ZJA
[2014] QCAT 682
•22 December 2014
| CITATION: | ZJA [2014] QCAT 682 |
| PARTIES: | ZJA |
| APPLICATION NUMBER: | GAA9978-13; GAA5209-14 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATES: | 12 June 2014, 6 August 2014 and 11 December 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Pennell |
| DELIVERED ON: | 22 December 2014 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The application for the appointment of an administrator by CMS is dismissed. 2. The application for a declaration about capacity by CMS is dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – Guardianship and Administration Act 2000 (Qld) s 12, s 146, Schedule 1 – Part 1, Schedule 2 – Part 1, Schedule 2 – Part 3 |
APPEARANCES AND REPRESENTATION:
| APPLICANT: | Ms S M Clive (Principal Solicitor), CBC Lawyers, Townsville |
| RESPONDENT: | Mr A L Raeburn, Solicitor, Connolly Suthers Lawyers, Townsville |
REASON FOR DECISION
INTRODUCTION
The Adult’s legal representative in a personal injury (“PI”) claim against a compulsory third-party insurer made an application to the Tribunal and seeks a decision that the Adult lacks capacity and an administrator should be appointed. The Applicant nominated the Adult’s brother as being an appropriate person to be appointed as the sole administrator for the Adult’s financial affairs.
The Applicant’s case is that the Adult does not have capacity to provide instructions on the complex legal matters associated with his PI claim and relies upon a number of expert medical reports to support the application. Those reports are examined at a later point in this decision.
BACKGROUND
The Adult was born in Ayr and raised on a cane farm in the Burdekin area. He is one of five siblings, having two elder sisters, one younger brother and one younger sister. His family upbringing was akin to the lines of a traditional Italian family.
On 30 March 2008 the Adult sustained what is described as significant injuries as a result of a motor vehicle accident in which he has suffered an acquired brain injury and a psychiatric disability.
The Adult has engaged the services of a solicitor to progress a PI claim against the compulsory third-party insurer for the motor vehicle at fault.
THE APPLICANT’S POSITION
The Applicant’s application concerns the Adult’s ability to comprehend complex legal issues and make appropriate judgements to progress his PI claim and what is relevant to this application is the definition of a financial matter referred to in the Guardianship and Administration Act 2000 (Qld) (“the Act”) at Schedule 2, Part 1, Financial matter – subsection (o).
The Act provides[1] that a financial matter, for an adult, is a matter relating to the adult’s financial or property matters, including for example, a legal matter relating to the adult’s financial or property matters.
[1]At Schedule 2, Part 1, Financial matter, subsection (o).
For reference to this application, a legal matter[2] is a legal matter, for an adult, and includes a matter relating to the bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding.
[2]The Act Schedule 2 – Part 3.
The Applicant seeks a determination from the Tribunal that the Adult does not have capacity. The Applicant also seeks the appointment of an administrator for a specific, but undefined period of time, which encompasses the compulsory conference stage of a PI claim, and if necessary, the additional period of time required to litigate the matter.
The Applicant does not dispute that the Adult can undertake a number of matters defined in Schedule 2 – Part 1 of the Act, including paying maintenance and accommodation expenses, paying debts, receiving and recovering money, performing contracts, discharging a mortgage, paying rates, taxes and insurance premiums and other outgoings as well as insuring property, preserving or improving his estate and withdrawing money from, or depositing money into his account with a financial institution.
However, the Applicant says that given the medical evidence, the Adult does not have the capacity to be able to undertake matters such as investing in authorised investments, continuing investments, including taking a rights issue of new shares, or options to the new shares, to which the Adult becomes entitled by his existing shareholding, undertaking a real estate transaction, dealing with land under the Land Act or Land Title Act, undertaking a transaction involving the use of his property as security, and a legal matter relating to his financial or property matters.
The Applicant says that without an order appointing an administrator in respect to the conduct of the Adult’s PI claim, the Applicant is unable to protect his legal interest. The Applicant is said to have been experiencing considerable difficulties in obtaining instructions from the Adult in relation to the heads of damages to be claimed in his PI claim. The Adult has insisted on claiming amounts that are not recoverable and has refused to accept the advice of his legal representatives.
