PGV[2024] QCATA 138

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   PGV applies for leave to appeal a decision of the Tribunal made under the Guardianship and Administration Act 2000 (‘GA Act’). In the proceeding below, the Tribunal considered PGV’s application for a declaration about capacity and for a review of an existing order made on 8 September 2021, appointing WFA and DTA, jointly and severally, as guardians for PGV for all personal matters, to be reviewed in two (2) years. This required the Tribunal to exercise the relevant powers under the GA Act to review the existing appointment of a guardian.^[1] The Tribunal was also required to consider s 31 of the GA Act and, amongst other things, the matters identified under s 12 that give the Tribunal the power to appoint a guardian for a personal matter or an administrator for a financial matter for a person referred to as the adult. A necessary finding for the purposes of exercising the power under s 12 of the GA Act is whether the adult has impaired capacity for the matter.
2. [2]
   PGV attended the Tribunal’s hearing below together with his legal representative, Mr Argles. PGV’s current guardians, WFA and DTA, who live outside the State of Queensland, attended the hearing remotely. At the time of the hearing below, WFA was PGV’s estranged wife. DTA is PGV’s daughter. Also attending the hearing remotely was Lisa Booth, PGV’s NDIS support coordinator.
3. [3]
   Following an oral hearing on 14 March 2023, the Tribunal made final orders and published written reasons for its decision on 22 March 2023.^[2] The Tribunal below dismissed PGV’s application for a declaration of capacity and changed the Tribunal’s existing order by appointing WFA and DTA, jointly and severally, as guardians for PGV to make decisions about accommodation and provisions of services including in relation to the National Disability Insurance Scheme (‘NDIS’), to be reviewed in five (5) years.

What are the grounds of appeal?

4. [4]
   PGV identifies five grounds of appeal in the application for leave to appeal or appeal that are said to raise questions of mixed law and fact for which leave to apply is required.^[3] In the oral hearing before this Appeal Tribunal, Mr Morgan appearing for PGV abandoned Ground 5 of the appeal that raises a question of law about an alleged failure by the Tribunal below to afford procedural fairness to PGV in the hearing. The four remining grounds of appeal are set out below:

   1. Ground 1: The Tribunal failed to properly consider or give appropriate weight to the most recent medical opinions that the applicant had capacity for all personal matters.
   2. Ground 2: The Tribunal failed to apply the presumption of capacity by misconstruing or disregarding other evidence about the applicant’s capacity.
   3. Ground 3: The Tribunal made errors of fact by failing to consider relevant factors in arriving at the decision that the applicant lacked capacity for decisions about accommodation and services.
   4. Ground 4: The Tribunal failed to apply the general principles in s 11B of the GA Act.
5. [5]
   Mr Morgan, appearing for PGV in the Appeal Tribunal hearing, conveniently dealt with Grounds 1, 2 and 3 together on the basis that each of the grounds raise a question of mixed law and fact about the learned Member’s findings that are necessary to rebut the presumption of capacity at law. Mr Morgan submitted that there is error in how the decision-maker below found their way to determining that the presumption of capacity was rebutted. Mr Morgan submitted that the Tribunal made findings about PGV’s capacity to make decisions about his accommodation and care needs in circumstances where there was, as stated, ‘compelling’ expert evidence from Dr Rachell Kingsbury, Clinical Neuropsychologist and Clinical Psychologist, that was overlooked by the Tribunal. Further, Mr Morgan submitted that it is necessary to examine why Dr Kingsbury was overlooked by the Tribunal with reference to the Tribunal’s findings made about the facts based on the evidence before it.
6. [6]
   In addressing the final orders sought in the appeal, Mr Morgan submitted to this Appeal Tribunal that PGV would like the guardianship order revoked and to the extent that the existing guardianship order extends to PGV’s participation in the NDIS, such a condition be removed, PGV having expressed a desire to move into aged care that will be solely funded by PGV. Mr Morgan also submitted that PGV does not take issue with the Tribunal’s decision to dismiss the application for a declaration of capacity.
7. [7]
   In written submissions filed in support of the appeal, PGV submits, and I accept, that the grounds of appeal raise questions about whether it was open to the Tribunal to make relevant findings based on the evidence before it in order to be satisfied that the relevant provisions of the GA Act and the Human Rights Act 2019 (Qld) (‘HR Act’) have been met.^[4] PGV correctly refers this Appeal Tribunal to the functions and powers that may be exercised by the Tribunal under the GA Act that amongst other things, recognise that the person, referred to under the GA Act as the adult, has capacity for a matter. A failure to apply the presumption of capacity in respect of both application and review is an error of law.^[5] Further, the GA Act mandates, amongst other things, that to hear and decide a matter in a proceeding, the Tribunal must ensure, as far as it considers practicable, it has all the relevant information and material before it.^[6]
8. [8]
   I am satisfied that each of the grounds of appeal raise questions of mixed law and fact for which leave to appeal is required. Questions of mixed law and fact are questions about whether the facts satisfy the legal tests.^[7] The grounds of appeal raise a question about whether the Tribunal gave appropriate weight to the evidence in finding that PGV lacked capacity for decisions about certain personal matters and in exercising the power under the GA Act to continue the appointment of WFA and DTA, jointly and severally, as guardians for PGV to make decisions about accommodation and provision of services including in relation to the NDIS matters.

