LMS
[2011] QCAT 664
•15 December 2011
| CITATION: | LMS [2011] QCAT 664 |
| PARTIES: | LMS |
| APPLICATION NUMBER: | GAA3221-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Professor A Ashman, Member E Morriss, Member |
| DELIVERED ON: | 15 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | LMS does not have capacity to defend the proceedings pending in another jurisdiction. |
| CATCHWORDS: | Decision-making capacity – proceeding in another jurisdiction Guardianship and Administration Act 2000, s 7 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers.
REASONS FOR DECISION
The adult and two other parties engaged a legal firm to undertake work for them between 1996 and 1999. The work was valued in excess of $200,000 and the firm is seeking payment from their former clients. It appears that the adult is the only one of that client group presently living in Australia and the law firm has taken action in another jurisdiction to recover its expenses.
The adult has a long history of mental illness and the other jurisdiction referred the matter to the Queensland Civil and Administrative Tribunal on 23 February 2011 to determine the adult’s capacity to defend the proceedings pending in the another jurisdiction.
Attendance
The adult contacted the Tribunal’s registry on the morning of 15 December 2011. She informed the registry staff member that she had misplaced the Notice of Hearing sent to her and was in a highly stressed condition. She stated that she did not wish to attend the hearing due to her stress level, and that she had just come from hospital. She was invited to attend the hearing by phone, but declined saying that she was experiencing difficulties with her telephone.
As the matter was awaiting consideration by another jurisdiction and the Tribunal had a substantial volume of medical evidence already available to it, the Tribunal was not inclined to adjourn the matter into 2012. The Tribunal was satisfied that the adult had been given Notice in accordance with s 118 of the Guardianship and Administration Act 2000 and that the adult had elected not to appear.
On review of the file, the Tribunal attempted to join psychiatrist, Dr FJ, to the hearing by phone but this was unsuccessful. The Tribunal decided to proceed with hearing the matter on the written evidence available to it.
The adult’s medical history
The adult has a long history of mental health difficulties. She was first diagnosed with an episode of major depression with psychotic and melancholic features in 2004. Since that time, she has had a number of episodes of depression with psychotic features requiring in-patient psychiatric treatment. Her condition over the past seven years as reflected in medical reports and discharge summaries suggests that she continues to experience depression and mental health symptoms. These symptoms are aggravated by stress and also cause impairment in her capacity to engage with any form of employment.
In coming to its decision about the adult’s capacity, the Tribunal has given significant weight to a number of health professional reports. A neuropsychology report by CJ indicates that the adult was functioning within the borderline range that was below her premorbid intellectual ability at the time the report was prepared, that is, 17 March 2006. The adult was reported to have difficulties with learning and memory, and widespread deficits involving all aspects of cognitive functioning. CJ reported that the adult would have difficulties with problem-solving and making complex decisions that involve consideration of multiple issues. CJ also noted that the adult might even have problems with simple decisions.
CJ reassessed the adult on 4 April 2008. In that report CJ wrote that the adult had demonstrated some improvement since the initial assessment but continued to show evidence of difficulties with learning, processing of information, attention and concentration, abstract reasoning, and flexibility in thinking. CJ again expressed the view that the adult would find complex decisions overwhelming and would require decision-making assistance.
Dr FJ has treated the adult as her psychiatrist since 2004. There are several reports and letters from Dr FJ in the Tribunal’s file.
[10] Dr FJ has consistently expressed concerns about the adult’s mental health symptoms, cognitive functioning, and capacity to provide instruction and participate in legal proceedings. He writes particularly about the impact of her ongoing depression. In his report of 10 May 2010, Dr FJ stated that the adult’s thought processes are incoherent and logically disconnected. Her attention and memory have remained very impaired. In his opinion, the adult would not handle the stress of legal proceedings and her cognitive impairment would make recollections of events that occurred over a decade ago very unreliable.
[11] In a report dated 1 June 2011, Dr FJ noted improvements in the adult’s condition following her hospitalisation in November 2010 and that she would be capable of giving instructions to legal representatives. He noted, however, that despite her mental health gains, the stress of a trial would overwhelm her during a vulnerable stage of her rehabilitation.
[12] The Tribunal also has available records from a hospital written over a number of years. These confirm Dr FJ’s diagnoses and the extensive history of chronic mental health symptoms that have required treatment.
Tribunal’s decision
[13] While the Tribunal’s file is replete with medical documentation, there is scant evidence of the adult’s current mental health condition. In coming to its decision, the Tribunal has taken into account the adult’s chronic mental health condition that does not appear to be especially responsive to treatment. It has noted that the adult has been subject to an Involuntary Treatment Order. The most recent communication with the registry (on the morning of the hearing) suggests that the adult continues to experience considerable stress when faced with legal, or in the present case, quasi-legal proceedings.
[14] The Tribunal is satisfied that the adult has a chronic mental condition that affects her cognitive functioning. The Tribunal is required to base its findings on capacity as given in Schedule 4 of the Guardianship and Administration Act 2000. It is questionable that the adult is currently able to understand the nature and effect of decisions relating to the legal proceedings before another jurisdiction. The matter before the other jurisdiction relates to work undertaken for the adult and two other parties over the period 1996 and 1999. The proceedings before the other jurisdiction commenced in 2003. Dr FJ’s comments appear pertinent here. The adult’s cognitive deficits, specifically her attention and memory deficits, would defeat her cognizance of the significance of the matters that are likely to be presented to the other jurisdiction. The Tribunal is not confident that she could engage in those proceedings and provide accurate information or instructions in any useful way.
[15] It is also questionable that the adult’s mental health condition and her cognitive impairment would allow her to make decisions freely and voluntarily. CJ wrote of inflexible thinking and the consequences of chronic depression and elevated stress. These are likely to compromise considered deliberation of matters put to her during any proceedings.
[16] It is not clear to the Tribunal whether the adult can communicate decisions that she currently makes or might make about any legal proceeding in an effective way. The interaction with the registry staff member suggests some disorganised thought processes, and this is consistent with the views of her treating psychiatrist, Dr FJ. Without her attendance at the hearing it is not possible to judge her communication capabilities.
[17] In summary, the Tribunal is satisfied that the adult has well documented chronic mental health symptoms and significant cognitive impairments. There is no evidence before the Tribunal to suggest that she is capable of lucidly instructing legal representatives or defending the proceedings pending in another jurisdiction. On that basis, the Tribunal finds that the presumption of capacity under s 7 of the Guardianship and Administration Act 2000 is rebutted in regard to the adult’s capacity to defend the proceedings pending in another jurisdiction.
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