POL[2024] QCAT 136

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Senior Member Browne: In this matter concerning POL, the Tribunal is today determining the question of POL’s capacity to make decisions about his legal matters in relation to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’). By order dated 26 February 2024, the Supreme Court of Queensland referred the question of POL’s capacity to respond to the proceedings under the DPSO Act. The Court directed that the Registrar of the Supreme Court obtain an update from the Registrar of QCAT as to the progress of the referral by 4:00pm on 28 March 2024.
2. [2]
   Importantly, the application for annual review, pursuant to Part 3 of the DPSO Act, is listed for review before the Supreme Court on 11 April 2024 at 9.15am. In the interests of time, the Tribunal will deliver ex tempore reasons for its decision. It is convenient to set out relevant background information relating to POL and the proceedings under the DPSO Act pending in the Supreme Court in proceeding number BS11642 of 21. 
3. [3]
   POL is a 57-year-old man who has been detained in custody subject to a continuing detention order under the DPSO Act. Relevantly, orders made under that Act are subject to review. On 14 July 2023, the Attorney-General for the State of Queensland filed an application under the DPSO Act to commence the first annual review of POL’s continuing detention order made by the Court on 25 July 2022. The first hearing was scheduled before the Court for 28 August 2023 but was vacated due to concerns raised by the legal representatives appearing for the applicant and respondent. 
4. [4]
   As can be seen from the Court’s reasons delivered on 26 February 2024, the concerns discussed in the proceeding relate to whether POL is a person with impaired capacity such that he cannot make decisions required of a litigant in proceedings under the DPSO Act.^[1] Further, the Court considered the issue of POL’s capacity at the proceeding on 20 February 2024, during which time oral evidence was given by Dr Karen Brown, Consultant Forensic Psychiatrist, and Dr Josephine Sundin, Consultant Psychiatrist. 
5. [5]
   As reflected in the Court’s reasons delivered on 26 February 2024, it was not contentious in the hearing before the Court on 20 February 2024 that the clinical evidence clearly establishes that POL is a person with impaired capacity and the question of whether a guardian should be appointed under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’), should be again considered by QCAT.  Her Honour Justice Williams says:^[2]

The evidence clearly establishes that the central issue is the appointment of a guardian for legal matters; however, personal accommodation, provision of services, NDIS and legal matters need to be considered in respect of the respondent [POL].

6. [6]
   It is important to note that POL has a guardian, namely, the Public Guardian, appointed by order of the Tribunal on 10 May 2022 to make decisions about POL’s accommodation and provision of services including in relation to the NDIS.  Further, in the earlier proceeding before this Tribunal on 10 May 2022, a declaration was made about POL’s capacity, namely, that he has capacity to respond to the DPSO Act in the Supreme Court. 
7. [7]
   In the present matter, as reflected in the Tribunal’s directions, dated 5 March 2024, and the notice of hearing, dated 11 March 2024, the applications or matters before the Tribunal are:

   1. A declaration of capacity, and
   2. Review of the appointment of the guardian. 
8. [8]
   The Tribunal has the power to make a declaration about the capacity of a person referred to under the GA Act as the adult, as provided under section 146.^[3] Section 146(2) provides that the application may be made by the Tribunal on its own initiative or on the application of the individual or another interested person.^[4] Capacity for a matter is also a relevant issue for consideration when the Tribunal is exercising the discretionary power under section 12 of the GA Act to appoint a guardian for a personal matter or an administrator for a financial matter for an adult.
9. [9]
   It is convenient for the Tribunal to make reference to section 12 now because as I will explain further, in reviewing the appointment of a guardian under section 31, the Tribunal is required to revoke its order making the appointment unless satisfied it would make an appointment under section 12 if a new application for appointment were to be made.
10. [10]
    A person is presumed to have capacity to make their own decisions. The presumption of capacity to make decisions is explicit in the GA Act. The Act acknowledges, under section 5:

1. An adult’s right to make decisions is fundamental to the adult’s inherent dignity;
2. The right to make decisions includes the right to make decisions with which others may not agree;
3. The capacity of an adult to make decisions may differ according to—

1. the type of decision to be made, including, for example, the complexity of the decision to be made;
2. and the support available from members of the adult’s existing support networks;

4. The right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent;
5. An adult with impaired capacity has a right to adequate and appropriate support for decision-making. 

