CAL [2022] QCAT 356

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CAL [2022] QCAT 356 PARTIES: In an application about matters concerning CAL APPLICATION NO: GAA9932-22 MATTER TYPE: Guardianship and administration matters for adults REASONS DELIVERED ON: 17 October 2022 DECISION DATE: 29 September 2022 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The application by [applicant] for the appointment of a guardian for CAL under an interim order is dismissed. CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – PARTICULAR CASES – where adult facing criminal charges and may be unable to give instructions – whether interim appointment of a guardian should be made Guardianship and Administration Act 2000 (Qld), s 11, s 12, s 129 Mental Health Act 2016 (Qld), s 110 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] This proceeding concerns an adult who, for privacy reasons, I will refer to only as CAL. He is facing a number of criminal charges. He has a solicitor acting for him in those proceedings. CAL is living in a ‘secure mental health facility’.1 [2] The applicant is an advocate with an advocacy organisation. On 16 September 2022, she made applications to the tribunal under the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’): (a) for a declaration about CAL’s capacity; 1 Document H56 on the tribunal’s file, page 2. -- 1 of 4 -- 2 (b) for the appointment of a guardian for CAL; and (c) for an interim order. [3] The application for an interim order sought the appointment of the Public Guardian as interim guardian for legal matters namely the criminal proceedings, until the other applications before the tribunal are heard and determined. On 29 September 2022, I decided to dismiss the application for an interim order. The applicant has requested reasons, which I now provide. Background [4] The report of a psychiatric registrar dated 14 September 2022 indicates that CAL has paranoid schizophrenia and an intellectual disability. The psychiatric registrar considers that CAL has impaired capacity to make decisions about health, lifestyle, accommodation, and financial matters, but the report does not specifically address CAL’s capacity to make decisions about legal matters. [5] The psychiatric registrar’s report says that CAL is subject to a forensic order. This means that the Mental Health Court must have made a forensic order in connection with an earlier criminal charge or charges against CAL. [6] The solicitor acting for CAL in the current criminal proceedings advised the tribunal on 21 September 2022 that CAL is facing both indictable and summary charges. CAL has been committed to the District Court on the indictable charges, but the indictment is yet to be presented. Once it has been, the solicitor will refer the matter of CAL’s mental state to the Mental Health Court. Meanwhile, the summary charges have been adjourned in the Magistrates Court, to be dealt with after the indictable charges. The solicitor says there is no need to take instructions from CAL about the criminal proceedings at this stage. [7] The applicant contends that CAL ‘does not have capacity to consent to legal matters’,2 and ‘does not have capacity to give instructions’3 to his solicitor. The applicant argues that the interim appointment of a guardian is required because ‘lawyers are seeking instructions from [CAL] which is inappropriate’.4 The applicant says the solicitor’s firm is sending correspondence to CAL but he cannot understand it. The applicant also says the solicitor’s firm advised her, in response to an enquiry she made in July 2022: We are taking instructions from the client but at this stage, we do not require further instructions from the client until such time we receive the indictment from the DPP Office.5 [8] In submissions dated 29 September 2022, the applicant added that CAL has not had leave from the secure facility for over a year. The applicant says that a ‘legal guardian can also seek supported leave for [CAL] to ensure he is getting some form of social interactions outside the SMHU and starts some sort of rehabilitation …’.6 2 Document H57 on the tribunal’s file, page 4. 3 Document H56 on the tribunal’s file, page 15. 4 Document H55 on the tribunal’s file, page 4. 5 Document H59 on the tribunal’s file, page 1. 