In written submissions[3] the Applicant explained the process of the personal injuries case proceeding to a compulsory conference stage and exchange of mandatory final offers in a written form between the Adult and the insurer. It is the Applicant’s view that the Adult does not have the necessary capacity to provide instructions as to whether the offer should be accepted or rejected based on the application of the law in respect to the facts in issue.
[3]Exhibit 2.
The Applicant further says that until an administrator is appointed, the Adult’s PI claim will not be able to proceed as he does not have the capacity to process the particular facts and circumstances, nor does he have the capacity to consider and form judgements about the legal advice that he is being given to enable him to make further judgements about what offers he is prepared to make or expect.
The Applicant also says that the Adult is unable to understand what is involved in the decisions needed to prosecute or settle his PI action, and nor is he able understand the nature of the litigation, its purpose, its possible outcomes, and the risk of having to pay costs if he is unsuccessful in the claim.
The Applicant also says that there is a need for the appointment of an administrator to assist the Adult to make decisions and provide instructions to his legal representatives about the significant legal issues relating to the PI claim.
In effect, it appears that the Applicant seeks the appointment of an administrator so that the administrator can step into the shoes of the Adult and provide the Applicant instructions on how to proceed with the PI matter, but only for the time frame encompassing the PI compulsory conference and any subsequent litigation which may follow thereafter, and which such appointment of the administrator would cease immediately upon the determination by a court of the PI matter.
The Applicant seeks the appointment of the Adult’s brother (“the brother”) as the administrator. The brother has provided an affidavit to the Tribunal and seeks to satisfy the Tribunal that his best intentions are for the benefit of his brother.
The brother told the Tribunal that given his education and business credentials, if the Tribunal were to make an order for an administrator, then the Tribunal can be satisfied that he is an appropriate person to fulfil that role.
A further affidavit under the hand of the Adult’s younger sister was provided to the Tribunal. The contents of that document provided great insight into the background and the particulars of this matter. The Tribunal is also satisfied that she too has the best interest of the Adult in mind.
THE ADULT’S CASE
The Adult opposed the application for the appointment of an Administrator and asked the Tribunal to dismiss the Applicant’s application. He also asked the Tribunal make a declaration that he has capacity. The issue about the declaration will be revisited later in this decision.
On the first day of the hearing the Adult was unrepresented. It was apparent to the Tribunal that the Adult required further expert medical evidence in response to the medical reports relied upon by the Applicant, in particular the initial report of Dr Likely[4], which dealt specifically with the issue of capacity. Leave was granted for the Adult to be legally represented.
[4]Exhibit 1(c).
Since April 2009 the Adult has a close relationship with Associate Professor Dr Satish Karunakaran (“Dr Satish”), the Associate Professor of Psychiatry at the Townsville Hospital. Dr Satish provided a detailed medical report and expressed his opinion of various matters relating to the Adult. The contents of that report will be discussed later in this decision.
APPLICATION OF THE LAW
The Act provides that an adult is presumed to have capacity for a matter.[5] Capacity for a person for a matter, means the person is capable of understanding the nature and effect of the decision about the matter; and is capable of freely and voluntarily making decisions about the matter; and is capable of communicating the decisions in some way.[6] The onus falls upon the Applicant to rebut that presumption.
[5]The Act Schedule 1, Part 1.
[6]The Act Schedule 4 Dictionary.
The Act further provides that the Tribunal may, by order, appoint an administrator for a financial matter, for an adult, if the Tribunal is satisfied that the adult has impaired capacity for the matter; and there is a need for a decision in relation to the matter, or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and without an appointment of an administrator, the adult’s needs will not be adequately met; or the adult’s interests will not be adequately protected.[7]
[7]The Act s 12.
Because of the elements contained in the definition of capacity under the Act it is helpful to break that issue up into four distinct issues to arrive at a determination on the question of capacity.
(a) Did the Adult understand the nature of the decision he had to make?
(b) Did the Adult understand the effect of the decision he was making?
(c) Did the Adult freely and voluntarily make a decision about the matter?
(d) Did the Adult communicate the decision about the matter?
If the answer to any one of the questions is “no” then the test for capacity has not been fulfilled.[8]
[8]Aziz v Prestige Property Services P/L and Anor [2007] QSC 265.