Leave to appeal

9. [9]
   The question of whether leave to appeal is granted is according to established principles:

   1. Is there a reasonably arguable case of error in the primary decision?^[8]
   2. Is there a reasonable prospect that the applicant will obtain substantive relief?^[9]
   3. Is leave necessary to correct a substantial injustice to the applicant caused by some error?^[10]
   4. Is there a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage?^[11]
10. [10]
    As correctly stated in PGV’s written submissions, if an appeal is against a decision on a question of mixed law and fact, the appeal must be decided by way of rehearing with or without additional evidence as decided by the Appeal Tribunal.^[12] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.^[13]
11. [11]
    For reasons explained below, leave to appeal is refused. Although there is a question of general importance raised in Ground 4 about the application of the general principles under the GA Act that applied in the proceeding below, there is no reasonable prospect that PGV will obtain relief. Further, there is no reasonably arguable case of error in the primary decision below in considering the remaining grounds of appeal.
12. [12]
    As can be seen in my consideration of the Tribunal’s reasons below, it is my view that it was open to the Tribunal to make findings about PGV’s capacity based on the evidence before it. The Tribunal’s findings are neither ‘glaringly improbably nor contrary to compelling inferences’.^[14] In my view the Tribunal summarised the evidence before it relevant to the considerations under s 12 that includes a necessary finding of impaired capacity for the matter. The Tribunal below considered Dr Kingsbury’s evidence, the evidence of health professionals and other evidence detailing ‘incident reports and emails written by staff’.^[15] The Tribunal below was entitled to overlook Dr Kingsbury’s evidence alone and to ‘base his judgment upon the other evidence in the case’.^[16]
13. [13]
    For ease of reference, I will refer to PGV’s contentions raised in support of the application for leave to appeal or appeal as simply contentions raised in the appeal. Before addressing the grounds of appeal, I have considered the Tribunal’s powers under the GA Act in particular the power to review an existing appointment of a guardian or administrator under s 31 that requires a consideration of the matters under s 12 and other relevant provisions under of the GA Act. The HR Act also applies.

The Tribunal’s powers under the GA Act

14. [14]
    The GA Act provides a comprehensive regime for the appointment of guardians and administrators to manage personal and financial affairs of adults with impaired capacity and amongst other things, confers power on the Tribunal to make a declaration about the capacity of an adult for a matter.^[17] The GA Act has been described as remedial in nature and ‘protective of the rights and property of incapacitated persons.’^[18]
15. [15]
    Relevant to performing a function or exercising a power under the GA Act is the general principles that must be applied by a person or other entity. Also, a person making a decision for an adult on an informal basis must apply the general principles in making the decision.^[19] The community is encouraged to apply and promote the general principles.^[20] The general principles provide that an adult is presumed to have capacity for a matter and recognises an adult as having the same human rights and fundamental freedoms regardless of a particular adult’s capacity.^[21] Further, the general principles recognise important matters to be taken into account to empower an adult to exercise human rights and fundamental freedoms, and amongst other things, recognises an adult’s participation in decision-making.^[22]
16. [16]
    The GA Act acknowledges an adult’s right to make decisions is fundamental to the adult’s inherent dignity and amongst other things, an adult with impaired capacity has a right to adequate and appropriate support for decision-making and the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent.^[23] Further, the GA 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.^[24]

The Tribunal’s power to review an existing appointment of a guardian for a personal matter for an adult under s 31 of the GA Act

17. [17]
    Section 31(1) of the GA Act provides that the Tribunal may conduct a review of an appointment of a guardian or administrator for an adult in the way it considers appropriate.^[25] Section 31(2) of the GA Act provides that 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 a new application were to be made. This requires the Tribunal to consider the requirements set out in s 12, which gives the Tribunal the power to appoint a guardian for a personal matter or an administrator for a financial matter.
18. [18]
    Relevantly, s 12 provides that the Tribunal may appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult if the Tribunal is 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 health, welfare or property; and
    3. without an appointment—
       1. the adult’s needs will not be adequately met; or
       2. the adult’s interests will not be adequately protected.
19. [19]
    The matters under s 12 must be considered in the context of the GA Act that acknowledges an adult’s rights including and amongst other things, that the adult’s right to make their own decisions should be restricted and interfered with to the least possible extent, the adult’s right to make decisions includes the right to make decisions with which others may not agree and an adult with impaired capacity has a right to adequate and appropriate support for decision-making. Further, in exercising the power under s 12, the Tribunal is required to apply the general principles under s 11B. The Tribunal is also acting in an administrative capacity and is a public entity for the purposes of s 58 of the HR Act and is therefore required to make a decision in a way that is compatible with human rights and in making a decision must give proper consideration to relevant human rights.^[26]

The presumption of capacity

20. [20]
    As identified above, a necessary finding for the purposes of exercising the power to appoint a guardian or administrator under s 12 is whether the adult has impaired capacity for the matter. 
21. [21]
    A person is presumed to have capacity for a matter until the contrary is proven.^[27] The definition of capacity can be found in schedule 4 of the GA Act, now set out below:

Capacity, for a person for a matter, 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.

