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- Unreported Judgment
HT QCAT 116
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HT  QCAT 116
In an application about a matter concerning HT
Guardianship and administration matters for adults
5 April 2019
12 March 2019
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – OTHER MATTERS – adult subject to a forensic order – capacity – presumption of capacity – whether presumption of capacity sufficiently rebutted – whether there is a requirement for a decision maker to be appointed – application of the general principle – satisfaction of unreasonable risk to adult – whether the finding of impaired capacity requires the appointment of a decision maker
Guardianship and Administration Act 2000 (Qld), s 12, Schedule 1 and Schedule 4
PL v PT & Ors  QCATA 114
APPEARANCES & REPRESENTATION:
J Stampford, Solicitor, Queensland Advocacy Inc
The Public Guardian:
S McPhillips, Office of The Public Guardian
REASONS FOR DECISION
- The adult in this matter is aged 47. He has been diagnosed with chronic paranoid schizophrenia since 1998. At present, he is the subject of a forensic order and is an inpatient at a hospital in Brisbane. The forensic order was originally made on 31 January 2014 and since that time there have been many reviews undertaken of that order, with the latest review undertaken on 18 March 2019.
- The adult has a long history of admissions to hospital for treatment relating to his mental illness, and because he does not believe that he has a mental illness, he has always resisted treatment for his condition.
- The Tribunal received an application seeking the appointment of a guardian and an administrator for the adult. The application suggested that the Tribunal should look favourably upon appointing The Public Guardian as the adult’s guardian for personal decisions relating to accommodation, with whom the adult has contact with, health care, the provision of services and legal matters not related to his financial or property matters. In respect to the appointment of an administrator, the application suggested that the Tribunal should appoint the Public Trustee of Queensland for all decisions relating to the adult’s financial affairs.
- The basis for the application was the adult’s diagnosis of chronic paranoid schizophrenia and his unwillingness and reluctance to adhere to medical advice or a medication regime. He is also unwilling to reside at accommodation sourced for him. It was suggested that his illness impacts upon his global functioning and he does not have any insight into his own illness, or an understanding of the treatment required to address and manage that illness.
- The application went on to suggest that there were issues surrounding the adult’s medication regime, in particular his reluctance to take medication which stabilised his mood. It seems that this issue is further complicated when the adult is discharged from hospital back into the community. On those occasions he regularly makes a unilateral decision to cease taking the medication prescribed to him.
- The adult has a history of multiple admissions to a psychiatric unit over the years and he struggles to maintain any stable accommodation during that time because of a lack of financial budgeting. He has a history of failing to pay his rent and there are occasions when he has cancelled the rental deductions from his Centrelink payments because he believed that his accommodation was too expensive. The suggestion is that he fails to see the need for stable accommodation.
- The Tribunal was told that the adult’s insight and global functioning was severely affected, and if discharged from hospital without the appointment of a guardian and an administrator, he would become extremely vulnerable. Management of his financial affairs would assist in securing suitable accommodation for him.
- It addition, the adult refuses to engage with the inpatient occupational therapist for a functional assessment, and the hospital’s inpatient team have unsuccessfully tried to assist him in finding suitable accommodation.
- It was suggested that the adult lacked capacity to understand how severe his mental health issues are. An example was provided of the adult purposely cutting the small finger on his right hand and when taken to the local hospital for treatment, he assaulted a hospital staff member.
- In regard to the management of his own finances, the Tribunal was told that the adult has been known to display irrational behaviour, particularly with regard to the management of his money. For example, when released on a previous occasion from hospital, he engaged in the practice of signing a lease for a place to live, only to ultimately not pay the rent. Usually it is only when he gets admitted to hospital that his rental debt is discovered.
The view of the nominated decision makers
- No representative from the Public Trustee of Queensland appeared at the hearing.
- The Public Guardian’s representative told the Tribunal that the forensic order currently in place for the adult more than adequately accommodated all those issues with regard to a need for the appointment of a guardian.
- The Public Guardian’s representative suggested that because of the adult’s unwillingness and resistance to any assistance provided to him, any appointment of a guardian would be unsustainable. This was because there is no authority or power afforded to or invested in an appointed guardian to act against the desires of the adult in those areas of which the appointment order is sought. Because the adult was non-compliant with any suggestions or assistance offered for the effective management of his own personal matters, it was ultimately suggested that any appointment of a guardian would be futile.
The adult’s view
- The adult did not appear at the hearing; however, he was represented by an advocate. Through his advocate, the adult told the Tribunal that he strongly opposed the making of any order which appointed a guardian or an administrator. The submissions on behalf the adult was that the presumption of capacity has not been rebutted by any evidence presented to the Tribunal and the application should be dismissed.
- The starting point for the Tribunal’s consideration is the issue of the adult’s capacity. The Guardianship and Administration Act 2000 (Qld) (the Act) provides a presumption that because HT is an adult, he has capacity for the making of his own decisions about his personal and financial affairs. Furthermore, he is presumed to be capable of understanding the nature and effect of decisions about a matter; and he is able to freely and voluntarily make that decision; and he is able to communicate that decision in some way.
