PT[2023] QCAT 449

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   PT (the adult) is 65 years of age and resides with her partner in private rental accommodation. The adult is the aggrieved person in a protection order made in March 2021.  The partner of the adult is the respondent. The protection order states that the respondent must be of good behaviour and not commit domestic violence against the aggrieved.  Unless otherwise ordered, the order is to continue in force for a period of five (5) years.
2. [2]
   On 8 June 2021, the Tribunal appointed PR, daughter of the adult, as her guardian for decisions about health care and the provision of services, including in relation to the National Disability Insurance Scheme (NDIS).  The appointment, which was to remain current until further order of the Tribunal, was reviewable and was to be reviewed in two (2) years.  On the same day, the Tribunal dismissed the application for the appointment of an administrator for the adult and made an adult evidence order, a closure order (in relation to the adult and her partner) and a confidentiality order in relation to email correspondence dated 4 June 2021 and a letter dated 7 June 2021.
3. [3]
   In April 2023, the Tribunal commenced a periodic review of the appointment of a guardian for the adult.  On 14 June 2023 the Tribunal received applications for a closure order, an adult evidence order and a confidentiality order over documentation and information received in relation to the periodic review.
4. [4]
   On 19 July 2023, the Tribunal made a pre-hearing decision (a confidentiality order) and directions wherein the Tribunal’s registry was directed to notify the adult and all other active parties and interested persons of the proceedings and the hearing.  The Tribunal’s registry was to send a copy of the decision and directions of 19 July 2023 to those persons, but was not permitted to allow the adult to access other documents on the Tribunal’s file or send her copies of such documents before the hearing.  The Tribunal directed that the applications were to be listed for an oral hearing on a date to be fixed and that the pre-hearing confidentiality order was to be vacated at the start of the hearing under section 110(2) of the Guardianship and Administration Act 2000 (Qld) (‘GAA’). The directions included that at the hearing the Tribunal would decide whether to make any further confidentiality order.
5. [5]
   On 7 November 2023, the Tribunal heard and determined the review of the appointment of a guardian for PT and the applications for a closure order, an adult evidence order and a confidentiality order in relation to the documents made confidential in the decision and directions of the Tribunal of 19 July 2023.
6. [6]
   At the hearing of 7 November 2023, the Tribunal made a decision to change the guardianship order made by the Tribunal on 8 June 2021 by appointing PR as guardian for the adult for the personal matters of health care and provision of services. The appointment is to remain current until further order of the Tribunal.  The appointment is reviewable and is to be reviewed in three (3) years. The Tribunal delivered oral reasons for the guardianship decision at the end of the hearing.

The Legislation

7. [7]
   Closure orders, adult evidence orders and confidentiality orders are types of limitation orders.^[1]
8. [8]
   Section 103 of the GAA provides that each active party or person the Tribunal considers has a sufficient interest in a proceeding must be given reasonable opportunity to access and make submissions about a document or other information before the Tribunal that the Tribunal considers is credible, relevant and significant to an issue in the proceeding.
9. [9]
   Section 104 of the GAA provides the basis of the Tribunal’s consideration for a limitation order.
10. [10]
    If the Tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the Tribunal may, but only to the extent necessary, by a closure order, do either or both of the following—

    1. close the hearing or part of the hearing to all or some members of the public;
    2. exclude a particular person, including an active party, from a hearing or part of a hearing.^[2]

11. [11]
    To the extent the hearing or the part of the hearing concerns health information for a person, serious harm to the person includes significant health detriment to the person.^[3]
12. [12]
    If the Tribunal is satisfied it is necessary to avoid serious harm or injustice to a person or to obtain directly relevant information the Tribunal would not otherwise receive, the Tribunal may, by an adult evidence order, obtain directly relevant information from the adult concerned in the matter at a hearing in the absence of anyone else, including, for example—

1. members of the public; or
2. a particular person, including an active party.^[4]

13. [13]
    Under section 109(1) of the GAA, if the Tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the Tribunal may, but only to the extent necessary, by a confidentiality order, withhold from an active party or other person a document, or part of a document, before the Tribunal. Section 109(2) of the GAA states that, to the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.
14. [14]
    Section 110(2) of the GAA provides that a confidentiality order made before a hearing is vacated at the start of the hearing. 
15. [15]
    Section 111 of the GAA states that each active party, and any entity that would be adversely affected by a proposed limitation order, has standing to be heard in relation to the making of the order.