11. [11]
    As reflected in section 6 of the GA Act, 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.
12. [12]
    Further, in section 11 of the GA Act, if in performing a function or exercising a power under the Act, the Tribunal is required to make a decision about an adult’s capacity for a matter, the Tribunal is to presume the adult has capacity for the matter until the contrary is proven.
13. [13]
    As provided under section 11(2) of the GA Act if a declaration by the Tribunal that an adult has impaired capacity for a matter is in force, a person or other entity that performs or exercises a power under this Act is entitled to rely on the declaration to presume that the adult does not have capacity.
14. [14]
    The general principles, as set out under section 11B of the GA Act, that must be applied by a person or other entity that performs a function or exercises a power under the Act, provides, amongst other things, that an adult is presumed to have capacity for a matter.
15. [15]
    In reviewing the appointment of a guardian under section 31 of the GA Act, the Tribunal may conduct a review of an appointment of a guardian or administrator for an adult in a way that it considers appropriate. At the end of the review, the Tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if the new application for an appointment were to be made. If the Tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either continue its order making the appointment or change its order making the appointment including by, for example, changing the terms of the appointment or removing an appointee or making a new appointment. 
16. [16]
    However, the Tribunal may make an order removing an appointee other than the Public Guardian only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment. Put simply, in reviewing the appointment of the Public Guardian for POL, section 31 requires the Tribunal, at the end of the review, to revoke its order unless satisfied it would make an appointment if a new application for an appointment were to be made. This requires a consideration of the matters set out under section 12, that include, amongst other things, the Tribunal being satisfied that:

    1. the adult has impaired capacity for the matter;
    2. 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 welfare or property; and
    3. without an appointment, the adult’s needs will not be adequately met or the adult’s interests will not be adequately protected.
17. [17]
    Further, as provided under section 12(2), the appointment may, amongst other things, be on terms considered appropriate by the Tribunal. 
18. [18]
    The Tribunal must also apply the Human Rights Act 2019 (Qld) (‘HR Act’) when considering whether to make a declaration under the Act about a person’s capacity for a matter and when acting in an administrative capacity in reviewing the appointment of a guardian under the Act.^[5] This requires the Tribunal to identify the relevant human rights which relate to the Tribunal’s function and which may be limited by this proceeding. When acting in an administrative capacity, the Tribunal is required to give consideration to the HR Act and interpret statutory provisions, to the extent possible, consistent with its purpose. 
19. [19]
    For reasons I will explain later, there are a number of human rights that may be engaged by this proceeding. Importantly, in considering whether POL has capacity to make decisions about his legal matters relating to proceedings under the DPSO Act, is POL’s right to liberty under section 29.^[6] As held in Attorney-General for the State of Queensland v Grant [No 2],^[7] a continuing detention order would deprive the respondent (in this case, POL) of the right to liberty.^[8] That is, he would be confined in custody for an indefinite term.

Does POL have capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act?

20. [20]
    Turning first to the issue of POL’s capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act, the Tribunal is required to apply the presumption of capacity in a relevant matter even if the issue is revisited soon after impaired capacity is found, as was the case in the Tribunal’s earlier decision made on 10 May 2022. It is held in Bucknall v Guardianship and Administration Tribunal [No 1],^[9] ‘[f]or the Tribunal to give effect to the presumption more than once is not so bothersome that the Parliament is unlikely to have intended that to be done’.^[10]
21. [21]
    In determining the question of POL’s capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act, the Tribunal has regard to the evidence before it, including various reports prepared by psychiatrists and a forensic psychologist for the Supreme Court proceedings. In making the necessary findings about POL’s capacity, the Tribunal is to be satisfied to the required standard having regard to the consequences of a finding of impaired capacity.
22. [22]
    Capacity for a person for a matter is defined under schedule 4 of the Act to mean the person is capable of:

