ASV
[2015] QCAT 544
•23 September 2015
| CITATION: | ASV [2015] QCAT 544 |
| PARTIES: | ASV |
| APPLICATION NUMBER: | GAA5322-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 23 September 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 23 September 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for a declaration about the capacity of ASV is dismissed. |
| CATCHWORDS: | GUARDIANSHIP – where declaration made that adult did not have capacity to make financial decisions – where new application filed for declaration about capacity EARLY END TO PROCEEDINGS – where new medical evidence did not support adult having capacity for decision-making – whether application for declaration about capacity lacked substance Guardianship and Administration Act 2000 (Qld) sch 4 |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 15 May 2015, the Tribunal conducted a hearing in a regional city about ASV. The applications considered at that hearing were a declaration about the decision-making capacity of ASV and a review of the appointment of an administrator for her. ASV attended that hearing, gave evidence and had an opportunity to hear the evidence that was relied on by the Tribunal when a decision was made that she did not have capacity for all financial matters and continuing the appointment of an administrator for her.
On 1 June 2015, ASV filed an application seeking a declaration that she had decision-making capacity for financial matters. She asserted in her application that she had paid all her bills for the last 50 years and she was capable of still doing so. ASV stated that her daughter had thought that ASV was spending too much money. ASV stated that the money she had was from her divorce eight years ago to spend as she wished and she did not believe it was a crime to lend money to a friend.
ASV filed a report from Dr Julia Lisle, a geriatrician, dated 21 October 2014 in support of her application for a declaration about her decision-making capacity. Dr Lisle reported that ASV had bipolar disorder for some 10 years. However, Dr Lisle expressed her opinion that ASV is able to outline how she will budget week to week and she demonstrated good awareness of economising and planning about household expenditure.
Dr Lisle concluded that ASV could make decisions freely and voluntarily, free from the influence of others. She stated that ASV could make complex financial decisions.
There was more recent medical information about ASV’s capacity available to the Tribunal. An assessment of ASV had been conducted in February and March 2015 by Dr Thomas John, psychiatrist. In a report dated 8 April 2015, Dr John set out more details of ASV’s psychiatric history. According to that history, ASV had recurrent episodes of depression starting in 1996. She had been admitted to New Farm Clinic in 1999 and in 2001. In that latter admission, she had been treated with electro-convulsant therapy. Some depressive symptoms recurred and in 2002 Lithium treatment was commenced.
Although ASV denied any memory problems to Dr John, he noted that collateral information had been received that ASV’s memory and cognitive functioning had not been at its best recently. Dr John noted that in March 2014, ASV was admitted into hospital with confusion and she was found to have toxic levels of Lithium carbonate which the treating team believed was caused by ASV taking the doses wrongly.
Dr John noted that ASV had been diagnosed with Parkinson’s disease and there had been a working diagnosis of possible early dementia with co-existing Parkinson’s disease. Dr John noted that in March 2014, ASV had scored 20 out of 30 on the RUDAS assessment and 20 out of 29 on the Mini Mental State Examination assessment. It was however noted by Dr John that delirium and polypharmacy could have impacted on the assessment of cognitive impairment.
Dr John noted that in March 2014 it came to light that ASV had been sending a significant amount of her savings and pension to a male friend she had met on the internet. The amount involved ranged, according to different sources, from a few thousand dollars to close to $100,000. Other reports put the figure between $40,000 and $200,000.
Dr John noted that ASV was guarded about this friendship but admitted that she had feelings for this person and that she expected to meet him soon. When questioned whether this could be an internet scam, ASV denied that this was a possibility. She gave inconsistent answers when questioned as to whether she would continue to send money to this friend. It was reported to Dr John that ASV had only about $5,000 left from her savings.
Dr John reported that ASV scored 17 out of 30 on a cognitive assessment tool. There were features of confabulation at times and she had been inconsistent in her reporting of some incidents between the first and second assessments. She was able to describe her income but was not fully aware of all her assets or net worth. She could describe in broad terms her monthly expenses but was not able to report details of her daily expenses or to report on a plan on how she might save it she needed to or had to make changes to adapt to changed circumstances.
Dr John reported that ASV declined to comment on whether she would send any more money to her internet friend and she maintained that the person was not scamming her. Dr John noted that ASV was defensive about the amount she had sent and he was unclear if she actually knew this amount.
