HM v The Public Trustee of Queensland
[2012] QCATA 161
•22 August 2012
| CITATION: | HM v The Public Trustee of Queensland [2012] QCATA 161 |
| PARTIES: | HM |
| v | |
| The Public Trustee of Queensland |
| APPLICATION NUMBER: | APL137-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K O'Callaghan, A/Deputy President P Goodman, Member |
| DELIVERED ON: | 22 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The appeal is refused. |
| CATCHWORDS: | Appeal – guardianship – tribunal direction that the person the subject of the guardianship application obtain and file a report from a neuro-psychologist – evidence of lack of capacity – presumption of capacity – onus of proof for lack of capacity – ensure all relevant material before the Tribunal – Applicant’s failure to produce evidence of capacity Queensland Civil and Administrative Tribunal Act 2009, ss 3, 28, 29, 33, 47, 62, 127, 142(3)(a)(ii) BD [2010] QCAT 567 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Kerrie O’Callaghan, A/Deputy President
I have had the advantage of reading the reasons of Member Goodman, and I agree with these reasons, and the orders she proposes.
Pam Goodman, Member
Background
On 3 February 2012 The Public Trustee of Queensland (PTQ) lodged an application to be appointed as administrator for HM. The appointment was sought on a limited basis and related to decision making in respect of some $859,000 which HM was due to receive under the will of a late relative.
The PTQ lodged the application as executor of the estate of HM’s relative. The PTQ had separately been appointed as administrator for HM from 7 June 2001 to 25 May 2004.
On 4 April 2012, QCAT granted HM leave to be represented in this application, and issued a direction that “HM must file in the Tribunal a report from a neuro-psychologist, as to HM’s capacity for financial matters to be based on the definition of decision making capacity as defined by the Guardianship and Administration Act 2000.”
HM seeks leave to appeal against the direction, and, should leave be granted, to appeal against the direction being made.
HM submits that the Tribunal Member misdirected herself on the presumption of capacity and there was no evidence to support the decision.
Leave to Appeal
Pursuant to s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) leave is required to appeal in this case, as the decision is not a final decision in the proceedings.
Leave to appeal is ordinarily granted when there is some question of general importance that would benefit from having a decision of the Appeal Tribunal.
The appellant’s case is discussed in some detail below but is, in essence, that the applicant in a proceeding for the appointment of an administrator has the onus of producing evidence to establish that the adult who is subject of the application does not have capacity. It is submitted that that conclusion flows from the words contained in the application form produced by QCAT and the presumption of capacity contained in the legislation.
I am satisfied that this question is of general importance and would benefit from a decision of the Appeal Tribunal. Leave to appeal is granted.
The Appeal
The Application
QCAT has the power to appoint administrators pursuant to the provisions of the QCAT Act and the Guardianship and Administration Act 2000 (the GAA). The two Acts are complementary, and many of the provisions of one Act reflect the provisions of the other.
Section 81 of the GAA gives the Tribunal the function of considering applications for the appointment of administrators.
Applications are made under s 115 of the GAA and s 33 of the QCAT Act. An application must be in a form substantially complying with the rules, state the reasons for the application, and be filed in the registry.
The QCAT Rules 2009, provide that (rule 7) an application must be made in the approved form, or if there is no approved form, as provided for elsewhere in the Rules. In this case, an approved form has been used. The form states “The person filling out the form is also responsible for obtaining a current Report by Medical and Related Health Professionals for the tribunal” and “The tribunal may be unable to have a hearing without this current report.”
Capacity for the Matter
Section 12 of the GAA prescribes when QCAT may appoint an administrator for an adult. The threshold issue is that the Tribunal must be satisfied “the adult has impaired capacity for the matter”.
“Capacity for a matter” is defined in Schedule 4 to the GAA:
capacity, for a person for a matter, means the person is capable of—
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.
HM is due to receive an inheritance of approximately $859,000. In determining this application, the Tribunal must consider HM’s capacity for the “matter” of managing that sum.
Pursuant to s 7 and Schedule 1 of the GAA, adults are presumed to have capacity for a matter.