    1. understanding the nature and effect of decisions about the matter; and
    2. freely and voluntarily making decisions about the matter; and
    3. communicating the decisions in some way.
23. [23]
    Whilst it is only necessary for one element to be missing for a finding that a person has impaired capacity, it is necessary to consider the other elements of the definition of capacity under the Act to understand the extent of the person’s impaired capacity making.^[11]
24. [24]
    Capacity for a matter is specific to the decision which needs to be made.^[12]
25. [25]
    A matter for the purposes of the Act includes a type of matter. As provided under the Act, a personal matter for an adult includes, for example, and amongst other things, a legal matter not relating to the adult’s financial or property matters.^[13]
26. [26]
    In the present case, the relevant legal proceeding is the annual review of POL’s continuing detention order. This involves certain concepts and considerations as outlined by the Court in Attorney General v SLS,^[14] (‘SLS’) which includes amongst other things:^[15]

    1. Whether the Court is satisfied that the prisoner who is subject to the DPSO Act order is a serious danger to the community in the absence of a part 2, division 3 order;
    2. Whether there is acceptable, cogent evidence on which the Court can be satisfied as to the prisoner being a serious danger to the community to a higher degree of probability and the evidence is of sufficient weight to justify the decision; and
    3. If the Court is satisfied that the prisoner is a serious danger to the community, the Court may order that the prisoner be detained in custody for an indefinite term of control, care or treatment or that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the supervision order.
27. [27]
    Further, in making either of these orders, the Court considers other matters helpfully set out in the Court’s reasons delivered on 26 February 2024.^[16] The paramount consideration is to be the need to ensure adequate protection of the community and whether adequate protection of the community can be reasonably and practicably managed by a supervision order, and that the requirements under section 16 of the DPSO Act can be reasonably and practically managed by Corrective Services officers.^[17]
28. [28]
    Here, the decisions required to conduct a review currently before the Court are complex and would require POL to understand several issues including, amongst other things, the nature of the application and legislation, namely, the DPSO Act, and the need for compliance with any requirements imposed. The decisions required also involve a consideration of whether to engage a lawyer, whether to present or test any evidence, including, for example, cross-examination of witnesses, a consideration of strategies and compliance with any requirements to be imposed by the Court. That also includes whether to make submissions and to consider whether to initiate or defend an appeal. 
29. [29]
    As held by her Honour Justice Williams, the considerations that the Court must have regard to in deciding whether a prisoner is a serious danger to the community are broad and include efforts by the prisoner to address the cause or causes of the offending behaviour and includes any other relevant matter.^[18] Further, a prisoner respondent the subject of the DPSO Act proceeding would necessarily be required to have an understanding of potential issues and the need for compliance with certain requirements and, amongst other things, be able to consider and identify any steps that may be taken to manage the risk.
30. [30]
    In SLS, Justice Williams at [37] said ‘[t]he ability of a prisoner respondent to be able to make rational decisions about issues relevant to a DPSOA proceeding is a critical threshold issue’.^[19]

What is the evidence before the Tribunal relevant to POL’s capacity?

