HMA[2018] QCAT 295

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 6 March 2018, the Tribunal received two applications from the Office of the Public Guardian for the appointment of a guardian and the appointment of an administrator for HMA.
2. [2]
   On 8 March 2018 the Tribunal made interim orders appointing the Public Guardian as guardian for decisions about accommodation and healthcare of HMA and the provision of services for HMA. The Tribunal also appointed the Public Trustee of Queensland as administrator for HMA for all financial matters. The orders were to remain current for 3 months or if the Tribunal made a further order until the date of the further order whichever was the sooner.
3. [3]
   The matter was then listed for a hearing on 17 May 2018. On that date, the matter was adjourned for medical assessments to be obtained regarding HMA and was relisted for 14 June 2018. On 18 May 2018 a notice of hearing was sent to HMA advising of the new date for hearing. On 24 May 2018 a further notice of hearing was sent to HMA with an additional notice to HMA's friend who lives at the same address as the adult.
4. [4]
   HMA is a 69-year-old man who lives in central Queensland in a caravan park. His primary support is a friend who is the manager of the park. He does not appear to have any family support.
5. [5]
   In any proceedings such as this, the first issue to be determined is whether the adult lacks decision-making capacity. The Tribunal only has jurisdiction if it finds that HMA lacks capacity for decisions about his personal or financial matters.
6. [6]
   The Guardianship and Administration Act 2000 (Qld) (‘GAA Act’) defines ‘capacity’ for a person for a matter, as meaning that the person is:

   1. (a)
      capable of understanding the nature and effect of decisions about the matter; and
   2. (b)
      freely and voluntarily making decisions about the matter; and
   3. (c)
      communicating the decisions in some way.
7. [7]
   These proceedings were initiated as a result of an investigation conducted by the Public Guardian between 17 July 2017 and 28 February 2018. The investigations were based on allegations that HMA was not adequately managing his financial matters to protect his interests and was not receiving adequate care and support services at his current location.
8. [8]
   Under the Public Guardian Act 2014 (Qld), the Public Guardian is only authorised to investigate allegations related to adults with impaired decision-making capacity.
9. [9]
   In their Report dated 2 March 2018 the Public Guardian stated, that based on the medical information that had been obtained, it considered that the presumption of capacity had been rebutted for the purpose of enabling it to making enquiries into the concerns raised.
10. [10]
    The medical documents gathered during the investigation included the following:

    1. (a)
       Centrelink disability support pension review dated 3 February 1993;
    2. (b)
       Centrelink combined impairment assessment dated 18 January 1990;
    3. (c)
       Centrelink invalid pension medical history dated 30 January 1989; and
    4. (d)
       Medicare doctor history search dated 15 February 2018.
11. [11]
    From those documents, the following information appears to relate to the adult’s capacity:

    1. (a)
       In March 1993 he was assessed by his treating doctor, Dr Wohlfarht, as having an intellectual impairment, a feature of which was his illiteracy;
    2. (b)
       In 1973/4 he suffered a head injury in a road accident;
    3. (c)
       In 1989 a Dr Chapple recorded a history of brain conditions that included alcoholism, intellectual disability (‘mildly retarded probably’) and organic brain disorders from a motor vehicle accident; and
    4. (d)
       In 1989 a Dr Bolton reported that HMA had significant diagnoses that included mental deficit and alcoholism, an old head injury, and early onset dementia.
12. [12]
    The investigators reported in February 2018 that they had visited HMA at his property and concluded that HMA's interactions and environment suggested that he may have limited insight into his circumstances and a lack of ability to manage his financial and personal affairs. He was unable to outline how he manages his money or personal matters.
13. [13]
    The investigators found that the allegations had been substantiated to the required standard at the civil burden of proof.
14. [14]
    When this application came before the Tribunal on 17 May 2018, the adult did not attend and the Applicants had not been able to obtain a health professional report as to the adult’s capacity. The applications were adjourned on the basis that there was insufficient evidence to consider the question of capacity. In doing so the Tribunal noted that the adult was not in attendance, there is a presumption that the adult can make his own decisions, and that the decision to appoint a substitute decision-maker is a significant decision, requiring quality evidence.
15. [15]
    On 14 June 2018, the applications again came before the Tribunal, the adult did not attend. Present on this occasion were Ms Angela Kimber and Mr Mark Phillips who attended by phone on behalf of the Public Guardian and Ms Deanne Miller and Ms Teneale Dubelaar representing the Public Trustee.
16. [16]
    The Public Guardian provided an undated report regarding their engagement with the adult since their appointment by the Tribunal on 8 March 2018.The Public Guardian advised that no decisions had been made for the adult during their interim appointment. However, they expressed their view that the adult required a guardian for service provision, healthcare and accommodation matters.
17. [17]
    The Public Guardian advised that they had maintained contact with the manager of the caravan park to try and coordinate the adult’s access to medical services, capacity assessments and aged care assessments. However, they advised that it had been difficult to speak to the manager by phone and email correspondence had so far been unsuccessful. Further, Blue Care services indicated that they were now providing support to the adult and that this was now well-established with the adult accepting these services.
18. [18]
    Officers from the Public Guardian had visited the adult on 21 May 2018 at the caravan park. The adult indicated that he appreciated the assistance of the Blue Care staff. He was also receiving some support from the manager of the caravan park.
19. [19]
    The Public Guardian expressed significant concern for the adult’s welfare without decision-makers being in place to ensure his access to these services continued. Blue Care have indicated that once an Aged Care Assessment is completed, the adult will likely have access to additional supports.
20. [20]
    Attached to the Public Guardian's Report was a bundle of documents that appear to indicate that the adult had been consulting with a Dr Irina Karnaukhova. Unfortunately, none of the information appeared to relate to the adult’s capacity to make his own decisions about his personal matters or his finances.
21. [21]
    As a result, the applications were again adjourned and Directions were made as follows:

