FHV [2022] QCAT 312

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FHV [2022] QCAT 312 PARTIES: In application about matters concerning FHV APPLICATION NO/S: GAA 3617-22 GAA 4710-22 MATTER TYPE: Guardianship and Administration matters for adults DELIVERED ON: 23 August 2022 HEARING DATE: 28 June 2022 HEARD AT: Brisbane DECISION OF: Member Hemingway ORDERS: DECLARATION ABOUT CAPACITY The application for a declaration about the capacity of FHV is dismissed. ADMINISTRATION The appointment of The Public Trustee of Queensland as administrator for FHV for all financial matters is continued. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan. The Tribunal directs the administrator to provide accounts to the Tribunal when requested. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year. ADJOURNMENT The hearing of the Application for directions filed by FHV is adjourned to a date to be fixed. CATCHWORDS: Declaration of Capacity, Capacity, Presser criteria, Extradition proceedings, Review of the Appointment of the Administrator, Medical opinion Guardianship and Administration Act 2000 (Qld) The Human Rights Act 2019 (Qld) Extradition Act 1988 (Cth) -- 1 of 21 -- 2 2 National Redress Scheme for Institutionalised Child Sexual Abuse Act (Cth) 2018 (“Redress Act”) FHV Self represented KLO Former Wife of FHV Ms K Retchslag Public Trustee of Queensland Mr C. Miles Public Trustee of Queensland Mr BN friend Mr W a Carer REASONS FOR DECISION QCAT Appointments [1] The Public Guardian was appointed as guardian for legal matters not relating to financial and property matters for FHV under an Interim order dated 10 February 2017. Following an oral hearing the Public Guardian was appointed for legal matters not relating to financial and property matters on the 13 April 2017 for a period of 2 years. [2] The Public Trustee of Queensland was appointed as administrator for FHV for all financial matters under an Interim order dated 10 February 2017. Following an oral hearing, the Public Trustee of Queensland was appointed as administrator for FHV for all financial matters on 13 April 2017 for a period of 2 years. This Order was continued on the 13 April 2018 and on the 29 May 2020. [3] On 22 March 2022, FHV made an application pursuant to s146 (2) of the Guardianship and Administration Act 2000 (Qld) (‘GAA Act’) for a declaration that he has capacity. FHV made further application to review the appointment of the Public Trustee of Queensland pursuant to s 31 of the GAA Act. [4] During the appointment of the Public Trustee of Queensland as his administrator, the administrator bought and successfully obtained a compensation payment for FHV under the Commonwealth Redress Scheme (the Redress Scheme). FHV made an application for directions concerning a payment from the redress scheme funds held by the Public Trustee of Queensland to meet part of his legal expenses for FHV’s son. That application was adjourned. Background [5] FHV was incarcerated in 2015 following his arrest on an extradition warrant. On 22 February 2019, he was released following a decision that he was not to be extradited to the USA. After release, the then appointed Public Guardian advised that he was taken to the Princess Alexandra Hospital by ambulance and was subsequently discharged from hospital by his former wife. [6] When incarcerated, he was in a feeble physical and mental condition state. This mentioned in the reports of the Public Trustee of Queensland and the Public Guardian -- 2 of 21 -- 3 3 who remarked following visits at H correctional facility on the 21 June 2018 and 20 November 2018 that: “FHV was with BN and in a wheelchair for the visits” “FHV appeared to be frantic at times although he would calm down … BN did the majority of the talking” [7] There are several letters from other prisoners who state that FHV was in a dire situation which he might not survive whilst incarcerated. The writers state that he was in voluntary isolation 22 hours per day, that he mobilised with a mobility device and had significant weight loss and incontinence issues. The fellow inmates indicate that he was highly traumatised by his circumstances in prison due to his frailty and age. He is also described as having a lithium toxicity. [8] He was admitted to the Princess Alexandra Hospital from the H correctional facility on the 16 March 2017 and remained there for assessment and treatment. [9] The Public Trustee of Queensland is his appointed administrator consulting with