PL v PT[2018] QCATA 114

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   PL has filed an application for leave to appeal or appeal a decision of the Tribunal to dismiss an application for a declaration about his capacity.
2. [2]
   For the reasons later explained, we have allowed the appeal on a question of law. Therefore, PL does not require leave to appeal the Tribunal’s decision on the application concerned.^[1] In deciding an appeal on a question of law only, we must proceed under s 146 of the QCAT Act in disposing of the appeal.^[2]

The relevant legislative provisions

3. [3]
   Under the General Principles provided for in the Guardianship and Administration Act 2000 (Qld) (the Guardianship Act), a person who has reached 18 years of age, is presumed by law to have capacity to make their own decisions.^[3]  The presumption of capacity can be rebutted by evidence that a person cannot in fact make their own decisions.  However, it is not the mere availability of the evidence that results in the presumption being rebutted.  The presumption is rebutted when, as a result of the application of the law, a determination is made that the person has impaired decision-making capacity for a matter. 
4. [4]
   For the purposes of this appeal, the relevant law to be applied is set out in the Guardianship Act. The Guardianship Act contains a definition of capacity in the following terms:

Capacity, for a person for a matter, means the person is capable of-

1. (a)
   understanding the nature and effect of decisions about the matter; and

1. (b)
   freely and voluntarily making decisions about the matter; and

1. (c)
   communicating the decisions in some way.

5. [5]
   The Guardianship Act gives the Queensland Civil and Administrative Tribunal (QCAT) the function of making declarations about the capacity of an adult for a matter.^[4] An application for a declaration about capacity may be made to QCAT by the adult concerned or by another interested person.^[5] The Guardianship Act defines interested person as a person who has a sufficient and continuing interest in the other person.^[6]

The Tribunal hearing of the application for a declaration of capacity

6. [6]
   Prior to 25 September 2017 a determination was made by QCAT that PL had impaired decision-making capacity for financial matters and an administrator was appointed for PL. Indeed, various orders have been made to similar effect since 2009 when PL sustained a brain injury as a result of a motorcycle accident.
7. [7]
   In May 2017, PL’s sister, PT, filed an application seeking a declaration that PL had capacity for making his own financial decisions.  PT was an interested person in terms of the definition set out above and had standing to make the application about PL’s capacity. 
8. [8]
   The application was accompanied by a health professional report dated 28 April 2017 from Dr Babatunde, a GP who had known PL, at the time of writing the report for about four months. Dr Babatunde stated in his report that he had had access to earlier medical records about PL. Dr Babatunde identified that PL had epilepsy as a result of an acquired brain injury sustained in 2009, but that the epilepsy condition was stable.  Dr Babatunde referred to the outcome of a Mini Mental State Examination conducted in 2015, wherein PL scored of 30 out of 30, which Dr Babatunde stated was an indication that PL had no significant cognitive impairment. 
9. [9]
   Dr Babatunde also referred to the existence of an earlier report about PL’s capacity from Mind Wise Psychology Services. Dr Babatunde reported that PL demonstrated a satisfactory ability to perform financial tasks, to understand consequences of not paying bills and to undertake legal and financial transactions.  Dr Babatunde reported that PL was capable of making decisions freely and voluntarily and that there was no impairment of PL’s receptive or expressive communication.  Dr Babatunde expressed an opinion that PL could understand and make his own decisions about both simple and complex financial matters.     
10. [10]
    At the hearing of the application for a declaration about PL’s capacity, the Tribunal had before it Dr Babatunde’s health professional report, and other health professional reports about PL’s decision-making capacity about financial matters, primarily a 2015 report from Dr Michelle Andrews, a neuropsychologist from Mind Wise Psychology Services, and a 2011 report from Dr Geoffrey Boddice, a neuropsychologist.  It also received oral and other evidence relevant to capacity from PL, PT and PL’s daughter at the hearing.
11. [11]
    Dr Boddice’s report was given in 2011 for the purposes of assessing PL’s ability to complete a home exercise program as part of his rehabilitation from his physical injuries and functional impairments.  The 2011 report made no specific reference to any impairment of PL’s decision-making capacity for financial matters.  
12. [12]
    According to the transcript of the hearing of the application for declaration of capacity, PL told the hearing that his capacity was good, that it had improved over time since the accident, and that many friends and his relations confirmed this was the case.^[7] PT supported the evidence given by PL that his decision-making functioning had improved.
13. [13]
    On multiple occasions throughout the hearing, the Member made reference to that 2015 report as being effectively determinative of the factual issues in the application before her:

PL:  Well, my capacity is good.  That – that’s why I can’t understand why you said last time it wasn’t good because it – it’s fine.  I’ve been told by many friends---

MEMBER: Yes, I know.