22. [22]
    It is established law that the concept of capacity is decision-specific.^[28] It is therefore necessary for the Tribunal to identify the relevant ‘matter’ or matters when determining a person’s capacity.^[29] For example, if considering whether to appoint a guardian for a personal matter or in reviewing the existing appointment of a guardian appointed for a personal matter, such matters may involve decisions about where the adult lives, with whom the adult lives, and services provided to the adult. Further, it is also necessary to consider all of the elements of the definition of capacity found in schedule 4 of the GA Act to understand the extent of any impaired decision-making.^[30]
23. [23]
    The standard of proof necessary to rebut the presumption of capacity need only meet the civil standard but the proof must be to the Briginshaw standard.^[31] As held by the Supreme Court in Lambourne and Ors v Marrable and Ors (‘Lambourne’)^[32] in the context of determining the validity of an enduring power of attorney, the presumption is to be applied by the court but it may be rebutted if ‘the contrary is proven’.^[33] In Lambourne the Court adopted the Court’s reasoning about ‘standard’ in Leigh v Bruder Expedition Pty Ltd^[34] that provides guidance to a ‘rational tribunal of fact’ which is deciding whether evidence proves a fact. The Court says to ‘bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence’.^[35] The relevant extract from Lambourne is set out below (footnotes omitted):

43. [43]
    This presumption is to be applied by the court but it may be rebutted if “the contrary is proven.” Such proof need only meet the civil standard but, given the nature of the matter and the consequences of a finding of a lack of capacity, the proof must be to the Briginshaw standard. I respectfully adopt what Sofronoff P said in Leigh v Bruder Expedition Pty Ltd about that standard:

“[23]  … it must be borne in mind that the case does not establish a third standard of proof which lies between the civil and criminal standards. Briginshaw establishes that, when applying the civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding whether evidence actually proves a fact to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.”

24. [24]
    The issue of capacity has been found to include, amongst other things, a consideration as to whether a person ‘has the capacity to make a decision with “adequate and appropriate support”’.^[36] In Adamson v Enever & Anor (‘Adamson’),^[37] the Supreme Court considered an application by Mrs Adamson for a determination as to whether she has impaired capacity. The application was necessary because Mrs Adamson had been injured in a motor vehicle accident and having participated in a settlement conference there was an issue about whether the settlement will require sanction by the Court.
25. [25]
    In Adamson, the Court refers to the Queensland Capacity Assessment Guidelines 2020 (‘Capacity Guidelines’) that set out the five principles that are said to ‘overlap with the principles and acknowledgements in the Act’, to apply when assessing an adult’s capacity.^[38] Further, the Court helpfully steps through the three limbs of the definition of capacity. Relevant to the first limb, understanding the nature and effect of decisions, the adult must be able to retain the relevant information, and this may only be for a short period provided the period is long enough for the adult to make a decision. The adult must have the ability to broadly identify the advantages and disadvantages of the available options and to understand the consequences of those options, then weigh those consequences and reach a decision. Relevant to the second limb, freely and voluntarily making decisions, it must be clear that the adult is making the decision and is not being pressured or coerced into making the decision. The third limb requires that an adult is capable of communicating their decisions in some way. The extract from Adamson, is set out below (footnotes omitted):^[39]

Understanding the nature and effect of decisions

42. [42]
    The first limb requires that an adult can understand the nature and effect of his or her decisions about the relevant matter.

43. [43]
    The Capacity Guidelines explain that the adult needs to be able to understand the information that is relevant to the decision, including the options and their consequences. It is sufficient for the adult to have a ‘basic understanding of the key features’ of that information, but for this criterion to be met, more complex decisions require more understanding.

44. [44]
    The adult must also be able to retain the relevant information. This may only be for a short period, provided the period is long enough for the adult to make a decision. Also, the adult must have the ability to broadly identify the advantages and disadvantages of the available options and to understand the consequences of those options, then weigh those consequences and reach a decision.

45. [45]
    Giving the adult the information they need to make a decision might involve using the adult’s usual methods of communication, or providing information in a way that is accessible to them; for example, by providing simple explanations aided by diagrams. It also requires the adult to be given enough time to consider information and have a support person present.

Freely and voluntarily making decisions

46. [46]
    The second limb of ‘capacity’ requires that an adult is capable of freely and voluntarily making decisions about the relevant matter.

47. [47]
    The Capacity Guidelines explain that ‘[i]t must be clear that the adult is making the decision and is not being pressured or coerced into making the decision’. Risk factors that might indicate pressure or coercion, or affect an adult’s ability to make a decision freely and voluntarily, include:

1. family conflict, especially if one family member has isolated the adult from other family members or their usual support networks;

2. the history or presence of threats or perceived threats and abuse;

3. threats to withdraw care and support;

4. sudden decisions to make significant changes to their arrangements (like large gifts of money or property) that are out of character and would disadvantage the adult.

48. [48]
    The Capacity Guidelines note that the test in this limb of the definition should not be applied ‘too broadly’. They state that a person may seek advice from others before reaching a decision and that this does not mean that a decision was not made freely and voluntarily. The Capacity Guidelines explain that ‘the focus is on whether the adult can make a decision free of intimidation, pressure or influence’.

49. [49]
    In a 2010 Report, the Queensland Law Reform Commission concluded that this limb of the definition of capacity is ‘an important legislative safeguard’ in that an adult’s ability to make a decision independently is ‘arguably a useful indicator of the [adult’s] capacity to exercise decision-making power in his or her own interests’.

Communicating decisions

50. [50]
    The final limb of ‘capacity’ requires that an adult is capable of communicating their decisions in some way.