Should the Tribunal make an adult evidence order?

16. [16]
    The adult chose to not attend the hearing, either in person or by telephone. The Tribunal was provided with information from PR that she and the adult planned to attend the hearing via telephone from the same location, however PR became unwell and was unable to attend the nominated location or have face-to-face contact with the adult due to the nature of her illness. PR said she told the adult that she would attend the hearing via phone and that the adult expressed no objection to that arrangement and chose not to attend the hearing via phone. PR said the adult was aware that the hearing might proceed in her absence. PR provided no oral submissions, when asked, in relation to the application for an adult evidence order.
17. [17]
    As a consequence of the adult’s non-attendance, the application for an adult evidence order was dismissed.^[5]

Should the Tribunal make a closure order?

18. [18]
    The adult and the adult’s partner were the subject of the application for a closure order.  Neither the adult or her partner attended the hearing. PR provided no oral submissions, when asked, in relation to the application for a closure order.
19. [19]
    As a consequence of the non-attendance at the hearing of the adult and her partner, the application for a closure order was dismissed.^[6]

Should the Tribunal make a confidentiality order?

20. [20]
    Upon the confidentiality order of 19 July 2023 being vacated at the commencement of the hearing PR, being an active party in the proceeding, declined to make oral submissions when invited as to whether documents on the Tribunal’s file should be withheld from PT or another party.
21. [21]
    The Tribunal notes that all documents pertaining to the hearing of 8 June 2021, with the exception of the documents identified in the Tribunal’s decision of the same date, had been accessible to the adult prior to the decision and directions of the Tribunal dated 19 July 2023.
22. [22]
    The application before the Tribunal does not pertain to all documents included within the confidentiality order of 19 July 2023 as it seeks specific information and documents to be inaccessible to certain parties due to the risk of serious physical, emotional and psychological harm, including significant health detriment, to persons should the information be disclosed. 
23. [23]
    In addition to being directly relevant and significant, the information contained within the identified documents is credible, as the information came from sources deemed to be reliable by the Tribunal.
24. [24]
    Whilst neither serious harm nor injustice are defined in the GAA, case law has found that ‘serious harm’ means physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding.^[7]
25. [25]
    In this case, the Tribunal adopts the same approach taken by Tribunal in the matter mentioned above concerning JSM^[8] as to the meaning of 'serious harm' for the purposes of section 109 of the GAA. 
26. [26]
    Tribunal files are accessible to active parties and other persons before and during hearings in the interests of procedural fairness,^[9] and are accessible to the public. Given the nature of the information contained within the documents, it is reasonable to deduce that persons would likely suffer physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding should the information contained within certain documents before the Tribunal be accessed by active parties and other persons, including members of the public. 
27. [27]
    The Tribunal was therefore persuaded by the submissions within the application and the information within the relevant documents that non-disclosure of the material would be necessary to avoid serious harm to a person.
28. [28]
    For these reasons, the Tribunal is satisfied that the non-disclosure of the identified documents is necessary to avoid serious harm to a person.  In addition, the Tribunal was not satisfied that nondisclosure of all the documents within the confidentiality order of 19 July 2023 was necessary to avoid serious harm to a person.  In this way, the Tribunal withheld documents, but only to the extent necessary, by the making of the confidentiality order.

Conclusion

29. [29]
    Accordingly, the Tribunal orders that pursuant to section 109 of the GAA the following documents are confidential and must not be disclosed:

1. MED002;
2. H006;
3. H007;
4. H008; and
5. File note report dated 11 October 2023.

30. [30]
    In the Tribunal’s consideration of the application for a confidentiality order, the Tribunal is required to interpret the statutory provisions, to the extent possible that is consistent with their purpose, to be interpreted in a way that is compatible with human rights.^[10] 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.^[11] 
31. [31]
    PT’s rights to privacy^[12] and recognition as a person before the law entitled to equal protection without discrimination^[13] are engaged and limited by the making of the confidentiality order. Taking into account these findings in relation to the criteria set out in the GAA, the Tribunal is satisfied the limits imposed by the order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld) (‘HRA’). The orders made are the least restrictive based on the information before the Tribunal.
32. [32]
    As required under section 113 of the GAA, a copy of the Tribunal’s reasons for its decision to make the limitation order must be given to all active parties and the Public Advocate.