PT

Case [2023] QCAT 449

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

PT [2023] QCAT 449

PARTIES:

In an application about a matter concerning PT

APPLICATION NO/S:

GAA6919-23; GAA6920-23; GAA6921-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

21 November 2023

HEARING DATE:

7 November 2023

HEARD AT:

Brisbane via teleconference

DECISION OF:

Member Casey

DECISION:

1.   The application for a closure order is dismissed.

2.   The application for an adult evidence order is dismissed.

3. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld) the following documents are confidential and must not be disclosed:

(a)   MED002;

(b)  H006;

(c)   H007;

(d)  H008; and

(e)   File note report dated 11 October 2023.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where the Tribunal made a confidentiality order prior to the hearing which was vacated at the hearing – whether a confidentiality order is necessary – whether an adult evidence order is necessary – whether a closure order is necessary

Guardianship and Administration Act 2000 (Qld), s 100, s 103, s 104, s 106, s 107, s 109, s 110, s 111, s 113, Queensland Civil and Administration Act 2009 (Qld), s 47
Human Rights Act 2019 (Qld) (‘HRA’), s 13, 15, s 25, s 48

APPEARANCES:

PR, daughter of the adult, by telephone

REASONS FOR DECISION

Introduction

  1. PT (the adult) is 65 years of age and resides with her partner in private rental accommodation. The adult is the aggrieved person in a protection order made in March 2021.  The partner of the adult is the respondent. The protection order states that the respondent must be of good behaviour and not commit domestic violence against the aggrieved.  Unless otherwise ordered, the order is to continue in force for a period of five (5) years.

  2. On 8 June 2021, the Tribunal appointed PR, daughter of the adult, as her guardian for decisions about health care and the provision of services, including in relation to the National Disability Insurance Scheme (NDIS).  The appointment, which was to remain current until further order of the Tribunal, was reviewable and was to be reviewed in two (2) years.  On the same day, the Tribunal dismissed the application for the appointment of an administrator for the adult and made an adult evidence order, a closure order (in relation to the adult and her partner) and a confidentiality order in relation to email correspondence dated 4 June 2021 and a letter dated 7 June 2021.

  3. In April 2023, the Tribunal commenced a periodic review of the appointment of a guardian for the adult.  On 14 June 2023 the Tribunal received applications for a closure order, an adult evidence order and a confidentiality order over documentation and information received in relation to the periodic review.

  4. On 19 July 2023, the Tribunal made a pre-hearing decision (a confidentiality order) and directions wherein the Tribunal’s registry was directed to notify the adult and all other active parties and interested persons…

Continue reading PT

Sign in free to access the full text

Details
AGLC
PT [2023] QCAT 449
Case
[2023] QCAT 449
Decision Date

CaseChat Overview and Summary

In the proceeding, PT was the Tribunal, and the parties involved included an adult and a partner. The nature of the dispute centred on the necessity of specific confidentiality, adult evidence, and closure orders within the context of guardianship, management, and administration of property of persons with impaired capacity. The Queensland Civil and Administrative Tribunal (QCAT) was the court tasked with deciding these matters.

The primary legal issues before the Tribunal were whether a confidentiality order was necessary to prevent the disclosure of certain documents to avoid serious harm, whether an adult evidence order was required considering the adult's non-attendance at the hearing, and whether a closure order should be made. The Tribunal was required to balance the rights and protections under the Guardianship and Administration Act 2000 (Qld) (GAA) with the human rights principles outlined in the Human Rights Act 2019 (Qld) (HRA). The application for an adult evidence order was dismissed due to the adult's non-attendance, and similarly, the application for a closure order was dismissed because neither the adult nor her partner attended the hearing.

The Tribunal concluded that a confidentiality order was necessary to avoid serious harm to a person. The Tribunal was not satisfied that nondisclosure of all the documents within the previous confidentiality order was necessary to prevent serious harm. Therefore, the Tribunal made a new confidentiality order, limiting the disclosure of certain documents to specific parties. The Tribunal found that the identified documents contained information that, if disclosed, could cause significant physical, emotional, and psychological harm. The orders were deemed reasonable and justified under section 13 of the HRA, as they represented the least restrictive means based on the information available.

