RFJ[2023] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   RFJ is a fifty-seven-year-old woman living with schizoaffective disorder, post-traumatic stress disorder (PTSD) and obsessive-compulsive disorder (OCD), with long-term experience of domestic violence.^[1] In 2021 she experienced a relationship breakdown that required her to navigate property settlement, taxation, and other complex financial and legal matters. That environment was said to exacerbate her mental health issues and, consequently, to challenge her capacity for informed decision-making.
2. [2]
   At the conclusion of a Tribunal hearing on 3 August 2021, upon an application by DL, RFJ’s treating clinical psychologist, the Public Guardian was appointed as guardian for RFJ for accommodation decisions and the Public Trustee of Queensland (PTQ) was appointed as administrator for RFJ for all financial decisions except for day-to-day finances and Centrelink payments. Each order was expressed to remain current under further order, to be reviewed in three years.
3. [3]
   On 22 November 2022 an application for review of each appointment was filed by DL. The grounds for review were expressed as follows:^[2]

Appointment of administrator was initially made as a means to protect the adult during a predicted heightened period of stress that could have exacerbated/triggered a lapse in her mental health and subsequent lack of capacity to manage her affairs in a protective way. This period is coming to a close and it is the opinion of the adult’s treating doctor and myself that [RFJ] is able to manage her affairs independently going forward with the ongoing personal supports she now has in place.

4. [4]
   The review hearing is scheduled to take place on 15 March 2023.
5. [5]
   On 9 February 2023, CG, RFJ’s treating psychiatrist, filed an application for interim orders^[3] seeking urgent cessation of the PTQ’s appointment on the basis that RFJ could manage her own affairs and the ongoing involvement of the PTQ was eroding her assets via the fees incurred. CG said that the ongoing involvement of the PTQ was having a daily detrimental effect on RRJ’s mental health and that the PTQ will not release funds for RFJ to purchase a new home. Attached to the application was a letter of complaint drafted by RFJ to or about the PTQ. Largely, complaints centre around the conduct of the PTQ and the lawyer engaged to represent RFJ’s interests in her matrimonial property settlement, and allegations of negligence regarding the imposition of management fees and the lodgement of RFJ’s taxation returns. No medical evidence was attached to support the “daily” harm alleged to be suffered by RFJ because of the PTQ’s ongoing appointment.
6. [6]
   On 10 February 2023, DL filed an application for interim orders^[4] seeking urgent cessation of the PTQ’s appointment on the basis that RFJ could manage her own affairs and the ongoing involvement of the PTQ was eroding her assets via the fees incurred. DL said that RFJ was seeking to purchase a new home now that her matrimonial property settlement had completed.
7. [7]
   Neither application for interim orders sought cessation of the Public Guardian’s appointment.
8. [8]
   On 13 February 2023, I refused both applications for interim orders. Reasons for that decision have been requested and now follow.

The statutory framework

9. [9]
   The Guardianship and Administration Act 2000 (Qld) (GAA) establishes the framework for the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity. It has a protective purpose that must be balanced with the person’s right to autonomy, so Tribunal may only make a guardianship or administration order if satisfied that:

   1. (a)
      the adult has impaired capacity for the matter; and
   2. (b)
      there is either:

      3. (i)
         a need for a decision in relation to the matter; or

      3. (ii)
         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:

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

      3. (i)
         the adult’s interests will not be adequately protected.^[5]
   4. [10]
      Determination of the adult’s capacity is the threshold issue to be resolved before any decisions are made over the person, followed by a determination of need and risk to the adult if an appointment is not made. This is so even upon review.
   5. [11]
      To remove a guardian or administrator upon review, the Tribunal must be satisfied that:

      1. (a)
         the current appointee is no longer competent or another person is more appropriate for appointment;^[6]
      2. (b)
         new and relevant information has become available;
      3. (c)
         a relevant change in circumstances has occurred since the appointment hearing; or
      4. (d)
         relevant information that was not presented at the appointment hearing has become available.^[7]
   6. [12]
      Applications for interim orders are largely determined ‘on the papers’, without an oral hearing, meaning the evidence before the Tribunal is both limited and untested by cross-examination.
   7. [13]
      Interim orders must strike a balance between the right of an adult with impaired capacity to have the greatest possible degree of autonomy in decision-making, and the adult’s right to adequate and appropriate support for decision making and ought not be made unless circumstances compel such action^[8] and to urgently respond to immediate risks, established by evidence.^[9]

   Does RFJ have, or might she have, impaired decision-making capacity?