MEDICAL EXPERTS
To support the application, the Applicant relied upon a number of expert medical reports from –
(a) Dr Maureen Field, Neuropsychologist dated 16 January 2012.
(b) Dr John Chalk, Psychiatrist dated 21 November 2011.
(c) Dr Michael Likely, Consultant Psychiatrist dated 15 June 2011, 10 June 2014, 4 August 2014, 24 September 2014 and 7 December 2014.
(d) Dr Lee Atkinson, Neurosurgeon dated 18 November 2011.
Dr Maureen Field
Dr Field assessed the Adult on 15 November 2011. Although the Adult was anxious because he had to talk about the accident and do the tests, he was able to calm down, and when given time, was very cooperative and he checked his work carefully. Dr Field said that the Adult was not careless.
In conducting the Personality Assessment Inventory (PAI), Dr Field found that the Adult’s responses suggested that he acknowledged the need for help in dealing with his problems and had a positive attitude towards the value of therapy and the importance of personal responsibility.
Dr Field also found that the Adult was being forgetful, he sometimes got lost, sometimes forgets the time on the day of the week and had trouble concentrating and is easily distracted. It was her opinion that he was left with debilitating cognitive and behaviour abnormalities. It was also Dr Field’s opinion that in relation to his judgement and problem-solving capabilities, it was probable that his memory and attention problems would interfere with his judgement and problem solving in day to day situations.
Dr Chalk
Dr Chalk assessed the Adult on 15 November 2011, immediately after his intensive interview with Dr Field. Dr Chalk said that during the assessment the Adult was somewhat tired.
Dr Chalk had been provided with a series of questions to answer, of which he was asked to comment on whether the Adult had at that time, the capacity to provide instructions to his legal advisers and to manage his financial affairs. Dr Chalk’s response was[9] that although there was the issue of the Adult’s marked level of anxiety and executive difficulties noted in the neuro-psychological reports, the Adult had a general understanding of the issues that confront him.
[9]Dr Chalk’s report at page 15.
Dr Chalk added that he would be concerned that the Adult’s impulsivity, difficulties with attention and at times noted euphoria, may adversely affect his judgement. Dr Chalk went on to say that it was his view that the Adult required some assistance both in advising his legal representatives and in managing his financial affairs.
Dr Likely
Dr Likely’s original assessment of the Adult was on 15 June 2011. This took place over a period of three (3) hours. Since that time Dr Likely has provided a further report dated 4 August 2014 and more recently he conducted a further assessment of the Adult on 24 September 2014, from which he provided additional reports dated 24 September 2014 and 7 December 2014.
In his report dated 15 June 2011 (“first report”), Dr Likely was not asked to form an opinion or express a view with regard to the Adult’s “capacity” as defined in the Act. The Applicant has since initiated a response from Dr Likely with regard to that very issue, but it seems this was done only after it became apparent that the Adult was contesting the application.
In his first report, Dr Likely commented that the Adult had extreme difficulty in planning, organising, sequencing and performing tasks. He also had symptoms consistent with delayed recall, visuospatial processing and frontal executive functioning deficits.
Dr Likely went on to report that the Adult had significant cognitive problems in the areas of attention and concentration. Because of his poor short-term memory, he had difficulty in retaining and retrieving information and he was easily distractible and had word finding difficulties.
On 10 June 2014 Dr Likely wrote to the Applicant.[10] Notwithstanding that there had never been any further examination of the Adult, Dr Likely reported there would be no reason to believe that his original findings in the first report would have altered significantly between then and now.
[10]Exhibit 1(c).
In expressing his opinion on the issue of capacity, Dr Likely said that there was some extreme concern regarding the Adult’s capacity to understand the nature and effects of decisions about the matter. He based this assumption on what both he and Dr Chalk had assessed, that is, the Adult had difficulties in the areas of poor attention, concentration and subsequent difficulties with his poor short-term memory.
When writing to the Applicant[11] Dr Likely concluded that it was his belief that those symptoms will have a significant detrimental effect upon the Adult’s capacity to understand the nature and effect of decisions about the matter, in particular given the complex legal issues involved.
[11]Letter dated 10 June 2014.