26. [26]
    As discussed above, a finding of impaired capacity for a matter is one of the considerations under s 12 of the GA Act necessary for the appointment of a guardian or administrator. Relevantly, the matters under s 12 include, amongst other things, whether ‘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…’. Depending on the circumstances of the particular matter and in finding under s 12 that there is a need for a decision in relation to the matter, it may be necessary for the Tribunal to give appropriate weight to any evidence of risk to the adult’s health, welfare or property.
27. [27]
    In my view, the intended use of the words ‘involves, or is likely to involve, unreasonable risk…’ as they appear in s 12(1)(b) may, depending on the circumstances of the matter, require an enquiry by the Tribunal about the type of decisions to be made for the adult and the adequacy and appropriateness of any supports for decision-making.^[40] An example of the type of supports in place for the adult may include and amongst other things, formal supports from carers and service providers and informal supports from family and friends. Further, an enquiry about whether any of the supports is adequate and appropriate in the circumstances, may also be necessary.^[41] 
28. [28]
    As discussed above, the standard to be applied in being satisfied as to the facts proven is on the Briginshaw standard on the balance of probabilities.^[42] It has been observed by a Tribunal in another jurisdiction exercising similar powers to appoint a guardian or administrator under similar legislation to the GA Act that the ‘gravity’ of the consequences flowing from a finding by the Tribunal that the presumption of capacity is displaced are such that the Briginshaw principle or approach is applicable to such a finding.
29. [29]
    In S v State Administrative Tribunal of Western Australia (No 2) (‘S v SAT’),^[43] the Tribunal referred to a decision of the Western Australia Supreme Court that said the civil standard of proof, on the balance of probabilities, applies in relation to findings of fact in proceedings under the relevant Guardianship Act.^[44] In S v SAT, the Tribunal went on to observe that a finding for a person in respect of whom a guardianship or administration order is made is ‘nothing short of drastic in terms of their human rights, in particular their freedom of decision-making’.^[45]
30. [30]
    I agree with the observations made in S v SAT. A finding that a person has impaired capacity for a matter is significant and should not be arrived at lightly. Depending on the particular application or matter to be considered by the Tribunal, a finding of impaired capacity is a necessary finding and is one of a number of matters to be considered under s 12 for an appointment of a guardian or administrator. In making findings in the exercise of a power under the GA Act, the Tribunal must bear in mind the ‘seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence’.^[46]
31. [31]
    In reviewing an existing appointment under s 31 of the GA Act, the Tribunal is required to consider the requirements under s 12 and whether the existing appointment of the guardian or administrator should be revoked, or continued with or without changes to the relevant matters for which the guardian or administrator is appointed and if continuing the appointment, whether the current appointee should be changed.
32. [32]
    Section 31 of the GA Act provides relevant matters to consider if the Tribunal is satisfied there are appropriate grounds for an appointment of a guardian or administrator to continue and, amongst other things, about making an order removing an appointee. For example, s 31(4) provides that 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. Relevantly, s 31(5) provides examples under subsections (a), (b), (c) and (d) of when an appointee is no longer competent. As can be seen in s 31(5)(a) an example of where an appointee is no longer competent is if a relevant interest of the adult has not been, or is not being, adequately protected.
33. [33]
    If the Tribunal is satisfied that the existing appointment of a guardian or administrator, as the case may be, should be continued with or without changes to the relevant matters (or decisions to be made) or to the appointees, it is also necessary for the Tribunal to consider the duration of the appointment. For example, whether the appointment is reviewable and if so when the order is to be reviewed or will expire after a time stated in the Tribunal’s order. Relevantly, s 5(d) of the GA Act acknowledges the right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent. The Tribunal is also required to make a decision in a way that is compatible with human rights and in making a decision must give proper consideration to the adult’s relevant human rights under the HR Act.

Consideration of Grounds 1, 2, 3 and 4

34. [34]
    PGV does not challenge the findings and approach of the Tribunal below in identifying how to determine the issue of capacity.^[47] PGV refers me to [42] and [43] of the reasons that correctly say capacity is time and matter specific and PGV may, as he is entitled to do, make decisions with which others may disagree.
35. [35]
    The question of PGV’s capacity was a relevant issue to be decided by the Tribunal below because there was an application before the Tribunal about PGV’s capacity. Further, relevant to reviewing the existing appointment of a guardian appointed for all of PGV’s personal matters, the Tribunal was required to consider s 31 and the matters under s 12 of the GA Act that include, amongst other things, whether PGV has impaired capacity for the matter.
36. [36]
    The Tribunal’s written reasons identified the applications to be determined and referred to the ‘extensive’ documents and evidence before the Tribunal.^[48] As set out in [6] of the reasons there is documentation by health professionals and oral evidence given by PGV, the current guardians, Dr Kingsbury and Ms Booth. The relevant extract from the reasons summarising some of the documents and evidence of health professionals is now set out below (footnotes omitted):

6. [6]
   The extensive documentation before the tribunal includes the following by health professionals:

1. discharge summaries by Dr Adam Can, psychiatrist, relating to in-patient treatment of PGV at the Currumbin Clinic on numerous occasions between 2014 and 2020, initially for alcohol dependence, and later for alcohol use disorder, major depressive disorder and generalised anxiety disorder;

2. report by Chris Schumann, clinical neuropsychologist, dated 28 May 2021;

3. letter from Dr Nigel Prior, psychiatrist, dated 7 June 2021;

4. report by Dr Kingsbury dated 18 November 2022; and

5. report by Dr Masoud Shasti, general practitioner, dated 15 February 2023.

7. [7]
   Ms Schumann and Dr Shasti each describe PGV as having alcoholic dementia. Dr Prior describes PGV as having ‘mild-to-moderate dementia of multiple aetiology – alcohol-related, secondary to liver disease and multiple head injuries’. Dr Kingsbury, however, says that her assessment of ‘mild cognitive impairment is insufficient to warrant a diagnosis of alcohol related dementia …’.

