LER[2018] QCAT 40

REASONS FOR DECISION

1. [1]
   This matter was before the Tribunal on 12 and 13 February 2018. It has been adjourned to 17 May 2018.

Appointment of separate representative

2. [2]
   I made an order at the commencement of the hearing appointing Peter Sheehy as the adult’s separate representative. Mr Sheehy had previously been appointed Mr LER’s representative by Order of Tribunal of 8 August 2016. That appointment was made in the Appeal jurisdiction.^[1] The order was made pursuant to s 125 of the Guardianship and Administration Act 2000 (Qld) (GAA).
3. [3]
   Mrs LSS, Mr LER’s wife, opposed the appointment of Mr Sheehy on the basis Mr LER did not want Mr Sheehy to be his separate representative. I note, however, that Mrs LER confirmed that Mr LER had never met Mr Sheehy and Mrs LER could provide no reason why Mr Sheehy was otherwise inappropriate.
4. [4]
   The Public Guardian supported the appointment of Mr Sheehy as separate representative in the proceedings before me, as did the Public Trustee. Although there is an argument that the Public Guardian already represents Mr LER in relation to these applications, they arguably being legal matters not involving financial or property matters, the evidence suggested that Mr and Mrs LER refuse to engage with the Public Guardian and that there is a deep sense of mistrust. Accordingly, as attempts by the Public Guardian to try to ascertain Mr LER’s views, wishes and interests have proven futile, their representation is, in these particular circumstances, inappropriate.
5. [5]
   It appears from s 125 of the GAA that the purpose of appointing a separate representative is to try, as far as possible, to ascertain the views, wishes and interests of the adult, here Mr LER. The importance of being able to do so is fundamental to the purpose of the GAA, which is to try to balance the adult’s right to the greatest possible degree of autonomy in decision-making with his or her right to adequate and appropriate support.^[2] Further, anyone performing a function or exercising a power under the GAA is required to apply the principles set out in Schedule 1 of the GAA.^[3] This applies not only to Administrators and Guardians but also to the Tribunal when, for example, making or reviewing appointments. Relevantly here, principle 7(3)(b) provides that to the greatest extent practicable, when exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account. Views and wishes may be expressed orally, in writing or in another way, including by conduct.^[4]
6. [6]
   It goes without saying that the representative must, in order to properly fulfil his or her statutory function, provide the adult with the opportunity to express his or his wishes in whatever manner possible, in circumstances that are free from the influence of others.

Meeting between Mr LER and the separate representative

7. [7]
   It follows, in this case, that Mr LER should be given the opportunity to meet with Mr Sheehy, preferably on his own. Mrs LER said on numerous occasions that Mr LER did not like to be with people on his own and that it was important that she be there with him. I would suggest if this is the case with Mr Sheehy, that Mrs LER attend for the first 15 minutes of the consultation and then leave them to discuss anything they wish to discuss in private. This is not to suggest that Mrs LER influences Mr LER or puts him under pressure. It is merely so that the Tribunal can be satisfied Mr LER has been given the opportunity to express his views and wishes freely and voluntarily.
8. [8]
   I have therefore made a Direction that Mr Sheehy and Mr LER arrange a meeting prior to 10 April 2018.

Leave to appear

9. [9]
   In relation to the issue of legal representation, Mr Gerber and Mr Spamer sought leave to act for both LSS and LER. I refused leave to appear for Mr LER, but gave leave in respect of Mrs LER. Mr LER was declared not to have capacity for decisions about financial and personal matters on 27 September 2013. Accordingly, I reasoned that he was or was likely to be unable to enter into a contract to engage a solicitor or to give instructions. It is precisely for that reason that the GAA permits a separate representative be appointed as opposed to a legal representative.
10. [10]
    Further, there is a conflict in the interests of Mr LER and Mrs LER. Their interests do not coincide.

Medical assessment of Mr LER

11. [11]
    The Tribunal has on numerous occasions directed that Mr LER undergo a full capacity assessment. This assessment is an important aspect of the Tribunal’s review.^[5]
12. [12]
    Mr LER was referred by his GP, Dr Marc Hempling, to Dr King on 7 February 2014. He was seen by Dr King for initial assessment on 18 March 2014, had comprehensive memory assessment and cognitive tests on 10 April 2014 as well as multiple investigations including blood tests, MRI brain, carotid Doppler studies and a Brain PET scan. He was reviewed by Dr King on 1 May 2014 and by Dr Hempling on 5 May 2014.
13. [13]
    On 20 November 2017, the Tribunal directed that a full capacity assessment be undertaken by a Geriatrician/Neuropsychologist as agreed between the parties. Mrs LER was to provide the names of three Geriatricians/Neuropsychologists who might conduct the assessment^[6] and the Guardian and Administrator were, by consent between them, to nominate the Geriatrician/Neuropsychologist from the provided list.^[7] If there was no consent, the choice was referred for decision by the Tribunal.^[8]
14. [14]
    The Tribunal ultimately made that decision and appointed Dr Penny King, a consultant psychiatrist and Director of Older Person’s Mental Health at the Robina Private Hospital. On 15 January 2018, the Tribunal directed that a capacity assessment of LER be undertaken by Dr King.
15. [15]
    At the time of the hearing, the assessment had not taken place. Correspondence from Dr King indicates that appointments organised by the Public Guardian and alternative appointments organised by Mr Sheehy had all been declined.^[9] When questioned as to why the assessment had not taken place in accordance with the Direction of the Tribunal, Mrs LER said that Mr LER would not attend an appointment with Dr King because “he did not like her”.
16. [16]
    Thus, Mr LER has not seen Dr King for nearly three years. 
17. [17]
    I have again directed that Mr LER be seen by Dr King. I am hopeful that Mrs LER will assist the Tribunal by ensuring that Mr LER attend.
18. [18]
    The Tribunal adjourned the hearing so that the assessment could be undertaken. It is important for the Tribunal in making its decision that the assessment take place. It is also in the interests of Mr LER.
19. [19]
    The Tribunal was provided with two available appointment dates with Dr King. Of those dates, Mrs LER chose 27 February 2018. I have therefore directed that the assessment of Mr LER by Dr King be undertaken on 27 February 2018.