PL: ---many relations---

MEMBER: I know.

PL: Yeah.

MEMBER: and the difficulty is we’ve got that report from the neuropsychologist---

………..

MEMBER: … It’s just that – well, I’m stuck with that.  That’s the difficulty I have, PL.  You know that.^[8]

…..

MEMBER: I can’t go against her report.

….

MEMBER: Look, no because she is standing on her professional report and this is the problem.  If that’s up to her – if you’ve got an issue with her report – and, well. The thing is, if she has told you guys differently to what she’s provided in her report to a tribunal, I have concerns, ethical concerns.  But the thing is, we have to rely on the information that has come as a direct tribunal direction.  Now, that’s where we’re at.  And we have to rely on it: I’m required to.^[9]

…..

MEMBER: No. Sorry. No.  Based on the information that there hasn’t any other report to indicate that there has been any change---

PL: Look at me.  Can’t you see?  I’ve got use [indistinct] eight letters from people that ---^[10]

…..

PL: I’ve got eight [indistinct] letters to say that I’ve got capacity and you say I haven’t.

MEMBER: Well. It’s not me.  It’s actually the neuropsychologist that I have to hang my hat on.  I would love to be able to say to people, yes, I think he’s a good bloke, but----^[11]

……

PL: I’ve proven I can save money.  I have.

MEMBER: I know.  Well it’s not around that.

PT: [indistinct] basically the medical report, not, the – you’re capable.

MEMBER: Yes.^[12]

……..

14. [14]
    The learned Member did not give discrete reasons for her decision to dismiss the application for a declaration about PL’s capacity.  After having made the various statements set out above, the learned Member merely stated:

MEMBER: …. So basically I’m going to dismiss the application for declaration about capacity.  That’s going to be dismissed……^[13]     

15. [15]
    Although the learned Member did not articulate her reasons for decision, it appears from her comments during the hearing that she considered there was no new and relevant evidence before QCAT that would or could undermine the opinions expressed in the 2015 report of Dr Andrews, at least, absent a further report from Dr Andrews expressing different views. The Member said she was “stuck” with the conclusions in that 2015 report and that as a consequence there was no basis for her to make any declaration inconsistent with the earlier findings made by QCAT that PL had impaired capacity for financial decisions. 
16. [16]
    The Tribunal did not specifically refer to the more recent health professional report of Dr Babatunde, nor indicate in any way that she considered the opinions of Dr Babutunde, and if so, the basis on which she gave no weight to his opinion.  During the hearing, the Tribunal heard some evidence from PL in particular about the manner in which he was managing his pension, and the savings he had made, as well as his endeavours to purchase a property in which to live; and his concerns about fees of the PTQ. She did not explain her treatment of this evidence and why she instead preferred and indeed, placed, it seems, total reliance on her interpretation of the 2015 report of Dr Andrews.
17. [17]
    Indeed, her comments during the hearing suggest she considered she was obliged to decide that PL had impaired decision-making capacity on the basis of Dr Andrews report.

The appeal

18. [18]
    PL appeals in essence on the basis that the learned Member was wrong to interpret the report of Dr Andrews as evidence that he could not make complex financial decisions. 
19. [19]
    Several potential distinct errors of law are revealed by the learned Member’s treatment of Dr Andrews report. We have concluded that the Tribunal erred in law.
20. [20]
    Making factual findings that are not open on the evidence is an error or law. As Mason CJ  said in Australian Broadcasting Tribunal v Bond:^[14]

“The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences, in the absence of evidence is an error of law.”

21. [21]
    Where "the true and only reasonable conclusion contradicts [a] determination" then the determination may be shown to involve legal error.^[15] 
22. [22]
    Failure to apply the correct legal test or principles is an error of law.^[16] Failure to observe natural justice or procedural fairness^[17] and failure to give adequate reasons for a decision are also errors of law.

