OTR - [2015] QCAT 325

CITATION:	OTR [2015] QCAT 325
PARTIES:	OTR
APPLICATION NUMBER:	GAA8056-14

MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	17 April 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott
Member Morriss

DELIVERED ON:

20 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

OTR does not have capacity to start and to conduct the proceeding in the Supreme Court of Queensland No: BSXXXX/2014.

CATCHWORDS:

DECISION-MAKING CAPACITY – where a litigant in the Supreme Court is a declared vexatious litigant – where the Court referred the litigant’s capacity to initiate and conduct the legal proceeding to the Tribunal

UNDERSTANDING NATURE AND EFFECT OF LEGAL PROCEEDING – where expert evidence of the presence of a delusional disorder – where the litigant had sustained a cerebrovascular incident – where clinical assessment had found no impaired cognitive functioning – whether delusional disorder impaired the litigant’s ability to understand the nature and effect of the legal proceedings and arguments relied on in those proceedings

Guardianship and Administration Act 2000 (Qld) section 7 and Schedules 1 and 4

REASONS FOR DECISION

OTR is a 79 year old man. He has instituted proceedings in the Supreme Court of Queensland, which have been stayed, until an assessment of his capacity is completed by QCAT. OTR has a history of proceedings in the Supreme Court. He has been declared a “vexatious litigant” pursuant to s 3 of the Vexatious Litigant Act 1982 (Qld) and is on a register of vexatious litigants. Because of this OTR must seek leave, pursuant to s 11 of the Vexatious Proceedings Act 2005, to institute any legal proceedings. He has sought leave to bring proceedings on many occasions since 1995, including a recent matter in the Supreme Court of Queensland.
The Tribunal received a referral from the Supreme Court to determine whether OTR had capacity to institute and conduct a proceeding in the Supreme Court against the Crown Solicitor of Queensland and the Attorney-General of Queensland in which he seeks orders to remedy what he has called long-standing defects in the manner in which the affairs of state are being conducted.
OTR provided a range of written documentation, including medical assessments and reports from specialists, to the Tribunal.
The Tribunal conducted a hearing on 17 April 2015 to consider whether OTR had capacity to commence and conduct the legal proceeding involved in the reference from the Supreme Court. OTR attended the Tribunal hearing in person.
The Tribunal is required to determine capacity in accordance with the provisions of the Guardianship and Administration Act 2000 (Qld) (GAA Act). OTR is presumed to have capacity in accordance with s 7 of the GAA Act and General Principle 1 of Schedule 1 under the Act. That presumption can be rebutted by evidence.
The Tribunal in assessing whether a person has capacity must apply the definition of capacity as set out in the Act[1] i.e. a person is capable of:
a)    Understanding the nature and effect of the matter; and
b)    Freely and voluntarily making decisions about the matter; and
c)    Communicating them in some way.
1Schedule 4 of the Guardianship and Administration Act 2000 (Qld).
Capacity is specific to the matters and decision in question. In OTR’s case the matter in question is his capacity to start and to conduct the proceeding in the Supreme Court of Queensland No: BSXXXX/2014.
The Tribunal considered a number of medical reports regarding OTR.
Dr Elena Klestov, Aged Care Physician, in a report dated 31 October 2014 reported that OTR had a history of cerebrovascular disease and stroke in 2010. She was aware that OTR had prolonged involvement in court cases and there was concern about his capacity for complex decisions. Dr Klestov reported that OTR has a supportive relationship, and was independent in his activities of daily living. She reported that he was tangential, had a loud voice, and was pressured in his speech. Dr Klestov reported that she found no psychotic features. Dr Klestov reported that cognitive assessment on the Montreal Cognitive Assessment (MoCA) was 29 out of 30 and OTR was assessed on the Mini Mental State Examination with a full score of 30 out of 30. Dr Klestov stated that essentially OTR was seen to have normal cognitive function, but had clinical features suggestive of hypomania.
Dr Elena Klestov, in a report regarding OTR dated 5 December 2014, referred to neuroimaging showing chronic ischaemic changes in keeping with a left frontal infarct. Dr Klestov reported that there was no evidence of neurodegenerative disease. She stated that there were some features to suggest subtle affective disorder.
