ADU[2021] QCAT 70

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   ADU is in custody after completing sentences for sexual offences against children. He remains in custody because he is subject to a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’). The order must be reviewed annually by the Supreme Court, at the instigation of the Attorney-General.^[1] In a review proceeding, the court must decide whether to rescind the order, continue it, or release ADU under a supervision order.^[2]
2. [2]
   There is such a review under way in the Supreme Court. On 6 August 2020 the court asked the tribunal to consider, before the court proceeds further with the review, whether ADU has capacity to defend the review proceeding. Questions arose as to his capacity because of his presentation, on a background of diagnosed schizophrenia. ADU insists, however, that he does not have a mental illness.
3. [3]
   The tribunal has accordingly initiated applications in respect of ADU: one for a declaration about capacity, and another to appoint a guardian.
4. [4]
   Further applications were initiated by the tribunal after it became apparent that in an enduring power of attorney executed on 30 June 2009, ADU had appointed his father, FDA, as his attorney not only for financial matters but also for personal/health matters. The enduring power of attorney would give FDA power to make decisions about the court proceeding if ADU lacks capacity. However, FDA does not wish to make personal/health decisions for ADU. Therefore the tribunal initiated an application for leave to resign as attorney, and an application for orders about the enduring power of attorney.
5. [5]
   The four applications were heard together on 25 February 2021. ADU attended by video from the prison. Ms Williams of ADA Law attended in person. FDA attended by phone from his home in Adelaide. Ms McPhillips for the Public Guardian attended by phone.
6. [6]
   The health professional reports before the tribunal include risk assessment reports prepared for the review proceeding in the Supreme Court by psychiatrists Dr Timmins (dated 18 July 2020) and Dr Beech (dated 19 July 2020), and letters provided for that review by ADU’s treating psychiatrist Dr Stewart (dated 19 June 2020 and 4 August 2020). The tribunal also obtained a report by Dr Stewart dated 12 January 2021 and a letter dated 2 February 2021.
7. [7]
   Part-way through the hearing I appointed Ms Williams of ADA Law to represent ADU, under section 125 of the Guardianship and Administration Act 2000 (Qld) (‘Guardianship Act’). However, I also allowed ADU to speak for himself at length and with relatively few interruptions. ADU’s comments largely reflected his preoccupations: that he did not commit the offences; that he was bashed by police after being apprehended; that he is unjustly incarcerated; that he has been poorly represented by lawyers in the past; that he continues to be persecuted by judges and by lawyers for the state; and so on. However, at points, ADU touched on topics outside those immediate preoccupations. It emerged that he understands the purpose of the review proceeding in the Supreme Court. He ventured reasons why the opinions of the psychiatrists should not be accepted. He contends that Dr Stewart as a ‘prison psych’ has limited experience, relies too heavily on information from previous psychiatrists, and may have mistakenly consulted records of another prisoner with the same surname. ADU contests the conclusions of the other psychiatrists on the basis that they have been supplied with only limited background information.
8. [8]
   ADU also emphasised that he does not have a mental illness. He does not want a substitute decision-maker to be appointed to make decisions for him in the review proceeding. He said that he does not intend to engage with a lawyer if one is appointed to act for him in that proceeding. He mentioned that when he was before the courts on the charges (which would have been approximately ten years ago), psychiatrists assessed him as fit for trial. He said his case accordingly proceeded through the ordinary courts, rather than through the Mental Health Court.
9. [9]
   In the course of the hearing I initiated application GAA2410-21, for an order about an enduring power of attorney. This was to open up options in addition to granting leave to FDA to resign as attorney. It is appropriate to dispense with the requirement to notify any other parties who would ordinarily be entitled to notice under section 118(1) of the Guardianship Act, as the parties with an active interest in the operation of the enduring power of attorney were present at the hearing.

