MP v Public Trustee of Queensland

[2014] QCATA 162

CITATION: MP v Public Trustee of Queensland [2014] QCATA 162

PARTIES:	MP (Appellant/Applicant)
v
Public Trustee of Queensland (Respondent)

APPLICATION NUMBER: APL423-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan
Member Goodman

DELIVERED ON: 3 July 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The appeal is allowed in part.

2.    The application is remitted for reconsideration by the Tribunal as originally constituted.

3. The reconsideration will be heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

Declaration of capacity – whether error of law by Tribunal – no reference to presumption of capacity – appeal allowed

Guardianship and Administration Act 2000 (Qld), s 12, s 130, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Under the Guardianship and Administration Act 2000 (Qld), this Tribunal appoints substitute decision makers for adults with impaired capacity, if their particular circumstances satisfy the legislative requirements.[1] 

   [1]        Guardianship and Administration Act 2000 (Qld), s 12.

2. In 2012, QCAT appointed an administrator to manage MP’s financial decision-making, and a guardian to make certain personal decisions on his behalf. MP believes that he has the capacity to make his own decisions and on 10 July 2013 lodged an application for a declaration about his capacity. MP’s application was supported by a report from his general practitioner, who was of the view that MP had the capacity to make his own decisions.

3. The application was heard and determined on 2 September 2013. The Tribunal took the evidence from the general practitioner into account, and considered also oral evidence from MP, representatives of the Public Trustee of Queensland and the Office of the Adult Guardian, MP’s mental health case manager, and two of his friends.  The Tribunal also had regard to medical information contained on the Tribunal file which had been relied upon in previous hearings.  The Tribunal dismissed MP’s application.  The administrator and guardian remain in place.

4. MP argues that QCAT was wrong to dismiss his application and seeks to appeal against the decision.

5. Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), an appeal may be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought.[2]  MP submits that the Tribunal erred at law by:

   a)    Making reference to previous applications for a declaration of capacity;

   b)    Being biased by referring to previous applications and material;

   c)    Not giving him the presumption of capacity provided in the legislation;

   d)    Not using its powers to gather further evidence;

   e)    Denying him procedural fairness by not providing him with an opportunity to consider the evidence taken into account by the Tribunal, and the opportunity to submit further evidence in response.

   [2] QCAT Act, s 142.

6. As questions of law are raised, we will proceed to consider the appeal.  We have the benefit of reading a transcript of the proceedings conducted on 2 September 2013.

Did the Tribunal err in referring to previous applications?

1. At the outset of the hearing the Tribunal Member mentioned that a number of previous applications had been lodged.  This was in the context of describing appointments currently in place, and the history of this matter before the Tribunal.  There is no error in providing such a history.  It places the application in context and ensures that all parties have the same information as is available to the Tribunal.  There is nothing to suggest that the Member relied on the previous findings that MP lacked capacity in reaching her decision.  No error is established.

Did the Tribunal display bias by referring to previous applications and material?

1. In relation to the previous applications: this issue has been discussed above, no bias is established.

2. In relation to the material (doctor’s reports): the Tribunal is under a positive obligation to ensure that all parties are aware of the relevant material before it. It is necessary, therefore, to advise parties with some particularity which medical information is to be taken into account when determining whether an adult has the capacity for a particular matter.  That is a requirement of natural justice and does not reveal a bias.  

Did the Tribunal err in law in not giving MP the presumption of capacity?

1. The legislation provides that adults are presumed to have capacity for a matter.[3]  When the Tribunal considers an application for a declaration about capacity, the presumption of capacity applies, and the application will be successful unless the presumption is rebutted.

   [3]        Guardianship and Administration Act 2000, Schedule 1.

2. In this case, the Tribunal Member made no specific reference to the presumption of capacity during the conduct of the hearing, or in the oral reasons for decision provided on the day of the hearing.

3. It is not clear that the presumption of capacity was applied when the Member determined that MP’s application be dismissed.  We are satisfied that the Tribunal Member erred in not clearly applying the presumption during her deliberations.

4. The appeal is allowed on this ground.

Did the Tribunal err in not using it’s powers to gather further evidence?

1. The Tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material.  The Tribunal may request information or material that the Tribunal considers is necessary to make an informed decision.[4]

   [4] Ibid, s 130.

2. In this case, MP is the applicant and has the opportunity to provide evidence to support his application.  MP submits that the Tribunal should have sought clarification from his general practitioner as to why that doctor’s opinion differed from the other medical evidence available to the Tribunal.

3. There has been no error.  The Tribunal based its decision not only on the medical evidence, but also took into account oral evidence from MP’s friends, guardian, administrator, mental health case worker and MP himself.  The Tribunal considered it was able to make an informed decision on the evidence available and did so, preferring some evidence over other evidence.

Did the Tribunal deny MP procedural fairness?

1. MP submits that the Tribunal should have provided him with an opportunity to consider the evidence it was taking into account and to submit further evidence in response.  The particular evidence is not specified but it appears that the concern is in relation to medical evidence that was available on the Tribunal file.

2. The Tribunal is required to provide MP with a fair opportunity to present his case and to answer evidence that does not support his application. In this case, the Tribunal has available to it medical records that have been taken into account over the years during which MP has had a substitute decision maker appointed.  That material is on the Tribunal file, which MP is able to make arrangements to view.  Further, it is reasonable to expect that MP would be aware, in a general sense, of the contents of the material, given that he has been involved in hearings at the Tribunal where it has been relied on.  The Tribunal referred to the medical evidence and MP sought neither clarification nor an adjournment. There was no new written evidence other than that submitted by MP himself.  There has been no denial of procedural fairness.

3. We have found that the Tribunal Member erred in not clearly taking the presumption of capacity into account in her deliberations. It is appropriate that the matter be returned to the original decision maker for reconsideration based on the evidence and submissions available at the hearing and applying the correct legal test. The matter will be reconsidered and determined by the Member on the papers pursuant to s 32 of the QCAT Act.