SB

[2013] QCAT 18

CITATION: SB [2013] QCAT 18

PARTIES: SB

APPLICATION NUMBER: GAA8443-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 13 August 2012

HEARD AT: Rockhampton

DECISION OF: P Beckinsale, Member

DELIVERED ON: 13 August 2012, written reasons for decision delivered on 14 January 2013

DELIVERED AT: Rockhampton

ORDERS MADE: Application for declaration about capacity for financial matters is dismissed.

CATCHWORDS: Application for declaration about capacity for financial matters – application dismissed

APPEARANCES and REPRESENTATION (if any):

The Adult
Catherine Delaney, Advocate for Adult
Kaylene Tyler from Public Trust Office
Manager of Independant Living

REASONS FOR DECISION

1. On 31 March 2010 the Tribunal appointed the Public Trustee of Queensland as administrator for all financial matters for SB until further order.

2. On 13 July 2011 an application by SB for a declaration about capacity for financial matters was dismissed by the Tribunal.

3. On 22 September 2011 SB filed a further application for a declaration about capacity for financial matters.

4. On 14 February 2012 the Tribunal adjourned the hearing of the application to a date to be fixed and made directions that SB be assessed by a psychologist or psychiatrist in relation to his capacity to make decisions about financial matters.

5. SB is a 64 year old gentleman living in semi-supported accommodation.  He is estranged from most of his family.  He was a nursing professional when he ceased working due to his illness and is in receipt of the disability pension as well as a small return from what remains of his superannuation fund.  He strongly resents the involvement of the Public Trustee and the Tribunal in his life.

6. The presumption at law that SB had capacity to make his own financial decisions had been rebutted at the time of the Public Trustee being appointed administrator in 2010 and considered again in 2011 but the Tribunal must consider afresh in this application whether SB has capacity to make decisions about his financial matters.

7. A number of medical reports have been filed but the Tribunal will consider the two which are most recent and which provide conflicting views: the first is by Dr Richard Shepherd dated 21 November 2011; the second by Dr Manish Chauhan dated 18 May 2012.

8. The report completed by Dr Shepherd is on the Registry’s standard Health Professional Report form.  Dr Shepherd advises he knows SB as his GP, has known him for 8 years and last saw SB on 21 November 2011.

9. Dr Shepherd lists SB’s current medical conditions as bipolar disorder, alcohol abuse, subarachnoid haemorrhage onset 23.10.2009, benzodiazepine dependence and tardive diskinesia.

10. Where asked his opinion as to other factors that affect SB’s ability or inability to make decisions Dr Shepherd comments “substance abuse-alcohol and benzodiazepine but patient deny abuse recently”.  He notes benzodiazepine as a medication likely to affect SB’s decision-making capacity.  He reports a Mini Mental State Exam score of 28/30 on 23.6.2009.

11. Dr Shepherd opines SB is capable of making decisions freely and voluntarily and that SB can understand and make his own decisions, complex and simple, in relation to personal health care, lifestyle/accommodation choices and financial affairs.  Where more detailed responses are indicated around SB’s ability to understand and act on information relevant for making decisions and to the extent he appreciates the consequences of the decision or lack of decision, Dr Shepherd has responded as follows:

    a)    Personal health care – “good understanding”;

    b)    Lifestyle and accommodation choices – “good understanding-pays rent”;

    c)    Financial affairs – “manages finances himself”.

12. The Tribunal notes that in fact, the Public Trustee has been managing SB’s financial affairs since appointed in 2010.  Currently it is the Public Trustee which attends to payment of SB’s rent and SB himself has management of only the sum of $10 at a time paid to him each Monday, Tuesday, Wednesday and Thursday.  The Tribunal is of the view that part of Dr Shepherd’s report has been completed on SB’s self reports and may therefore be based on inaccurate information.

13. Dr Chauhan, consultant psychiatrist with Central Queensland Mental Health Services, has provided a detailed 3 page psychiatric report.  He reports SB is a patient of the Rockhampton Mental Health Service since December 1989 with multiple admissions to Mental Health Units.  He advises he has been his treating psychiatrist for the last 18 months and has reviewed him multiple times.  Dr Chauhan reported a mental status examination was undertaken on 28 March 2012 with a Mini Mental Status Examination score of 24/30 being achieved.  He also obtained input from SB’s case manager on 9 May 2012.

14. By way of summary of SB’s capacity, Dr Chauhan reports he has multiple psychiatric and medical illnesses with a continuing alcohol and benzodiazepine abuse.  His cognitive abilities have declined and continue to decline further with multiple aetiologies contributing to it.  His clinical opinion is that SB has a limited capacity to make important life decisions, especially the decisions regarding financial management.

15. Dr Chauhan lists 4 factors impacting on SB’s capacity: continuing alcohol dependence; continuing benzodiazepine abuse; prominent Parkinsonian symptoms; and a history of bipolar affective disorder.

16. In relation to SB’s drinking Dr Chauhan reports SB is prone to compulsive drinking meaning he will drink as much alcohol as is available at a given time.  In Dr Chauhan’s view SB’s continuing heavy drinking has resulted in significant cerebral and cerebellar atrophy.

17. Dr Chauhan further reports that SB’s Parkinsonian symptoms have gradually increased in severity over the last 12-18 months and have resulted in forgetfulness and slowness in thinking for SB.  He says these symptoms are consistent with the early phase of subcortical dementia which frequently accompanies Parkinsonian symptoms and that these symptoms will become more severe in time, impacting on SB’s capacity to make decisions further.

18. Dr Chauhan says SB’s cognitive functioning could improve if he ceased alcohol use and decreased benzodiazepines.  He recommends detoxification in an inpatient setting.

19. SB prepared written comments dated 29 June 2012 in response to Dr Chauhan’s report which he wished taken into consideration by the Tribunal.

20. In his comments SB takes issue with some of the information given by Dr Chauhan as well as with Dr Chauhan’s opinion regarding his capacity.  SB expresses his regret for past actions and his unhappiness with his current circumstances but in the Tribunal’s view he does not provide any evidence of his current capacity to make financial decisions.

21. The Tribunal prefers the report of Dr Chauhan to that of Dr Shepherd having regard to Dr Chauhan’s specialty and his detailed consideration given to the issue of SB’s capacity.

22. Whilst Dr Shepherd has been SB’s GP for 8 years his current report appears to rely on some inaccurate self-reporting of SB and possibly the Mini Mental Status Examination which was done in 2009.

23. Dr Chauhan has known SB for a shorter period but as his treating psychiatrist.  Dr Chauhan has relied on a mental status examination he conducted on 28 March 2012, the records of the mental health services which date back to 1989 and the input of SB’s current case manager.  In the Tribunal’s view Dr Chauhan is in a better position to form a view about SB’s cognitive capacity than Dr Shepherd who is concerned with SB’s general health.

24. The Tribunal accepts the evidence of Dr Chauhan and finds that SB has a history of bipolar affective disorder, continuing alcohol dependence which has resulted in significant cerebral and cerebellar atrophy, continuing benzodiazepine abuse and prominent Parkinsonian symptoms resulting in forgetfulness and slowness in thinking.

25. The Tribunal is satisfied the evidence establishes that SB is unable to understand the consequences of decisions about his financial affairs.

26. The Tribunal is satisfied that the evidence rebuts the presumption of capacity and is satisfied SB continues to be unable to make decisions about his financial affairs.

27. Accordingly the Tribunal dismisses the application for a declaration about capacity for financial matters.