OTR was referred by his General Practitioner, Dr Taghizadeh, to Dr Helen Siddle, Consultant Psychiatrist for an opinion and management regarding possible affective mood disorder and hypomania. Dr Siddle provided a letter to the Tribunal dated 17 February 2015 together with a copy of her report to Dr Taghizadeh dated 11 February 2015. Dr Siddle saw OTR on two occasions on 7 January 2015 and 11 February 2015. She also obtained collateral information from his wife and reviewed notes from Dr Elena Klestov.
Dr Siddle obtained a history from OTR. She referred to his elevated mood, and a number of unusual beliefs. She reported that OTR denied a psychiatric history, but noted that he had been reviewed many years ago for possible manic depression, according to his wife. Mrs OTR had stated that OTR had always had unusual beliefs, but they had not interfered with his ability to function and provide for his family, although this had been erratic at times.
On examination, Dr Siddle reported that OTR was cooperative and friendly and open. He had mild psychomotor agitation. His speech was at an increased rate and he tended to be tangential and circumstantial. Dr Siddle reported that OTR’s mood was elevated and grandiose and his affect was reactive and appropriate. Dr Siddle reported that OTR’s thoughts contained a complex non-bizarre delusional system. Dr Siddle stated that OTR’s insight and judgement were partial.
Dr Siddle provided an opinion that OTR suffers from a delusional disorder. She found that there was a grandiose flavour to his presentation, but stated that this does not meet the criteria for a diagnosis of Bipolar Affective Disorder. Based on Dr Klestov’s cognitive assessment and on her own observation of OTR, Dr Siddle did not believe there was a cognitive impairment that would affect his ability for decision-making. Dr Siddle was of the view that OTR’s delusional disorder has led him to becoming involved in legal proceedings and in the case where the subject matter relates to his delusional beliefs, this affects his capacity to undertake these legal proceedings.
OTR was also seen at the Royal Brisbane and Women’s Hospital following a cerebrovascular accident (CVA) in the left middle cerebral artery territory on 27 November 2010. At the time he experienced right arm weakness, dyspraxia, expressive dysphasia and some higher-level cognitive deficits. He was reviewed in a Neuropsychology assessment with Carly Mayberry and Dr Donna Spooner on 18 October 2012. According to the hospital notes, OTR demonstrated intact performances in most areas of cognitive functioning. The notes set out that OTR’s processing speed was reduced, there was evidence suggesting moderate to severe deficits in phonetic and semantic fluency, executive functioning was variable with deficits on tasks involving inhibitory control, spatial problem solving and complex reasoning. It was stated that these deficits might be reflective of underlying ischaemic disease indicated on his MRI. The notes refer to reported rigidity and stereotypical behaviours, but these were said to be likely related to longstanding personality characteristics. The notes stated that deficits in executive functioning might impact on functioning when tasks were novel or required a high degree of mental flexibility. Overall, the hospital notes report that OTR had made a good recovery from his stroke.
A letter from Dr Ryan O’Dempsey, Principal House Officer, Royal Brisbane and Women’s Hospital dated 15 April 2013 refers to the history of a left middle cerebral artery infarct in 2010, and that OTR was progressing well with minimum residual deficits, but with mild deficits in executive functioning.
OTR was given an opportunity at the hearing to make comments regarding the medical reports, and he did so at length. OTR agreed with the views of Dr Siddle that he seemed happy and not depressed. He stated a belief that he had passed all of the tests given to him. He affirmed that he continued to have views on the Royal Family being infiltrated by the Rothschild family and various other matters, but that he had access to information that other people did not have, and he was not delusional. He disagreed with some aspects of Dr Siddle’s report, including her statement that he had not been financially successful in his work.
He stated his suspicious of psychiatry and “shrinks” and questioned the soundness of Dr Siddle’s views, and that she was part of a “set-up” aimed at preventing him from taking actions in the courts. He asserted that she had got it “terribly wrong” and had gone beyond her brief.
During the hearing OTR expanded in great detail on many of his views regarding a number of matters, including the Australian taxation system, what constitutes legal tender and the monetary system, the Magna Carta, and the Royal Family. He provided a complicated explanation that he had derived from his sources on the internet about the disappearance of the Malaysia aircraft Flight 370, and said there was a lot going on behind the scenes with transportation of armaments, involvement of the CIA, and that the aircraft had been shot down later over Ukraine to hide the evidence.
