KJE - [2013] QCAT 487

CITATION:

KJE [2013] QCAT 487

PARTIES:

KJE

APPLICATION NUMBER:

GAA1084-13
GAA2109-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

29 August 2013

HEARD AT:

Hervey Bay

DECISION OF:

Aaron Suthers, Member

DELIVERED ON:

18 September 2013

DELIVERED AT:

Hervey Bay

ORDERS MADE:

1. That the application for the review of the appointment of an administrator for KJE is dismissed.

2. That KJE does not have capacity for the financial matter of managing her award of damages pursuant to the Order of the Supreme Court of Queensland dated 4 August 2010.

3. That the appointment of the Public Trustee of Queensland as administrator for KJE for the following financial matter only, being managing KJE’s award of damages made pursuant to the Order of the Supreme Court of Queensland on 4 August 2010, remains operative.

CATCHWORDS:

Capacity – ability to communicate decisions – ability to make decisions freely and voluntarily

Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

KJE

KMJ  Mother
Nelson Marks  from the Public Trustee of Queensland
Cheryl Faranden                 from the Public Trustee of Queensland
Jennifer Waldon                 representing the Public Trustee of Queensland

REASONS FOR DECISION

Miss KJE is a 25-year-old lady who has cerebral palsy and spastic quadriplegia, related to the poor management of pre-eclampsia before her birth. Her mother, Mrs KMJ is her full-time carer who has advocated for her throughout her life.
Mrs KMJ also acted as litigation guardian for KJE in Supreme Court proceedings related to KJE’s personal injury arising from the management of pre-eclampsia during her pregnancy with KJE. That proceeding was resolved by agreement in 2010. The agreement was sanctioned by the Supreme Court, which made an order that KJE's damages be managed by the Public Trustee of Queensland. The Public Trustee currently manages over $1.7 million on KJE's behalf.
Despite consenting, on KJE's behalf, to orders that the Public Trustee manage KJE’s damages, Mrs KMJ maintains that KJE has the capacity to manage her award. She says that there was a denial of due process in the decision that KJE's damages be managed on her behalf.
Mrs KMJ brought an application to the Tribunal asking for a review of the appointment of the Public Trustee as administrator for KJE's damages. It was apparent though that what she in fact sought was a declaration that KJE has capacity and so does not require an administrator. To ensure that all relevant matters were able to be considered at the hearing the Tribunal initiated a review of the appointment of the Public Trustee of Queensland and heard the application for a declaration of capacity sought by Mrs KMJ.
At the hearing, Mrs KMJ confirmed that she had no complaint about the current management of KJE's damages. While she maintained her concern about how the Public Trustee was appointed in 2010 she did not, in her application or at the hearing, propose herself as administrator or suggest that the Public Trustee of Queensland was no longer appropriate or that there was another person more appropriate to be appointed as administrator.[1] She agreed that the application for review of the administration, initiated by the Tribunal, ought to be dismissed with her consent. The Tribunal will do so.
[1] Guardianship and Administration Act 2000 (GAAA 2000) s 31(4).
The Tribunal must then determine KJE's capacity for financial matters. KJE was presumed to have capacity at the outset of the hearing. The presumption remains in her favour unless and until the Tribunal receives sufficient evidence to satisfy it that her capacity is impaired.[2]
[2] GAAA 2000 Schedule 1.
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.[3]
[3] GAAA 2000 Schedule 4.
Capacity is decision specific, and so the Tribunal needs to consider the nature of the decisions KJE may be required to make. Given the limited nature of the current administration Order the Tribunal restricted its consideration to KJE's capacity relating to the management of her damages. Many decisions around this issue are complex in nature, given the significant amount under administration.