On 4 August 2014 Dr Likely completed a further report (“second report”).[12] In this report Dr Likely said inter alia –
For reasons outlined in my report of 10 June 2014, I opined that the Adult had the capacity to freely and voluntarily make decisions and also the capacity to communicate in his decisions. However, I expressed reservations regarding his capacity to understand the nature and effects of decisions about the matter. I base this opinion on my personal interview with the Adult on 15 June 2011 and the report of Dr Chalk dated 21 November 2011.
[12]Exhibit 9.
By this time, Dr Likely had been afforded the opportunity to see the report[13] from Dr Satish. In referring to Dr Satish’s report, Dr Likely said that it was important to point out that while technically the Adult has the capacity with regard to matters reported by Dr Satish[14], the Adult may have some practical difficulties in negotiating a legal contract. He went on to say that his reasoning behind this conclusion was the Adult’s obsessive and stubborn nature and personality disturbance, along with the difficulties he experienced in expressing himself clearly in anxiety provoking situations.
[13]See Dr Satish report dated 10 July 2014.
[14]See medical report of Dr Satish at page 5.
Dr Likely concluded in his second report that while he accepted the logic behind Dr Satish’s opinion, it remained his opinion that as a direct result of his injuries the Adult lacked capacity to communicate decisions. It was also Dr Likely’s belief that explaining legal matters to the Adult in lay terms would be extremely difficult. It appeared that by this stage, Dr Likely was still of the opinion that the Adult lacked capacity and the contents of his assessments and reports supported the Applicant’s application.
Dr Likely’s third report (“third report”) was completed after he re-examined the Adult on 24 September 2014. He had been provided with a series of questions formulated by the Tribunal and he was asked to comment on each of the questions. Those questions were –
1. With regard to the Adult’s brain injury, in your opinion, has his post-accident improvement stabilised, if not, is his condition improving or deteriorating.
2. At present, has the Adult’s brain injury impacted upon his capacity to understand and act on information relevant for decision making, and in your opinion, can he understand and make his own complex decisions about –
(a)Personal health care;
(b)Lifestyle and accommodation;
(c)Financial affairs; and
(d)Complex legal decisions.
3. To what extent does the Adult appreciate the consequences of the decision/s, or the lack of those decision/s regarding those points outlined in 2(a), 2(b), 2(c) and 2(d)?
4. Does the Adult have the requisite capacity to provide instructions to his legal representative/s about complex legal matters, particularly with regard to –
(a)bringing or defending a proceedings, including settling a claim, whether before or after the start of a proceeding;
(b)a legal matter relating to his financial or property matters?
5. With regard to providing instructions to his legal representative/s, does the Adult have the requisite capacity as prescribed in the Guardianship and Administration Act 2000 (Qld) to –
(a)Understand the nature and effect of decisions about the matter of bringing or defending a proceedings, including settling a claim, whether before or after the start of a proceeding; or a legal matter relating to his financial or property matters;
(b)Freely and voluntarily making a decision/s about those issues mentioning in question 4(a) and 4(b); and
(c)Communicating his decision/s in some way?
In regard to question 1, Dr Likely said that although the Adult’s improvement had stabilised, there had not been a complete recovery, and he had been left with ongoing cognitive deficits. However, his memory had improved considerably and is no longer interfering with his daily living activities. The Adult does however suffer from some persistent problems in planning, organising, sequencing and performing tasks with residential executive functioning deficits.
In regard to question 2, in particular question 2(c), Dr Likely said that it was his belief that the Adult was unencumbered regarding any of those issues which included performing any contracts, of any nature, entered into, performing or undertaking a real estate transaction, undertaking a transaction involving the use of his property as security (for example for a loan or by way of a guarantee) or an obligation performance of which is beneficial to the Adult, and a legal matter relating to his financial and/or property matters.
In support of his response to question 2, Dr Likely referred to a letter provided to him by the Adult. This letter was under the hand of Michelle Winsor, the branch manager of Credit Union Australia, Aitkenvale.
In answering question 3, Dr Likely said that the Adult appreciates the consequences of each of the above decisions completely. He had complete insight into the implications of all of them.