The GAA acknowledges in s 5 that:
a.an adult’s right to make decisions is fundamental to the adult’s inherent dignity;
b.the right to make decisions includes the right to make decisions with which others may not agree;
c.the capacity of an adult with impaired capacity to make decisions may differ according to—
(i) the nature and extent of the impairment; and
(ii) the type of decision to be made, including, for example, the complexity of the decision to be made; and
(iii) the support available from members of the adult’s existing support network.
QCAT’s Power to Issue Directions
Pursuant to s 28 of the QCAT Act, the Tribunal may inform itself in any way it considers appropriate, and must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
Similarly, s 130 of the GAA provides that, to hear and decide a matter in a proceeding, the Tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material. Further, the Tribunal may order a person to give information or material to the Tribunal.
Section 29 of the QCAT Act imposes a positive obligation on the Tribunal to ensure parties understand the functioning of the Tribunal, and the nature of assertions made in the proceeding and the legal implications of those assertions.
Section 62 of the QCAT Act empowers the Tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
Section 138 of the GAA empowers the Tribunal to give directions about a matter it considers appropriate.
Section 114 of the GAA specifically provides that “The Tribunal may direct a person to undergo examination by a doctor or psychologist in the ordinary course of the doctor’s medical practice or the psychologist’s practice...”
What Evidence is Before the Tribunal in Relation to HM’s Capacity?
Where the application form asks “What is the cause of the adult’s impaired capacity”, the applicant in this case states “uneducated, illiterate, and easily taken advantage of”.
The application form was not accompanied by any independent medical evidence as to HM’s capacity for the matter.
The Appeal
HM submits that the application was lacking in substance as it contained no evidence of a lack of capacity and therefore the applicant has not discharged the onus of rebutting the presumption of capacity. Further, it is submitted that the Member exceeded her power as there was no basis for making the direction referred to above.
Submissions by HM
HM submits:
a.The Member misdirected herself on the presumption of capacity, and failed to have regard to or apply the presumption. In many previous cases the Tribunal has brought proceedings to an early end pursuant to s 47 of the QCAT Act when the applicant has failed to provide medical evidence to support an application for the appointment of a substituted decision maker. That power should have been exercised in this case.
b.The failure of the Tribunal to apply s 47 of the QCAT Act consistently is contrary to the stated objects of the QCAT Act – s 3 of the QCAT Act states that the objects of the Act are, inter alia, to promote the quality and consistency of Tribunal decisions, and to enhance the quality and consistency of decisions made by decision makers.
c.The applicant has the responsibility for providing evidence to support its application, and the respondent should not have that obligation imposed upon him.
d.The applicant did not comply with the requirement “The person filling out the form is also responsible for obtaining a current Report by Medical and Related Health Professionals for the tribunal.”
e.There was no evidence to support the decision.
f.The direction imposes upon HM the burden of the cost of obtaining a medical report and defending the application. This implies that any applicant for an order for the appointment of an administrator could do so without justification or evidence, and impose upon the subject adult an obligation to produce medical evidence in order to appraise the Tribunal about capacity issues. That outcome effectively presumes that the adult does not have capacity until such time as he or she produces the evidence to demonstrate such capacity. This is contrary to the presumption of capacity and is inconsistent with previous decisions of the Tribunal.
g.The PTQ stands in an identical position as other applicants before the Tribunal and the same rules must apply. The PTQ must know the matters to be proved. It has not been compelled to produce evidence to support its application. In the absence of such evidence, the application should be dismissed pursuant to s 47 of the QCAT Act on the basis that without any evidence to rebut the presumption of capacity, the application was lacking substance.
h.The orders should be set aside and the application filed on 3 February 2012 should be dismissed with costs.
