AKM [2025] QCAT 369

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AKM [2025] QCAT 369 PARTIES: In applications about matters concerning AKM APPLICATION NOS: GAA2132-25, GAA2134-25, GAA2634-25 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 2 September 2025, ex tempore HEARING DATE: 2 September 2025 HEARD AT: Brisbane DECISION OF: Senior Member Browne ORDERS: There is insufficient evidence before the Tribunal to rebut the presumption of capacity for AKM to make decisions about the following financial matter: (a) The proceedings before the Queensland Civil and Administrative Tribunal related to a residential tenancy dispute and Appeal Tribunal proceedings (APLXYZ-24 and MCD QXYZ-24). AKM has engaged the services of a legal representative for the purposes of conducting the current proceedings before the Tribunal. AKM has capacity to make decisions about the following financial matter with appropriate support for decision-making: (a) The proceedings before the Queensland Civil and Administrative Tribunal related to a residential tenancy dispute and Appeal Tribunal proceedings (APLXYZ-24 and MCD QXYZ-24). The Tribunal initiated application for the appointment of a guardian for AKM is dismissed. The Tribunal initiated application for the appointment of an administrator for AKM is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – where adult has ongoing proceedings in the Appeal Tribunal – where applications were initiated by the Tribunal – where adult is subject to -- 1 of 7 -- 2 Treatment Authority – whether the medical evidence was prepared for the purpose of assessing the adult’s capacity as defined under schedule 4 of the Guardianship and Administration Act 2000 (Qld) – whether the adult’s informal support network is adequate – whether there is a need for decisions – where presumption of capacity is not rebutted – where the requirements under s 12 of the Guardianship and Administration Act 2000 (Qld) have not been satisfied HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the Tribunal considered whether the decision was compatible with human rights – where Tribunal recognises the adult’s right to privacy – where Tribunal recognises the adult’s right to be recognised as a person before the law – where the Tribunal recognised the adult’s right to choose where they should live – where the Tribunal recognised the adult’s right to own property law – where the Tribunal recognised the adult’s right to a fair hearing Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11, s 11B, s 12, s 146 Human Rights Act 2019 (Qld), s 15, s 19, s 24, s 25, s 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 APPEARANCES & REPRESENTATION: Adult: AKM E Thelander and M Burgess from QAI REASONS FOR DECISION [1] Senior Member Browne: The matters before the Tribunal are Tribunal initiated applications for a declaration about capacity to make decisions about the following financial matter – the proceedings before the Queensland Civil and Administrative Tribunal relating to a residential tenancy dispute and Appeal Tribunal proceedings (APLXYZ-24 and MCD QXYZ-24), and an application for the appointment of a guardian and an application for the appointment of an administrator. Background [2] This matter came before the Tribunal on 31 July 2025. At that time, AKM was residing in a secure mental health facility under a Treatment Authority. The Treatment Authority dated 29 July 2025, indicated that AKM was an inpatient in the XYZ Hospital. [3] In the prior proceeding, AKM indicated to the Tribunal that she was under a confidential order because there was a Domestic Violence Order in place and that she wished to seek legal representation in relation to the matters before the Tribunal. The proceeding was adjourned and is now before the Tribunal today. -- 2 of 7 -- 3 [4] The Tribunal initiated the applications by Directions dated 4 March 2025, relate to a decision made in the Tribunal’s minor civil dispute residential tenancy jurisdiction that AKM and another person identified as a respondent pay the landlord the sum of $12,423.07 within 28 days. AKM commenced proceedings in the Appeal Tribunal, and the Appeal Tribunal made Directions for the filing of material in relation to the application for leave to appeal or appeal. Importantly, on 24 February 2025, the Appeal Tribunal referred the question of AKM’s capacity to the Principal Registrar for the human rights division, and this was in relation to the conduct of the Appeal Tribunal proceedings. Need for decisions about personal and financial matters [5] The proceeding, being the application for leave to appeal or appeal before the Appeal Tribunal, as I have said, concerns an order for AKM to pay an amount of money that will potentially impact on her financial position more broadly. Further, in conducting the proceeding before the Appeal Tribunal, AKM, as a self-represented litigant, will need to make decisions about a number of complex legal questions, including identifying grounds of appeal and also complying with Directions to prepare and file material to be relied upon. This also includes preparing written submissions, collating documents, filing the documents and appearing in the Appeal Tribunal proceeding. [6] The issues to be determined arise as a result of the commencement of the application for leave to appeal or appeal. Because AKM’s personal circumstances have changed, the Tribunal is considering whether AKM has capacity to make decisions about her financial matters, and this includes her legal matters, such as the Appeal Tribunal proceeding. [7] Also, there is an issue about whether AKM can make decisions about her accommodation matters and provision of services and other legal matters that arise