When OTR was asked about his previous proceedings in the Supreme Court and about other legal matters, he stated his views that there had been “incompetence” and that the various Judges did not know what they are talking about and were “delusional”. He believed that he had not “failed” or been unsuccessful in legal proceedings previously even though there had been judgements against him, but that people had not fundamentally considered his arguments. He would continue to pursue such arguments.
OTR also challenged the jurisdiction of QCAT in making a determination of his capacity, indicating that the government in this State (Queensland) had no standing and was not constitutionally valid. These matters have been argued unsuccessfully and appealed unsuccessfully on multiple occasions.
The Tribunal does not concern itself with a determination of the veracity of OTR’s beliefs or views about various matters. His views and interests are wide-ranging. The Tribunal must make a determination about his capacity for decision making to start and to conduct of the legal proceeding referred from the Supreme Court.
OTR’s evidence and submissions relied on by him in the QCAT hearing were taken into consideration in the determination of his decision-making capacity. It is difficult given the extensive volume and the detail contained in the affidavit and photocopied material provided by OTR to fully ascertain the points he wished to make by filing those documents. He affixed documents in his submissions often without any contextual information or references and seemingly of negligible relevance to the matter at hand.
The Tribunal was impressed by the careful and thoughtful evidence given in the reports of Dr Siddle. Her evidence was based on a clinical examination and on an assessment of OTR’s cognitive functioning as well as on collateral information obtained from Dr Klestov and from Mrs OTR. Dr Siddle’s expertise is in psychiatry and the Tribunal accepts that her opinions are within her expertise and cogently based on the evidence before her. The Tribunal accepts the evidence and expert opinions expressed by Dr Siddle and does not accept the criticisms of her evidence raised by OTR.
Dr Siddle had considered the available evidence and ruled out the presence of any relevant cognitive impairment that might impede OTR’s decision-making capacity. However, Dr Siddle concluded that OTR displayed a complex non-bizarre delusional system. She described OTR as having a delusional disorder which was influential in OTR becoming involved in legal proceedings. The Tribunal accepts the evidence of Dr Siddle that OTR’s capacity to undertake these legal proceedings was affected by his delusional disorder, especially when the subject matter of the proceedings aligned with his delusional beliefs.
Consistent with the opinions of Dr Siddle, the Tribunal concludes that OTR’s own evidence before this Tribunal demonstrated the presence of a delusional mindset about the importance and validity of the matters he wants to litigate in the various legal proceedings that he has brought in the courts. He has over many years consistently been the subject of unfavourable outcomes in the courts, yet he firmly believes that the judges have all been wrong in their decisions. He stated that he will continue bringing proceedings until his claims are upheld.
The Tribunal draws a reasonable inference from these beliefs and from the non-specific and disjointed nature of the filed material, and from OTR’s inability to provide succinct and specific arguments at the hearing, that he does not have an understanding of the legal process generally. He cannot appreciate due to his delusional disorder that his legal arguments repeatedly put forward in various court proceedings have been found to be misguided and based on discredited concepts drawn largely from conspiracy theorists ignorant of the law.
Despite his arguments having been considered many times in various proceedings, and having been unsuccessful, he believes that his arguments are valid, but they have simply not been considered properly by the legal system. He does not appear to be dissuaded from his quest through the legal systems by his lack of success. He does not demonstrate that he understands the nature and consequences of the legal processes that he doggedly pursues. He is unable to shift his beliefs to respond to the outcomes with which he is consistently confronted. He continues to present the same manner of arguments based on his delusional beliefs in each and every legal forum, including these proceedings in QCAT.
