HS

[2011] QCAT 616

CITATION: HS [2011] QCAT 616

PARTIES: HS

APPLICATION NUMBER:   GAA4264-11 / GAA5730-11 / GAA7636-11 / GAA7637-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE:     9 September 2011

HEARD AT:  Brisbane

DECISION OF: E Morriss, Presiding Member
L Clarkson, Member

DELIVERED ON: 9 September 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1. The Tribunal orders that pursuant to s 107(1)(b) of the Guardianship and Administration Act 2000 MB is excluded from the hearing of applications in relation to HS taking place on 9 September 2011.

2. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 the following information/documents are confidential, that is, the recording or transcript of the Tribunal hearing for HS on 9 September 2011, and must not be disclosed to the following organisations:

(a)  Workcover Queensland;

(b)  Global Construction;

(c)  WACO Kwikform Ltd;

(d)  McGrath Corporation Pty Ltd;

(e)  Or any agents of the above.

3.    HS has capacity to instruct legal representatives in the prosecution of a claim for permanent injury arising out of a workplace incident on 12 July 2006.

4.    The application for the appointment of an administrator for HS is dismissed.

CATCHWORDS: Guardianship – capacity – limitation order – confidentiality order

REASONS FOR DECISION

1. On 31 May 2011 the Queensland Civil and Administration Tribunal received an application from Ms LS, Solicitor for HS for a Declaration of Capacity.

1. The application was initially heard on 29 July 2011 on the papers, and adjourned with directions provided to parties.  It was heard again on 9 September, 2011.

2. The Tribunal on its own initiative initiated an Application for the Appointment of an Administrator which was also heard on 9 September, 2011.

PRELIMINARY MATTERS

1. At the beginning of the hearing NP sought leave to represent Everingham Lawyers.  The Tribunal consulted with the other parties at the hearing, particularly HS and his sister MK.  They strongly objected to leave being granted, as in the first instance HS did not have legal representation and was not aware it was necessary, and secondly they believed that a legal firm such as Everingham Lawyers should be quite capable of representing their own views.

2. The provisions for representation are provided in the Queensland Civil and Administrative Tribunal Act 2009, section 43(1) which states that the main purpose is to have parties represent themselves unless the interests of justice require otherwise.

3. In the circumstances the Tribunal found there were no circumstances which might justify representation.  There were no complex matters of fact or law to be determined, and no other parties were represented.  Leave was therefore not granted for NP to represent Everingham Lawyers.  NP agreed (with the approval of all parties) to remain in attendance at the hearing in the capacity as a “friend of the Tribunal”.

SHOULD THE TRIBUNAL MAKE A LIMITATION OR CLOSURE ORDER?

1. At the commencement of the Tribunal hearing, the parties became aware that MB, a solicitor for Global Construction, one of the respondents in the adult’s Workcover claim, sought to attend.  In questioning him regarding his attendance he indicated that his obligations were to his client, and that in listening to the evidence he sought any inconsistencies in evidence that might provide some forensic advantage to his client.  He considered since all of the evidence regarding HS’s medical history and current circumstances was disclosable as part of litigation, that his presence did not impact on HS’s privacy. 

1. Under section 107 of the Guardianship and Administration Act 2000 the tribunal may exclude a person from a hearing, or part of a hearing if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person.  The terms “serious harm” and “injustice” are not defined in the Guardianship and Administration Act 2000.

1. The former Guardianship and Administration Tribunal has determined that “serious harm” would mean physical or psychological injury, whether temporary or permanent, that endangers, or is likely to endanger human life, or is likely to be, significant and longstanding. That explanation of what would be accepted as constituting serious harm appears appropriate when considering whether to grant a limitation order according to section 107 of the Act. The Tribunal must also weigh up the obligations of section 105 of the Act, which says that hearings must be in public.

2. All parties, including HS and his family objected strongly to MB’s presence, and concerns were raised regarding any disadvantage that might be suffered to HS as the result of him participating in the hearing and providing information about his personal circumstances, including his mental health issues.  His motivation to seek a forensic advantage for his client would likely constrain the responses of HS and his participation, and the Tribunal may not obtain the evidence it requires to make a decision about capacity.  An adult with impaired capacity has the right to support in participating in the Tribunal hearing; if their participation is constrained by the presence of others and the potential threat of disadvantage to them, this is not satisfactory.  Further, should HS provide information to the Tribunal that was used in another context to the detriment of HS’s compensation claim, this would also be consistent with serious harm or injustice.

3. The Tribunal was of the view that it was not appropriate that MB attend the hearing and made a closure order.  MB left the hearing.

1. The Tribunal considered that it may be possible for MB, or for other parties involved in HS’s litigation to obtain from the Tribunal copies of the recordings of the hearing and transcript of recording which is typically available to those who request them. This access would negate the effect of a closure order under section 107 of the Act. The Tribunal determined that the only option in the circumstances to give effect to the decision and necessary to ensure that HS suffered no serious harm or injustice was to also make a confidentiality order under section 109 of the Act, restricting access to the recording or transcript to organisations involved in his litigation.

2. The Tribunal therefore ordered that information/documents are confidential, that is, the recording or transcript of the Tribunal hearing for HS on 9 September 2011, and must not be disclosed to the following organisations:

   (a)Workcover Queensland;

   (b)Global Construction;

   (c)WACO Kwikform Ltd;

   (d)McGrath Corporation Pty Ltd;

   (e)Or any agents of the above.

DOES HS HAVE CAPACITY TO PROVIDE LEGAL INSTRUCTIONS?