Error in Tribunal’s findings of fact

23. [23]
    For the reasons later explained, we have concluded that the learned Member did not make findings of fact in determining the application before her.
24. [24]
    However, in case we are wrong about that, assuming at this stage that the Member’s comments about the contents of the report of Dr Andrews are findings of fact in the terms suggested by her comments throughout the hearing, she was mistaken as to the evidence before her and made findings of fact that were not open about the contents of the report. 
25. [25]
    Dr Andrews reported that PL’s premorbid intellectual functioning was estimated to fall within the low average range.  The assessment found that PL’s then current level of intellectual functioning in 2015 fell within the low average range. 
26. [26]
    Relative to his estimated premorbid abilities, PL’s performances on the following tasks were considered to be intact: general expressive and receptive language, simple word reading, mathematics skills, simple auditory attention and working memory skills, verbal fluency for phonemic and category tasks, general speed of information processing, ability to learn simple information, memory/recall of previously learnt information after a short and long delay, ability to recognise previously learnt information, and visuospatial thinking and reasoning skills. 
27. [27]
    Relative to his estimated premorbid intelligence, PL’s performance was considered to be impaired on the following tasks: verbal abstract reasoning/concept formation task, immediate recall of lengthy or complex information if not provided with repetition and areas of executive functioning.  PL also demonstrated difficulty inhibition of an overlearned response and mild difficulties with mental flexibility.  He was able to identify and correct most errors he had made indicative of an ability to self-monitor his responses.
28. [28]
    PL underwent an assessment using the Financial Competence Assessment Inventory. Dr Andrews reported that overall, PL’s score on this assessment placed his level of functioning with respect to financial abilities in the average range.  In relation to specific competence related domains, PL scored high on the Understanding domain.  His scores were in line with the reference group of persons (who had no cognitive impairment) on all competence related scales.   
29. [29]
    Dr Andrews expressed her opinion that PL has the ability to understand the nature and effect of more complex financial decisions although he may require some support with lengthy or complex information from a trusted person, financial consultant or solicitor in keeping with what the majority of other people of a similar age would require.  Dr Andrews expressed the opinion that PL was able to freely and voluntarily make a decision.  Dr Andrews stated that this opinion needed to be considered against the background of family contention although she could find no evidence to suggest that PL had been put under duress to make decisions in favour of certain of his family members.  Dr Andrews expressed the opinion that PL was able to adequately voice his wishes. 
30. [30]
    Dr Andrews concluded her report with the following words;

On the basis of this assessment and information provided I am of the opinion that PL is able to make complex financial decisions, however, he is likely at times to require support of a trusted family member or financial consultant to assist him to understand contracts or legal documents.

31. [31]
    The Member did not extract or discuss any quotes from the report of Dr Andrews during the hearing. The Member stated that QCAT was “stuck” with this report when looking at the issue of PL’s capacity for financial decisions. The conclusion expressed by Dr Andrews, after discussing the definition of capacity in the Guardianship Act, appears to be entirely inconsistent with the interpretation apparently placed on the report by the Tribunal.  Dr Andrews’ opinion was that PL had capacity for all financial matters, both simple and complex.
32. [32]
    The caveat of support being required as expressed by Dr Andrews does not detract from that conclusion of capacity.  The caveat refers back to the earlier comments of Dr Andrews that PL may require some support with lengthy or complex information from a trusted person, financial consultant or solicitor in keeping with what the majority of other people of a similar age would require.  A person may need explanation or repetition when dealing with technical terms or unusual content but will nevertheless be able to understand the nature and effect of the information after that explanation or repetition was given.  The report of Dr Andrews is consistent with that position or scenario.
33. [33]
    The opinions expressed in the report, if accepted, would reasonably support a finding of capacity for such matters. Accordingly, if the learned Member found that the evidence in the report of Dr Andrews sustained factual findings, supporting a conclusion that PL had impaired decision-making capacity for those matters, she erred.

Error in applying the legal test

34. [34]
    The definition of capacity effectively provides the test to be applied in determining whether a person has capacity (for the relevant matter, in this case, PL’s capacity for making financial decisions).
35. [35]
    The Tribunal did not articulate the matters relevant to its determination, despite referring generally to the concept of capacity during the hearing. If the learned Member nevertheless applied a test for capacity in determining the application, it is not apparent what test was applied. However, the Tribunal’s comments during the hearing to the effect that it was ‘stuck’ with the opinion of Dr Andrews, suggest that if the learned Member applied a test, it did not apply the correct test.

