MEC - [2017] QCAT 117

CITATION:	MEC [2017] QCAT 117
PARTIES:	MEC
APPLICATION NUMBER:	GAA7668-16
MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	20 February 2017
HEARD AT:	Brisbane
DECISION OF:	Member Traves
DELIVERED ON:	3 April 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The application for a declaration of capacity is refused.
CATCHWORDS:	DECLARATION OF CAPACITY – enduring mental illness – paranoid schizophrenia – extensive history of psychotic episodes and non-compliance with medication – adult has capacity when mental illness controlled – onus of proof – understanding the nature and effect of decisions – time when capacity must be assessed. Guardianship and Administration Act 2000 (Qld), s 10, s 146, Schedule 2. Aziz v Prestige Property Services Pty Ltd [2007] QSC 265 Bucknall v Guardianship and Administration Tribunal (No 1) [2009]2 QdR 402 Fehily v Atkinson [2016] EWHC 3069 McD v McD [1983] 3 NSWLR 81 Re Bridges [2001] 1 QdR 574
APPEARANCES:
APPLICANT:	MEC

REASONS FOR DECISION

MEC has made an application pursuant to s 146(2) of the Guardianship and Administration Act 2000 (Qld) (Guardianship Act) for a declaration that she has capacity. Capacity is an important threshold issue under the Guardianship Act because it determines whether an adult will have autonomy over decisions in relation to a particular type of matter. Behind this application is a desire by MEC to regain control of decisions that need to be made regarding her financial affairs.
There has been a long history of the Public Trustee being appointed administrator for MEC for financial decisions and then removed. I will here record the reasons which have led me to make the order refusing the declaration of capacity.
The Public Trustee was first appointed in 2002 and has been appointed and removed many times since then. The Tribunal made the most recent appointment on 17 April 2014, appointing the Public Trustee administrator for MEC for all financial matters until further order. The Tribunal dismissed an application for a declaration about the capacity of MEC on 20 November 2015. A further application for a declaration about capacity was made in July 2016. The matter was part heard and adjourned by me on 18 November 2016 to enable MEC to obtain any further medical reports assessing whether or not MEC has capacity for financial matters within the meaning of the Guardianship Act by 18 February 2017.[1]
[1]Guardianship Act, s 130.
MEC sent an email to the Tribunal on 8 February seeking an extension of time in which to obtain the report and a later hearing date. MEC later elected to go ahead with the hearing as scheduled.
The medical evidence obtained by MEC for the purposes of the hearing was a medical report by Dr Noel Saines dated 31 January 2017. Dr Saines is a neurologist who first saw MEC in December 2003.

The statutory test of capacity

Section 146(1) of the Guardianship Act provides that the tribunal may make a declaration about the capacity of an adult for a matter.[2] The application may be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCAT 117
Decision Date: 3 April 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, MEC, an adult individual diagnosed with paranoid schizophrenia, applied for a declaration of capacity. The applicant, who has an extensive history of psychotic episodes and non-compliance with prescribed medication, sought to demonstrate capacity to make decisions regarding personal and financial matters. The primary dispute centred around the assessment of MEC’s capacity when their mental illness is under control, as opposed to during periods of acute psychosis. The court was tasked with determining whether MEC possessed the requisite understanding of the nature and effect of the decisions in question at the time of assessment.

The legal issues before the court involved the onus of proof regarding capacity, the necessity for ongoing assessment of mental capacity, and the implications of MEC's history of non-compliance with medication on their decision-making abilities. The court needed to consider whether MEC, when their mental illness is controlled, has the capacity to comprehend and appreciate the implications of their decisions. Furthermore, the court had to assess whether there was sufficient evidence to establish that MEC’s capacity was consistent and reliable at the time the decision was made.

The court, after examining the evidence and the history of MEC’s mental health, found that there was insufficient evidence to support a declaration of capacity. The court held that MEC’s extensive history of non-compliance with medication and episodic nature of their psychotic episodes undermined the reliability of their decision-making abilities. It was determined that the onus of proof had not been met to demonstrate that MEC had the necessary understanding of the nature and effect of the decisions when their mental illness was controlled. Consequently, the application for a declaration of capacity was refused.

Orders

Orders of the court

1. The application for a declaration of capacity is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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