatment and assessment since 2015. Ms Berquier has provided a number of reports (22 September 2015, 13 October 2015, and 12 October 2016) and a letter dated 15 November 2015. In Ms Berquier’s opinion MBL is able to make sound financial decisions and describe her rationale for making decisions. She is able to make complex decisions in relation to health care, lifestyle decisions and financial affairs.
12. [12]
    MBL’s treating Speech Pathologist, Catherine Hicks provided a report dated 20 July 2016 confirming MBL’s resolving aphasia and noting only mild to moderate expressive and receptive aphasia. Although comprehension of complex information and expression is challenging for MBL when under pressure, language expression is improved in a supportive environment. She noted that MBL is socially engaged, actively involved in many activities in her community including table tennis and line dancing, she kept contact with friends, was driving, and also managing activities of daily living independently.
13. [13]
    MBL was reviewed by Dr Jonathan Lichter (Psychiatrist). In his report dated 13 December 2016 he says that although MBL has aphasia, he was satisfied there was evidence of continued improvement in her aphasia, that she was functioning at a good level, and that she was able to understand and manage her own financial affairs.
14. [14]
    The Tribunal made directions on 21 January 2016 that MBL undergo an assessment of capacity by a neuropsychologist. She was seen by Dr Maggie Bailey (Clinical Neuropsychologist).
15. [15]
    Her report of 5 January 2017 indicates that MBL was given a range of assessment tasks and functional activities to determine her capacity according to the definition of capacity set down in the GAA Act:

    1. MBL followed simple questions and was able to express ideas, but gaps in comprehension were evident at a more complex level, especially when the information presented was lengthy. Her expressive language was marked by word finding difficulties, perseveration with words and phrases and the presence of empty speech when unable to access required words. She at times struggled to access words and express her thoughts.
    2. Accommodations in test delivery and interview had to be made, including presentation of information at a slower pace, allowing additional time to work through an activity, offering multimodal presentations to enable her to demonstrate her knowledge, maintaining calmness and patience. MBL showed insight into her residual difficulties with language and comprehension.
    3. MBL showed generally well-preserved verbal and visual reasoning skills, and her verbal skills were sufficient to understand information and to respond, when given extra time to process information and organise a verbal response.
16. [16]
    Dr Bailey also pointed to protective factors that would minimise a risk of making irrational and impulsive judgements, including MBL’s strength in character and assertiveness. MBL was also reported to use a range of long-standing strategies to manage her finances in an organized manner, with a simple but effective budgeting system.
17. [17]
    In summary, Dr Bailey was of the opinion that MBL had the linguistic, intellectual and memory ability to be able to understand the nature and effect of financial decisions pertaining to her personal lifestyle, and make decisions without undue influence and communicate her decisions – providing she has appropriate time, is not rushed, and is offered multimodal means to aid her understanding and communication

Conclusion

18. [18]
    MBL is a 72 year-old retired woman who experienced a left temporal haemorrhage (stroke) in 2014. This resulted in severe receptive and expressive aphasia, which significantly impacted on her communication and capacity to make decisions in regard to personal and financial matters.
19. [19]
    Since that time, MBL has made substantial gains in her receptive and expressive language and her capacity to communicate effectively in regard to her personal and financial decision-making. She is living independently in her own home, managing her day-to-day finances, attending to all of her activities of daily living, driving, and is also participating in a range of social and community activities, including resuming some part-time Avon representative work.
20. [20]
    The Tribunal had made a determination that MBL did not have capacity to make her personal and financial decisions, and this was based on medical evidence that was available at the time of the original hearing on 19 January 2015. The Tribunal at this hearing has considered opinions from medical practitioners, psychologists, a neuropsychologist, and speech pathologists, which all highlight substantial improvements in MBL’s receptive and expressive language and in her ability to understand the nature and effect of decisions, to make decisions freely and voluntarily, and to communicate her decisions. The Tribunal notes that capacity for any person may fluctuate over time and a person may regain capacity.
21. [21]
    In MBL’s case, her communication difficulties have been a particular concern to the Tribunal in determining her decision-making capacity. Ability to communicate ones decisions in some way is an important element of the definition of capacity. Based on the medical evidence, MBL continues to have some residual difficulties with language that appear to be heightened by anxiety or stress. However, in deciding whether an individual is capable of communicating decisions in some way the Tribunal must consider all reasonable ways a person might communicate.
22. [22]
    The Tribunal is satisfied that in a calm and supportive environment, with sufficient time to process information, with the use of alternative strategies MBL is a capable and clear communicator of her views and wishes and can also demonstrate her independent understanding of the nature and effect of decisions and can make decisions freely and voluntarily.
23. [23]
    The Tribunal was therefore satisfied that MBL had capacity to make decisions regarding her personal and financial matters, and the presumption of capacity and made a declaration about capacity under s 146 of the GAA Act accordingly.
24. [24]
    The Tribunal initiated a review of the appointment of the decision-makers for MBL in accordance with s 31 and s 12 of the GAA Act and on the basis that MBL had capacity for both personal and financial matters revoked the appointments of the Public Guardian and the Public Trustee of Queensland.