TNM

[2023] QCAT 177

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TNM [2023] QCAT 177

PARTIES:

In an application about matters concerning TNM

APPLICATION NO:

GAA1610-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

23 May 2023

REASONS AMENDED ON:

14 November 2023

HEARING DATE:

23 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

DIRECTION:

The principal registrar of the tribunal must accept the application for a declaration about capacity lodged by Michael Biscak on 29 November 2022.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – JURISDICTION, PROCEDURE AND EVIDENCE – where health providers’ evidence about capacity was not recent – whether application should be rejected

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 35

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 111(2)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

REASONS FOR DECISION

Introduction

1. This proceeding concerns a man in his mid-forties. For privacy reasons, I will refer to him only as TNM.

2. I have reviewed a decision made by a delegate of the principal registrar of the tribunal to reject an application for a declaration about TNM’s capacity.

Background

1. The application was lodged by solicitor Michael Biscak on 29 November 2022. Mr Biscak explained that his firm acts for TNM in a personal injuries claim, and that Mr Biscak believes that TNM may lack capacity to make decisions concerning settlement monies likely to be paid under that claim.

2. Mr Biscak also lodged two health professional reports that had been prepared for the civil claim: one by psychologist Ian Nussey dated 16 August 2021, and the other by psychiatrist Dr John Chalk dated 20 September 2021. Both reports address TNM’s history and functioning in detail. Mr Nussey was also asked to comment specifically on TNM’s capacity for managing finances, and his report addresses this question in its final three paragraphs.

3. The tribunal’s registry asked Mr Biscak to obtain and provide a health professional report in the form available on the tribunal’s website. The correspondence warned that if such a report was not provided, the application may be rejected.

4. No further report was provided.

5. On 20 January 2023, a delegate of the tribunal’s principal registrar wrote to Mr Biscak advising that she had rejected the application under section 35(3)(c) of the QCAT Act. That section permits the principal registrar to reject an application that does not comply with relevant legislation or the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’). The letter said the application was rejected because the medical information provided was over six months old ‘and an updated health professional report is required for the Tribunal to make a finding about capacity’.

6. On 25 January 2023, Mr Biscak requested the principal registrar to refer the rejection decision to the tribunal for a review. I have now conducted that review.

7. In the referral request, Mr Biscak said it was not possible to provide a more recent health professional report: TNM refuses to cooperate in any assessment because he believes, contrary to Mr Nussey’s opinion, that he has full capacity. In any event, Mr Biscak says, even if TNM were cooperative, there are no funds available for a further assessment and report. The cost would be very considerable because TNM is in prison.

8. On 9 February 2023, the tribunal made directions for Mr Biscak to file a submission addressing certain topics by 9 March 2023. When I made the decision, I had not been informed by the tribunal’s registry that a submission was filed by Mr Biscak on 9 March 2023. However, I was satisfied that the topics had been sufficiently addressed in earlier materials in any event. The reasons that follow reflect my understanding of the facts when I made the decision, without the benefit of Mr Biscak’s submission which updated TNM’s circumstances.

The decision on the review

1. On review, I must direct the principal registrar to either reject the application or accept it (with or without conditions).[1] I can direct the principal registrar to reject the application only if a ground for rejection under section 35(3) of the QCAT Act exists.[2] The only potentially applicable ground is the one in section 35(3)(c), involving non-compliance with a legislative provision or rule.

   [1]QCAT Act, s 35(6).

   [2]Ibid, s 35(8).

2. The letter dated 20 January 2023 did not identify which provision or rule had not been complied with. However, it must have been rule 111(2) of the QCAT Rules:

   The application must also include, for example, by attaching a report, information about the person relevant to the application that is provided by a health provider.

3. The rule does not specify how recent the information must be. There is, for example, no specified requirement that the information must be no older than six months.

4. The information must be ‘relevant to the application’. It may be that in a particular case the information supplied is so out of date that it cannot be described objectively as relevant to the application.

5. The reports provided by Mr Biscak were more than a year old, but it is unlikely that TNM’s condition has materially changed. TNM was in prison when Mr Nussey and Dr Chalk assessed him. He remains in prison. Dr Chalk regarded TNM’s condition as permanent. Mr Nussey said that TNM might benefit from an expensive course of intensive psychological and psychiatric treatment over a period of up to four years. It can be assumed, however, that TNM has not yet undergone the recommended treatment. He has not yet received the proposed settlement funds. Further, the treatment is unlikely to be available to a person in custody in any event.

6. In my view, the reports provided by Mr Biscak were relevant to the application. They met the requirement in rule 111(2). The application should have been accepted.

Conclusion

1. Accordingly, I will direct the principal registrar to accept the application.

2. In the application for a declaration about capacity, Mr Biscak said:

   Should it be determined that [TNM] lacks capacity to manage his financial affairs, in the absence of another suitable and available financial administrator, the Public Trustee of Queensland should be appointed as our client’s financial administrator.[3]

   [3]Document H1 on the tribunal’s file, p 4.

3. As no application for the appointment of an administrator has been filed, the tribunal will initiate such an application. This will enable the tribunal to decide whether to appoint an administrator, if it finds at the hearing that TNM lacks capacity, without having to convene another hearing on a later date.