Statutory framework

10. [10]
    The Guardianship Act was amended with effect from 30 November 2020, but as the applications for a declaration about capacity and for the appointment of a guardian under that Act were initiated before that date, the former provisions apply.^[3]
11. [11]
    The Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’) was also amended with effect from 30 November 2020. However, as the applications relating to the enduring power of attorney were initiated after that date, the current provisions apply.
12. [12]
    A legal matter ‘not relating to the adult’s financial or property matter’ is a personal matter under both Acts.^[4]
13. [13]
    A person has capacity for a matter when the person is capable of:

    1. (a)
       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.^[5]
14. [14]
    A person has impaired capacity for a matter when they do not have capacity for the matter.^[6]
15. [15]
    An adult is presumed to have capacity for a matter.^[7] The presumption may be rebutted.
16. [16]
    The tribunal may appoint a guardian for a personal matter if satisfied:

    1. (a)
       the adult has impaired capacity for the matter; and
    2. (b)
       there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
    3. (c)
       without an appointment –

       1. (i)
          the adult’s needs will not be adequately met; or

       1. (ii)
          the adult’s interests will not be adequately protected.^[8]
17. [17]
    The Guardianship Act acknowledges that an adult’s right to make decisions is fundamental to their dignity; that the right to make decisions includes the right to make decisions with which others may not agree; and that the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent.^[9] The Act seeks to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making, and the adult’s right to adequate and appropriate support for decision-making.^[10] The Act sets out general principles such as the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions.^[11] An adult’s views and wishes should be sought and taken into account, to the greatest extent practicable,^[12] though a person or entity performing a function under the Act must do so in a way consistent with the adult’s proper care and protection.^[13]
18. [18]
    Similar general principles also apply in the Powers of Attorney Act.^[14] Of particular relevance in this case is the principle that the importance of maintaining an adult’s existing supportive relationships must be taken into account.^[15]
19. [19]
    While the power of an attorney for financial matters can begin immediately,^[16] a power for a personal matter is only exercisable during any period the principal has impaired capacity for the matter.^[17]
20. [20]
    When a principal has impaired capacity for a matter, an attorney may resign as attorney for the matter only with the leave of the Supreme Court or the tribunal.^[18]
21. [21]
    The Supreme Court or the tribunal may make certain modifications to an enduring power of attorney, such as removing a power from an attorney and giving the removed power to a new attorney.^[19]
22. [22]
    The tribunal must also have regard to any relevant human rights under the Human Rights Act 2019 (Qld) (‘Human Rights Act’).  A person’s right to freedom of expression^[20] is arguably relevant in this case, because ADU wishes to put his case in the review proceeding in his own way, rather than have a lawyer put it in the way the lawyer thinks fit. It is also relevant to take into account the right to a fair hearing.^[21]  
23. [23]
    Section 13 of the Human Rights Act deals with the limitation of rights:

13  Human rights may be limited

1. (1)
   A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

1. (2)
   In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

1. (a)
   the nature of the human right;

1. (b)
   the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

1. (c)
   the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

1. (d)
   whether there are any less restrictive and reasonably available ways to achieve the purpose;

1. (e)
   the importance of the purpose of the limitation;

1. (f)
   the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

1. (g)
   the balance between the matters mentioned in paragraphs (e) and (f).

24. [24]
    For context, it is also relevant to observe that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) apply in the review proceeding in the Supreme Court.
25. [25]
    If a party to a proceeding becomes a person with impaired capacity, steps can be taken in the proceeding only with the leave of the court.^[22] A person under a legal incapacity may start or defend a proceeding only by their litigation guardian.^[23] 
26. [26]
    A person authorised under an Act to conduct legal proceedings for a person with impaired capacity is, unless the court orders otherwise, entitled to be the litigation guardian of the person.^[24] Such a person would, in my view, include an attorney with a relevant power under an enduring power of attorney, or a guardian appointed under the Guardianship Act for the relevant legal matter.
27. [27]
    A person may become the litigation guardian by filing in the court registry a consent to be the litigation guardian.^[25] Alternatively, the court may appoint a litigation guardian.^[26]
28. [28]
    In the present case, the Supreme Court asked the tribunal to determine the question of capacity. The court cited Till v Nominal Defendant,^[27] in which the court had observed that the tribunal has exclusive jurisdiction for the appointment of guardians for adults with impaired capacity for matters.^[28] However, I note that while the tribunal has jurisdiction to make declarations about capacity,^[29] the legislation does not give the tribunal exclusive jurisdiction in that area. It appears that the court’s attention in the Till case was not drawn to section 239 of the Guardianship Act, which says that the Guardianship Act does not affect rules of court about a litigation guardian for a person under a legal incapacity. I mention this because it seems that in a case such as the present, it would be open to the court to itself determine the issue of capacity, and if necessary appoint a litigation guardian, rather than ask the tribunal to conduct a proceeding. That would probably be a speedier course. However, it may be that the court contemplated this option but considered it necessary, or more appropriate, for the tribunal to determine the question of capacity.

