GLP

[2010] QCAT 32

CITATION:      GLP [2010] QCAT 32

PARTIES:   GLP

APPLICATION NUMBER:            GAA2247-09

MATTER TYPE:    Guardianship and administration matters

HEARING DATE:   13 January 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   13 January 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application dismissed

CATCHWORDS: Early end to proceedings – section 47 Queensland Civil and Administrative Tribunal Act 2009 – application lacking substance

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. On 1 December 2005 the Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for GLP (the adult) for managing an award of damages made pursuant to an order of the Supreme Court of Queensland in 2005. 

2. An application was made to the Tribunal on 14 April 2009 by GLP seeking a declaration that he had capacity to make financial decisions including the capacity to manage the funds recovered by way of damages.   

ISSUES AND THE LEGISLATION

1. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Guardianship and Administration Tribunal. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the Tribunal power to bring a proceeding to an early end if the Tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.

2. When considering whether the appointment of an administrator should continue, the Tribunal is required by the Guardianship and Administration Act 2000 to determine whether the adult has impaired decision making capacity about the matter.    

3. Section 5 of the Guardianship and Administration Act 2000 acknowledges that the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent. General Principle 1 in the Schedule to the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions and General Principle 7 requires the Tribunal to take into account the importance of preserving, to the greatest extent possible, an adult’s right to make his or her own decisions.

EVIDENCE

6. The applicant provided a medical report from Dr BN when lodging his application for a declaration of capacity.  In that report Dr BN stated that GLP had no current medical conditions that affected his decision making capacity.  Dr BN responded with the notation “not applicable” to questions in the report form as to whether any cognitive assessments had been performed on GLP and as to whether there were any reports available from other health professionals related to GLP’s decision making capacity. 
7. Dr BN did not complete the question in the report form as to whether GLP could understand and act on information relevant to decision making about his financial affairs and whether GLP could appreciate the consequences of his decisions. 
8. In the part of the report form that summarises the doctor’s opinion as to capacity, Dr BN indicated that GLP could make simple decisions about his financial affairs but did not indicate whether GLP could or could not make complex decisions about his financial affairs.      
9. A staff member from the registry of the Tribunal wrote to Dr BN on 16 April 2009 and asked for a completed report and for copies of any tests or assessments of GLP’s cognitive capacity that had been conducted to assist the Tribunal to make a determination about GLP’s capacity to control his own finances.
10. A similar request was sent to TK of the adult’s local hospital on 16 September 2009 asking for her assistance to have Dr BN complete his report and to return the completed report to the Tribunal. 
11. No responses were received from either Dr BN or TK.  The medical report is still incomplete. 
12. Prior to the hearing by the Guardianship and Administration Tribunal in 2005, extensive medical evidence had been provided that established that GLP had a profound disruption of his cognition and that he had a moderate level of intellectual impairment.  The medical evidence established that GLP would not be able to execute tasks demanding critical and deductive thinking and that fiscal management was likely to be beyond his capabilities.   The report by Dr BN failed to address or even acknowledge any of the capacity issues established by the earlier medical reports. 
13. A staff member from the registry of the Tribunal wrote to the applicant by letter dated 14 December 2009 informing him that the application was not accompanied by a report by a medical health professional that would assist the Tribunal to make a determination on his decision making capacity. 
14. The applicant was informed by that letter from the Tribunal that his application for a declaration of capacity would be considered for dismissal unless medical evidence supporting his application was provided within three weeks of the date of the letter.  
15. No further information has been provided by the applicant. 

CONCLUSION

16. The medical evidence relied on by the Guardianship and Administration Tribunal in 2005 was extensive and contained a variety of opinions and assessments about GLP’s cognitive capacity.  The medical report prepared by Dr BN in 2009 did not refer to any previous medical assessments and appears to contain an opinion as to capacity that was not informed by resort to the opinions of medical staff involved in assessment of GLP’s capacity prior to 2005.  Dr BN does not refer to the head injuries sustained by GLP in 1992 or to an acquired brain injury secondary to that injury.  The Tribunal finds that Dr BN’s report about GLP’s capacity to make his own financial decisions is incomplete and of little assistance to the Tribunal.    
17. The Tribunal finds that there is insufficient information to support proceeding with the application for a declaration of capacity. 
18. In view of that finding, the Tribunal considers that the application is lacking in substance and under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application should be dismissed.