QJI

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

QJI [2024] QCAT 509

PARTIES:

In applications about matters concerning QJI

APPLICATION NO/S:

GAA8965-24
GAA8966-24
GAA8967-24
GAA8969-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

11 October 2024 (ex tempore)

HEARING DATE:

11 October 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne (Presiding)
Member Farquhar

ORDERS:

DECLARATION ABOUT CAPACITY

1.     The Tribunal declares that:

(a)     There is insufficient evidence before the Tribunal to rebut the presumption of capacity for QJI to make decisions about her legal matters relating to proceedings under the Child Protection Act1999 (Qld).

(b)     QJI has engaged the services of a legal representative for the purposes of conducting proceedings under the Child Protection Act1999 (Qld).

(c)     QJI has capacity to make decisions about her legal matters relating to proceedings under the Child Protection Act 1999 (Qld) with appropriate support for decision-making.

GUARDIANSHIP

2.     The Tribunal initiated application for the appointment of a guardian for QJI is dismissed.

LIMITATION ORDERS

3.     The Tribunal initiated applications for non-publication order and confidentiality order for QJI is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where matter is referred to the Queensland Civil and Administrative Tribunal by the Children’s Court of Queensland – whether adult has capacity to make decisions about their legal matters relating to the Child Protection Act 1999 (Qld) – where capacity assessments are incomplete – where there is insufficient evidence to rebut the presumption of capacity – where the Tribunal made a declaration about an adult’s capacity – whether a limitation order is necessary to avoid serious harm or injustice to a person – where applications for limitation orders are dismissed

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal identified human rights affected by the decision – where the Tribunal considered the decision was compatible with human rights – where the Tribunal considered limits to human rights were reasonable and justified – where the Tribunal considered the right to be recognised as a person before the law – where the Tribunal considered the right of equal protection of the law without discrimination – where the Tribunal considered rights to privacy and reputation

Child Protection Act 1999 (Qld)

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11B, s 12, s 103, s 114A, s 125, s 146, sch 4

Human Rights Act 2019 (Qld), s 13, s 48, s 58

APPEARANCES & REPRESENTATION:

Adult:

R Anderson of ADA Law

Public Guardian:

A Andersen

REASONS FOR DECISION

Senior Member Browne: QJI is a 49-year-old woman who is a party to a proceeding before the Childrens Court of Queensland involving a Child Protection order for a relevant child under the Child Protection Act 1999 (Qld) (‘CP Act’). Relevantly, QJI is the respondent mother of the subject child concerning an application for a child protection order made by the Director of Child Protection Litigation.
On 19 June 2024, the Childrens Court of Queensland made the following order:
(1) That the question of the respondent mother, QJI’s, capacity to understand the conduct of the Child Protection proceedings be referred to the Queensland Civil and Administrative Tribunal (‘QCAT’) for consideration as to the need for the appointment of a guardian for legal matters;
(2) The Registrar of the Childrens Court at Ipswich provide the following material to QCAT for consideration:
(a) A copy of the adjournment order; and
(b) A copy of ‘Exhibit 23 – Parenting Capacity Report’ attached to the Affidavit of Child Safety Officer Britney Kennedy filed 30 April 2024.
By direction of the Tribunal dated the 13^th of August 2024, the Tribunal initiated applications for a declaration of capacity, for the appointment of a guardian, confidentiality order, and non-publication order. The Tribunal also made directions for information to be provided relevant to QJI’s capacity to give instructions to her legal representative in the Childrens Court proceeding, and for relevant persons to be notified of the hearing. Further, the Tribunal invited an application to be brought for the appointment of a representative under section 125 of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’).
Appearing at the hearing by telephone was QJI, together with her legal advocate, Rebecca Anderson from ADA Law, and also a representative from the Public Guardian. The Tribunal has had an opportunity to consider the submissions made by Ms Anderson and to also hear from QJI in relation to the Tribunal-initiated applications. Relevant to the application for a declaration of capacity, the Tribunal has the power to make a declaration about the capacity of a person for a matter under section 146 of the GA Act. Capacity for a matter is also a relevant issue to be considered when the Tribunal is exercising its power under section 12 of the GA Act to appoint a guardian for a personal matter, or an administrator for a financial matter for an adult.
A person to whom the proceeding relates, referred to under the GA Act as the adult, is presumed to have capacity to make their own decisions until the contrary is proven. Further, the GA Act acknowledges, under section 5: an adult’s right to make decisions is fundamental to the adult’s inherent dignity; the capacity of an adult to make decisions may differ according to the type of decision to be made, including, for example, the complexity of the decision to be made and the support available from members of the adult’s existing support networks; and the right of an adult with impaired capacity to make decisions should be restricted and interfered with to the least possible extent.
As reflected in section 6 of the GA Act, the Act also seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. The Tribunal has also considered the General Principles as set out under section 11B that apply and recognise that an adult is presumed to have capacity for a matter.
The matter before the Tribunal is QJI’s capacity to make decisions about her legal matter relating to proceedings under the CP Act and, more importantly, QJI’s capacity to understand the conduct of the Child Protection proceedings. This requires an understanding of the nature of the application brought by the Director of Child Protection Litigation and the CP Act. It also requires a consideration of issues, including providing instructions to a legal representative about whether to present or to test any evidence, including cross-examination of witnesses, whether to make submissions about the application and whether to exercise any appeal rights.
The decisions required to conduct litigation in a child litigation proceeding are complex and involve a consideration of highly sensitive material relevant to the subject child, and a party to the proceeding. In the present matter, QJI’s child is the subject of the proceedings, and on the 19^th of June 2024, the Court made an interim order in relation to the child, continuing an order granting custody of the child to the Chief Executive.
Turning to the issue of capacity and whether QJI has capacity for a matter, capacity, as defined under schedule 4 of the GA Act, means: 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 communicating the decisions in some way. The evidence before the Tribunal relevant to QJI’s capacity to make decisions about her legal matters is contained in reports prepared by Mind Wise Psychology Services following assessments conducted on the 30^th of June 2023. As the Tribunal has said, the reports were provided by the Court, by order dated the 19^th of June 2024.
There are references in the reports to the assessments being ceased meaning the examination was not completed. There are references in the report that the assessments were ceased due to concerns in relation to QJI’s capacity to participate in the examination in a safe and purposeful manner. It is open for the Tribunal to find that, given the assessments are incomplete, there is insufficient evidence before it to proceed to make a finding of capacity, having regard to the definition under schedule 4 of the GA Act, and in being satisfied that the presumption of capacity is rebutted.
In coming to this conclusion, the Tribunal has also had an opportunity to hear from QJI herself. The Tribunal asked QJI several questions about, for example, who her lawyer is. QJI was able to tell us the first name of her lawyer. Although she was unable to tell us the name of the firm, she was able to explain how she would identify and locate the name of the legal representative’s firm who currently represents her.
Importantly, QJI was able to tell us how she receives information relevant to the Child Protection proceeding. She explained that her lawyer will tell her what is going on, will give her information and that she is able to tell him what her wishes are in relation to the proceeding. QJI was also able to tell us about her child, who is seven years of age, who is the subject child in the proceedings, and to give us some background information giving rise to the Child Protection proceedings.
Importantly, the Tribunal was satisfied, having heard from QJI that she is proactive in seeking help and support of others and that she is engaging with her lawyer. This is supported by a letter provided to the Tribunal by QJI’s legal representative. On the 1^st of October 2024, QJI’s legal representative, Robert Raiti, reports that he acts for his client, QJI, in relation to the Child Protection proceedings and it is his view that QJI has capacity and understands the Childrens Court proceedings in relation to the Child Protection matter.