Does ADU have capacity for legal matters in relation to proceedings under the DPSO Act?

29. [29]
    All of the psychiatrists whose reports are before the tribunal consider that ADU has schizophrenia, along with some other conditions. The schizophrenia is characterised by entrenched delusional beliefs of persecution involving ADU’s convictions for sexual offences against children. ADU believes he did not commit the offences despite compelling eyewitness evidence in one instance and earlier admissions in others. He believes there is a conspiracy against him involving the courts, lawyers, and mental health practitioners. He does not believe he has a mental illness. He will not willingly participate in treatment for mental illness or in sexual offender rehabilitation.
30. [30]
    Dr Timmins, for example, describes ADU being preoccupied with persecution from various sources ‘to the point of delusional intensity and his conversation often came back to these themes regardless of which question he was asked’.^[30] Dr Timmins noted ‘evidence of formal thought disorder with tangentiality and circumstantiality to his thought form’.^[31]
31. [31]
    These traits, and persecutory preoccupation, were very evident in ADU’s presentation at the tribunal’s hearing.
32. [32]
    The psychiatrists’ reports are detailed and persuasive. Further, Dr Stewart has had ample opportunity, as the treating psychiatrist, to observe ADU over a number of years. I accept the diagnosis of schizophrenia, and the characterisation of the persecutory beliefs as delusional.
33. [33]
    ADU’s tangentiality affects his ability to communicate any decisions he makes in relation to the review proceeding in the Supreme Court. However, this barrier can probably be overcome if ADU is allowed a lot of time to express himself.
34. [34]
    The more profound impact of the mental illness is upon ADU’s ability to freely and voluntarily make decisions about such a matter. Defending a review proceeding would involve a series of decisions, such as whether to engage a lawyer, whether to present evidence, the type of evidence to be presented, whether to cross-examine witnesses, what questions to ask in cross-examination, what submissions to make, and so on. There may then be decisions required about the prospects for an appeal, and whether to initiate or defend an appeal. A person subject to a continuing detention order may also wish to decide from time to time whether an application to the Supreme Court for leave to initiate a review should be made.^[32]
35. [35]
    ADU has such strong and preoccupying delusions of persecution, involving a denial of guilt and a distrust of lawyers, that he is in no position to make informed and rational decisions about how to conduct a DPSO Act proceeding. He rules out the option of seeking legal representation, even though representation would, objectively, be beneficial. ADU is unable to accept and adjust to the reality that the court will proceed on the basis that he committed the offences in question. His fixation on innocence prevents him from engaging with the real questions before the court, such as whether, as a convicted child sex offender with ongoing mental illness, he poses a serious danger to the community, and if so, how that risk should be met.
36. [36]
    Put a different way, ADU’s delusions and preoccupations deprive him of the ability to understand the nature and effect of decisions, such as the futility of a decision to defend the proceeding on the basis that he is innocent.
37. [37]
    The presumption of capacity, for the personal matter of legal matters in relation to proceedings under the DPSO Act, is rebutted in ADU’s case. I find that he has impaired capacity for that matter. I will make a declaration about capacity accordingly.

Is there a need for a decision?

38. [38]
    Clearly, there is a need for decisions to be made in relation to that personal matter. ADU is the respondent to a review proceeding under the DPSO Act. It is likely, in my view, that he will also be subject to a number of further annual reviews in the years ahead.

Should a substitute decision-maker be appointed?