   14. [14]
       An adult is presumed to have capacity for a matter^[10] but this is rebuttable.^[11]
   15. [15]
       An adult with decision-making capacity for a matter is capable of:

       1. (a)
          understanding the nature and effect of decisions about the matter;
       2. (b)
          freely and voluntarily making decisions about the matter; and
       3. (c)
          communicating the decisions in some way.^[12]
   16. [16]
       Only one of these elements need be absent for there to be a finding of impaired capacity.^[13]
   17. [17]
       Capacity is decision-specific^[14] and may differ depending on the:

       1. (a)
          type of decision to be made;
       2. (b)
          complexity of the decision to be made; and
       3. (c)
          support available from members of the adult’s existing support network.^[15]
   18. [18]
       The applications for interim orders removing the PTQ as administrator were made by RFJ’s treating psychiatrist and treating clinical psychologist, respectively, from which, perhaps, an inference may be drawn that each applicant considers RFJ to no longer be suffering from impaired decision-making capacity for her financial affairs.
   19. [19]
       A Health Practitioner Report by CG dated 17 November 2022 was also filed in which CG states that “[RFJ] is correctly of the opinion that she is able to make decisions”, that her decision-making capacity is “within normal range” and that she has capacity for all complex and simple decisions. CG notes that: “capacity has improved markedly since being separated from the traumatic environment of the marital home and being in safe, affordable and stable accommodation with increased social opportunities provided by NDIS supports and the benefits of psychical and psychological treatment”.
   20. [20]
       The only other medical evidence before the Tribunal comprises a letter from CG dated 12 August 2022 that supports an early release of RFJ’s superannuation on the grounds of permanent incapacity and her earlier Report dated 10 March 2021 that expressed the view that RFJ did not have capacity for complex financial decision making.
   21. [21]
       Whilst RFJ may well have an arguable case to rebut the Tribunal’s previous finding of impaired decision-making, or to show a change in circumstances such that upon review the PTQ’s appointment might be ceased, this is properly a matter for the review hearing, which is imminent, rather than for an ‘on the papers’ application on limited and untested evidence.

   Is there an immediate risk of harm to the health, welfare or property of RJJ?

   22. [22]
       There was no immediate risk to the health or welfare or assets of RFJ disclosed on the evidence sufficient to warrant the removal of the PTQ as administrator. There is no evidence to support a finding that incurring ongoing fees poses an immediate risk to RFJ’s assets. The Tribunal is not currently privy to what those fees are.
   23. [23]
       RFJ has not produced evidence of her current financial position, of any property she intends or seeks to buy, or any refusal by the PTQ to assist her to buy a property to establish that an urgent decision that needs to be made on her behalf is not being made.
   24. [24]
       RFJ’s allegations of misconduct and negligence are not established by any evidence, but, if true, the refusal of an interim order does not impact any remedies she may have in relation to those allegations. Indeed, other than ongoing fees, the amount of which is not in evidence before the Tribunal, the allegations pertain to transactions that have already occurred, or to losses that have already, according to RFJ, been suffered and for which she seeks compensation.

   Consideration of RFJ’s Human Rights

   25. [25]
       Section 48 of the Human Rights Act 2019 (Qld) (HRA) requires the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
   26. [26]
       I acknowledge that the ongoing appointment of an administrator for RFJ, particularly against her changed views and wishes, necessarily limits her human rights, including her rights to freedom of movement, property rights, privacy and reputation and liberty.
   27. [27]
       These rights are explicitly recognised in the GAA,^[16] but I am satisfied that the limits imposed by the original administration order that are necessarily continued by this decision are reasonable and justified in accordance with section 13 of the HRA. Specifically, I am mindful that the Tribunal appointed an administrator for three years, on evidence that RFJ was incredibly vulnerable and suffering from an impaired decision-making capacity, after a hearing in which evidence was tested. On the limited and untested evidence before the Tribunal on an interim order application, those findings of impaired capacity, vulnerability, risk, and need, protected by the orders made should not easily be cast aside in the absence of urgent and compelling evidence to do so.

   Should the PTQ be removed on an interim basis as administrator?

   28. [28]
       Mindful that RFJ’s allegations against the PTQ and of the risks to herself are not supported by evidence and that her review hearing is imminent, there are no circumstances sufficient to compel interim action^[17] to remove the PTQ as administrator nor is there evidence of immediate risks, established by evidence to be responded to.^[18]
   29. [29]
       For those reasons, the applications were dismissed.

   Footnotes

   [1] Application for administration/guardianship filed 30 March 2021.

   [2] Application for review filed 22 November 2022 at Part C, question 2.

   [3] GAA1742-23.

   [4] GAA1743-23.

   [5] GAA s 12(1).

   [6] GAA s 31(4).

   [7] Queensland Civil and Administrative Tribunal, Practice Direction 8 of 2010: Directions relating to guardianship matters, 23 June 2010, 2.

   [8] GKK [2011] QCAT 344, [10]; GD [2011] QCAT 146, [12]-[13].

   [9] WJP [2012] QCAT 714, [6]; CB [2013] QCAT 421, [8].

   [10] GAA ss 7(a), 11, 11B, General Principle 1.

   [11] Ibid s 11(1).

   [12] GAA sch 4, definition of “capacity”.

   [13] Aziz v Prestige Property Services Pty Ltd [2007] QSC 265, [65].

   [14] Ibid [24].

   [15] GAA s 5(c).

   [16] GAA, s11B, see General Principle 2 - Same human rights and fundamental freedoms.

   [17] GKK [2011] QCAT 344, [10]; GD [2011] QCAT 146, [12]-[13].

   [18] WJP [2012] QCAT 714, [6]; CB [2013] QCAT 421, [8].