NPG[2024] QCAT 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal is today determining the question of NPG’s capacity to make decisions required to conduct the review of his continuing detention under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’). The Tribunal is also considering applications for the appointment of a guardian for personal matters and an administrator for financial matters for NPG.
2. [2]
   By order dated 19 February 2024, the Supreme Court of Queensland referred to QCAT the question of NPG’s capacity and whether a substituted decision-maker should be appointed under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’). 
3. [3]
   It is convenient to set out relevant background information relating to NPG in the proceedings under the DPSO Act pending in the Supreme Court matter BS number 6760 of 2019.
4. [4]
   NPG is a 64-year-old man who has been detained in custody indefinitely under the DPSO Act.  Relevantly, orders made under that Act are subject to review.  As reflected in the Court’s reasons delivered on 26 February 2024, prior to the last annual review before the Supreme Court, an issue arose about NPG’s capacity to make decisions required for conducting proceedings.^[1] Supplementary reports were obtained by the applicant, the Attorney-General for the State of Queensland, from various psychiatrists and the treating forensic psychologist, and the issue of whether NPG is a person with impaired capacity was listed for consideration by the Court on 19 February 2024.
5. [5]
   In the Court’s reasons at [42], the Court said that the first step in the process is for NPG’s capacity to be considered, and if appropriate, for a guardian and/or administrator to be appointed. The Court proceedings can then continue. The Court goes on to say that if it becomes necessary at a later stage, further consideration may be given to restrictive practices under the Disability Services Act 2006 (Qld). There is no need for that step to be determined at this stage other than in relation to whether NPG has capacity to understand and make rational decisions in respect of the possibility of such measures being required. 
6. [6]
   Justice Williams, at [37], says:

In the current case, there is more than sufficient evidence to be satisfied that it is appropriate to exercise the power to refer the question of the respondent’s capacity to respond to the DPSO Act proceedings to QCAT to determine the respondent’s capacity in accordance with the Act.

7. [7]
   Further, Her Honour, at [39], says:

Whilst there is no prescribed time as to when the QCAT matter needs to be completed by, it is still appropriate that QCAT deal with the referral as expeditiously as possible.

8. [8]
   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 15 April 2024. 
9. [9]
   In the interests of time, the Tribunal is today delivering oral reasons for the matters before it. 
10. [10]
    Presently, 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. Applications for the appointment of a guardian and an administrator.
11. [11]
    The Tribunal has the power to make a declaration about the capacity of a person referred to under the Act as the adult as provided under section 146 of the GA Act.  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. 
12. [12]
    Capacity for a matter is also a relevant issue to be considered when the Tribunal is exercising its 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.
13. [13]
    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.^[2] 
14. [14]
    The GA Act acknowledges under section 5, amongst other things:

    1. an adult’s right to make decisions is fundamental to the adult’s inherent dignity;
    2. the capacity of an adult to make decisions may differ according to:
       1. (i)
          the type of decision to be made including, for example, the complexity of the decision to be made; and
       2. (ii)
          the support available from members of the adult’s existing support networks; and
    3. the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent.
15. [15]
    As reflected in section 6 of the GA Act, the GA Act seeks to strike a balance between:

    1. the right of an adult with impaired capacity to the greatest possible degree of autonomy and decision-making; and
    2. the adult’s right to adequate and appropriate support for decision-making. 
16. [16]
    As provided under 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. 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 the GA Act is entitled to rely on the declaration to presume that the adult does not have capacity.
17. [17]
    Further, the general principles set out under section 11B that must be applied by a person or other entity that performs a function or exercises a power under the GA Act provide, amongst other things, that an adult is presumed to have capacity for a matter. 
18. [18]
    When considering whether to make a declaration under the GA Act about a person’s capacity for a matter and when acting in an administrative capacity in appointing a guardian or administrator under the Act, the Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’).^[3] As held in Attorney-General v Grant [No 2]^[4] at [110], a continuing detention order would deprive the respondent, in this case NPG, of the right to liberty, being a right in section 29(1) of the HR Act. He would be confined in custody for an indefinite term. 
19. [19]
    It is my view that the Tribunal deal with matters such as this, being a referral by the Supreme Court about a person’s capacity to make decisions relating to proceedings under the DPSO Act, expeditiously. This is to ensure that the relevant person is supported in their decision-making, and if found to have impaired decision-making capacity for the relevant matter, the Tribunal should consider whether it is necessary to appoint a substituted decision-maker for the person, having regard to the GA Act and the HR Act.