Submissions by The Public Trustee Of Queensland
The PTQ submits:
a.At the time the PTQ’s previous appointment as administrator was revoked HM was in receipt of a pension. At the 2004 hearing, the Tribunal advised the PTQ that should HM inherit assets in the future the PTQ should be vigilant to ensure that appropriate action is taken, as circumstances surrounding HM’s capacity to manage his financial situation may be different then.
b.The GAA acknowledges that the capacity of an adult to make decisions may differ according to the type of decisions to be made (including their complexity) and also existing support networks. In making an order, the Tribunal takes into account whether the matter is likely to involve an unreasonable risk to an adult’s welfare or property and whether the absence of an order will adequately protect the adult’s needs and interests (s 12 GAA Act).
c.HM is currently living in Nambour and is of no fixed address. The PTQ has discussed his welfare with a number of persons including HM himself, his advocate, various members of the community, and staff members of the PTQ in the Nambour area.
d.The PTQ (as executor and trustee of the will) cannot be satisfied at this time that he can receive a full and valid discharge if he pays the funds directly to HM. As the PTQ has been put on notice that there may be doubt as to HM’s capacity, he would not be acting in accordance with his duties under the Trusts Act 1973 if the funds were transferred to HM without further enquiry or directions.
e.The PTQ contacted a number of medical practitioners throughout the Nambour area in an attempt to procure information in relation to HM’s affairs but was unable to find any medical practitioner who had attended to HM.
f.The application was lodged to protect HM’s interests and to obtain an effective discharge as trustee.
g.The application was not lacking in substance and was reasonable and justified. Section 47 does not apply.
h.No costs order should be made against the PTQ. It is not in the interests of justice to do so. Any costs order would discourage trustees from making application to QCAT for fear of a costs order. Each party should bear their own costs.
Decision of the Tribunal
It is accepted that the PTQ does not hold any position of privilege with this Tribunal and that applications lodged by the PTQ must be dealt with in the same way as applications lodged by other applicants.
There is nothing in the legislation or Rules which compels an applicant to produce a medical or other report as to capacity before the Tribunal is able to proceed to consider an application. The form states that “The Tribunal may be unable to have a hearing without this current report”. That is a different position to that advanced by HM – that the Tribunal is unable to consider an application unless the applicant provides a medical report with the application.
The reference in the application form to the responsibility of an applicant to provide medical evidence applies to most cases that come before this Tribunal, where obtaining such a report is within the power of the applicant. In a case such as this where the applicant is unable to obtain such evidence, the Tribunal is required under the legislation to ensure that it has all relevant material available to it in order to make the best decision.
To comply with this requirement, QCAT has power to make directions it considers necessary, and, more specifically, the power to order or direct that a person undergoes examination by a doctor or psychologist.
The appellant’s submission misunderstands the function and process of the Tribunal, and the role of parties to applications for the appointment of a substituted decision maker. The Tribunal’s functions are different to the functions and procedures in a Court – Tribunal proceedings are not adversarial, but rather, inquisitive.
In an application for the appointment of an administrator, there is no onus on either party to prove its case. The Tribunal receives and (if necessary) gathers information to inform its decision making process and then issues a decision. It is not the case that an applicant in this jurisdiction prosecutes its application and the respondent defends himself from the claims. It is the case that the Tribunal must make a decision having regard to the best information available to it, and using all the tools available to ensure that it has the necessary information to reach the best decision.
Parties must be fully appraised of what assertions are being made, and what implications flow from the assertions. It is necessary, therefore, that reports and material that will inform the Tribunal’s decision are gathered at the earliest stage of the proceedings possible, and are available to active parties to the proceedings so that they are better able to assist the Tribunal in its deliberations.
HM asserts that this approach is inconsistent with that taken by the Tribunal in considering previous applications. He has referred to a number of cases in which s 47 of the QCAT Act was relied upon to bring proceedings to an early end on the basis that the application was lacking in substance. For example:
SI [2011] QCAT 218: The application was not accompanied by a medical report. The Tribunal wrote to the applicants advising that evidence regarding SI’s decision making capacity was required to be filed before the Tribunal could proceed with the consideration of the application. No response was received. The Tribunal found “No evidence has been received on which the Tribunal can make a determination about SI’s decision making capacity. The applicant’s failed to provide evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so.”