OTR’s conduct during the hearing also demonstrated his lack of understanding of this particular legal process. During the hearing he needed almost constant direction to stay on point and to answer the questions put to him. He was overly detailed and overly-inclusive in his evidence and his answers, difficult to interrupt, tangential, and provided information of questionable relevance to the matter being considered. He was repeatedly derailed from the key matters being discussed. He appeared unable to direct his arguments in a succinct or logical matter. He showed pressured speech and slight agitation toward the end of the hearing. OTR’s performance as advocate in his own case demonstrated his real difficulties in being able to conduct a legal argument in an effective manner.
His evidence and conduct at the hearing demonstrated a limited understanding and insight as to the nature of the matters being considered by the Tribunal. His judgement was poor in regard to the selection of information that he relied on. He demonstrated limited understanding of what information was relevant or irrelevant to the issue of decision-making capacity, or to identify what arguments and information were helpful to him case. He could not self-regulate his behaviour at the hearing to focus on relevant information and submissions. In particular, if certain information seemed relevant to OTR, such as the history of his professional memberships as an engineer, he persisted in presenting that information regardless of the lack of relevance to the issue of capacity for decision-making, or to the volume of detail he provided. He persisted in relying on voluminous written material and documentation, various photocopies and notated articles, which lacked any logical, coherent or organised connection to the issue before the Tribunal. His tendency for providing excessive and irrelevant detail, his continuous digressions, and his tendency to assert the same arguments repetitively all demonstrated his inability to present a cogent argument in favour of intact decision-making capacity.
When the Tribunal gave him opportunities to provide information about his capacity for decision making for legal matters, he failed to do so and continued to assert irrelevant and discredited arguments. OTR dismissed opinions or information contrary to his own beliefs. He questioned the jurisdiction of QCAT and the competence of judges to pass a valid judgement on his beliefs.
The Tribunal concludes as follows:
a)    OTR is a man who has been involved in various legal matters since 1995.
b)    OTR suffered a cerebrovascular accident in 2010. He had a good recovery but assessment did indicate some ongoing impairment in information processing, and phonetic and semantic fluency. He had difficulty with aspects of executive functioning, including with inhibitory control, spatial problem solving and complex reasoning.
c)    OTR has been diagnosed as having a long-standing complex delusional disorder with a grandiose flavour to his presentation. This delusional disorder has driven him to become involved in legal actions.
d)    OTR demonstrates limited insight and limited understanding of the nature of the legal processes in which he has been involved and of the consequences of the outcomes of those processes. Although he can carry out procedural aspects of legal proceedings, such as how to initiate proceedings, how to present an affidavit, he demonstrates a lack of understanding of the nature of the legal arguments he raises due to the impact of his delusional disorder which distorts his reasoning.
e)    OTR demonstrates poor appreciation of the effect of decisions, that is, that his applications have not succeeded in the past, are based on flawed arguments, and that future outcomes based on discredited arguments relied on in the past are unlikely to differ from past outcomes. He is not dissuaded by his experiences from continuing to rely on the same legal issues despite a spectacular lack of success.
f)     OTR demonstrates significant difficulties in integrating new information to assist with his reasoning and understanding, and demonstrates very little ability to alter his behaviour according to the circumstances, impacting negatively on his ability to conduct legal proceedings. This was apparent in his written and oral submissions, his lack of organisational ability, his lack of coherency, and his lack of behavioural regulation.
The Tribunal concludes that OTR does not have capacity to start and to conduct the proceeding in the Supreme Court of Qld No: BSXXXX/2014. OTR has demonstrated that he does not understand the nature and effect of legal proceedings that emanate from his delusional beliefs.