Failure to observe natural justice

36. [36]
    The purpose of a hearing is for the tribunal to determine the application/s before it. The tribunal must observe natural justice in determining applications.^[18] The requirements are flexible and the steps required depend upon the applicable legislative framework.^[19] However, in essence parties must be given a fair hearing and the decision must not be tainted by bias, either actual or apprehended. There is no suggestion of bias here. However, the procedure adopted at hearing appears to have facilitated error in breaching of the fair hearing rule. The fair hearing rule requires, at its heart, that a party has the opportunity to know the relevant credible and significant evidence relied upon against him/her, and the opportunity to present his/her case, test the evidence and make submissions.
37. [37]
    The procedure adopted in any hearing is within the tribunal’s discretion.^[20] A greater or lesser degree of informality may be appropriate, as may be in keeping with a proper consideration of the matters to be determined in the particular case.^[21]  Hearings of applications under the Guardianship Act are inquisitorial in nature. It is appropriate to outline at the commencement the issues required to be determined according to the legislative framework (although it is not necessary to talk about the particular sections that are relevant) and then to systematically consider the relevant issues for determination. Because there are no respondents to the applications who, in other types of applications outside the guardianship jurisdiction of QCAT, would put forward evidence contrary to the applicant’s evidence, the member hearing the proceeding has the responsibility to ensure, as far as the Tribunal considers it practicable, that QCAT has all relevant information when hearing and deciding applications.^[22] In doing so, it must appropriately raise issues, and test the available evidence.
38. [38]
    Here, the Tribunal did not take these steps. It did not ask PL, or his family members present at the hearing, specific questions about PL’s understanding of the financial issues in his life in order to evaluate PL’s assertions of improvement in his decision-making functioning, and the weight to properly be given to them and to the recent health professional report (or the report of Dr Andrews). Further, the parties at the hearing were not given proper opportunity to present their evidence and their arguments or challenge the contents of (or at least the Tribunal’s interpretation of) the report of Dr Andrews. Procedural informality does not sanction over-familiarity and the use of inappropriate vernacular language in the course of a hearing, ^[23]as occurred here. As a result the hearing was unfocussed and more resembled an informal “catch-up” discussion between old friends than a hearing. This led the learned Tribunal into error, in that it failed to observe natural justice. 

Error in failing to give any or adequate reasons for decision

39. [39]
    It is clear only that the learned Member relied exclusively on the report of Dr Andrews (or at least her interpretation of that report) in reaching her decision to dismiss the application for a declaration about capacity. That said, even this degree of clarity does not emerge from the Tribunal’s reasons for decision. It emerges from comments made by the Member throughout the hearing.
40. [40]
    Oral reasons given in a busy list of matters, as is usually the case in guardianship jurisdiction, may be adequate even though less precisely articulated than written reasons delivered some time after a hearing. However, it is a requirement that reasons expose the tribunal’s reasoning for reaching the decision made by the tribunal.^[24] Failure to give adequate reasons for a decision is an error of law.
41. [41]
    In this case, the Tribunal either did not give any, or any adequate, reasons for the dismissal of the application, despite making comments, which we have concluded were not findings, throughout the hearing. It did not give discrete reasons for the decision at the conclusion of the hearing. It did not explain the basis for the decision made to dismiss the application for a declaration of capacity.
42. [42]
    Vague comments or assertions made during the course of hearing are not findings or reasons for a decision. Accordingly, we have concluded that the learned Member failed to make any or any adequate findings and failed to give adequate reasons for her decision.

Conclusions and order

43. [43]
    For the reasons explained, we conclude that the Tribunal’s decision was affected by error of law. We conclude that because of the error/s of law made by the tribunal, its order dismissing the application for a declaration about capacity made must be set aside, and the application remitted to the Tribunal for a fresh hearing.
44. [44]
    The application for a declaration about capacity should be considered by another member who has had no prior involvement in the applications about PL.  Although a review of the appointment of the administrator for PL was conducted in February 2018 while this appeal was pending, it would be appropriate for the Tribunal to initiate a review of that appointment to be heard at the same time as the application for a declaration about PL’s capacity. 
45. [45]
    We make orders allowing the appeal and setting aside the Tribunal’s decision about the application for a declaration of capacity made on 25 September 2017. We also make orders remitting the application for a declaration about PL’s capacity for financial matters back to the tribunal for hearing by another member who has not previously determined applications about PL.