8. [8]
   Reports also mention that on occasions up to 2021, PGV had a number of admissions for rehabilitation in connection with his alcohol use disorder.

37. [37]
    As can be seen in the reasons at [7], PGV was assessed by Dr Schumann. This assessment took place on 25 May 2021 when PGV was in hospital admitted under the care of a psychiatrist and having recently come out of a coma.^[49]
38. [38]
    Dr Kingsbury conducted an assessment as indicated in the reasons at [30] on 12 September 2022 and 10 October 2022. This was during a time when PGV was living in the community with the assistance of the NDIS at Collingwood Park.
39. [39]
    The Tribunal summarised the medical evidence and oral evidence given in the hearing including the evidence of Dr Kingsbury from [26] to [44], inclusive, of the reasons. Relevantly, Dr Kingsbury, Clinical Neuropsychologist and Clinical Psychologist, produced a 36-page report after consultations with PGV on 12 September 2022 and 10 October 2022.^[50] The Tribunal said Dr Kingsbury took an extensive history and administered a number of tests. Dr Kingsbury also reviewed Ms Schumann’s report. A relevant extract of Dr Kingsbury’s evidence as it appears in the reasons is set out below (footnotes omitted):

[30] …Based on testing and observation, Dr Kingsbury found for example that PGV’s ‘speech and language architecture is sound’ and he has only ‘minor difficulties with anomia’. Dr Kingsbury noted some indications of memory disorder but observed that PGV was able to answer questions largely from recall, with only very limited need to access notes. Dr Kingsbury noted evidence of cognitive decline in PGV but found that he still has a high IQ, inconsistent with a diagnosis of dementia.

40. [40]
    Further at [41] and [42] of the reasons the Tribunal set out extracts of Dr Kingsbury’s report and summarised some of the oral evidence given in the hearing (footnotes omitted):

41. [41]
    Dr Kingsbury commented:

[PGV] … displayed a higher than required understanding of the aspects of his current circumstances as unethical and tantamount to elder abuse. He freely described his $300,000.00 NDIS package, being an involuntary recipient of this funding, as a form of fraud when considered to the true nature of his needs. He demonstrated commensurate understanding that his finances were being misappropriated between his Legal Guardians. He identified that having his decision-makers, as both comprising family members and both as residing in Western Australia, as inappropriate and inadequate in role and function.

42. [42]
    Dr Kingsbury also gave oral evidence. She described Ms Schumann’s assessment as not a capacity assessment. I am unsure what she meant by that. While it is the case that Ms Schumann did not cite the definition of capacity, she did systematically address topics relevant to whether PGV had capacity.

41. [41]
    In addressing the grounds of appeal PGV refers me to the Tribunal’s statement or comment at [42] about Dr Kingsbury’s description of Ms Schumann’s assessment as not being a capacity assessment. Relevantly in [42] the Tribunal in referring to Dr Kingsbury’s oral evidence said, as stated, ‘I am unsure what [Dr Kingsbury] meant by that’. The relevant extract from the reasons is set out below:

Dr Kingsbury also gave oral evidence. She described Ms Schumann’s assessment as not a capacity assessment. I am unsure what she meant by that. While it is the case that Ms Schumann did not cite the definition of capacity, she did systematically address topics relevant to whether PGV had capacity.

42. [42]
    I do not see any issue with the Tribunal’s words used about Dr Kingsbury’s evidence. When read as a whole the Tribunal is considering the observations or comments made by Dr Kingsbury with reference to Dr Schumann’s evidence. As can be seen from the reasons the Tribunal set out in detail Dr Kingsbury’s assessment and considered it along with other evidence given by health care professionals, as the Tribunal is entitled to do in determining the issue of capacity.
43. [43]
    The transcript shows that Dr Kingsbury was of the view that Dr Schumann did not, as stated by Dr Kingsbury, ‘form a capacity assessment’.^[51] The relevant extract of Dr Kingsbury’s oral evidence given in the hearing is now set out below:

Dr Kingsbury: …Chris Schumann’s original report did not form a capacity assessment. She took a personal history, ran some neuropsychology and pulled an opinion out of that. So I would argue that is relevant. She called him to have no capacity in ’21.

When that occurs, while capacity is temporal, in the time that [PGV] has gone on to purchase houses. He managed to research and find himself. He attended the assessment independently. He funded it independently. So I think in reflection of some of the commentary that’s been occurring, you know, [PGV] has a mild cognitive impairment. He is making decisions to use alcohol, and that’s longstanding. He may have a level of associated changes to his writing, but when we’re looking at a decision-making capacity he has consistently worked across an enduring time to meet all of the guardianship’s parameters. He can communicate in some way, even if his language form is changing. He’s demonstrated that again and again….^[52]