Adult evidence order

20. [20]
    Mr LER did not attend the hearing on 12 and 13 February. Mrs LER relied on a letter from Dr Ea Stewart, a psychologist, in explaining Mr LER’s absence and in submitting that he should not be required to attend the resumed hearing.^[10] Dr Stewart did not attend the hearing and the parties did not have the opportunity to cross-examine her. The letter from Dr Stewart is not in the form of sworn evidence. However, Mrs LER said on a number of occasions that Mr LER did not wish to attend because it would cause him too much stress and anxiety.
21. [21]
    Section 106 of the GAA provides that the tribunal may make an adult evidence order enabling relevant information to be obtained from the adult in the absence of anyone else. Such an order can be made if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person or to obtain relevant information the tribunal would not otherwise receive.
22. [22]
    Options were explored as to how Mr LER might attend the resumed hearing. No satisfactory compromise was agreed.  Mr Gerber, on behalf of Mrs LER, ultimately suggested that in place of requiring Mr LER to attend the resumed hearing, I might instead attend the premises of Dr  Stewart and meet with Mr LER there in the presence of Dr Stewart and LSS. This was objected to by Mr Whiteford on behalf of the Public Trustee and by Mr Liddy on behalf of Mr LER’s daughters. Mr Sheehy suggested that he might also attend and that Mrs LER could stay for the first 15 minutes but Mrs LER strenuously opposed Mr Sheehy attending.
23. [23]
    I find, albeit with some reservations, that it is necessary for me to see Mr LER in the absence of all other interested parties and their representatives in order to obtain relevant information that the tribunal would not otherwise receive.
24. [24]
    I have decided to direct that Mr LER meet with me and Dr Stewart alone and in the absence of all other interested parties and their representatives. I accept Mr Sheehy’s suggestion that Mrs LER be present at the commencement of the meeting but that the substance of the meeting should occur as I have said, in the absence of all interested parties including Mrs LER.
25. [25]
    In order to provide the other parties with an opportunity to hear the contents of that meeting, I have directed that the meeting be recorded and that the parties be provided with the recording prior to the resumed hearing. I will hear the parties on 17 May 2018 in respect of the use to be made of the recording. 
26. [26]
    I have also ordered that Mr LER attend the resumed hearing. A similar order was previously made, but Mr LER did not attend and instead Mrs LER proffered the letter from Dr Stewart. I have made the adult evidence order in the belief that it is necessary to do so to obtain relevant information the Tribunal would not otherwise receive. However, it is quite possible that Mr LER’s ability and preparedness to appear before the Tribunal may change over time and, accordingly, I have made the Direction that he attend. I note, in that respect, that it would be to the advantage to all concerned that Mr LER attend the Tribunal for the resumed hearing in the presence of the parties.

Review of the appointment of the Public Guardian

27. [27]
    There is an application before the Tribunal to review the appointment of the Public Guardian. At the hearing, Mr Gerber informed the Tribunal that Mrs LER did not wish to proceed with the application; the other parties were content that that should be so.
28. [28]
    The Tribunal notes the Public Guardian was appointed at the same time as the Public Trustee. The appointment of the Public Guardian has the potential to be affected by information to be provided by Mr LER and by any further medical evidence concerning his capacity. Accordingly, I will treat the application as remaining on foot and I will hear the parties at the resumed hearing and in the light of the further evidence as to the proper consideration and determination of the application. I note, in that respect, that the leave of the Tribunal is necessary to withdraw the application^[11] and the Tribunal is entitled to revisit the issue as it sees appropriate.^[12]

Costs

29. [29]
    I have ordered that the costs of the Separate Representative be paid from the estate of Mr LER. In my opinion, it is in Mr LER’s interests that he have a separate representative.
30. [30]
    I have ordered that the costs of and incidental to the meeting between Mr LER and Dr King be paid from the estate of Mr LER. In my opinion, it is in Mr LER’s interests that he meet with and be examined by Dr King.
31. [31]
    Finally, I have ordered that the costs of and incidental to the meeting between Mr LER and the Tribunal, in the presence of Dr Stewart, as well as the costs of Dr Stewart attending the resumed hearing, be met by the estate of Mr LER.