- The question that arises for the Tribunal’s consideration and satisfaction is whether the presumption of capacity applies to HT. That is, does HT have capacity to make decisions for himself with respect to personal and financial matters; or has that presumption of capacity been sufficiently rebutted by the application and accompanying evidence to show that he has an impaired capacity. The mere availability of the evidence does not automatically result in the presumption being rebutted. By applying the law, the Tribunal can rebut the presumption of capacity and make a determination on the available evidence that a person has an impaired decision making capacity.
- The Tribunal’s determination of the issue of capacity relating to HT is just one of the considerations to be made by the Tribunal when exercising its discretion to make an appointment order for a personal matter or a financial matter. In exercising its discretion, there is a need for the Tribunal to deploy a method of applying a sequence of steps to reach a determination as to whether an appointment order should be made.
- The Tribunal’s first observation should be whether it is satisfied that the adult has an impaired capacity. If that satisfaction is met, the Tribunal must then be satisfied that there is an actual need for a decision to be made with respect to a personal matter or a financial matter.
- It is not an automatic process that because the presumption of capacity has been rebutted, an appointment order should follow. There must be exploration into, and reasoning applied, as to whether there are decisions that need to be made for the adult at that time. It is at the Tribunal’s discretion to be satisfied that there is sufficient evidence to suggest that the adult is likely to do something that involves or is likely to involve unreasonable risk to their health, welfare or property.
- Consideration then needs to be applied to whether the Tribunal should reach a conclusion that without the appointment of a guardian or an administrator, the adult’s needs will not be adequately met or their interests will not be adequately protected.
- Finally, if an appointment order is made, the Tribunal has the discretion to make the terms of the appointment order that it consider appropriate for the adult.
- Two psychiatrists from the adult’s treating team appeared at the hearing. When discussing the adult’s decision making capacity, both psychiatrists told the Tribunal that the adult was able to freely and voluntarily make a decision, and he was able to communicate that decision in some way. However, he was not able to understand the nature and the effect of any decision that he made about a personal or financial matter.
- The health professional report (the HPR) completed by Doctor DP suggested that the adult did not have the ability to understand and act on information relevant to making decisions about his personal health care, lifestyle and accommodation choices and his financial affairs.
- In regard to what extent did the adult appreciate the consequences of making decisions about his personal health care and his lifestyle and accommodation choices, Dr DP was of the opinion that the adult was unable to make decisions or choices and he could not understand information provided to him. In relation to managing his own financial affairs, Dr DP said that the adult could not demonstrate any capacity to control his finances.
- The conclusion reached by Dr DP was that the adult could not make either simple or complex decisions relating to his personal health care, his lifestyle and accommodation or his own financial affairs. The only conclusion that I can draw from the information contained in the HPR completed by Dr DP, along with the comments made by the two psychiatrists, is that the presumption of capacity is rebutted and the adult has an impaired capacity.
- Notwithstanding that I am satisfied of the existence of an impaired capacity, if the method as discussed above in paragraphs  –  were to be applied, it stands to reason that merely because an adult has an impaired capacity, that does not automatically mean that I should appoint a guardian and/or an administrator for the adult.
- The questions for the Tribunal to consider are whether there are any decisions that need to be made, or is the adult likely to do something that will involve unreasonable risk to their health, welfare or property; and, without a decision maker being appointed, is there a risk that the adult’s needs will not be adequately met, or their interest will not be adequately protected.
- So far as the adult is concerned, he has a history of being resistant to any assistance and recommendations provided to him about personal matters. In considering that, and weighing up all of the material, comments and evidence in this matter, I am inclined to agree with the views expressed by the Public Guardian’s representative in regard to the issue of guardianship.
- That is, although there may be an impaired capacity, I am not satisfied that there are any decisions that need to be made at this time for the adult which relate to his personal matters.
- Therefore, I am of the view that his needs are being adequately met and his interests are being adequately protected with regards to his personal matters.
- However, I do not hold the same view with respect to the appointment of an administrator. The evidence suggests that the adult requires assistance to budget his finances and he is prone to making impulsive financial decisions. He frequently makes rash decisions in regard to his rental accommodation, thus leaving him vulnerable to unnecessary expenses because he consistently breaks his rental leases.
- In my view the adult is financially vulnerable and I am satisfied that there is a need for the appointment of an administrator. I am also satisfied that without the appointment of an administrator; there is a likelihood that the adult will do something that will involve an unreasonable risk to his welfare and property. I am also satisfied that without the appointment of an administrator, his needs will not be adequately met and nor will his interests be adequately protected.
- The Tribunal orders that –
- The application by ES for the appointment of a guardian for HT is dismissed.
- The Public Trustee of Queensland is appointed as administrator for HT for all financial matters.
- The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
- The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
- The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year.
 Pursuant to the Mental Health Act 2016 (Qld), s 57, s 204 to s 219.
 Application received by the Tribunal on 20 December 2018.
 The Acts Interpretation Act 1954 (Qld), Schedule 1. An adult means an individual who is aged 18 or more.
 Guardianship and Administration Act 2000 (Qld), Schedule 1 – a general principle.
 Guardianship and Administration Act 2000 (Qld), Schedule 4.
 PL v PT & Ors  QCATA 114 at  per Senior Member Howard and Member Endicott.
 Guardianship and Administration Act 2000 (Qld), s 12.
 By way of remote conferencing (telephone).
 Received by the Tribunal on 20 December 2018.
- Published Case Name:
- Shortened Case Name:
 QCAT 116
05 Apr 2019