MC
[2010] QCAT 677
•2 December 2010
| CITATION: | MC [2010] QCAT 677 |
| PARTIES: | MC |
| APPLICATION NUMBER: | GAA8819-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 2 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member and E Morriss, member |
| DELIVERED ON: | 2 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for appointment of a guardian is dismissed |
| CATCHWORDS : | GUARDIANSHIP – whether capacity to proceed with legal proceedings - whether need for guardian for conduct of legal proceedings |
APPEARANCES and REPRESENTATION (if any):
MC appeared on his own behalf at the hearing. MW, an interested party, also attended the hearing.
REASONS FOR DECISION
On 7 May 2008 the Guardianship and Administration Tribunal appointed an administrator for MC for two years for managing legal matters relating to his financial or property matters. Specifically the appointment related to two claims made by MC in which he was seeking damages for personal injuries arising out of accidents that had occurred on 15 December 2002 and 12 February 2005.
In reaching the decision to appoint an administrator for MC, that tribunal made findings that MC most likely has schizophrenia, he was not being treated for any mental illness, he does not accept that he has a mental illness, he demonstrated an inability to resolve his legal proceedings and his condition impacted on his ability to progress his matters to a conclusion. That tribunal found that MC had impaired capacity for proceeding with his damages claims.
From 1 December 2009 the Queensland Civil and Administrative Tribunal (the tribunal) was established by the Queensland Civil and Administrative Tribunal Act 2009 and has responsibility for making appointments of substitute decision makers such as guardians and administrators under the Guardianship and Administration Act 2000.
The appointment of the administrator for managing legal matters relating to financial or property matters was continued by the tribunal on 6 May 2010 for 12 months to enable progress to be made in the claims for damages.
In separate proceedings, MC applied to the tribunal in 2010 to review a decision made by Department of Employment, Economic Development and Innovation to approve a liquor licence in relation to the a suburban tavern. MC had been an objector to the proposal to grant a liquor licence and when the licence was granted, he applied to review that decision in the review jurisdiction of the tribunal.
In view of the appointment, based on a finding of impaired capacity to conduct legal proceedings, in 2008 and continued in May 2010, of an administrator to manage certain legal proceedings for MC, the tribunal on its own initiative commenced an application in November 2010 to consider the appointment of a guardian for MC for the review proceedings about the tavern out of a concern that MC may have impaired decision making for conducting the review proceedings.
In the proceedings commenced by MC in relation to the tavern, he is not seeking any relief that would result in the recovery of money or damages and consequently the review proceedings do not constitute legal matters relating to his financial or property matters. The current appointment of an administrator would not be of any assistance to MC in his review action involving the tavern as that administrator is only appointed to manage legal matters relating to his financial or property matters.
A guardian can make decisions about personal matters for an adult with impaired decision making capacity. Personal matters are defined in the Guardianship and Administration Act 2000 as including legal matters not relating to an adult’s financial or property matters. The legal proceedings commenced by MC to review the decision granting a liquor licence to the tavern would come within the category of personal matters under the Guardianship and Administration Act 2000. If MC were found to have impaired capacity to make decisions about the review proceedings, then there may be a need for the appointment of a guardian to manage those proceedings on his behalf.
Capacity for making decisions is defined in the Guardianship and Administration Act 2000 as follows[1]: the person is capable of –
understanding the nature and effect of decisions about the matter; and
freely and voluntarily making decisions about the matter; and
[1] Schedule 4 of the Guardianship and Administration Act 2000
communicating the decisions in some way.
10. In the absence of one or more of the abilities set out in that definition the tribunal has a basis on which a finding of impaired decision making capacity can be made. Capacity is a functional concept, related to a person’s ability to identify, understand, evaluate, retain and process relevant information in making a choice between options for action and the ability to cause that decision to be put into effect. The existence or absence of a diagnosis of a medical condition is not determinative of impaired capacity: it is merely one factor taken into account when the tribunal considers how a person’s functioning is impaired in the decision making process about a particular matter.