44. [44]
    Dr Kingsbury gives her opinion based on an assessment and observations of PGV as she should do within the area of her relevant qualifications and experience. Dr Kingsbury’s opinion is clearly reflected in her report and in the oral evidence given at the hearing.
45. [45]
    Dr Kingsbury may be, as submitted by PGV in the appeal, an expert with a qualified opinion at the time of the hearing, but Dr Kingsbury’s evidence was not the only evidence relevant to s 31 and a consideration of the matters under s 12 of the GA Act. The reasons show there was evidence of other health professionals and other evidence that was identified by the Tribunal under the heading ‘surrounding issues’.
46. [46]
    At [44], the Tribunal considered Dr Shasti’s report and goes on to consider ‘surrounding issues’ that as stated by the Tribunal in [46] ‘[go] more obviously to questions such as whether there is a need for a substitute decision-maker, and the appropriateness of WFA and DTA as substitute decision-makers, rather than directly to the question of capacity…’.
47. [47]
    At [53] to [55], the Tribunal summarised documentation provided by the current guardians identified in [53] as ‘a number of incident reports and emails written by staff of the accommodation organisation between July 2022 and March 2023’. The Tribunal said at [54] that PGV was provided with a copy of the incident reports and emails in the hearing and noted PGV’s response to the documentation. As can be seen at [54], PGV queried the accuracy of the reported incidents. The relevant extract from the reasons is set out below:

54. [54]
    PGV was provided with a copy of the incident reports and the emails at the hearing, though I gather he had not seen them before. He said he doubts that they are all accurate. He characterised the incident reports as being made by untrained staff who want to keep their jobs by portraying that they are not at fault when something like a fall happens. PGV added that there have been occasions when support staff have not taken him to Alcoholics Anonymous meetings as arranged, and have suggested instead that he accompany them to their church as a better solution.

48. [48]
    The Tribunal summarised the evidence relevant to PGV’s mobility in [55] referring to evidence that PGV is ‘unsteady on his feet’ and the evidence of an occupational therapist that PGV had been prescribed a four-wheel walker but prefers to use a single stick. The Tribunal accepted at [56] that PGV might fall when sober and that support workers may have an incentive when writing incident reports to divert responsibility to PGV. The Tribunal went on to find at [56] that PGV’s alcohol consumption has increased, along with increased falls and agitation. The relevant extract from the reasons is set out below:

56. [56]
    So, I accept that PGV might fall when sober, and that support workers may have an incentive when writing incident reports to divert responsibility to PGV. Further, I consider the incident reports to be variable in their clarity. On the other hand, they were prepared by various staff members. It is unlikely, in my view, that there would be widespread misreporting of the circumstances of falls. I accept the overall thrust of the reports and emails which is to the effect that PGV’s alcohol consumption has increased, along with increased falls and agitation.

49. [49]
    The Tribunal’s finding that PGV’s alcohol consumption has increased, along with increased falls and agitation, is not challenged by PGV in the contentions made in support of the grounds of appeal. The Tribunal went on to consider Dr Kingsbury’s evidence about PGV’s accommodation at [57] and the evidence of WFA, one of PGV’s current guardians, about PGV’s preference to live in inner-city Brisbane. At [58] WFA said ‘choices were limited’ and referred to PGV having been in hospital and the hospital exerting strong pressure for discharge. WFA said the tight rental market makes choices very limited and saw the proposed move to Sunnybank as an intermediate measure. The Tribunal accepts WFA’s evidence at [58].
50. [50]
    Evidence about PGV’s care needs was considered at [59] along with Ms Brock’s evidence. Ms Brock prepared a functional capacity and living needs assessment report and recommended an increase in the hours of care that should be provided for PGV through the NDIS including community access.^[53] Ms Brock met with PGV in the course of preparing her report and considered that PGV has ‘reduced insight into his mobility and environmental hazards, increasing his risk of falls’.^[54]
51. [51]
    The Tribunal refered to Ms Brock’s report as ‘compelling’ and at [60] found that the report captured the level of care needed by PGV. The relevant extract from [60] is set out below:

60. [60]
    Whether the NDIS will expand funding in line with Ms Brock’s recommendations remains to be seen. However, her report is compelling. It is unchallenged by evidence from any other expert qualified to undertake such assessments. I accept that Ms Brock’s report captures the level of care needed by PGV. That need would only increase with more alcohol consumption. Sadly, PGV’s history does not augur well for sustained abstinence or moderation.