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

20. [20]
    Capacity for a person for a matter, as defined under schedule 4 of the GA Act, means 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.
21. [21]
    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 decision-making.^[5]
22. [22]
    In making the necessary findings about NPG’s capacity, the Tribunal is to be satisfied to the required standard, having regard to the consequences of a finding of impaired capacity. 
23. [23]
    Capacity for a matter is specific to the decision which needs to be made.^[6]
24. [24]
    A matter for the purposes of the GA Act includes a type of matter. As provided under the GA Act, a personal matter for an adult includes, for example and amongst others, a legal matter not relating to the adult’s financial or property matters.
25. [25]
    Here, the relevant matter is a legal proceeding before the Supreme Court, namely the annual review of NPG’s continuing detention order. This involves certain concepts and considerations helpfully outlined by the Court in Attorney-General v SLS.^[7]
26. [26]
    Further, in making these orders, the Court considers other matters helpfully set out in the Court’s reasons delivered on 26 February 2024 in Attorney-General v NPG.^[8]
27. [27]
    The decisions required to conduct the review currently before the Court are complex and, as observed by the Court in its reasons at [41], are more complicated in nature than ordinary civil proceedings.^[9]
28. [28]
    Further, the decisions required include, amongst other things, an understanding of the nature of the application and legislation, namely the DPSO Act, and a consideration of the issues including, for example, understanding the need for compliance with any requirements imposed, whether to engage a lawyer, whether to present or to 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.

What is the evidence before the Tribunal relevant to NPG’s decision-making capacity?

29. [29]
    There is evidence before me relevant to NPG’s capacity to make decisions about his legal matters in relation to proceedings under the DPSO Act, his other personal matters, including health care, accommodation, and provision of services including in relation to the National Disability Insurance Scheme (‘NDIS’) and financial matters.  Importantly, NPG has a NDIS plan with some funding allocated for supported-independent living. Details of NPG’s NDIS package are set out in the Court’s reasons dated 26 February 2024.^[10]
30. [30]
    The Tribunal has before it a number of reports prepared by psychiatrists and psychologists for the Supreme Court proceedings:

    1. Dr Robert John Moyle, Psychiatrist, prepared a psychiatric risk assessment report, dated 14 June 2023, and a supplementary report dated 30 June 2023, and a further report dated 29 August 2023;
    2. Dr Karen Brown, Forensic Psychiatrist, prepared a risk assessment report dated 17 May 2023 and a supplementary report dated 28 June 2023. Dr Brown prepared a further report dated 12 September 2023 in relation to whether an application should be made to QCAT, the question of NPG’s capacity to make financial and health related decisions, and to respond to proceedings under the DPSO Act; and
    3. Dr Luke Hatzipetrou, Clinical and Forensics Psychologist, prepared reports dated 19 March 2023 and 24 May 2023. 
    4. Deborah Anderson, Clinical Neuropsychologist, prepared a report dated 27 January 2022. 
    5. Krystel Maier, Occupational Therapist, prepared a report dated 5 October 2022. 
31. [31]
    The evidence reported by psychiatrists and psychologists is comprehensive, compelling, and consistent. The reports contain details of assessments and consultations with NPG as well as details of offending behaviour, relevant background information prior to and subsequent to the offending behaviour and diagnosed medical conditions.

Evidence of Dr Moyle

32. [32]
    Dr Moyle reports, on 14 June 2023, at [36], that all psychiatrists assessed NPG’s medical conditions over the years. He had childhood epilepsy and possible literacy and numeracy-affected learning difficulties, a conduct-disordered childhood, but an absence of severe mental illness with the presence of a declining level of intellectual function despite the obvious planning. All agree that he has an anti-social disorder and meets the criteria for the American standard of psychopathy, which has implications as to his capacity to comply with treatment, empathise with others, to show remorse, and to restrict his violent and sexual urges to the requirements of the law in our society.
33. [33]
    Dr Moyle goes on to report that treatment has been difficult, referring to attempts by doctors to treat NPG for his epilepsy, and his treatment adherence that may result in further seizures, further intellectual decline, and varying consumption of anti-epileptic agents may themselves contribute to intellectual difficulties. Dr Moyle reports at [36] that when coupled with bashing his head and including a clot that further damages his brain, it is not surprising that his brain is not functioning as it would have in his teens.  Relevant to decision making, Dr Moyle reports on 30 June 2023 that, amongst other things, NPG is particularly vulnerable, is likely to be distressed or unable to reliably cope with financial management and making health decisions. Dr Moyle reports as stated:

I fear that he would lack the capacity to agree to certain treatments that have potential adverse effects versus positive effects, as he is quite unable to weigh up different treatment options and decide in his own best interest due to the intellectual disability combined with the executive functional disability from the acquired brain injury. Therefore, general guardianship would be important…

34. [34]
    Dr Moyle reports on 29 August 2023 about a number of matters concerning NPG’s decision-making capacity to, amongst other things, engage a lawyer, present evidence relevant to his legal proceedings, and about his healthcare and restricted practice matters. At [134], Dr Moyle reports that NPG presents as impulsive and unable to discuss and make decisions required by litigants for conducting proceedings and matters that might arise in such proceedings. He uses the word ‘guardianship’ without an understanding of what this means until it is explained to him repeatedly, forcing others to be there to explain the normal reasoning for moral and self-care decisions. 
35. [35]
    Dr Moyle reports at [136] that NPG has limited understanding as to whether to engage a lawyer and was unable to inform Dr Moyle of any evidence he might want to present other than that he wishes freedom that is implied more than stated.
36. [36]
    Dr Moyle notes a history of inconsistent compliance with medical advice and opines that NPG is not capable of making rational decisions about whether he should comply with medical treatment. Further and amongst other things, NPG is not capable of understanding the nature and effect of restrictive practice orders, or alternatively, if he does understand he cannot guarantee to adhere to them and is more likely than not to rebel against them. 
37. [37]
    Dr Moyle gave oral evidence in the hearing before the Court on 26 February 2024.  As reflected at [29] of the Court’s reasons, Dr Moyle considers that based on NPG’s intellectual capacity, he is not able to make decisions that a litigant needs to make in relation to legal proceedings.^[11] He does not have capacity to instruct a lawyer about a lot of areas of his life. In relation to what matters NPG needs by way of a substituted decision maker, Dr Moyle states, as reflected at [29], ‘NPG needs guardianship for a widespread range of aspects that guardianship can be provided’.

Evidence of Dr Brown

38. [38]
    Dr Brown reported, on 17 May 2023, that NPG is a 63-year-old man with a diagnosis of Klinefelter syndrome, epilepsy, diabetes, mild intellectual impairment, and psychopathy. NPG has a reported history of offending behaviour from age 14 resulting in periods of time spent in custody as a young person. Dr Brown reports on pages 32 and 33 various cognitive deficits, and refers to treatment resistance and hostility towards women in certain contexts evidenced by engagement in opportunistic, impulsive offending or planned offending involving, amongst other things, deception.  Further, NPG is reported to have no insight into his offence pathway and his risk factors of reoffending. 
39. [39]
    Relevantly to decisions about NPG’s provision of services including the NDIS, Dr Brown reports on 28 June 2023, at page 9, that NPG’s risk of reoffending is secondary to a combination of factors including his cognitive deficits, personality disturbance and associated treatment resistance. Having regard to all of the information, Dr Brown opines that the proposed NDIS package is not sufficient to lower NPG’s risk to an acceptable level and goes on to explain that his risk of reoffending is significantly associated with these various cognitive disabilities, and, therefore, risk management needs cannot be readily separated from his other disability support needs.
40. [40]
    Dr Brown further reports on 12 September 2023, at page 9, that NPG has a very basic understanding of the role of a lawyer, and his capacity to instruct a lawyer is limited due to his difficulties understanding court processes and the reasons for his current detention.  Further and amongst other things, he will be unable to properly understand process, and appropriately respond to more complex material and/or evidence given against him. 
41. [41]
    In relation to healthcare matters, Dr Brown opines that NPG may have capacity to consent to basic health decisions but would need assistance with more complex decision making. Further, NPG does not have capacity to make informed or rational decisions with regards to engaging a lawyer, presenting evidence, and making submissions. 
42. [42]
    As reflected in the Court’s reasons dated 26 February 2024, at [28], Dr Brown gave oral evidence in the hearing before the Court.^[12] At [28(g)], Dr Brown gives an opinion of NPG’s capacity for decision making, as stated ‘[a]ll matters that are available to be considered should be considered, so that would include health, legal matters, and living arrangements, all areas of community living and decisions associated with that’.