separately, although they are in some way connected to the Appeal Tribunal proceeding, in particular an application will be necessary to remove AKM from what is known as the ‘TICA list’, which is the Tenancy Information Centre of Australasia. [8] The TICA listing came about as a result of the decision in the minor civil dispute residential tenancy matter and will impact on AKM’s ability to source and find suitable private accommodation. There are other legal proceedings in relation to AKM’s personal matters, including the Domestic Violence Order, and services and healthcare that are necessary to support AKM in the community upon discharge from her current setting. Presumption of capacity [9] Having identified the matters – which is important to do because in determining capacity, that is the first step, the law makes clear, as provided under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’), that there is a presumption of capacity until the contrary is proven.1 As I have indicated, the conduct of legal proceedings before the Appeal Tribunal about the minor civil dispute residential tenancy decision is complex, as are the other decisions [to be made by AKM]. [10] If the Tribunal finds that the decisions are necessary, the Tribunal will also need to consider the medical evidence relevant to AKM’s capacity as well as her current surrounding circumstances, in particular what supports are in place in an informal way 1 GA Act s 11; see also s 146 that gives the Tribunal the power to make a declaration of capacity. -- 3 of 7 -- 4 that AKM is engaging with, to ensure that her interests are protected.2 This is important because relevant to determining capacity and whether the presumption is rebutted is a consideration of AKM’s right to autonomy in her decision-making as reflected in the law and the general principles.3 Also is AKM’s right to make her own decisions in a supported way in circumstances where there are adequate supports around her, and she is engaging with them.4 Relevant medical evidence [11] The medical evidence before the Tribunal includes the involuntary treatment order and health professional report completed by Dr QD, the treating psychiatrist, dated 17 July 2025. This is the extent of the current medical evidence. Submissions from AKM’s legal representative [12] The Tribunal had the opportunity of hearing from AKM’s legal representative from Queensland Advocacy for Inclusion (‘QAI’), Ms Thelander, together with Ms Burgess. Importantly, Ms Thelander directs the Tribunal to the health professional report completed by Dr QD and raises a question or concern about the adequacy of the report and the purpose for which it was prepared. [13] Ms Thelander queries whether the report was, in fact, prepared for the purposes of assessing AKM’s capacity as defined under schedule 4 of the GA Act, or whether the health professional report was prepared in the context of AKM’s ongoing treatment as part of an involuntary treatment order for the purposes of ensuring that her mental healthcare needs are being addressed. So put simply, whether the report was prepared for the purposes of assessing capacity as defined under the GA Act or for another purpose. [14] Ms Thelander also made submissions relevant to the adequacy of the supports in place for AKM. Ms Thelander identified that AKM has engaged the services of QAI in respect of the current proceedings. AKM has been open to a referral to the Residential Tenancy Queensland organisation or authority who are able to assist her in removing the identification of the TICA listing and who are also able to assist her in being connected with legal representation in the form of a community legal service [the Gold Coast Community Legal Centre] who can support her in the QCAT Appeal Tribunal proceedings. The adequacy of informal supports [15] Other submissions have been made today that all indicate a comprehensive informal support network for AKM that looks like health care providers in the mental health care setting who are working with AKM as part of discharge planning. This includes sourcing suitable accommodation when it comes to the relevant time for AKM to be discharged into the community; a review of the involuntary treatment order that was reviewed in August this year and will remain until further review, otherwise, six months; and continuing to support AKM with her health care in the form of ongoing treatment regime for her mental health care needs. 2 See s 12 of the GA Act for the appointment of a guardian or an administrator. 3 GA Act s 5, s 11B. 4 Ibid, s 5(e), s 6. -- 4 of 7 -- 5 [16] There are many informal supports for AKM in her present accommodation setting and there are informal supports that are recognised in the community in the form of legal representation through QAI and connecting AKM with Residential Tenancy Queensland and Gold Coast Community Legal Centre. [17] The Tribunal is satisfied that the informal supports are adequate and that AKM has demonstrated her ability to seek out these supports and to connect with these supports. An example of this was seen by the Tribunal in the last proceeding that came before me on 31 July 2025, at which point AKM asked the Tribunal to adjourn the matter so that she could engage legal representation for the proceeding. That is, [AKM] reaching out or identifying that she needs support and engaging with the supports. [18] We have seen the evidence of that working today in terms of the informal supports working for AKM. AKM’s legal representative appeared in the proceeding and made appropriate submissions. AKM also appeared in the hearing today with a person who identified themselves as an advocate with a support provider background. AKM was also supported