Mrs KMJ believes that KJE can understand the nature and effect of any decisions she is required to make. She bases this on her own knowledge of KJE, together with comments made by KJE's former schoolteacher to the effect that KJE could have been educated in mainstream schooling rather than the special school she attended. She also relies on views expressed by KJE’s former school counsellor. He said that KJE did not have an intellectual impairment and was significantly more able to make meaning out of verbal information rather than visual information.
This view of KJE's cognitive function was inconsistent with all of the relevant medical evidence, which was relied on by Mrs KMJ in the conduct of KJE's personal injury litigation and concluded that KJE has a “mild” intellectual impairment. Dr Salzman opined that KJE had an IQ of 50 – 69, in the mildly mentally retarded range. Dr Salzman’s opinion was based on a composite of verbal and visual spatial testing.
Mrs KMJ questioned the reliability of the doctors’ opinions, based on a number of factors including the limited time allowed for testing and what, in her view, was an overreliance on visual testing which did not appropriately account for KJE's restricted vision.
The last of the relevant medical reports were completed in 2003 when KJE was 15. Whilst Dr Salzman noted at that time that it was unlikely that KJE's cognitive function would develop in the future, the reports without more, given the valid concerns raised by Mrs KMJ, may not be sufficient to rebut the presumption of capacity. Certainly, serious doubts are raised in the reports about KJE’s ability to understand the nature and effect of what are, relevantly, complex financial decisions. If there was no other basis upon which the Tribunal could determine the matter the Tribunal would seek further, updated, medical opinion preferably focused on testing which appropriately considered KJE's restricted vision.
The ability to understand the nature and effect of decisions, though, is only one part of the test of capacity. A person must also be able to make decisions freely and voluntarily and communicate their decisions in some way.
Reports about KJE indicate that she is able to use “yes” and “no” reliably to indicate an answer to questions she is asked. Her mother says that she has also, on occasion, used “oh my god” and “OK”. KJE uses no other words but her mother is able to interpret some further meaning from KJE’s expression and movements when she responds to questions. KJE uses the lack of a positive response to indicate that she needs more information or has not made a decision. She does not use a communication board or other assisted communication device other than by pointing to objects marked “yes” or “no”. The Tribunal observed that it would not be a simple matter for someone who had not had the opportunity to build rapport with KJE to understand her verbal responses.
In these circumstances KJE’s mother is best placed to communicate with KJE and interpret KJE's responses. KJE is reliant upon her mother, in a practical sense, to communicate her decisions which go beyond the making of simple choices.
The Tribunal must determine whether, applying the presumption that KJE can understand the nature and effect of her decisions, her ability to communicate is sufficient to satisfy the other requirements of the test of capacity for making complex financial decisions. It is necessary to consider whether the process as a whole which KJE utilises is sufficient to overcome the inherent difficulty posed by the limitations in her verbal and non-verbal communication.
KJE can only communicate her decisions effectively if the process which she is required to utilise, of having her mother ask pertinent questions and consider her responses, is reliable and accurate. Whilst the legislation requires only that KJE be able to communicate her decisions in some way, the Tribunal is satisfied that the method of communication must be effective, reliable and accurate in order to ensure that what is communicated is truly KJE’s decision. Where decisions are more complex than a simple choice, which can easily be communicated by a yes or no, the Tribunal must consider the issue in the context of how more complex decisions may be communicated.
It is also necessary, given KJE’s reliance upon her mother, to consider whether KJE is able to make decisions freely and voluntarily.
For KJE to make decisions she must have access to the relevant information upon which the decision should be based. KJE is unable to read and is therefore wholly reliant, on a day to day basis, on her mother to read to her any information contained in documents which she would need to consider before making a decision.
As is common in these matters the Public Trustee of Queensland had obtained a statement of advice from a financial planner. Mrs KMJ, acknowledging KJE’s inexperience in making complex financial decisions, confirmed that KJE would be likely to take a similar course if she was found to have capacity.
