Re: BHV
[2017] QCAT 436
•16 November 2017
CITATION: | Re: BHV [2017] QCAT 436 |
PARTIES: | BHV |
APPLICATION NUMBER: | GAA6262-17; GAA6264-17 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 6 November 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Clifford |
DELIVERED ON: | 16 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Applicant is granted leave to be legally represented. 2. The Applications for Appointment of a Guardian and Administrator by LS for BHV are dismissed. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – where Adult has mental health condition – where Adult has personal injury claim on foot – where Adult not fully communicating with solicitor – where Adult’s claim may be dismissed – where Adult not fully cooperating with Court Orders – whether Adult has capacity to instruct – whether presumption of capacity rebutted Guardianship and Administration Act 2000 (Qld) |
REPRESENTATIVES: | Hall B, Counsel, instructed by Everingham Lawyers for the Applicant Berquier A, appearing for the Office of the Public Guardian |
REASONS FOR DECISION
Background
BHV is a 49 year-old woman who allegedly injured her knee with a fall in the workplace in September 2008. In early October BHV also claims a co-worker sprayed chemicals into her eyes causing injury. BHV reportedly had a range of investigations and treatment. In April 2012 BHV was involved in a motor vehicle accident and allegedly injured her back. BHV experiences on-going pain from the events. BHV reportedly had a prejudicial childhood living in many foster homes. Also several members of BHV’s family have complex needs and BHV has undertaken the primary carer role for a number of years.[1] In 2014 BHV was found to suffer chronic Major Depressive Disorder with anxiety, suicidal thinking, hopelessness, and social withdrawal amongst other things.[2]
[1]Report Dr JG Reddan, Consultant Psychiatrist, 29 February 2012.
[2]Letter, Dr W Puriri, Consultant Psychiatrist, 14 July 2014.
In May 2017 the Tribunal received an application for the appointment of a Guardian and/or Administrator in regards to BHV. The Applicant, LS, is a solicitor representing BHV in a personal injury claim currently before the District Court of Queensland. In essence the Applicant seeks a determination as to BHV’s capacity to provide instructions concerning the District Court matter. The Applicant raises concerns as to BHV’s mental health status and states BHV has refused to fully participate in assessment processes ordered by the District Court. The Applicant states that BHV is of little means and is exposed to significant financial risk if instructions cannot be obtained. The Applicant provided a number of documents including affidavits sworn by the Applicant and others, along with file notes and medical reports and letters.[3] The Applicant sought leave to be represented for the proceeding. There was no opposition to the application and given the other legal matters on foot in relation to the Adult in which the Applicant is directly involved the Tribunal granted leave to the Applicant to be legally represented.
[3]In particular Affidavits of Applicant with attachments dated 12 May 2017 and 31 October 2017.
Legislation
The Guardianship and Administration Act 2000 (Qld) provides that the Tribunal may appoint a guardian for a personal matter or an administrator for a financial matter if it is satisfied that BHV has impaired capacity for the matter; and that there is a need for the decision or that the adult is likely to do something in relation to the matter that involves, or likely to involve an unreasonable risk to their health welfare or property; and without an appointment the adult’s needs will not be adequately met or interests adequately protected.[4]
[4]Guardianship and Administration Act 2000 (Qld), s 12.
Schedule 2 of the Act outlines what may be included as a personal, and financial matter. Counsel for the Applicant submitted that the matter could be construed as both a personal and financial matter. Mr Berquier of the OPG opined that providing instructions for a legal proceeding that related to the adult’s financial or property matters fell squarely within the definition of Financial matters in Schedule 2 of the Act. The Tribunal concurs with the OPG. Schedule 2 lists a financial matter as one that includes ‘a legal matter relating to the adult’s financial or property matters’, whereas a personal matter may include a ‘legal matter not relating to the adult’s financial or property matter.’ The proceeding before the District Court is one made pursuant to the Workers Compensation and Rehabilitation Act 2003. Ordinarily it is financial compensation that a Plaintiff seeks in such matters, and the Tribunal has not been advised it is otherwise in BHV’s case. In the circumstances the Tribunal is satisfied that this application and proceeding concerns a financial matter only.
Does BHV have capacity for instructing solicitors in the District Court proceeding?
Under the Guardianship and Administration Act, an adult is presumed to have capacity for a matter. Capacity for a person means the person is capable of;
a)understanding the nature and effect of decisions about the matter; and
b)freely and voluntarily making decisions about the matter; and
c)communicating the decisions in some way.
In summary Counsel for the Applicant submits there has been a long history of BHV failing to provide instructions and being out of communication. The Applicant submits that whilst BHV has been capable of rational decision-making she has not been in relation to the District Court proceeding that exacerbates her depression and anxiety.
The Applicant relies particularly on the statement of BHV’s General Practitioner of 10 years, Dr Mohammed. The statement, dated 31 October 2017, briefly outlines BHV’s history and conversations the author has had with Everingham Lawyers about conversations she has had with BHV whereby BHV has advised her about the stress and anxiety she suffers when dealing directly with solicitors and being medically examined. Dr Mohammed opines that BHV’s stress impacts on her ability to make decisions in her best interest because her immediate response is to beneficial or not to her. Dr Mohammed further opines it may be the case BHV could make decisions about other legal matters when she is not stressed or anxious, but does not consider that capability extends to the District Court case.
The Applicant also relies on letters of Psychologist, Rhonda Lawson, whom BHV consulted for counselling on a number occasions in 2014 and 2015. Ms Lawson’s letters indicate she last saw BHV on 18 August 2015 when she reported BHV was not in a good state of mind, that she had lost weight, was resistant to seeing further doctors and had financial pressures about her rental accommodation. Ms Lawson records BHV wanted things settled, but opined she does not have the ability psychologically or physically to be involved in the continued appointments she is required to attend.