6 Document H62 on the tribunal’s file, page 2. -- 2 of 4 -- 3 Why was the interim application dismissed? [9] The criteria for appointing a guardian are set out in section 12(1) of the Guardianship and Administration Act: (1) The tribunal may, by order, appoint a guardian for a personal matter … for an adult if the tribunal is satisfied— (a) the adult has impaired capacity for the matter; and (b) 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 (c) without an appointment— (i) the adult’s needs will not be adequately met; or (ii) the adult’s interests will not be adequately protected. [10] Such an appointment can be made only after a hearing. Section 129 of the Guardianship and Administration Act, however, allows the tribunal to make an interim appointment of a guardian, before the hearing, if: … (a) the adult concerned in an application has, or may have, impaired capacity for a matter; and (b) there is an immediate risk of harm to the health, welfare or property of the adult…7 [11] A guardian would not be able to make a decision about how CAL pleads to the charges. Entering a plea is a ‘special personal matter’, and therefore not a ‘personal matter’ for which a guardian can be appointed.8 However, a guardian would be able to make other decisions in connection with the criminal proceedings, such as whether to engage or dismiss a legal representative, and whether to instruct a legal representative to gather evidence to explore a potential defence. [12] There are provisions in the Mental Health Act 2016 (Qld) (‘Mental Health Act’) to deal with the situation where an accused person appears to lack the ability to understand their criminal proceedings and/or give meaningful instructions. A person lacking such ability would be considered unfit for trial. [13] Under the Guardianship and Administration Act, decision-making capacity is presumed,9 until such time as the contrary is proved and the tribunal makes a declaration of impaired capacity10 and/or appoints a guardian.11 It is therefore proper, in my view, that CAL’s lawyers have obtained whatever instructions they can from him, and that they have sent him correspondence about the criminal proceedings. 7 Guardianship and Administration Act, s 129(1). 8 Ibid, Schedule 2, s 2, s 3(j). 9 Guardianship and Administration Act, s 11(1). 10 Ibid, s 11(3). 11 Ibid, s 11(2). -- 3 of 4 -- 4 [14] Under section 110 of the Mental Health Act, an accused person’s mental state can be referred to the Mental Health Court by the accused, or the accused’s lawyer, or the Director of Public Prosecutions. Such a reference can be made if the referring person has reasonable cause to believe that the accused was of unsound mind at the time of the alleged offence or that the accused is unfit for trial. The provisions about what the Mental Health Court can then decide are a little complex. However, in most situations, the Mental Health Court must first decide whether the person was of unsound mind at the time of the alleged offence.12 If the Court finds the person was not of unsound mind, then it must decide whether the person is fit for trial.13 The Mental Health Act goes on to provide for the orders the Mental Health Court can make, such as forensic orders and treatment support orders. [15] There is no requirement in section 110 of the Mental Health Act for an accused person to consent to a referral of their mental state made by their lawyer to the Mental Health Court. CAL’s solicitor intends to refer CAL’s mental state to the Mental Health Court. I do not know whether the referral will be based on unsoundness of mind or unfitness for trial or both. In any event, referring the mental state of their client to the Mental Health Court would be the appropriate course for a lawyer who believes their client lacks capacity to make decisions about the criminal proceedings. CAL’s solicitor is, therefore, following the course that is appropriate if, as the applicant contends, CAL is unable to understand the criminal proceedings and to give instructions. In these circumstances, I do not consider that any immediate risk of harm to CAL’s health, welfare or property is evident. Accordingly, I have declined to appoint an interim guardian. [16] As mentioned above, the applicant also suggests that a guardian could seek the approval of leave from the mental health facility for CAL. I think it is unlikely that a guardian would directly seek leave, but they might decide that approval for leave should be sought, and they might then engage a solicitor or other advocate to pursue an application for leave. However, insufficient contextual information has been provided on this topic. It may be that CAL can pursue leave himself, perhaps with the assistance of an advocate such as the applicant. No information has been provided about the terms of the forensic order and when it is due to be reviewed; whether CAL is subject to detention in connection with his current charges; or what bail conditions apply if he is on bail. The tribunal is therefore unable to assess whether leave can realistically be pursued, and whether the appointment of a guardian could be effective. On the available information, an immediate risk of harm to CAL’s health, welfare or property that could be ameliorated by the appointment of an interim guardian, is not evident. Conclusion [17] Accordingly, the application for the interim appointment of a guardian is dismissed. 12 Mental Health Act, s 116(1)(a). 13 Ibid, s 118. -- 4 of 4 --