in the hearing by a social worker in the hospital setting and a doctor who is part of the treating team. Tribunal’s findings about capacity [19] The medical evidence in relation to making a finding of capacity, more importantly, whether the presumption is rebutted, is critical and should be clear because the law mandates that a person is presumed to have capacity for a matter until the contrary is proven.5 I accept Ms Thelander’s oral submission made in the hearing today that the medical report of Dr QD, treating psychiatrist, was prepared at a time following AKM’s readmission to a hospital setting. [The report] is dated 17 July 2025. It is not a current medical assessment. It makes references to attempts to complete a capacity assessment which were clearly unsuccessful. [20] It is unclear as to whether the report is referring, retrospectively, to impairments with respect to AKM’s ability to make decisions about her financial matters and personal matters, particularly in circumstances where AKM has not had an opportunity to be connected with informal supports, which she is clearly able to engage with. Further, AKM has demonstrated that she sourced legal representation after the last proceeding was before the Tribunal. [21] The medical evidence contained in the health professional report, that has reference to the GA Act, is unclear as to the purpose for which it has been prepared - whether [the report] has been prepared to look at overall, in a holistic way, AKM’s treatment regime, relevant to the involuntary treatment order and her current admission to Hospital, for treatment of her diagnosed mental illness. The report does, however, inform the Tribunal that AKM is receiving treatment for a diagnosed mental illness and that without treatment, there is a risk referred to as ‘impacting on the ability to make decisions’. Although it is unclear as to what that means, it is evidence that there is a condition that is a diagnosed mental illness for which AKM is receiving treatment, and we know this, and AKM is presently [receiving treatment] in the hospital setting. [22] The Tribunal is not satisfied that [based] on the evidence today it can proceed to make a declaration in relation to AKM’s capacity to make decisions about her financial matters and personal matters. Also, for the purposes of s 12 of the GA Act, there is 5 GA Act, s 11. -- 5 of 7 -- 6 insufficient evidence before the Tribunal to proceed to consider making orders to appoint substituted decision-makers. There is no need for a decision to be made that would, as required under s 12 [without the appointment], demonstrate a need that will not be adequately met or an interest that will not be adequately protected, and those interests today are, as I have indicated, personal and financial interests. Application of general principles and the Human Rights Act 2019 (Qld) [23] The Tribunal has considered the general principles that reflect more broadly a person’s dignity and right to make their own decisions, and importantly, that a person should have access to adequate support for decision-making.6 I am also upholding relevant human rights that are reflected in the Human Rights Act 2019 (Qld) that recognise a person, who is equal before the law,7 that a person is entitled to make their own decisions about where they should live and their own property matters,8 that a person has a right to their own privacy9 and that a person has a right to a fair hearing.10 [24] The declarations that I am about to make are made on the basis that I am determining capacity today, based on the evidence before the Tribunal. The evidence is telling. There are adequate supports in place, AKM is engaging with the supports, and the supports will endure beyond today in terms of connecting AKM to relevant authorities and other lawyers who can support her in a community legal centre. Should there be a change in AKM’s circumstances, an application can be made at any time with supporting material, and this includes any change in circumstances.11 Tribunal’s Orders [25] The orders will be, in relation to the declaration about capacity, the Tribunal declares that there is insufficient evidence before the Tribunal to rebut the presumption of capacity for AKM to make decisions about the following financial matter: (a) the proceedings before the Queensland Civil and Administrative Tribunal related to a residential tenancy dispute and Appeal Tribunal proceedings (APLXYZ-24 and MCD QXYZ-24). [26] The Tribunal declares that AKM has engaged the services of a legal representative for the purposes of the current proceedings before the Tribunal. [27] The Tribunal also declares that AKM has capacity to make decisions about the following financial matter with appropriate support for decision-making: (a) the proceedings before Queensland Civil and Administrative Tribunal related to a residential tenancy dispute and the Appeal Tribunal proceedings (APLXYZ- 24 and MCD QXYZ-24). [28] In relation to the application for the appointment of a guardian, the Tribunal initiated application for the appointment of a guardian for AKM is dismissed.12 6 GA Act s 11B, s 5, s 6. 7 Human Rights Act 2019 (Qld) s 15. 8 Ibid, s 19, s 24. 9 Ibid, s 25. 10 Ibid ss 19, 21, 25, 31. 11 See s 12 of the GA Act. 12 See s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 6 of 7 -- 7 [29] In relation to the application for an administrator, the Tribunal orders that the Tribunal initiated application for the appointment of an administration for AKM is dismissed.13 [30] So, the orders are, AKM, that the applications have been dismissed and you have been recognised today by the Tribunal as a person who can make [their own] decisions with support. 13 Ibid. -- 7 of 7 --