31. [31]
    There is evidence before me relevant to POL’s capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act, his other personal matters including healthcare, accommodation and provision of services including in relation to the NDIS. 
32. [32]
    Dr Luke Hatzipetrou, Clinical Forensic Psychologist, was initially engaged by the Offender Intervention Unit to provide treatment for POL and continued to provide treatment following the making of the continuing detention order. In a report dated 17 May 2023, Dr Hatzipetrou details POL’s offending behaviour and treatment sessions delivered on a fortnightly basis. The fortnightly sessions varied from fortnightly to monthly. Importantly, and relevant to the matters before the Tribunal, Dr Hatzipetrou performed psychological testing and gives an opinion about POL’s presentation, relevant background, information prior to the offending behaviour and barriers to establishing therapeutic engagement and treatment outcomes.
33. [33]
    Dr Hatzipetrou reports that POL is, at the time of preparing the report, a 57-year-old man with an intellectual disability and traumatic brain injury in the background of a chronic history of sexual and violent offending. POL’s offending behaviours have resulted in multiple incarcerations as well as evidence of institutionalised behaviours.  As such, POL has a limited social support system and moreover poor insight into his offence path and associated risk factors.
34. [34]
    Dr Karen Brown, Consultant Forensic Psychiatrist, met with POL on 13 July 2023 for the purpose of preparing a risk assessment report dated 7 August 2023. In that report, Dr Brown provides background information detailing POL’s offending, personal circumstances including past injuries, such as and amongst other things, numerous head injuries resulting in loss of consciousness and fractures to his nose and frontal skull, which required surgical fixation and past substance use. Dr Brown reports that over time POL has lost almost all of his supports. His parents are now deceased, and he has lost contact with his siblings. He does not have a partner or any children. 
35. [35]
    At the time of the first assessment in 2023, Dr Brown reports that POL’s understanding of his risk factors for reoffending, apart from the use of alcohol, was virtually absent. Dr Brown reports as at 2021, as stated at page 4:

[POL] continued to deny, minimise and rationalise his past offending. He showed no empathy or remorse. He rejected the advice that he was at risk of reoffending and was unable to see the need for close supervision upon release and he advised that he would not cooperate.

36. [36]
    As reported, although he had participated in ten sessions of individualised sexual offender treatment, POL was not able to articulate any learning from his intervention. He had not instructed a lawyer with regards to the DPSO Act application, and he was thought to be impaired with regards to his ability to participate in proceedings.
37. [37]
    Following an interview with POL on 13 June 2023, Dr Brown reports on 7 August 2023 that POL has a poor grasp of his mental disorders, his offending, his risks and his current legal situation, his judgements and insights were reported to be chronically and severely impaired. His presentation was in line with his established cognitive deficits. He had poor understanding of his legal situation and the likely consequence of release to a supervision order, including the various restrictions to which he would be subjected. Dr Brown reports that POL has a mild intellectual disability further complicated by an acquired brain injury as a result of several head injuries, including a frontal skull fracture in 1998, with associated impairments in adaptive functioning. 
38. [38]
    In particular, he has difficulties in the areas of attention, concentration, memory and executive functioning. He has extremely poor interpersonal and problem-solving skills. He lacks insight into the extent of his cognitive difficulties and his associated treatments and support needs. Although in the past twelve (12) months he is accepting of support from the NDIS, Dr Brown reports that POL has a diagnosis of antisocial personality disorder, alcohol and substance use disorder and a history of depression with associated risk of harm to self in the future.
39. [39]
    Relevant to the Court proceedings, Dr Brown reports, at page 33, a lack of understanding of the limitation that will be placed upon him by a supervision order and given his memory difficulties, Dr Brown reports that POL is unlikely to remember the conditions. 
40. [40]
    It is Dr Brown’s opinion that POL does not properly understand the DPSO Act process, he is easily confused between the DPSO Act process and other legal processes, for example, QCAT, and his appreciation of a supervision order is extremely basic. Further, POL has refused a number of health interventions and investigations without properly understanding the consequences. 
41. [41]
    In a further report, dated 13 September 2023, Dr Brown addresses the question of POL’s capacity to make financial and health related decisions and to respond to proceedings under the DPSO Act. Dr Brown reports that POL does not properly appreciate his risk of reoffending and he does not understand why he is still in prison. He has a very basic understanding of the role of a lawyer, but he has a tendency to confuse various NDIS and other professionals with his legal team. Dr Brown reports, amongst other things, that POL has a poor understanding of Court processes, which would limit his ability to engage a lawyer and to provide proper instruction. 
42. [42]
    Overall, it is Dr Brown’s opinion that POL does not have the capacity to make informed and rational decisions with regards to health and legal matters and that a referral should be made to QCAT regarding appointing a guardian.
43. [43]
    Dr Josephine Sundin, Consultant Psychiatrist, provided a report dated 8 October 2023 about POL’s decision-making capacity with respect to his legal matters. Dr Sundin reports on 8 October 2023 that POL is not capable of making a rational decision about medical treatment and care based on his refusal of both health investigation and intervention without a proper appreciation of potential adverse consequences.
44. [44]
    In relation to POL’s decision-making, generally, Dr Sundin reports that POL lacks insight into his incapacity. He has constitutional intellectual disability, which has been compounded by an acquired brain injury. He has been left with impaired judgment and high levels of vulnerability to stress, poor capacity for emotional self-regulation and a pattern of impulsivity. POL is reported to lack capacity about whether to consent to a restrictive practice order, and lacks as quoted, ‘legal capacity’. 
45. [45]
    POL is reported to be incapable of selecting what is the best evidence to present on his own behalf and would struggle to challenge any evidence. He would not understand the concept of submissions or appeals.