It was instructive for the Tribunal to consider, on a practical level, how KJE would obtain the necessary information from such a document and communicate the decisions she was required to make.
In practice, it would fall to Mrs KMJ to read the document to KJE, to ascertain whether there were any parts of the document KJE did not understand, to explain those parts of the document and then to question KJE about the decisions which needed to be made. This would have to be done in such a way as to provide KJE with the opportunity to navigate these issues using yes or no responses.
At the Hearing, Mrs KMJ was unable to demonstrate an understanding of this process. Rather than consider the process and how it could be put into effect, she would instead refer back to overarching, simplistic responses she says she had already adopted in consultation with KJE such as “we’re not high risk people”.
Mrs KMJ is a passionate advocate for her daughter. She was, however, difficult to engage in the hearing process. Even allowing for some nervousness or superimposing view on her part that she cannot obtain justice for KJE, her presentation in the hearing left the Tribunal with no confidence in her ability to assist KJE in the process outlined above.
Mrs KMJ also had difficulty asking pertinent questions of KJE in a way that KJE could effectively and reliably indicate her responses to. To assist the Tribunal in understanding how she communicates with KJE and obtains her views, Mrs KMJ was asked to demonstrate how she would satisfy herself and the Tribunal that KJE understood the amount of her income from her damages. KJE’s income had been discussed earlier in the Hearing.
Her response was to ask KJE "Do you understand that we go to town with a budget and we know we don't overspend and we save up for the large electricity bill that we put aside, we see nice clothes that my sweetie would like to buy and we purchase that we have the clothing allowance that we have to buy clothing…" and went on "does mum go and buy things with your money that I shouldn't be buying". Quite apart from the fact that none of these questions went to the issue; Mrs KMJ did not pause for a response from KJE and asked the questions in a continuous, rambling fashion which would make it difficult for anyone to communicate a response. Mrs KMJ confirmed that this is the way she normally communicates with her daughter. She was confident it was not confusing for KJE.
Mrs KMJ’s inability to recognise the relevant questions for KJE to consider and lack of appreciation of the need for KJE to respond to each question she is asked, so as to direct the next question, does not enable KJE to reliably and accurately communicate her decisions about complex matters.
When considering someone's ability to communicate their decisions in some way the Tribunal is obliged to investigate the use of all reasonable ways of facilitating communication including, for example, the use of symbol boards.[4]
[4] GAAA2000 s 146(3).
KJE had used a communication board with some success whilst at school but has not had ongoing use of a communication board in the last decade. KJE has shown an interest in the use of alternative means of augmented communication including by the use of what was described by Mrs KMJ in the hearing as a Dynamax machine. The Public Trustee of Queensland had arranged a referral for KJE to their occupational therapist who had in turn recommended a speech pathologist in KJE's local area to trial such a device. Unfortunately one was not able to be sourced. Mrs KMJ was advised of this several months ago. She intends to seek further assistance through the Cerebral Palsy League to obtain a Dynamax machine for KJE but her focus on preparation for the hearing and issues around her concerns about the Supreme Court litigation three years ago meant that she had not done so.
When it was suggested by the Tribunal that the hearing might be adjourned until KJE had the opportunity to trial such a device and communicate more effectively, Mrs KMJ indicated that there would be no benefit as KJE would still be reliant upon her to input the relevant information into the machine and could be seen to have capacity from her yes and no answers.
Mrs KMJ speaks almost universally in the plural ("we") when asked what she thinks, or what she understands to be KJE’s views. She appears to be unable to separate her views from KJE’s. When pressed by the Tribunal to provide an answer to questions on her own behalf, she was mostly unable to do so. The Tribunal cannot be satisfied on this basis that KJE can make decisions freely and voluntarily given the significant reliance she has on her Mother and Mrs KMJ’s inability to distinguish KJE’s views from her own and to objectively allow KJE to form her own views.
KJE is, at present, totally reliant upon her mother to allow her to make decisions freely and voluntarily and communicate complex decisions. Given the limitations in this process referred to above the Tribunal is satisfied that KJE has impaired capacity for the matter of managing her damages award.