Evidence of Dr Hatzipetrou

43. [43]
    In the report dated 19 March 2023, Dr Hatzipetrou opines that NPG has sustained severe cognitive and memory impairments with evidence of anti-social personality disorder and a history of sexual violence towards women. Further and amongst other things, NPG is reported to present with poor insight into the risk factors associated with his offence pathway and will likely require increased levels of support given his age and evidence of his institutionalisation. 
44. [44]
    In a further report dated 24 May 2023, Dr Hatzipetrou opines that if NPG were to be released from custody, he would require an intensive support model of care with 24-hour supervision, active night shift, and access to experienced disability support workers. NPG is reported to be better suited to an individualised accommodation arrangement rather than a populated environment and would therefore not be suited to houses at the precinct, or likewise, a hostel. Further, NPG presents with risk factors that can be managed with supervision conditions of the DPSO Act and implementation of a positive behaviour support plan with the consideration of restrictive practices of securing doors and windows overnight. 

Evidence of Ms Anderson

45. [45]
    Ms Anderson reports on 27 January 2022, at [7.2], neuropsychological results following assessments. NPG is reported to have performed in the extremely low range of general intellect with particularly significant difficulties with working memory.  His overall memory and new learning was poor and limited to details and there was forgetting after a delay. Further and amongst other things, substantial difficulties were reported with higher cognitive function, together with impulsivity, impaired strategy generation and lack of mental flexibility problem solving. 

Evidence of Ms Maier

46. [46]
    Ms Maier reports, on 5 October 2022, the results of detailed assessments and scores that indicate a high level of requirements for daily support. Cognitive assessments indicate significant need for continued and ongoing high levels of support, and reports show NPG has difficulties with both comprehension and expressive communications, and an inability to follow multiple-step instructions, pay attention or plan ahead.  Consistent with his acquired brain injury and intellectual disability, daily supports are required for safety. Left alone, NPG is at risk of exploitation.

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

47. [47]
    NPG attended the hearing by video conferencing. He was supported by Rebecca Anderson of ADA Law, the appointed representative under section 125 of the GA Act, by direction of the Tribunal dated 5 March 2024. Relevantly, as the representative appointed under section 125, Ms Anderson is here to represent NPG’s views, wishes and interests. 
48. [48]
    NPG informed the Tribunal at the hearing today that he does not remember things from the past, that he does need someone to make decisions for him and he accepts that a guardian would help him make those decisions. Later in the hearing, NPG also indicated that he would like help with his financial matters, such as his pension, and said he supported the appointment of an administrator. 
49. [49]
    I accept the evidence of Dr Moyle, Dr Hatzipetrou, Dr Brown, Ms Maier and Ms Anderson contained in their reports. Their evidence is relevant to NPG’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, and financial matters. 
50. [50]
    The evidence of the psychiatrists, psychologist and occupational therapist is detailed and compelling, and assessments and observations reported were conducted over a number of sessions with NPG. 
51. [51]
    Relevant to whether NPG is capable of understanding the nature and effect of decisions and communicating decisions in some way about his legal matters relating to proceedings under the DPSO Act, personal matters and financial matters, is an intellectual disability, an acquired brain injury and significant difficulties with working memory. Further, there is reported vulnerability that NPG is likely to be distressed or unable to reliably cope with financial management; reported impulsivity, a lack of insight into past offending and associated risk factors and reoffending.
52. [52]
    There is, reported by Dr Moyle and Dr Brown, a very basic understanding of the role of a lawyer and limited capacity to instruct a lawyer due to difficulties understanding Court processes and the reasons for his current detention. Cognitive assessments indicate significant need for continued and ongoing high level of supports in daily living. 
53. [53]
    I find that NPG is a 64-year-old man with deficits in his capacity for decision-making due to a mild intellectual disability and difficulties with working memory. I find that NPG has a very basic understanding of the role of a lawyer and his capacity to instruct a lawyer is limited due to his difficulties understanding Court processes and the reasons for his current detention. 
54. [54]
    I find that NPG has severe cognitive and memory impairments with evidence of antisocial personality disorder and a history of sexual violence towards women.  Further, as reported by Dr Moyle, NPG is likely to be distressed or unable to reliably cope with financial management. I am satisfied NPG does not properly understand the DPSO Act process and would not be capable of managing his own litigation. 
55. [55]
    The presumption of capacity for the personal matter of legal matters in relation to the proceedings under the DPSO Act is rebutted. 
56. [56]
    It is desirable to make a declaration about NPG’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 NPG’s liberty. NPG does not have capacity to make decisions about his legal matters relating to proceedings under the DPSO, and I order accordingly.
57. [57]
    In relation to decisions about other personal matters such as healthcare, provision of services including the NDIS and accommodation and capacity for decision-making about all financial matters, I have accepted the evidence of psychiatrists, a psychologist and an occupational therapist. I have found that NPG has a mild intellectual disability, acquired brain injury and memory impairments, together with vulnerability and impulsivity that impact on his decision-making, and this includes understanding the nature and effect about decisions and communicating the decisions in some way. 
58. [58]
    Relating to his personal matters and financial matters, NPG’s personal matters such as NDIS and other supports and ongoing healthcare needs are complex and involve the 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 healthcare, provision of services including the NDIS, accommodation and financial matters is rebutted. 