Tribunal’s findings of impaired decision-making capacity for POL 

46. [46]
    POL attended the hearing by video conferencing facility and was supported by Rebecca Anderson of ADA Law, the appointed representative under section 125 of the GA Act. That appointment was made by direction of the Tribunal dated 5 March 2024. Relevantly, as the representative appointed under section 125, Ms Anderson attended to represent POL’s views, wishes and interests.
47. [47]
    It is open for me to make some observations about POL in the hearing today. POL, in my view, clearly struggled at times to understand the role of the Tribunal. For example, he initially confused his appointed representative with a lawyer from QCAT. POL told the Tribunal today that he wants to get on with his life and does not want Corrective Services to run his life. POL asked me several times if he would get out of prison, even though I explained to him the Tribunal’s role in the proceeding today and that the question of whether POL is released from prison is a matter for the Supreme Court.
48. [48]
    Ms Anderson, representative for POL, submitted in the hearing today that POL acknowledges he has a brain injury, wants to be free from prison, and amongst other things is looking for support in areas of legal matters, accommodation and provision of service matters, including the NDIS.
49. [49]
    I accept the evidence of Dr Hatzipetrou, Dr Brown and Dr Sundin contained in their reports. Their evidence is relevant to POL’s capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act and to make decisions about certain personal matters, such as accommodation, healthcare and provision of services, including in relation to the NDIS. 
50. [50]
    The evidence of the psychiatrist and forensic psychologist is detailed and compelling and assessments and observations were reported and conducted over a number of sessions with POL. Relevant to whether POL is capable of understanding the nature and effect of decisions and communicating decisions in some way about his legal matters and personal matters is reported deficits in decision-making due to an intellectual disability and an acquired brain injury that impact on POL’s ability to understand processes, to appreciate potential adverse consequences and to engage with supports necessary to ensure his personal interests are protected.
51. [51]
    I find that POL is a 57-year-old man with an intellectual disability and an acquired brain injury following multiple head injuries, including a frontal skull fracture in 1998, with associated deficits in his adaptive functioning. As reported by Dr Sundin, POL presents with high levels of vulnerability to stress, poor capacity for emotional self-regulation and a pattern of impulsivity.
52. [52]
    I accept the opinion of Dr Brown and find that POL does not properly appreciate his risk of reoffending and he does not understand why he is still in prison. He has a very basic understanding of the role of a lawyer, but he has a tendency to confuse various NDIS and other professionals with his legal team. POL has a poor understanding of Court processes, which would limit his ability to engage a lawyer and to provide proper instructions. Further, and relevant to the pending Supreme Court proceedings, I find that POL has a diminished understanding of the limitation that will be placed upon him by a supervision order and given his memory difficulties, is unlikely to remember the conditions. 
53. [53]
    I am satisfied POL does not properly understand the DPSO Act process and would not be capable of managing his own litigation. The presumption of capacity for the personal matter of legal matters in relation to the proceedings under the DPSO Act is rebutted. It is desirable to make a declaration about POL’s capacity in this matter. I consider that the nature of the DPSO Act is very important and following a review may have significant potential impacts on POL’s liberty. POL does not have capacity to make decisions about his legal matters relating to proceedings under the DPSO Act; I order accordingly.
54. [54]
    In relation to decisions about other personal matters, such as health care and provision of services including the NDIS and accommodation, I have accepted the evidence of the psychiatrists and the forensic psychologist. I have found that POL has deficits that impact on his decision-making, and this includes understanding the nature and effect about decisions relating to his provision of service matters, including the NDIS, accommodation and health care.
55. [55]
    POL’s personal matters are complex and involve a consideration of other matters relevant to the review of his continuing detention order and conditions that may be imposed. I find that the presumption of capacity for health care and provision of services including the NDIS and accommodation matters is rebutted.