PJB [2011] QCAT 194: An application was lodged without an accompanying medical report. The Tribunal contacted the applicant on three occasions and “the applicant was advised that the Tribunal required a report...to assist the Tribunal in respect of determining PJB’s capacity for decision making.” Material held on the Tribunal file indicated that when PJB was well, he had full capacity. The Tribunal stated “The Tribunal is unable to consider the application in the absence of current health professional advice in respect of PJB’s capacity to make decisions about personal matters for himself. As the applicant has failed to provide this material, the Tribunal will now dismiss the application pursuant to s47 of the QCAT Act.”
CRD [2011] QCAT 19: An application was lodged without an accompanying medical report. The Tribunal contacted the applicant several times to request provision of a medical report. No response was received from the applicant. The Tribunal found “BC has not provided medical evidence about the decision making capacity of CRD and she has been informed that the tribunal was unable to proceed with the application until medical evidence capable of supporting a finding that CRD had impaired decision making capacity was provided.” The application was dismissed as it was found to be lacking in substance.
MAR [2010] QCAT 305: Medical evidence stated that the adult had full decision making capacity and the application was dismissed as it was lacking in substance;
MDR [2011] QCAT 2: The medical evidence available to the Tribunal did not reveal an incapacity and the application was dismissed as it was lacking in substance.
CAN [2010] QCAT 617: An application was lodged without an accompanying medical report. A relative later advised the Tribunal that they considered that the adult had capacity to make an enduring power of attorney. In the absence of medical evidence supporting a finding of incapacity, the application was dismissed as it was lacking in substance.
Other cases referred to are:
SS [2011] QCAT 3; WJS [2010] QCAT 603; WME [2010] QCAT 602; BD [2010] QCAT 567; GJD [2010] QCAT 524; HM [2010] QCAT 526; and CRL [2010] QCAT 462.
In some of these cases, medical evidence was provided that the adult did have capacity. In others, no or insufficient medical evidence was provided to the Tribunal regarding the issue of capacity, the Tribunal requested provision of the evidence, and the applicants provided neither medical evidence nor an explanation for the lack of medical evidence.
While QCAT has found that “The applicants have failed to provide the evidence to rebut the presumption of capacity despite being given an adequate opportunity to do so”, the published decisions reveal that in no case did the applicant provide an explanation for the lack of medical evidence, or indicate that it was outside of their power to provide such evidence. That is significantly different from the situation currently under consideration.
In this case, the PTQ previously managed HM’s funds as appointed administrator, and may be understood to have some (albeit institutional) knowledge of his capacity to manage his finances. There has been a recent significant change in HM’s financial position. The applicant has indicated that HM is “easily taken advantage of”. This raises concern as to whether HM is able to make decisions freely and voluntarily.
It is outside of the applicant’s power to provide a medical report in relation to HM’s capacity and the applicant has informed the Tribunal of that fact.
There is no legal requirement on the applicant to provide medical evidence regarding the capacity of an adult who is the subject of an application before QCAT. As a matter of practicality, it is more often than not the case that the applicant is best placed to obtain such evidence and provide it to the Tribunal. Where this is not possible QCAT has an obligation under the legislation to ensure that it has all relevant material before it, and that parties are fully appraised of evidence which will be considered in proceedings. If it is not possible for an applicant to provide such a report, the Tribunal is empowered and required to obtain such evidence itself.
The Tribunal is further obligated to take quick action to gather such evidence at the earliest stage in proceedings to meet the objects of the QCAT and the GAA Acts.
The direction was made at a directions hearing. The evidence before the Tribunal was that an application had been lodged by an executor of an estate who had previously been appointed as an administrator for HM. The executor had doubts as to HM’s capacity to manage a large sum of money and so lodged the application. The application, on its face, contained insufficient evidence to rebut the presumption of capacity but was sufficient to satisfy the member that further evidence was required.
The member has acted as required by the legislation to ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. The direction does not displace the presumption of capacity, and is consistent with previous QCAT decisions.
The appeal is refused. Pursuant to s 100 of the QCAT Act, each party will bear their own costs.