him regarding his financial affairs and assisting him to obtain suitable accommodation. FHV frequently advised the Public Trustee that his living conditions after release from prison affected his mental health. [10] After release he lived in various boarding houses and then secured a Department of Housing and Social Works Unit. He moved into the self-contained unit on 28 February 2020. [11] FHV is divorced or separated from his former wife KLO, but they are still in contact. She attended the teleconference hearing on 28 June 2022. His former wife also provided support describing that FHV had secured Department of Housing accommodation, previously being homeless and that he could manage his affairs. [12] In his QCAT application dated 27 March 2022, FHV describes himself as a having a carer and service provider who are named in his application who assist him at his Department of Housing Property. [13] FHV stated that he receives a home care package having undergone an ACAT assessment and states that he is assessed as eligible for permanent residential care. [14] His carer, Mr W, provided feedback to the Tribunal stating FVH decides, what date and times he wishes to see me and he (FHV) decides my hourly rate of pay. Mr W states that the carer package is self-managed by FHV through G service. [15] He is further supported by his brother with whom he has recently re-established contact after many years. His brother resides in New South Wales and provided a feedback letter of support. His brother described having a recent lunch with FHV at the casino and found him to be managing his finances at this event, ordering lunch and checking prices. [16] FVH has a son who was incarcerated along with FVH on the extradition charges and who remains in the H correctional facility. It is understood from the Guardianship report that he receives informal support from his son, in particular in relation to his then on-going legal matters. He is wanting to provide financial assistance to his son who is to be extradited to the USA on the same charges as those with which FHV was charged. -- 3 of 21 -- 4 4 [17] The Public Trustee was instrumental is successfully obtaining a redress payment for FHV for sexual abuse as a child pursuant to the National Redress for Institutionalised Child Sexual Abuse Act (Cth) 2018. These funds ($141,000) are held by the Public Trustee of Queensland. FHV is currently receiving an Australian government aged pension. Extradition Issues [18] The following summary is an excerpt from the report of the Public Guardian dated 27 March 2018. [19] It is relevant because if provides the context for the medical assessments of FHV relating to capacity. [20] FHV is aged 81 and has been released on the from H correctional facility following his arrest in extradition proceedings which would have seen him extradited to the United States of America. On 26 October 2005, a grand jury in the United States of America indicted FVH (under a previous surname) and two others in the United States of America on a 15-count indictment charging FVH and two others with the following offences: (a) One count of conspiracy to commit mail fraud and wire fraud; (b) Five counts of mail fraud; (c) Nine counts of wire fraud; [21] On 21 December 2005, another grand jury in the USA returned a 16-count indictment (superseding the previous indictment) which charged FHV (under his previous surname) and two others with the original offences and: (a) One count of conspiracy to commit money laundering [22] The offending related to a multimillion-dollar horseracing betting scheme. An arrest warrant was issued for FVH by the USA on 21 January 2015, the USA requested his extradition to the USA from Australia. [23] On 17 September 2015, a Magistrate in the Australian Capital Territory issued an arrest warrant for FHV under the Extradition Act 1988. [24] On the 30 June 2016, the Chief Magistrate of the Queensland Magistrates Court determined that FHV was eligible for surrender to the USA and ordered he be remanded in prison to await surrender to the USA. [25] At the time of the interim appointment of the Public Guardian on the 24 April 2017, FHV had the following matters before the Federal Court of Australia: • QUD 926/2016-Writ of Habeas Corpus filed December 2016; • QUD 949/2016-Appeal against the judgement of Rangiah J dated 12 December 2016(filed 30/12/16); • QUD 950/2016-Appeal against the judgement of Rangiah J and the Orders of the Federal Court of Australia