52. [52]
    As can be seen in the reasons the Tribunal accepted the report of Linda Cullen stating it ‘serves to emphasise the risks to PGV when he has limited support and supervision’.^[55]
53. [53]
    Dr Kingsbury’s evidence about the benefits of PGV finding accommodation which would provide ‘ageing in place’ and PGV’s views about this were considered by the Tribunal at [62] to [65], inclusive, of the reasons.^[56] PGV’s contentions in the appeal that Dr Kingsbury’s evidence and in particular her criticism of the NDIS were, as stated, ‘acknowledged but not acted upon’ by the Tribunal are misconceived.^[57] The Tribunal in reviewing the appointment of a guardian considered the relevant matters under s 12 that include amongst other things, the issue of need. This can be seen at [46] when the Tribunal considered ‘surrounding issues’.
54. [54]
    The Tribunal set out at [66] its reasons for finding PGV is unable to understand the nature and true effect of decisions about accommodation and services. This, understanding the nature and effect of decisions, is one of the limbs of the definition of capacity under Schedule 4 of the GA Act.
55. [55]
    PGV’s contentions in the appeal directed towards the Tribunal’s findings about Ms Brock’s needs assessment are without merit. Relevantly, in addressing the grounds of appeal, PGV says the findings are, as stated, ‘as bespeaking a lack of capacity on PGV’s part, sufficient to rebut the statutory presumption of capacity and to reject Dr Kingsbury’s opinion’.^[58]
56. [56]
    As can be seen at [66] the Tribunal considered Dr Kingsbury’s evidence and PGV’s views said to have been communicated to Dr Kingsbury about, as stated in the reasons, the ‘level of distrust’ of the guardians. The Tribunal found at [66] that PGV is, as stated, ‘unable to weigh up the real pros and cons of the different choices because he cannot appreciate the true level of his functioning and his needs’. The Tribunal went on to say at [68] that it assessed PGV’s capacity ‘when he is in a sober state’. Further, the Tribunal considered the evidence of Dr Kingsbury and Dr Shasti at [69] including the fact that Dr Kingsbury assessed PGV over two interviews.
57. [57]
    PGV’s submission that the Tribunal was not entitled to reject Dr Kingsbury’s expert opinion and as stated by PGV, ‘substitute his own’ and that capacity was resolved as a credibility issue between the witnesses, fails to appreciate the Tribunal’s task in exercising the power under s 31 in reviewing the existing appointment of the guardians that involved a consideration of the matters under 12 of the GA Act.^[59]
58. [58]
    As I have said above, it is my view that, depending on the circumstances of the matter, the issue of need for the purposes of s 12 may require an enquiry by the Tribunal as to the type of decisions to be made for the adult and the adequacy and appropriateness of any supports for decision-making. The reasons show that the Tribunal did consider the evidence and made necessary findings about PGV’s capacity including whether there is a need for decisions to be made about certain personal matters for PGV.
59. [59]
    At [69], the Tribunal did not accept the opinions of Dr Kingsbury and Dr Shasti about capacity, having regard to the whole of the evidence. The evidence before the Tribunal included a number of incident reports and emails written by staff, discussed at [53], PGV’s support needs including the evidence of PGV being unsteady on his feet discussed at [55] and being at risk of falling when sober. Further, it included the evidence of Ms Booth considered at [64] about damage to the walls of PGV’s property said to be caused by PGV falling and PGV’s explanations for the damage including that the damage was caused by a rat or a possum. Importantly, the Tribunal found at [64] that ‘such comments by PGV deny or fail to recognise the impact of his drinking’.^[60]
60. [60]
    It was open for the Tribunal to find that the presumption of capacity for the purposes of s 12 was rebutted in relation to personal decision-making matters of accommodation and services including NDIS.^[61]
61. [61]
    There is no error in the Tribunal’s finding about the need for decisions at [77] about PGV’s NDIS plan including whether efforts should be made to have the plan further reviewed. At [73] to [90], inclusive, the Tribunal considered whether there is a need for an accommodation decision and a decision about PGV’s NDIS plan. The Tribunal found at [78] there is a likelihood, in the absence of the appointment of a guardian or guardians, that PGV would make decisions about accommodation and services including NDIS that would involve unreasonable risk to PGV’s health and welfare.
62. [62]
    The Tribunal considered the relevant considerations under s 12 and other provisions of the GA Act including the least restrictive options and general principles.^[62] The Tribunal also considered PGV’s human rights that are recognised under the HR Act.^[63]
63. [63]
    The Tribunal found that the appointment of a guardian or guardians should continue referring to the likelihood of PGV rapidly declining into an abject state in the absence of adequate accommodation, supervision and care. The Tribunal said at [90]:

90. [90]
    Having considered these various factors, I am of the view that a guardian or guardians should continue to be appointed, notwithstanding PGV’s opposition and the impact on his rights and liberty. The likelihood of PGV rapidly declining into an abject state in the absence of adequate accommodation, supervision and care is high. Overall, PGV’s dignity and wellbeing, including his opportunities for work and other social participation, will be more enhanced while living in appropriate accommodation with a high level of carer support than if PGV were to make his own decisions about accommodation and services. I consider that PGV’s interests cannot be safeguarded in any less restrictive way than by the continued appointment of guardians (or a guardian).

64. [64]
    PGV’s contention in the appeal that the Tribunal overlooked Dr Kingsbury’s evidence about PGV’s decision-making and the requirement by law to take the evidence into account is without merit.^[64]
65. [65]
    The Tribunal considered at [79] that without the appointment of a guardian or guardians PGV’s needs will not be adequately met and his interests will not be adequately protected. This is one of the matters for consideration under s 12. The Tribunal found at [79] this is because PGV would likely end up with insufficient care and supervision.
66. [66]
    The Tribunal’s comment about being ‘reactive’ to Dr Kingsbury’s evidence, as can be seen in the transcript of the proceeding below, and that PGV now refers me to in the appeal, is not representative of a failure by the Tribunal to consider or to overlook Dr Kingsbury’s evidence. The relevant extract from the transcript of the hearing is set out below:^[65]

Dr Kingsbury: …[PGV] is an educated, conversant, social individual. He’s currently sitting in an NDIS home….He is housing with one other female who has had a profound stroke, who has no language, who is wheelchair bound. And this is the reality of PGV’s current situation. He cannot leave that house without a worker. He has to go though multiple trains of permission. He ultimately has had all of his decision-making capacity redirected.

Member: Yes, by the Tribunal. That’s the reality. I’m sorry Dr Kingsbury, that’s the reality. These people were appointed guardians. Now okay, so I guess I’m reacting because you’re making it a criticism. I can take it as a comment that that shouldn’t be the case going into the future; you consider it unnecessary and overly intrusive. So perhaps I shouldn’t be so reactive about it.

Dr Kingsbury: it’s a discussion.

Member: Yes.