Dr John concluded that ASV had recurrent depressive disorder, mild cognitive impairment or early dementia and possible medication dependence. He noted as a possibility that ASV had a degree of impairment in executive functioning, particularly in judgement. He expressed an opinion that from his assessment and from the presence of cognitive rigidity and an inability to process alternate models, impaired judgement was the likely explanation.
Dr John did not support the revocation of the appointment of The Public Trustee of Queensland as administrator for ASV.
The Tribunal had been provided with notes from a Dr Richard Zimmerman, who had been given in January 2015 more details about the friendship between ASV and the person she had met on the internet. Dr Zimmerman had noted that, despite her denials, ASV had continued to attempt to get money to send to Ghana/Nigeria. Dr Zimmerman noted that ASV confabulated about her reasons for wanting money and had stated that she had family in Nigeria/Ghana. She had described a gold miner there who was her next of kin. ASV claimed that her daughter had recently been to Africa and had just returned.
According to information provided to the Tribunal in May 2015, a member of ASV’s family believed that the scamming was continuing as ASV had been demanding money from other people when put under pressure from the scammers.
By letter dated 27 August 2015, the Tribunal registry informed ASV that the report of Dr Lisle had been considered on two occasions at hearings by the Tribunal and other evidence had been preferred over the opinions of Dr Lisle. ASV was informed that unless other evidence supporting capacity was filed by 30 September 2015, her application would be considered for dismissal.
On 11 September 2015, the Tribunal received a health practitioners report by Dr Monica Gandus de Whitton. Dr de Whitton stated that ASV can operate two bank accounts and pays her bills on time. Dr de Whitton was unsure whether ASV could budget to preserve her assets and was unsure if she was being scammed. Dr de Whitton noted that ASV denies she is sending money to a friend she met online but Dr de Whitton made a comment that she considered there was a lot more information that she was not being told. Dr de Whitton stated that ASV does not understand or accept why restrictive measures have been put into place to protect her assets.
Dr de Whitton considered that ASV’s receptive communication is somewhat impaired. By way of conclusion, Dr de Whitton stated that ASV could not make simple or complex financial decisions due to a psychiatric disability.
Lastly, a report from Dr Peter Rofe, psychiatrist, dated 6 July 2015 was provided to the Tribunal. Dr Rofe had examined ASV on 18 June 2015. He set out a brief psychiatric history and noted that ASV wanted to manage her own money. He concluded that the present arrangements should stand, that she has a documented psychiatric illness, and that her denials that she is ever high or elevated in mood are unlikely. Dr Rofe did not endorse her wish to leave The Public Trustee of Queensland.
Evidence from medical witnesses is used to inform the Tribunal about a person’s decision-making capacity. The Tribunal determines whether a person has decision-making capacity by applying the definition of capacity found in the Guardianship and Administration Act 2000 (Qld). In essence, that definition provides that a person has capacity for decision-making if the person is capable of understanding the nature and effect of decisions about the matter, and of freely and voluntarily making decisions about the matter, and of communicating the decisions in some way.[1]
[1]Guardianship and Administration Act 2000 (Qld) sch 4.
The Tribunal had already considered the reports of Dr Lisle, Dr John and Dr Zimmerman at the hearing that was held on 15 May 2015 and had concluded that ASV did not have capacity for making financial decisions. Since that hearing, additional medical reports from Dr de Whitton and Dr Rofe had been filed that did not give support to a declaration being made that ASV had decision-making capacity for financial matters.
The Tribunal is not obliged to take all applications to an oral hearing. The Tribunal has the power to bring an early end to proceedings under s 47 of the QCAT Act if the Tribunal considers the proceeding is lacking in substance. The Tribunal has already held two hearings (December 2014 and May 2015) which considered the evidence of Dr Lisle who gave some support for a declaration of capacity. At both hearings, the Tribunal applied the definition of capacity and had concluded there was impaired decision-making capacity for financial matters. Another hearing based on the same evidence, together with more recent evidence that is not supportive of the outcome being sought by ASV, is not warranted. The application by ASV lacks substance. It is appropriate to dismiss that application under the provisions of s 47 of the QCAT Act rather than proceeding to a hearing with the current evidence.
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