The Tribunal, in deciding whether a guardian should be appointed to make decisions about QJI’s legal matters, in particular, relating to her Child Protection matters, must be satisfied the requirements under section 12 have been met. In addition to the requirement that the presumption of capacity be rebutted for the matter is the consideration of need. More importantly, the Tribunal is satisfied, without an appointment, QJI’s needs will not be adequately met or her interests will not be adequately protected.
Even if the Tribunal was to proceed to consider whether a guardian should be appointed, putting aside the issue of capacity in terms of the limited evidence available, there is a question of need. This is important because, as the Tribunal has said, QJI already has a legal representative who she engages with and who is able to represent her in the Child Protection proceedings. The Tribunal accepts the submission made by Ms Anderson from ADA Law in relation to the utility of appointing a substituted decision-maker, namely the Public Guardian, in circumstances where QJI is already supported by a legal representative and, importantly, engaging with her legal representative in the Child Protection proceedings.
The Tribunal is therefore minded to proceed with determining the applications initiated by the Tribunal for a declaration of capacity and for the appointment of a guardian. It is desirable to make a declaration to give some comfort to the Court who has referred this question of capacity to the Tribunal. This is to ensure that QJI’s interests as they relate to the legal proceedings in the Child Protection matter are safeguarded. In other words, the Court can take comfort in knowing that the Tribunal has considered the issue of QJI’s capacity to conduct the legal proceedings and whether there is a need for a substituted decision-maker to be appointed for that purpose.
The Tribunal will proceed to make a declaration in the following terms:
1. The Tribunal declares that:
(a) There is insufficient evidence before the Tribunal to rebut the presumption of capacity for QJI to make decisions about her legal matters relating to proceedings under the Child Protection Act 1999 (Qld);
(b)QJI has engaged the services of a legal representative for the purposes of conducting proceedings under the Child Protection Act 1999 (Qld); and
(c)QJI has capacity to make decisions about her legal matters relating to proceedings under the Child Protection Act 1999 (Qld) with appropriate support for decision-making.
It is also appropriate because I have found that there is insufficient evidence to make a declaration of capacity, and all of the requirements under section 12 have not been met because there is no need for the formal appointment of a guardian. This is because QJI has engaged the services of a legal representative. On that basis, the Tribunal-initiated application for the appointment of a guardian for QJI is dismissed.
The Tribunal, in considering whether to make a non-publication order and confidentiality order, has considered the GA Act. Non-publication and confidentiality orders can be made if the Tribunal is satisfied it is necessary to avoid serious harm or injustice to a person. The making of the order is discretionary and should be considered in the context of the relevant matter, having regard to the legislative provisions contained in the GA Act. It is not necessary to make a non-publication order and confidentiality order in circumstances where there is protection afforded under the GA Act. In particular, section 114A(2) provides a person must not, without reasonable excuse, publish information about a guardianship proceeding to the public or a section of the public if the publication is likely to lead to the identification of the relevant adult by a member of the public. Further, there is protection afforded in relation to identification of the subject child under the CP Act. The Tribunal-initiated applications for a non-publication order and confidentiality order for QJI are dismissed.
The Tribunal is also required to consider human rights that may be engaged and limited by the making of these orders. This is because the Tribunal is acting in an administrative capacity and is a public entity for the purposes of section 58 of the Human Rights Act 2019 (Qld) (‘HR Act’). The Tribunal has considered QJI’s relevant human rights under the HR Act, and the requirement under section 48 to interpret all statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights.
The human rights that are limited and engaged by the making of the Tribunal’s declaration and order include QJI’s right to be recognised as a person before the law and she is entitled to equal protection of the law without discrimination. The Tribunal has proceeded to make a declaration, though in a limited way, to safeguard her interests to ensure that the Child Protection proceedings are not delayed in any way. The Tribunal has also taken into account QJI’s right to a fair hearing. The Tribunal has heard from QJI and has satisfied itself that the declaration will safeguard her interests to ensure that she is represented in the Child Protection proceedings, and that the proceedings can continue. QJI’s rights to privacy and reputation will be impacted because her personal and sensitive information has been shared with others. However, protection is afforded under section 114A of the GA Act.
The rights identified are limited by the making of a declaration under the GA Act, which provides for the appointment of substituted decision-makers to make decisions for a person who is found to have impaired decision-making capacity for a relevant matter. The Tribunal has taken into account the legislation that acknowledges the right of a person with impaired capacity to make decisions that should be restricted and interfered to the least possible extent. The Tribunal has also applied the General Principles that reflect relevant rights for a person with impaired decision-making capacity that must be applied by a person or other entity that performs a function or exercises a power under the HR Act. The Tribunal is satisfied that the limits imposed on QJI’s human rights by the making of a declaration and these orders are reasonable and justified in accordance with section 13 of the HR Act. The Tribunal has applied the HR Act and is satisfied the orders are necessary and the least restrictive, based on the information before it.
The following documents have been considered credible, relevant, and significant to an issue for the purposes of section 103 of the GA Act: the H4 correspondence from the lawyers dated the 1^st of October 2014; the H3 Notice of Hearing; the H2 directions; the medical report, neuropsychological report; and the H5 ADA Law submission.

[2024] QCAT 509

11 October 2024 (ex tempore)