Is there a need for the appointment of a guardian and administrator?

59. [59]
    In considering whether to appoint a guardian or administrator for a matter for NPG, section 12 of the GA Act requires the Tribunal to be satisfied:

    1. the adult has impaired capacity for the matter; and
    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–
       1. (i)
          the adult’s needs will not be adequately met; or
       2. (ii)
          the adult’s interests will not be adequately protected.
60. [60]
    Further, it is provided under section 12 the appointment may, amongst other things, be on terms considered appropriate by the Tribunal.
61. [61]
    I found that NPG has cognitive and memory impairments and issues with impulsivity and vulnerability that impact on his decision-making. NPG is unable to properly understand processes and appropriately respond to more complex material and or evidence given against him. 
62. [62]
    His support needs are complex and understanding the consequences of decisions is important to not only NPG’s personal and financial matters, but his liberty, given that he is detained in custody, subject to a continuing detention order under the DPSO Act.
63. [63]
    As reported on 19 March 2024 by NPG’s representative, Ms Anderson, appointed under section 25 of the GA Act, NPG does not receive a pension and he does not have any savings or income sources whilst incarcerated. NPG is focused on returning to the community, living on the straight and narrow, and volunteering to give back to the community. As reported by Ms Anderson, NPG does have a tendency to conflate the role of guardian with that of a support worker, and despite numerous discussions has not been able to amend his understanding. As such, NPG asked for a guardian, as stated, to ‘help me with my money, shopping and to keep me on the straight and narrow’.
64. [64]
    NPG is reported to not be opposed to the appointment of the Public Guardian for legal matters as he sees it as a means to help secure release from custody. Further, he is not opposed to the appointment of the Public Guardian for accommodation and supports. 
65. [65]
    NPG wishes to manage his own finances with support, but as reported by Ms Anderson, this is based on an explanation that the Public Trustee of Queensland will charge him fees. 
66. [66]
    For legal matters I find that the appointment of a substituted decision-maker is necessary to engage a lawyer in the DPSO Act proceedings to ensure that NPG’s interests are adequately protected. As considered by the Supreme Court in Attorney-General and SLS,^[13] and reflected in the Court’s reasons dated 26 February 2024 at [34],^[14] 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 just 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. 
67. [67]
    In relation to healthcare, I am satisfied that the Public Guardian is available to act as the statutory health attorney as guardian of last resort.^[15] This includes making decisions about any medical procedures or treatment for NPG as recommended by his treating health professionals. The Public Guardian as a statutory health attorney is able to provide support and assistance as necessary to NPG for healthcare decisions. 
68. [68]
    I am satisfied there is a need for decisions to be made about NPG’s personal matters, including his legal matters in relation to proceedings under the DPSO Act, the provision of services including the NDIS and accommodation matters. 
69. [69]
    NPG has severe cognitive and memory impairments impacting on his decision-making, as well as reported difficulties understanding Court processes. Complex decision-making is required about NPG’s legal matters, provision of services including the NDIS and accommodation matters. 
70. [70]
    I find that without the appointment of a guardian for personal matters, NPG’s interests and liberty will be at risk. NPG will be without necessary and appropriate representation in the legal proceedings under the DPSO Act, and he will be left unsupported in navigating and understanding the complex decisions about his support needs and the areas of accommodation and provision of services, including the NDIS.
71. [71]
    I am satisfied that my discretion to appoint a guardian should be exercised in this matter. I am satisfied that without the appointment of a guardian, NPG’s needs will not be adequately met or his interests adequately protected. 
72. [72]
    I have applied the section 15 appropriateness considerations, under the GA Act. There is no evidence before me that another person is available and suitable for appointment. NPG does not oppose the appointment of the Public Guardian. The Public Guardian is available as the guardian of last resort.^[16] I find that the appointment of the Public Guardian is suitable and appropriate as the guardian of last resort. 
73. [73]
    I consider that a review of the appointment of a guardian in four (4) years is appropriate, and the least restrictive based on the evidence before me. There are a number of complex decisions required to manage NPG’s personal matters, including proceedings under the DPSO Act; putting in place suitable accommodation, if appropriate to do so; and supports to ensure that NPG’s interests are protected.  There is unlikely to be any change in NPG’s decision-making capacity in the review period. 
74. [74]
    Turning to the application for the appointment of an administrator, I am satisfied there is a need for decisions to be made about all of NPG’s financial matters, and without the appointment of an administrator, NPG’s needs will not be adequately met, or his financial interests adequately protected. NPG’s financial position is unknown, and there is a question about whether he has received settlement funds from an earlier legal matter that may now be resolved.^[17] I have found that NPG is likely to be distressed or unable to reliably cope with financial management due to his mild intellectual disability and cognitive and memory impairments. 
75. [75]
    I have applied appropriateness considerations, under section 15 of the GA Act. There is no evidence before me that another person is available and suitable for appointment. The Public Trustee of Queensland is available to act as an administrator.^[18] I find that the appointment of the Public Trustee of Queensland is suitable and appropriate, and a review of the appointment in four (4) years is the least restrictive option based on the evidence before me. Relevantly, I have found that there is unlikely to be any change in NPG’s decision-making capacity in the review period, namely four (4) years. 
76. [76]
    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. The relevant human rights which relate to the matters before me which are engaged and are limited by the making of the Tribunal’s orders include:

    1. NPG’s rights to recognition and equality before the law, section 15, such as the right to be recognised to – as a person who is recognised and treated fairly;
    2. NPG’s freedom of movement, section 19, such as the right to choose where to live;
    3. NPG’s right to privacy, section 25, such as the right to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
    4. NPG’s right to a fair hearing, section 31, such as the right to be treated fairly before the law. 
77. [77]
    The Tribunal has made findings under the GA Act about NPG’s capacity and whether the discretionary power to make a declaration of capacity and to appoint a guardian and an administrator should be exercised under the Act. Taking into account my findings, I am satisfied that the limits imposed by the making of the declaration of capacity and the appointment of a guardian and administrator are reasonable and justified in accordance with section 13 of the HR Act.

Orders

78. [78]
    The orders will be:

Declaration about capacity

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

Guardianship

2. The Public Guardian is appointed as a guardian for NPG to make decisions about 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. 

Administration

4. The Public Trustee of Queensland is appointed as an administrator for NPG for all financial matters. 
5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. 
6. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in four (4) years. 
7. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

The Tribunal directs that:

8. The Principal Registrar of QCAT provide to the Registrar of the Supreme Court a copy of the following by 4:00pm on the 5 April 2024:
   1. A copy of the transcript of the Tribunal’s oral reasons delivered on 28 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 de-identified format;
   3. Order of the Tribunal made on the 28 March 2024;
   4. 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 19 March 2024.

79. [79]
    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. H6 document, Notice of Hearing dated 11 March 2024;
    2. H5 document, Directions of the Tribunal dated 5 March 2024;
    3. H1 document, Order of the Supreme Court dated 9 to 19 February 2024;
    4. H2 document, Supreme Court’s reasons dated 26 February 2024;
    5. H3 document, Transcript of the Supreme Court proceedings dated 19 February 2024;
    6. H4 document, attachment ‘ZR2’, NDIS plan dated 10 May 2023; 
    7. H7 document, ADA Law submission dated 19 March 2024;
    8. M1 document, report of Dr Robert John Moyle dated 14 June 2023;
    9. M2 document, report of Dr Karen Brown dated 17 May 2023;
    10. M3 document, supplementary reports of Dr Brown and Dr Moyle, Dr Brown’s reports dated 28 June 2023 and Dr Moyle’s report dated 30 June 2023. 
    11. M4 document, report of Dr Luke Hatzipetrou dated 24 May 2023 and 19 March 2023;
    12. M5 document, report of Debbie Anderson dated 27 January 2022; 
    13. M6 document, report of Dr Brown dated 12 September 2023 and report of Dr Moyle dated 29 August 2023;
    14. M7 document, occupational therapist report of Krystel Maier, dated 15 October 2022; and
    15. M7 document, NDIS decision outcome.