39. [39]
    A guardian can be appointed under the Guardianship Act only if, without an appointment, ADU’s needs will not be adequately met or his interests will not be adequately protected.^[33]
40. [40]
    Ideally, it should not be necessary to appoint a guardian or other substitute decision-maker. The declaration of incapacity will signify that FDA’s power to make decisions as attorney for ADU in respect of the personal legal matter is enlivened. FDA can file written consent in the Supreme Court registry to be ADU’s litigation guardian in the review proceeding.
41. [41]
    The difficulty is that FDA does not wish to make personal decisions for ADU, especially ones involving litigation. FDA told the tribunal that ADU’s solicitor prepared the enduring power of attorney in 2009, and FDA understood the purpose was to enable FDA to manage ADU’s finances. FDA did not realise, until he sent a copy of the enduring power of attorney to the tribunal in 2020, that he had also been appointed (in the event of incapacity) to make decisions in personal/health matters. The appointment for financial matters took immediate effect, and FDA as a retired accountant has been comfortable to make financial decisions for ADU. FDA, who lives in Adelaide, understands that in South Australia a separate document would be required to appoint an attorney for personal matters. He assumed the Queensland system was the same. FDA feels ill-equipped to make personal decisions, especially in relation to litigation. He points to his age (76 years) and the fact that his wife is recovering from surgery. The family has already endured a lot of trauma. He is not familiar with the Queensland legal system. Further, FDA says, there are no other family members who would be in a position to take on the role of attorney instead of him.
42. [42]
    ADU told the tribunal that he had not anticipated that the enduring power of attorney could operate in respect of personal decision-making. He thought it was confined to financial decision-making. He believes that his then solicitor must have ticked the relevant box in the document after he (ADU) had signed. He is content for FDA to be attorney only for financial matters.
43. [43]
    It is highly unlikely that the solicitor ticked the box after ADU signed, and I do not accept that he did. However, I see no reason to disbelieve the evidence of ADU and FDA that they understood that the enduring power of attorney related to financial decision-making only.
44. [44]
    In relation to whether FDA should be relieved of responsibility to make decisions in relation to the legal matter, I note that if he elected to become litigation guardian he could act only by a solicitor.^[34] The solicitor would advise FDA about the legal processes. However, engaging a solicitor would require funds. I assume that FDA would be most reluctant, and probably unwilling, to fund representation personally. Further, FDA says, and I accept, that ADU has insufficient means to fund legal representation. (Whether FDA as attorney could properly use ADU’s money to fund a solicitor for a litigation guardian is another issue, which I do not need to address). Perhaps a grant of legal aid to ADU would cover representation for a litigation guardian, but that cannot be assumed. It would need to be explored.
45. [45]
    Suffice it to say that funding would not be straightforward. It is unlikely that FDA would elect to become litigation guardian, for understandable reasons relating to his own circumstances. A related factor to be considered is that ADU regularly keeps in contact with FDA by phone. It seems probable that ADU’s family in Adelaide is an important source of emotional support for ADU, who faces the hardship not only of imprisonment but also of mental illness. The relationship with the family would be jeopardised if FDA were placed in the position of making decisions about the litigation, some of which may well be contrary to ADU’s preferences.
46. [46]
    Overall, I consider it desirable that FDA be relieved of his responsibility under the enduring power of attorney in relation to the legal matter.
47. [47]
    That leads to the question of whether a guardian should be appointed for the legal matter, or a different attorney substituted in relation to that matter, or whether it should simply be left to the Supreme Court to appoint a litigation guardian. While there is much to be said for the last of these options, it is not clear that it would be open to the court to appoint the Public Guardian as litigation guardian, if the court wished to take that course, in the absence of the Public Guardian being an attorney under an enduring power of attorney or a guardian appointed under the Guardianship Act. This is because the statutory functions of the Public Guardian listed in section 12 of the Public Guardian Act 2014 (Qld) include acting as attorney or as a guardian appointed by the tribunal, but not as litigation guardian. Of course, whether the Public Guardian (as attorney or guardian) can be appointed as litigation guardian is a matter that the court can decide in due course if necessary.
48. [48]
    The only person available to the tribunal to appoint as guardian or attorney, once family is ruled out, is the Public Guardian. If appointed, the Public Guardian could as first steps make decisions about whether to seek legal aid for representation for ADU in the review proceeding, and whether to file a consent in the Supreme Court registry to be litigation guardian.
49. [49]
    Ms McPhillips for the Public Guardian submits that the tribunal should not appoint a guardian, for two reasons.
50. [50]
    First, Ms McPhillips submits that the Public Guardian’s practice is not to consent to being a litigation guardian.
51. [51]