In answering question 4, Dr Likely said that it was his belief that legal matters relating to the Adult’s financial property can be made by the Adult without any impairment, and this is demonstrated by the transactions as described in the letter from Ms Winsor. In respect to the issue of bringing or defending a proceeding, including settling a claim whether before or after the start of the proceeding, Dr Likely was unable to elicit any abnormal clinical signs which would preclude the Adult’s requisite capacity to do so. Furthermore, it was Dr Likely’s opinion that the Adult had clear insight into the fact that his insurance company had determined that he is totally and permanently incapacitated from performing any type of remunerative employment.
When Dr Likely discussed with the Adult each of the items contained in the scheduled damages of the PI claim, and in particular the calculation of damages together with past expenses, future expenses, loss of superannuation benefits, loss of future superannuation benefits, past care and assistance, future care and assistance, investment losses, loss of adjustment income, future investment purposes and repairs, the Adult was cognizant with all of the issues contained above. The Adult realised that the total damages payment to the amount of $3,397,501.46 ‘will not be what I get’. Dr Likely went on to say that there are no reasons that he could elicit to dispute the Adult’s capacity to provide instructions to his legal representatives about the complex legal matters outlined.
In answering question 5, Dr Likely relied upon his answers to the previous questions and his answer to this question would be yes.
On 7 December 2014 Dr Likely wrote to the Applicant (“fourth report”) and said that with regard to the question of whether the Adult has the requisite capacity to provide instructions to his legal representatives, he (Dr Likely) had no reason to change his opinion that the Adult did not display any abnormal clinical signs, nor was there any historical material that he could ascertain when he last examined the Adult that would preclude the Adult’s capacity to deal with the above issues.
Dr Likely further commented that it was his opinion that the Adult has the capacity to undertake writing instructions to his legal representative and was able to understand the nature and effect of his decisions about the matter of bringing or defending the PI proceedings including settling a claim whether before or after the start of the proceedings or a legal matter relating to his financial or property matters, and he was capable of freely and voluntarily making decisions about those issues.
Dr Likely added that the Adult is aware of the nature of the compulsory conference for the PI claim, and it was his opinion and belief that the Adult has the requisite capacity as prescribed in the Act.
Dr Atkinson
On 18 November 2011 Dr Leigh Atkinson examined the Adult. In compiling a report regarding the assessment, Dr Atkinson was asked a specific question – does the claimant[15] have the capacity to provide instructions to his legal advisors and to manage his financial affairs?
[15]This refers to the Adult being the claimant.
In response to that question, Dr Atkinson concluded that although the Adult is a vulnerable man with significant cognitive difficulties, complicated by his anxiety and depressive disorder, he would be able to provide instructions to his legal advisors.
Dr Satish
Dr Satish has been involved in the care of the Adult since April 2009 relating to the Adult’s rehabilitation for the acquired brain injury he suffered. On 26 June 2014 Dr Satish interviewed the Adult specifically for the purpose of his report.[16]
[16]Dr Satish report dated 10 July 2014.
Dr Satish reported that in the months following the motor vehicle accident where the Adult suffered a head injury, the Adult developed multiple neuro-psychiatric problems. Cognitive difficulties were also prominent. Initially, he had significant deficits in attention, concentration, memory and frontal executive functioning. Most of these deficits were quite severe to begin with, as one would expect in patients with head injuries.
The Adult made a slow recovery over the next two years, however the recovery is not complete; the Adult has been left with enduring cognitive deficits that are unlikely to improve further. His memory, particularly registration and delayed recall, has improved greatly and it does not appear to have a significant impact on his day-to-day life. Executive functioning deficits remain, particularly with regard to organisation, problem-solving, temporal judgement and abstract reasoning.
Dr Satish reported that another significant issue is the Adult’s personality change that is secondary to his head injury. It is Dr Satish’s opinion that this is relevant to any considerations of his ‘capacity’. Prior to his injury, the Adult had significant obsessive-compulsive personality traits, and since receiving a head injury those traits have unfortunately been amplified, although this is not unusual in people with injuries to their frontal lobe. Dr Satish went on to report that unfortunately, this makes the Adult somewhat difficult to negotiate with, in matters that are complex and abstract.
In regards to the assessment about the Adult’s capacity, Dr Satish reported that the Adult appeared to have an adequate and thorough knowledge of his current financial status and future prospects. He was not able to detect any deficiencies in the Adult’s logical or reasoning of this. It was Dr Satish’s opinion that the Adult has the capacity to manage his own financial affairs.