Is there a need for the appointment of a guardian?

56. [56]
    In conducting a review of the appointment of a guardian under section 31, I am required to consider the requirements under section 12 of the GA Act, and importantly where there is need for decisions to be made about POL’s personal matters.^[20] As reported by Dr Sundin on 8 October 2023, POL has refused both health investigations and interventions without proper appreciation of the potential adverse consequences of such decisions.
57. [57]
    In my view, Dr Sundin’s evidence, which I accept, demonstrates a degree of vulnerability and risk for POL if he is left unsupported in his decision-making.  Further, I have found that POL has deficits in his decision-making and struggles to understand the nature and consequences of decisions of importance in not only his personal matters, including health care, accommodation and provision of services including the NDIS, but his liberty, given that he is detained in custody subject to a continuing detention order under the DPSO Act.
58. [58]
    The evidence of the office of the Public Guardian, the current guardian, is relevant to the review proceedings and the question of need for decisions to be made by a substituted decision-maker for POL about his personal matters, such as health care, provision of services including NDIS, legal and accommodation matters. As reported by the Public Guardian in its report dated 18 March 2024, since their appointment by order of the Tribunal dated 10 May of 2022, they have accepted offers of occupational therapy support and other support including NDIS support and engaged with relevant bodies about accommodation options for POL.
59. [59]
    The Public Guardian reports concerns that POL’s rights and interests would not be adequately protected due to his limited insight into the current appointment of the Public Guardian and the need for complex accommodation and provision of service matters.  Further, there is a reported risk of exploitation by others, and if POL is left to make his own decisions, there is a clear risk of harm to his personal matters and financial matters due to his lack of insight and the particularly complex accommodation and service needs.
60. [60]
    The evidence of POL’s appointed representative, Ms Anderson, is also relevant. Ms Anderson reports on 20 March 2024, that POL is not opposed to the appointment of a guardian for his legal matters, provision of services and accommodation matters. Ms Anderson reports that POL is a registered participant of the NDIS, but he is not currently accessing support. Once released, he would use support to access the community, and conduct day-to-day activities such as meal preparation, shopping and transport. A review seeking an increase in services would be required. In relation to accommodation, POL wishes to have assistance with locating accommodation and was reported by Ms Anderson to show a superficial recognition that any accommodation will have restrictions upon his free movement.
61. [61]
    For legal matters, I find that a substituted decision-maker is necessary to engage a lawyer in the DPSO Act proceedings to ensure that POL’s interests are adequately protected. As considered by the Supreme Court in SLS at [79], in a proceeding involving a question about a person subject to a continuing detention order under the DPSO Act and their capacity, as there are both legal matters and matters that go beyond merely the legal proceedings, it is not appropriate to appoint a litigation guardian by order of the Supreme Court pursuant to the provisions of the Uniform Civil Procedure Rules.
62. [62]
    In relation to health care, I am satisfied the Office of the Public Guardian is available to act as the statutory health attorney as guardian of last resort. This would include making decisions about any medical procedures or treatment for POL, as recommended by his treating health professionals and providing support and assistance as necessary to POL for any health care decisions. To be clear, I am not satisfied that there is a need for a formal appointment of a guardian to make decisions about POL’s health care matters, on the basis that the Office of the Public Guardian is available to act as a statutory health attorney as guardian of last resort.