    However, in my view that would not preclude the Supreme Court from appointing Public Guardian as litigation guardian, regardless of the absence of consent, if there was nobody else available to perform the role. In any event, whether the general practice should be applied in this particular case is something which the Public Guardian may wish to reconsider. The need for funding for a solicitor may present difficulties, but that is a problem that the Public Guardian is better placed to address than FDA.
52. [52]
    Second, pointing to section 13(2)(c) of the Human Rights Act, Ms McPhillips submits that the appointment of a guardian would involve an infringement of a right or rights of ADU, without achieving the desired purpose. Ms McPhillips says that ADU would refuse to give instructions to any lawyer engaged to represent him, leaving any guardian with no alternative but to not oppose the continuation of a detention order.
53. [53]
    I am not persuaded by those submissions. I am unconvinced that ADU would necessarily be entirely uncooperative with a lawyer. He displayed some willingness to accept the assistance of ADA Law in the tribunal’s proceeding, though I appreciate that any such willingness would be highly contingent. In any event, while a litigation guardian would properly take into account the wishes of ADU, I strongly doubt that such a guardian (or a lawyer engaged by a litigation guardian) would be bound to conduct the proceedings in conformity with ADU’s wishes. Further, while I accept that the appointment of a substitute decision-maker might curtail ADU’s right to free expression, his own points of view would be made known to the court through the psychiatric reports and any evidence and submissions that a representative chose to present. Further, it is difficult to see how the court could facilitate another right of ADU – his right to a fair hearing – where the conduct of his case was left to ADU: a self-represented litigant suffering from pervasive paranoid delusions relating to the subject matter of the litigation.
54. [54]
    Overall, I consider that any limitation of ADU’s rights by the appointment of a substitute decision-maker is reasonable, given that otherwise ADU’s legitimate interest in seeking a release from custody cannot be effectively advocated.
55. [55]
    An option would be to remove the relevant power from FDA and give the power to the Public Guardian as a new attorney, under section 116(b) of the Powers of Attorney Act. However, I expect that this would lead to further difficulties and delays because ADU might well move to revoke the enduring power of attorney. This in turn would probably lead to a further proceeding to consider whether he had the capacity to revoke. Capacity to make or revoke an enduring power of attorney is not the same as capacity to make a decision about a matter.^[35] The application about capacity that has been considered in the current proceeding is capacity to make a decision about a matter.
56. [56]
    I consider that the appointment of a guardian, namely the Public Guardian, is necessary. Without an appointment, ADU’s interests will not be adequately protected. The Public Guardian is appropriate for appointment, having regard to the matters set out in section 15(1) of the Guardianship Act. I also consider that there is no other person appropriate for appointment: this is a prerequisite for the appointment of the Public Guardian.^[36] In particular, I do not consider it appropriate to appoint a family member because of the strain such an appointment would place on family relationships. It would jeopardise an important source of emotional support for ADU.
57. [57]
    Appointment for the personal matter of legal matters relating to proceedings under the DPSO Act will enable the Public Guardian to decide whether to obtain legal representation for ADU in the current and any future review proceedings, decide whether to elect to become litigation guardian, deal with any appeals, and so on.
58. [58]
    I do not intend to direct a review of the appointment by the tribunal earlier than the five years required under section 28 of the Guardianship Act. The psychiatric reports indicate that ADU’s schizophrenia is chronic and treatment-resistant, so on present indications his lack of capacity is likely to endure. It is likely that there will be a series of review proceedings under the DPSO Act in the Supreme Court. An earlier tribunal review of the appointment can, of course, be sought if there is a material change in circumstances.
59. [59]
    The appointment of the guardian will overtake the enduring power of attorney so far as decisions in relation to DPSO Act proceedings are concerned. In other words, FDA will not be able to make decisions about such proceedings (unless he is appointed by the Supreme Court as litigation guardian).

Should FDA be given leave to resign as attorney for personal/health matters?

60. [60]
    I do not think it appropriate to grant leave to FDA to resign as attorney. It has not been necessary to decide whether ADU lacks capacity other than for the legal matter in question. It may therefore be open to FDA to resign without leave, or it may be open to ADU to revoke the enduring power of attorney and make a new one appointing FDA just for financial matters. On the other hand, ADU and FDA may wish to discuss whether it would be desirable for FDA to remain attorney for other personal/health matters. At the hearing, FDA acknowledged that if there was a straightforward decision to be made – such as whether to accept an offer of a particular residential placement, or to give consent to a particular health procedure – he would be able to make such a decision even from Adelaide. 

Conclusion

61. [61]
    For the above reasons, it is appropriate to make a declaration about capacity in relation to the particular personal matter; to appoint a guardian for that matter; to overtake the enduring power of attorney to that extent; and to refuse leave to FDA to resign as attorney for personal/health matters.