11. At the hearing, MC denied that he had impaired capacity for the conduct of the review proceedings. He provided to the tribunal reports from three doctors. All three doctors expressed opinions that MC had the capacity to make his own decisions. MC provided the tribunal with letters from SJ, HJ and OR who are respectable people in the community and who expressed opinions that MC had capacity to make his own decisions.
12. In addition to the information in those recent reports, the tribunal took into account information that had been provided at the time of the initial appointment of the administrator in 2008. A report from Dr John Cox dated 18 May 1982 referred to MC having been admitted to a psychiatric hospital in 1978. Dr Cox referred to MC as having experienced auditory hallucinations since he was 17 years of age. A report from Dr John Keim dated 10 February 2003 referred to MC as having chronic schizophrenia. In another report dated 29 January 2003, Dr Keim stated an opinion that MC will have difficulty coping with court processes.
13. Dr David Alcorn in a 2006 report stated that MC most likely had a diagnosis of schizophrenia, paranoid type, chronic duration or untreated Bipolar Disorder. Dr Alcorn listed certain presenting features including marked thought disorder with tangentiality and loosening of associations, problems with concentration and memory, episodes of increased thought stream, inability to respond reliably to direct questioning and suspiciousness.
14. In relation to the damages claims, Dr Alcorn expressed an opinion that MC was unlikely to be able to successfully prosecute and bring to an objectively satisfactory conclusion his damages claims. Dr Alcorn stated that MC could identify and detail pieces of relevant law about his claims but due to his mental illness, he would become preoccupied with legal issues, to the exclusion of the progression of the claims and such a position would be adverse to MC’s long term interests.
15. The opinions of Dr Alcorn had been accepted by the Guardianship and Administration Tribunal in 2008. That tribunal found that MC’s presentation in May 2008 had supported many of Dr Alcorn’s observations, particularly indications of thought disorder, tangentiality and an inability to respond reliably or sensibly to questions of the tribunal. That tribunal found that MC had a tendency to focus on minutia but could not appreciate the bigger picture of his damages claims.
16. Quite a different pattern of behaviour was manifested by MC at the hearing on 2 December 2010. MC could explain satisfactorily to the tribunal the issues involved in the review application and he could explain the procedural limitations in the evidence that he could present in the review proceedings. He presented documentation concerning legal issues that he had researched and discussed some of the strategies he intended to follow in those proceedings.
17. While MC may have been somewhat over inclusive in his discussion of the issues in the review proceedings, he exhibited some understanding as to what conduct was feasible and appropriate in order to achieve his goal of overturning the decision to grant a licence to the tavern. He exhibited an understanding of the review process in the tribunal even though his vision at times was focused on strategies which he recognised were more readily achieved through the higher courts on appeal than through the tribunal.
18. The contrasting evidence as to capacity adduced to the tribunal was difficult to reconcile until the differences in the focus of the proceedings are taken into account. MC has had difficulty in finalising claims in which he seeks monetary compensation for injuries which have an ongoing impact on his functioning. Finalising those claims requires the flexibility to recognise the cogency of opinions contrary to those possessed by MC and the ultimate ability to accept responsibility for an outcome reached by compromise. At hearings in May 2008 and in May 2010 the tribunal was not satisfied that MC had those skills and implicitly found that he could not understand the nature and consequences of the decisions that must be made to progress and finalise a damages claim.
19. However, the review proceedings about the tavern are legal proceedings in which he does not have a direct financial interest in the outcome. He appears to be able to apply a degree of objectivity to his quest and in doing so, he exhibits an understanding of the nature and consequences of the decisions that he needs to make in the conduct of the review proceedings. The tribunal expects that MC may be exhaustive in his submissions and research, he may be overly discursive in the manner in which he presents his arguments but he will be able to make decisions about the conduct of this particular case.
20. The tribunal, having been satisfied that MC had capacity to make decisions about the review proceedings, dismissed the application for appointment of a guardian.
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