1. The Tribunal must consider whether HS has capacity for decision-making about his matters.  There is a presumption at law that all adults have the capacity to make their own decisions.  The application received from LS (Solicitor) asked the Tribunal to consider whether HS had capacity to provide instructions in regard to an application for compensation for a workplace incident/injury.  The application referred to a history of psychiatric issues and a diagnosis of schizophrenia, initially diagnosed in 2007.  HS had been instructing Everingham Lawyers to act in relation to a claim for personal injuries.  He had recently and abruptly withdrawn his instructions without reason, and would not enter into discussions regarding the matter, and they were concerned that his behaviour was related to his mental health issues.  Given HS’s psychiatric condition and lack of regular care, medication and treatment LS held concerns regarding his capacity and judgement, and wished to determine whether his instructions to cease acting were valid.

1. The Act defines capacity as: “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.

1. The Tribunal considered a number of health professional reports about capacity.

2. A report from Dr Chris Cantor, Psychiatrist, dated 29 October 2010 was available.  He refers to a diagnosis of schizophrenia and psychoses.  HS has an antisocial personality disorder, pre-existing but exacerbated by his injury.  He has degenerative pathology in both knees with a torn meniscus in the left knee.  He has a loss of occupational, recreational, and domestic capacity and financial disadvantage.  His orthopaedic knee complaints as well as his pre-existing psychological attributes contribute to his work incapacity.  His opinion is that HS has capacity to provide instructions to his legal advisors in relation to his claim for damages.  He would have capacity for making most relevant decisions but is at great risk of squandering any compensation settlement on gambling and possibly substance abuse.  The risk of him squandering a settlement is such that he would recommend his affairs be managed by the Public Trustee.

3. A supplementary report was provided by Dr Cantor on 21 March 2011.  He had been asked to comment specifically on capacity, and indicated that the issue depended on whether HS’s decision (to withdraw instructions), arose out of his personality attributes or due to his psychotic illness.  He discussed the possibility that HS’s recent decision may related to a combination of the usual frustrations associated with pursuing litigation combined with personality attributes.  He did not have enough evidence to be able to confidently assert whether HS’s decision relates primarily to personality attributes or to psychotic illness.  If it were the former it would be proper to respect his instructions.

4. A medical report from Dr Greg Reading (General Practitioner) of 15 May 2011 describes a diagnosis of schizophrenia and osteoarthritis.  In respect of health, lifestyle and financial decision making, HS is capable of making independent decisions and totally appreciates the consequences.  He is capable of making decisions freely and voluntarily.  He can make simple and complex decisions and has capacity to understand all of the required elements of an Enduring Power of Attorney.

5. The Tribunal spoke directly to HS.  He indicated that he had an injury at work in 2006.  He described frustrations associated with his Workcover Claim and contact with Everingham Solicitors.  He had asked for updates regarding his case and contact from his solicitor, LS.  He had requested information about the legal fees he owed and this was not provided to him.  The solicitor did not return his phone calls and this upset him.  He was frustrated and felt that they were not looking after his best interests.  He had tried talking about his concerns but his solicitor LS was always busy and did not return any of his phone calls over a period of many months.  He telephoned the solicitors and “sacked” them.  He described himself as an impatient person with a “foul” temper.  In summary HS was able to provide the Tribunal with a cogent and reasonable explanation regarding his legal matters, and the circumstances whereby he withdrew instructions from his solicitors.

6. In considering the evidence regarding capacity, the medical reports, of Dr Chris Cantor (29 October 2010) and Dr Greg Reading (15 May 2011) both describe diagnoses of schizophrenia, but indicate that HS has the requisite capacity to make decisions about his personal and financial matters.  Dr Cantor believed HS had capacity to give instructions to his legal representatives.  The report from Dr Cantor of 21 March 2011 is equivocal and discusses whether HS’s decision to withdraw instructions is consistent with his pre-morbid personality or his mental health condition.  In the event it is related to his personality, his decision should be respected.  The Tribunal found HS’s account of his concerns about his legal matters was logical and reasonable.  He was frustrated and unhappy with the services provided to him.  He is a man with a “foul” temper who is impatient.  He may have been somewhat rude and tactless in the way he “sacked” his legal representatives, but in his view he had good reasons to do so.  On the balance of probabilities, the Tribunal is satisfied that the presumption of capacity is not rebutted, and that HS does have the capacity to make decisions about his legal matters.

1. The Tribunal made findings of fact about capacity as follows:

a.HS is a man who has diagnosed schizophrenia, with episodes of psychosis requiring treatment;

b.HS has been diagnosed with anti-social personality traits and behavioural difficulties;

c.   He has a history of alcohol and substance use;

d.He has been able to demonstrate an understanding of his legal matters associated with his workplace injury claim, and has the capacity to understand the nature and consequences of decisions regarding legal matters;

e.   HS has capacity to instruct legal representatives.

1. In the circumstances the Tribunal made orders to the effect that HS has capacity to instruct legal representatives in the prosecution of a claim for permanent injury arising out of a workplace incident on 12 July 2006.

DOES HS REQUIRE AN ADMINISTRATOR?

1. The Tribunal had initiated an application for the appointment of an administrator, in the event of a finding that he did not have capacity for financial matters, including providing legal instructions.  Given that the Tribunal found HS had capacity to instruct legal representatives, there was therefore no authority on which to appoint an administrator.

2. HS manages his day to day finances independently.  Should his circumstances change and he receive compensation, and also require assistance with management of financial matters, a further application could be brought to the Tribunal.  In the interim, HS has good family support from his mother, who attended the hearing, and from his sister, who has training and skills in financial management and indicated willingness to provide assistance to him.

3. The Tribunal made an order dismissing the application for the appointment of an administrator.