The letter of Dr Puriri of 14 July 2014 noted previously, also opined at that time BHV would not be able to attend a three day hearing because her mental health and high level of pain would not allow it and he recommended she be excused as it would be a detriment to her well-being.
By order of the District Court in March 2017 BHV was referred for psychiatric examination with Dr JG Reddan, Psychiatrist. Dr Reddan’s letter to the Court dated 18 April 2017 was brief, noting that she had endeavoured to evaluate BHV, that BHV answered only one question and she did not speak. Dr Reddan provided further details of that appointment by letter to the Court dated 9 May 2017. That letter indicates that Dr Reddan was satisfied BHV understood what was being asked of her during the appointment notwithstanding her non-response. However, Dr Reddan noted the contrast from when BHV was assessed by her on 6 December 2011 and the recent assessment. Dr Reddan records that in 2011 BHV was reasonably talkative, spontaneous and answered all the questions relevantly. Dr Reddan noted that in her long experience total silence or virtually total silence at an evaluation is extraordinarily rare. However, Dr Reddan further opined that this is not necessarily reflective of a lack of capacity to make decisions.
The Applicant also relies on emails from BHV to Everingham Lawyers dated 21 and 28 April 2016 to support the claim BHV lacks capacity for instructing her solicitor about the proceeding. In these emails BHV clearly indicates her frustration with attending medical appointments and communicating with her lawyers. BHV writes ‘I am not in the mood to talk’, ‘leave me alone’, that she is ‘over doctors, specialists, and psychiatrists now double over solicitor’s and their office workers.’ and that she was wished she ‘had died in the last accident’. A further email dated 11 October 2017 expresses more frustration with delay and communication, but BHV writes ‘I guess my question is I’m I ever going to get a payout?????’
Counsel for the Applicant submits that given the history of BHV’s circumstances and more recent events that BHV is incapable of providing instructions in relation to the District Court matter.
Decision
The law is clear that all Adults are presumed to have capacity. The onus is on the Applicant to rebut the presumption on the balance of probabilities. BHV did not attend the Tribunal proceedings. The Tribunal is satisfied that proper Notice of the Hearing was given and that Everingham Lawyers also communicated with BHV strongly recommending she attend this proceeding. That BHV did not attend is in keeping with the picture the Applicant has painted of BHV.
The Applicant has provided a number of reports from health professionals who have assessed or counselled BHV prior to or over the course of the District Court proceeding. The reports and material the Applicant provided indicate a complex matter, whereby Dr Mohammed, Ms Lawson and Dr Puriri have at different times opined BHV was not in a fit psychological state to attend various proceedings, but at other times some have expressed different views. Dr Mohammend opined in a letter to Everingham Lawyers in February 2017 that BHV has ‘full capacity to understand and make decisions of a legal nature’, and in her report dated 30 June 2017 accompanying the application, opined BHV had ‘full ability’ for all health, lifestyle and financial decisions. Ms Lawson in a letter dated 6 November 2014 to Everingham Lawyers, that BHV has ‘capacity to provide you with her instructions re her claim for damages.’
Whilst the Tribunal accepts Dr Puriri and Ms Lawson’s observations of BHV’s poor mental status at the time of the reports noted above, Dr Puriri has not examined BHV since July 2014, or Ms Lawson since August 2015 this is a significant period of time during which it appears BHV’s mental health status has fluctuated.
Dr Reddan, Consultant Psychiatrist, whilst recording a stark contrast between his examination of BHV in 2011 and 2017, noted that whilst silence at an evaluation is extraordinarily rare he opined it is not necessarily reflective of a lack of capacity to make decisions.
Whilst the Tribunal agrees the emails from BHV to Everingham Lawyers are in keeping with someone in severe distress, the Tribunal notes they contain not unreasonable elements of frustration and exasperation about delays in the proceeding. The emails also indicate with some clarity that BHV objects to the involvement of her daughter in the matter, and notes that as she has been in financial stress for years she has started the paperwork for bankruptcy.
The Tribunal accepts on the evidence provided that BHV has fluctuating and at times debilitating mental health that causes extreme anxiety and the Tribunal acknowledges such circumstances may complicate case management. However, the existence of a mental health disorder is not in and of itself an indication BHV is not capable of providing instructions to her lawyers for the District Court proceeding currently on foot. Rather, it appears BHV’s distress is a matter to be managed, particularly if required to appear before a Court or Tribunal, as variously recommended by health professionals. There is no suggestion BHV is not capable of making decisions in all other areas of her life. Whilst there is evidence BHV finds dealing with the medical and legal profession stressful, there is no evidence BHV doesn’t fundamentally understand that she is engaged in a legal proceeding hoping to receive financial compensation for an alleged workplace injury, and that she will be required to attend medical appointments and Court appearances. BHV also appears to understand that there may be legal costs against her as indicated in her email of 28 April 2017 when she writes of initiating bankruptcy. The health professionals have at times clearly stated BHV is capable of making legal decisions and instructing her solicitors.
Appointing a substitute decision-maker for an Adult is a significant curtailment of an Adult’s personal autonomy. Based on the evidence before it, the Tribunal has not been satisfied on the balance of probabilities that the presumption of capacity has been rebutted, and that BHV is incapable of providing legal instructions to her lawyers in regard to the District Court matter. In these circumstances the Tribunal is satisfied it is unnecessary to consider whether the other elements required before making an appointment have been made out.
The Tribunal dismisses the applications and orders accordingly.
0
0
2