1. The hearing is adjourned to be determined on the papers.
2. If anyone wishes to make an application, or provide documents or further information to the Tribunal, then any application or other document, including any updated Health Professional Report or other Report regarding the Adult's capacity to make personal or financial decisions, should be lodged with the Tribunal, by 4.00pm on 5 July 2018
3. In the event that no further documents are received by the Tribunal then the current Applications may be determined on the papers

22. [22]
    As at the date of these Reasons no further material has been provided.

Discussion

23. [23]
    In the matter of HM v The Public Trustee of Queensland,^[1] the Appeal Tribunal considered the issue that was described as:

…in essence, that the Applicant in a proceeding for the appointment of an administrator has the onus of producing evidence to establish at the adult who is subject of the application does not have capacity.

It was argued that the words contained in the application form produced by QCAT and the presumption of capacity as defined in the Act led to that conclusion.

24. [24]
    In the course of their decision, the Appeal Tribunal considered a large number of decisions in which section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) was considered in relation to bringing proceedings to an early end on the basis that the applications were lacking in substance.
25. [25]
    The Appeal Tribunal observed that:^[2]

In some of these cases, medical evidence was provided that the adult did have capacity. In others, no or insufficient medical evidence was provided to the Tribunal regarding the issue of capacity, the Tribunal requested provision of the evidence, and the applicants provided neither medical evidence nor an explanation for the lack of medical evidence.

26. [26]
    In this present matter there has been a thorough investigation conducted by the Public Guardian about the Adult’s living arrangements and his financial management that have given rise to some serious concerns.
27. [27]
    The Appeal Tribunal stated that:^[3]

There is no legal requirement on the Applicant to provide medical evidence regarding the capacity of an adult who is the subject of an application before QCAT. As a matter of practicality, it is more often than not the case that the applicant is best placed to obtain such evidence and provide it to the Tribunal. Where this is not possible QCAT has an obligation under the legislation to ensure that it has all relevant material before it, and that parties are fully appraised of evidence which will be considered in proceedings. If it is not possible for an Applicant to provide such a report, the Tribunal is empowered and required to obtain such evidence itself.

The Tribunal is further obligated to take quick action to gather such evidence at the earliest stage in proceedings to meet the objects of the QCAT and the GAA Acts.

28. [28]
    On the first occasion that this matter came before the Tribunal on 17 May 2018 the proceedings were adjourned to obtain better health evidence. On the second occasion on 14 June 2018, Directions as outlined in these Reasons were made. The Tribunal was not satisfied that the evidence as presented, initially, was sufficient to rebut the presumption of capacity but in the circumstances the Tribunal was satisfied that further evidence was required.
29. [29]
    In particular, the relevant provisions^[4] of the QCAT Act and the GAA Act provide that the Tribunal must, as far as is practicable, have all relevant material available to it to decide an application and may order a person to give information or material to the Tribunal. Further the Tribunal must endeavour to ensure the ‘speedy and fair conduct of the proceedings’.
30. [30]
    Section 12 of the GAA Act also requires the Tribunal to take into account whether the matter is likely to involve unreasonable risk to the adult’s welfare or property and whether the absence of an order will adequately protect the adult’s needs and interests. The section also establishes the threshold issue that the Tribunal must be satisfied that the adult has impaired capacity for the matter.
31. [31]
    The Tribunal is satisfied that the applicant has taken reasonable steps to provide evidence regarding the Adult’s capacity but with limited success. 
32. [32]
    In the circumstances, the Tribunal finds that the evidence, as it stands today, does not support a finding that the adult’s capacity to make either personal or financial decisions has been rebutted. In reaching this conclusion, the Tribunal has also paid particular attention to the General Principles as set out in Schedule 1 and sections 5-7 of the GAA Act, bearing in mind that an adult is presumed to have capacity for a matter.
33. [33]
    Therefore, the orders are that the applications for the appointment of a Guardian and an Administrator for HMA are dismissed.