Conclusion

63. [63]
    I am satisfied there is a need for decisions to be made about POL’s personal matters, including:

    1. His legal matters, in relation to proceedings under the DPSO Act;
    2. Provision of services, including the National Disability Insurance Scheme; and
    3. Accommodation matters. 
64. [64]
    I accept the evidence contained in the report of the Public Guardian and the evidence of Dr Sundin. I find that without the appointment of a guardian there is a clear risk of harm to POL’s personal matters, due to his deficits in decision-making arising from an intellectual disability and an acquired brain injury that is unlikely to improve with time.
65. [65]
    Further, POL is vulnerable to exploitation and lacks insight and an understanding about the complexity of matters that directly impact on his liberty, health care and ongoing supports. I am satisfied that my discretion to appoint a guardian should be exercised in this matter. I am satisfied that without the continued appointment of a guardian, POL’s needs will not be adequately met or his interests adequately protected.
66. [66]
    I have applied the GA Act’s section 15 appropriateness considerations. There is no evidence before me that another person is available and suitable for appointment. POL does not oppose the appointment of the Public Guardian. The Public Guardian is available as a guardian of last resort. I find that the appointment of the Public Guardian continues to be suitable and appropriate.
67. [67]
    In continuing the appointment of the Public Guardian, I order that a review of the appointment of four (4) years is also appropriate and least restrictive, based on the evidence before me.
68. [68]
    I have also considered the relevant human rights, as set out in the HR Act. As required by section 48 of the HR Act, the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
69. [69]
    The relevant human rights which relate to the matters before me which are engaged and may be limited by the making of the Tribunal’s orders include:

    1. POL’s rights to recognition and equality before the law under section 15, such as the right to be recognised as a person who is recognised and treated fairly;
    2. POL’s freedom of movement under section 19, such as the right to choose where to live;
    3. POL’s right to privacy under section 25, such as the right not to have the person’s privacy, family home or correspondence unlawfully or arbitrarily interfered with; and
    4. POL’s right to a fair hearing under section 31, such as the right to be treated fairly before the law.
70. [70]
    The Tribunal has made findings under the GA Act about POL’s capacity and whether the discretion to appoint a guardian should be exercised. Taking into account my findings, I am satisfied that limits imposed by the declaration of capacity and order continuing the appointment of a guardian for POL are reasonable and justified in accordance with section 13 of the HR Act.

Orders

71. [71]
    The orders will be:

The declaration about capacity

1. POL does not have capacity to make decisions about his legal matters relating to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 

In reviewing the appointment of a guardian

2. The guardianship order made by the Tribunal on 10 May 2022 is changed, by appointing the Public Guardian as guardian for POL for the following personal matters: 
   1. Accommodation;
   2. Provision of services, including in relation to the National Disability Insurance Scheme;
   3. Legal matters in relation to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in four (4) years.

The Tribunal directs that:

4. The Principal Registrar of the Queensland Civil and Administrative Tribunal provide to the Registrar of the Supreme Court a copy of the following material by 4:00pm on 28 March 2024:
   1. A copy of the transcript of the Tribunal’s oral reasons delivered on 26 March 2024;
   2. A copy of the Tribunal’s written reasons containing the transcript of the oral reasons to be delivered and published on the Supreme Court Library website in a deidentified format;
   3. Order of the Tribunal made on 26 March 2024;
   4. A copy of the report of the Public Guardian dated 18 March 2024; and
   5. A copy of the report prepared by Rebecca Anderson of ADA Law, the representative appointed under section 125 of the Guardianship and Administration Act 2000 (Qld) dated 20 March 2024.

72. [72]
    The following documents were considered by me to be credible, relevant and significant to an issue in the proceeding in accordance with section 103 of the Guardianship and Administration Act 2000 (Qld): 

    1. H13 document, Notice of Hearing dated 11 March 2024;
    2. H8 document, Supreme Court Order and Directions dated 26 February 2024;
    3. H4 document, QCAT decision dated 10 May 2022;
    4. H14 document, Public Guardian report dated 18 March 2024;
    5. H15 document, Rebecca Anderson’s report, from ADA Law dated the 20 March 2024;
    6. M2 document, report of Dr Luke Hatzipetrou dated the 17 May 2023
    7. M3 document, reports of Dr Karen Brown dated 7 August 2023 and 13 September 2023; and
    8. M4 document, report of Dr Josephine Sundin dated the 8 October 2023.