on 22/12 2016 (filed 03/01/17); • QUD 1/2017- Appeal against the judgement of Rangiah J and the Orders of the Federal Court of Australia on 22/12 /2016 (filed 03/01/17); -- 4 of 21 -- 5 5 • QUD 2/2017- Appeal against the judgement of Rangiah J and all Orders of the Federal Court of Australia on 22/12/ 2016 (filed 03/01/17); • A further application QUD 534/ 2016 provides reasons for the judgment. [26] A legal adviser assisting FVH on a pro bono basis withdrew their services in the period of appointment of the Public Guardian for legal matters not relating to financial and property matters. The Public Guardian sought and obtained other legal representation for FVH. [27] On the 15 August 2017, the writ for Habeas Corpus and the Appeals lodged by FHV were withdrawn. [28] A bail application for FHV was brought on the 5 December 2017 and the application was refused by the Chief Magistrate of the Queensland Magistrates Court on the basis that he did not have jurisdiction under the Extradition Act 1988. [29] The matter was considered by the Federal Attorney General’s office who advised the Public Guardian that they intended to seek an independent medical review of FHV prior to deciding on his surrender for extradition or release. It appears that the outcome of this process was that FVH was not extradited, but remains residing in Queensland. [30] FHV stated on many occasions in the hearing that he is was incorrectly detained, “without charge or conviction”. This opinion is reiterated by his fellow inmates who wrote letters of support and advocacy when he was incarcerated. [31] FHV has a criminal history. He self-reported to the Psychiatrist recorded in the clinical notes at the Princess Alexandra Hospital in March 2017, that he that he had been in Boggo Road “thirty years ago for fraud,” and had engaged in petty offending as a juvenile. [32] FHV has outstanding debts to Centrelink and SPER (State Penalties Enforcement Registry) and the Official Solicitor to the Public Trustee. Some of the Official Solicitor costs have been discharged. [33] FHV stated in the hearing that the SPER debt relates to a conviction in respect of a fraudulent recruitment scheme. He stated his intention to challenge this in the Administrative Appeals Tribunal. It is understood that the matter has been determined, a fine imposed but that FHV disputes the outcome of this deliberation. [34] FHV was assessed as to his capacity to stand trial and if he was determined fit to be extradited to the USA to face the charges in the indictment. FHV opposed the extradition. On his evidence to the Tribunal, he stated that the then Attorney General (Christian Porter) had refused consent to his release in accordance with the Extradition Act 1988 (Cth). [35] FHV states that Christian Porter released him from custody. He was not extradited to face the charges in the USA and currently resides in the community in Queensland. His son remains in custody. [36] FHV has changed his surname from the surname under which he was charged, and which appears in his litigious history and in the medical reports apart from that by Dr Mapfumo. [37] FHV states that he has capacity to manage his financial affairs and quoted several dates in the hearing to demonstrate the accuracy of his memory. -- 5 of 21 -- 6 6 Medical Evidence [38] FHV consulted Dr Sui on 12 August 1997. Dr Simon Sui performed surgery on FHV for carcinoma of the bowel on 14 August 1997. He was seen again for follow-up on the 4 September 1997. He received chemotherapy with Dr Grimes in Brisbane. FHV moved to Cairns in September-October 1997 and so was referred to the Cairns base hospital for further treatment commencing 13 October 1997. [39] Further reports on 6 April 2001 and 17 May 2001 indicated he was doing well. Dr Sui saw him again on 7 June 2001 and has not seen him since. [40] Dr David Grimes, a medical oncologist wrote a letter dated of the 19 September in relation to a court appearance of FHV in October 1997. FHV was undergoing chemotherapy at the time. Dr Grimes stated that FHV was unable to work or to attend court. The nature of the court proceedings was not specified. [41] Professor Renaut is a Colorectal and General Surgeon and Colonoscopist and states that there was a satisfactory outcome of a cystoscopy in May 2016. Professor Renault states that there were no untoward features on this examination. He reports that FHV has hypertension, was frail and his memory severely lacking. He states that, “his