The Tribunal made a confidentiality order under section 109 of the GAA, specifying that certain documents were to be withheld from PT and other parties to prevent serious harm. The orders were communicated to all active parties and the Public Advocate, as required by section 113 of the GAA. The decision reflects a careful consideration of statutory obligations and human rights principles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 111 of the GAA states that each active party, and any entity that would be adversely affected by a proposed limitation order, has standing to be heard in relation to the making of the order.Should the Tribunal make an adult evidence order? The adult chose to not attend the hearing, either in person or by telephone. The Tribunal was provided with information from PR that she and the adult planned to attend the hearing via telephone from the same location, however PR became unwell and was unable to attend the nominated location or have face-to-face contact with the adult due to the nature of her illness. PR said she told the adult that she would attend the hearing via phone and that the adult expressed no objection to that arrangement and chose not to attend the hearing via phone. PR said the adult was aware that the hearing might proceed in her absence. PR provided no oral submissions, when asked, in relation to the application for an adult evidence order. As a consequence of the adult’s non-attendance, the application for an adult evidence order was dismissed.[5][5]Queensland Civil and Administration Act 2009 (Qld), Section 47(1)(b).Should the Tribunal make a closure order? The adult and the adult’s partner were the subject of the application for a closure order. Neither the adult or her partner attended the hearing. PR provided no oral submissions, when asked, in relation to the application for a closure order. As a consequence of the non-attendance at the hearing of the adult and her partner, the application for a closure order was dismissed.[6][6]Ibid.Should the Tribunal make a confidentiality order? Upon the confidentiality order of 19 July 2023 being vacated at the commencement of the hearing PR, being an active party in the proceeding, declined to make oral submissions when invited as to whether documents on the Tribunal’s file should be withheld from PT or another party. The Tribunal notes that all documents pertaining to the hearing of 8 June 2021, with the exception of the documents identified in the Tribunal’s decision of the same date, had been accessible to the adult prior to the decision and directions of the Tribunal dated 19 July 2023. The application before the Tribunal does not pertain to all documents included within the confidentiality order of 19 July 2023 as it seeks specific information and documents to be inaccessible to certain parties due to the risk of serious physical, emotional and psychological harm, including significant health detriment, to persons should the information be disclosed. In addition to being directly relevant and significant, the information contained within the identified documents is credible, as the information came from sources deemed to be reliable by the Tribunal. Whilst neither serious harm nor injustice are defined in the GAA, case law has found that ‘serious harm’ means physical or psychological injury, whether temporary or permanent, that endangers or is likely to endanger human life, or is likely to be significant and longstanding.[7][7]DAA [2009] QGAAT 8 [42]; JSM [2011] QCAT 351, [8].

Decision

Reasons for decision

For these reasons, the Tribunal is satisfied that the non-disclosure of the identified documents is necessary to avoid serious harm to a person. In addition, the Tribunal was not satisfied that nondisclosure of all the documents within the confidentiality order of 19 July 2023 was necessary to avoid serious harm to a person. In this way, the Tribunal withheld documents, but only to the extent necessary, by the making of the confidentiality order.Conclusion Accordingly, the Tribunal orders that pursuant to section 109 of the GAA the following documents are confidential and must not be disclosed:(a)MED002;(b)H006;(c)H007;(d)H008; and(e)File note report dated 11 October 2023. In the Tribunal’s consideration of the application for a confidentiality order, the Tribunal is required to interpret the statutory provisions, to the extent possible that is consistent with their purpose, to be interpreted in a way that is compatible with human rights.[10] A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[11] [10]HRA, Section 48.[11]HRA, Section 13. PT’s rights to privacy[12] and recognition as a person before the law entitled to equal protection without discrimination[13] are engaged and limited by the making of the confidentiality order. Taking into account these findings in relation to the criteria set out in the GAA, the Tribunal is satisfied the limits imposed by the order are reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld) (‘HRA’). The orders made are the least restrictive based on the information before the Tribunal. [12]HRA, Section 25.[13]HRA, Section 15. As required under section 113 of the GAA, a copy of the Tribunal’s reasons for its decision to make the limitation order must be given to all active parties and the Public Advocate.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.