Dr Satish went on to report that in so far as the Adult’s capacity to understand and decide on the legal matter that he is facing, namely the compensation settlement for his injuries, he appeared to understand the nature of the legal contract that he is asked to negotiate, as much as any layperson can. Further to this, he understands that he may be awarded compensation on some of the items, while he may have to forsake his claim on others. This shows significant insight by the Adult.
Dr Satish reported that he explored with the Adult the inherent inconsistencies that may arise in the course of the settlement, and that the settlement amount is based on the level of incapacity that would deem him incapable of managing his own affairs. In response to this the Adult commented –
it is better to have some amount of money over which I have control rather than have a larger amount of money under someone else’s control, whose permission I have to seek for the rest of my life.
It was Dr Satish’s opinion that this argument appeared logical and contrary to what was labelled as “absence of insight” during the first day of the hearing.
Dr Satish concluded that it was his opinion that the Adult has the capacity to understand the legal matter regarding his compensation and is able to make a decision regarding that matter. He also has the capacity to manage his own affairs and is capable of making the decision freely and voluntarily, and has the capacity to articulate it given enough time and some support.
FINDINGS OF FACT
The Adult has suffered a significant head injury. He was left with enduring cognitive deficits that are unlikely to improve further. He suffers from executive functioning deficits, particularly with regard to organisation, problem-solving, temporal judgement and abstract reasoning.
With regards to the Applicant’s application, the initial expert medical report by Dr Likely, along with his reports in June and August 2014 did not support the presumption that the Adult had capacity. Nor did the expert report of Dr Field and Dr Chalk, although the report of Dr Atkinson supported the presumption that the Adult had capacity.
The Adult has been in the care of Dr Satish since April 2009 and they have a close doctor/patient relationship. Dr Satish is well aware of the Adult’s current physical and psychiatric condition. It was Dr Satish’s opinion that despite the Adult having those difficulties as previously outlined, he did have capacity to make decisions and give instructions to his legal representatives.
The Adult was re-examined by Dr Likely in September 2014. Dr Likely’s original position shifted after the more recent assessment of the Adult. He now adopts a similar opinion to that of Dr Satish, that is, the Adult has capacity to give instructions to his legal representatives.
The Tribunal is satisfied that the Adult can understand the nature and effect of decisions he makes or tries to make. The Adult may from time to time hold a certain view which is not accepted by others, however this does not necessarily mean that he lacks capacity.
The general principles which are set out in Schedule 1 to the Act include respect for the disabled person's human rights, worth and dignity as an individual and a valued member of society; encouraging and supporting performance of social roles; participating in community life by taking part in activities enjoyed by the general community; encouraging the disabled person to achieve maximum physical, social, emotional and intellectual potential and become as self-reliant as practicable; preserving to the greatest extent practicable the disabled person's right to make his or her own decisions.[17]
[17]Willett & Anor v Futcher [2003] QSC 36.
Having regard to all of the evidence, in particular the expert medical evidence, the Tribunal is not satisfied that the Adult is likely to do something in relation to the PI matter that involves, or is likely to involve, unreasonable risk to his health, welfare or property, and nor is the Tribunal satisfied that the Adult’s needs will not be adequately met, or the adult’s interests will not be adequately protected without the appointment of an administrator.
The general principle in Schedule 1 to the Act further provides that an adult is presumed to have capacity to make decisions. Before the tribunal can appoint a decision maker for an adult, the tribunal must be satisfied that the presumption of capacity has been rebutted by evidence satisfactory to the tribunal.[18] For the Tribunal to be satisfied that the presumption has been rebutted there must first be evidence to show that the rebuttal exists. The evidence in this matter, and in particular the expert evidence of Dr Likely and Dr Satish does not indicate that the presumption has been rebutted.
[18]SI [2011] QCAT 218.
In respect to the Adult seeking a declaration as to his capacity, it is the decision of the Tribunal that the Adult is presumed by law to have capacity and therefore no declaration is made.
DECISION
It is the decision of the Tribunal that –
ADMINISTRATION
1. The application for the appointment of an administrator by CMS is dismissed.
DECLARATION ABOUT CAPACITY
2. The application for a declaration about capacity by CMS is dismissed.
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