67. [67]
    On a fair reading of the transcript as a whole, the Tribunal’s comments to Dr Kingsbury in the hearing were to direct Dr Kingsbury to the current matter before the Tribunal, that is, to review an existing appointment of guardians to make decisions about all of PGV’s personal matters. Further, this appointment of the guardians for all personal matters was in place during the time Dr Kingsbury met with PGV and conducted her assessments of him.
68. [68]
    The Tribunal considered at [91] to [111], inclusive, whether the current guardians should be removed. The Tribunal correctly said the existing guardians can be removed only if they are no longer competent, or another person is more appropriate for appointment.
69. [69]
    It is not the Tribunal’s role, as contended by PGV in the appeal, to ‘investigate the friends of [PGV] who live nearby’ in terms of who may be available to take on the role of a guardian.^[66] There were no applications before the Tribunal in the hearing below from another person or persons proposing to be appointed as PGV’s guardian. The Tribunal explained why the appointment of the guardians is continued. Further, the Tribunal considered Dr Kingsbury’s evidence in the hearing given about the current guardians for PGV in [98] and explained why their appointment is continued. The Tribunal found at [111] that, on balance, WFA and DTA remain the most appropriate persons.
70. [70]
    As discussed above, the Tribunal considered Dr Kingsbury’s evidence together with the evidence as a whole to make necessary findings for the purposes of s 12 of the GA Act. The reasons show the Tribunal had considered all of the evidence to the required standard in deciding ‘whether evidence actually proves a fact’.^[67] The Tribunal provided extensive reasons for its decision referring to the evidence including the evidence of health professionals, the reported incidents by service providers, PGV’s views and, amongst other things, Dr Kingsbury’s evidence about PGV’s capacity, suitability of the current accommodation and service needs and Dr Kingsbury’s concerns about the suitability of the current guardians.
71. [71]
    The Tribunal considered PGV’s allegations that were reported to the Tribunal by Dr Kingsbury that, as stated in [47], ‘the guardians had planned to use $100,000 of [PGV’s] funds for DTA’s wedding, though PGV managed to prevent this’. Further, there was an allegation made by PGV that involved WFA’s banking of a cheque for $10,000 for a return investment and an allegation that support staff at PGV’s accommodation are using some of his money contributed for his share of the food costs for their own food supply.^[68]
72. [72]
    The Tribunal found WFA to be, as stated, ‘an impressive witness’ and accepted WFA’s evidence about any ‘financial mismanagement on her part’.^[69] The Tribunal said at [51] that, as stated, ‘I formed a similar favourable impression of DTA as a witness, and I accept her evidence’. In relation to the care provided by the support workers to PGV, the Tribunal said at [65] that it was satisfied they provide supervision and assistance that is necessary. Further, the Tribunal said ‘I see no reason to suppose that PGV would obtain a superior level of care through privately-funded carers’.^[70]
73. [73]
    The Tribunal considered whether the guardian should be the Public Guardian and found at [111] that WFA and DTA remain the most appropriate persons for appointment and stated, ‘[t]heir [meaning WFA and DTA’s] knowledge of PGV and his history places them in the best position to make decisions which protect his interests’. The Tribunal said at [112] that it has decided to continue the appointment of the guardians, ‘while narrowing their responsibilities to encompass only the areas of accommodation and services which protect his interests’.
74. [74]
    PGV has failed to identify any error in the Tribunal’s reasons below. Grounds 1, 2, 3 and 4 of the appeal are without merit.

Conclusion

75. [75]
    For reasons discussed above, PGV has failed to identify an error in the Tribunal’s decision to continue the existing appointment of WFA and DTA, jointly and severally, as guardians for PGV with changes to the areas of decision making, to decisions about accommodation and provision of services including in relation to the NDIS.
76. [76]
    As provided under s 31(1) of the GA Act, the Tribunal may conduct a review of the appointment of a guardian or administrator for an adult in the way it considers appropriate. Section 31(2) of the GA Act directs the Tribunal back to the requirements under s 12, which gives the Tribunal the power to appoint a guardian for a personal matter or an administrator for a financial matter. As explained above, the matters under s 12 must be considered in the context of the GA Act. The Tribunal is also required to apply the general principles and the HR Act applies.
77. [77]
    PGV may apply to the Tribunal for a review of the appointment of the guardians as provided under the GA Act and the Queensland Civil and Administrative Rules 2009 (Qld).^[71] For example, if there is evidence of new and relevant information that has become available since the hearing below or amongst other things, a relevant change in circumstances has occurred since the appointment was made.
78. [78]
    In the present matter, in addressing the grounds of appeal, PGV made clear to the Appeal Tribunal in the oral hearing, that subsequent to the hearing below, PGV and WFA are now divorced and PGV has moved into a new accommodation setting. This is fresh or new evidence of change in circumstances that will be relevant to any review by the Tribunal of the existing appointment of the guardians. If PGV applies for a review of the appointment of the guardians, the Tribunal will be required in exercising the powers under s 31 of the GA Act, to go back to s 12 and give consideration to the relevant matters necessary to exercise the discretion to appoint a guardian for a personal matter or an administrator for a financial matter. Further, the differently constituted Tribunal, in reviewing the existing appointment of the guardians, will be required to apply relevant provisions of the GA Act including the general principles and to consider whether there is a need for decisions to be made about PGV’s accommodation and provision of services including in relation to the NDIS. The Tribunal is also required to consider PGV’s human rights that may be limited and engaged by the making of the Tribunal’s order under the HR Act and whether the order is reasonable and justifiable.
79. [79]
    Given that I have found no error in the Tribunal’s reasons, the appropriate order is to dismiss the application for leave to appeal or appeal. I order accordingly.