presentation was certainly suggestive of a patient with moderately advanced dementia”. [42] In regard to his cognitive capacity, Professor Renaut’s report dated 21 October 2010 at page 3, states that that he considers FHV has had a rapid decline in his mental capacity. He concluded that that he observed, “inconsistencies in the accuracy of the information that he (FHV) related to me.” [43] FHV is reported to suffer from recurrent urinary and bowel tract symptoms, and this is noted in the report of Dr Rachel Kingsbury, a Clinical Neuropsychologist. [44] Whilst incarcerated, FHV wrote to the mental health service in January 2015. He sought, “bail to an authorised mental health hospital.” [45] The progress notes dated March 2017 of the Emergency Department of the Princess Alexandra Hospital indicate that following comments by FHV: (a) He requested mental health referral when he was in custody, and he was given medication including lithium which was reviewed in hospital. (b) He gave a history of family mental health history including that his mother was in a Psych hospital at Gladesville for 30 years. (c) He stated that he was sexually abused by Catholic priests whilst living with grandparents. (d) He described engaging in petty crimes as a youth and had been in boy’s homes. (e) He is described as having poor memory. An example is a denial he had mental health issues though he had been seen by mental health and had requested a mental health assessment in January 2017. (f) The Psychiatric Registrar describes him as being, “evasive of mental health diagnoses/involvement (particularly him seeking this through extensive letters). -- 6 of 21 -- 7 7 (g) He was assessed as not having acute mental health issues and refusing other assessments. [46] Dr Rachell Kingsbury prepared a report dated 19 June 2017 in relation to the extradition proceedings faced by the FHV (under his previous name). The report was commissioned in part by the Public Guardian and paid for by KLO. [47] Dr Kingsbury lists in her curriculum vitae, that she has extensive experience in neuropsychological assessment of neurological disorders including dementia, neurological conditions and traumatic and acquired brain injury”. [48] At the date of consultation with Dr Kingsbury, FHV was aged 75 years 11 months. Dr Rachell Kingsbury prepared a report based upon interviews with FVH under his previous name following interviews with him on the 4 April 2017, 19 April 2017, 19 May 2017. [49] Her material considered included the following: (a) Referral from KLO, his former wife. (b) Federal Court documentation FHV v United States of America (2016) (c) Medical Review and Fitness for Extradition (Dr Andrew Renaut, Laparoscopic and Colorectal Surgeon dated 21 October 2016) (d) QCAT unspecified multiple documents (e) Medication Lists (f) Medical history (unspecified multiple documents) (g) Offender case File (AGCC, events 28 October 2015-21 February 2017) (h) Affidavit P dated 1 February 2016 (i) Affidavit R (Brother), dated 20 December 2016 (j) Affidavit U (Son) dated 17 October 2016 (k) Affidavit and letter written by L (Friend) 24 February 2017 [50] The purpose of the examination was a Neuropsychological assessment of capacity, regarding capacity, fitness to instruct, fitness for trial. Such an investigation involves a consideration of the elements described in the decision in Presser.1 [51] Dr Kingsbury states that FHV presented as a frail, aged and incapacitated gentleman whose physical appearance proceeded his biological age by a decade or so. (Para 54) He presented as psychologically and cognitively debilitated with evidence of trauma pathology and memory impairment. At the time of assessment, he was an inmate of the H Correctional facility. [52] Dr Kingsbury diagnosis was Vascular Dementia which is a major Neurocognitive disorder. She considered this was accelerated by inadequate management of underlying cerebrovascular health issues (Para 1086-1095). She also diagnosed Post Traumatic Stress Disorder related to an extensive history of childhood sexual abuse. 1 Regina v Presser [1958] VR 45. -- 7 of 21 -- 8 8 [53] Dr Kingsbury states at (Para 1074) that FHV “will have greater difficulty in remaining oriented to current events”. [54] Dr Kingsbury made the following observations in her report regarding the Applicant’s cognitive condition: (a) FHV dissociated in his sessions with Dr Kingsbury and became avoidant. (b) He is overly triggered by his environment in terms of a trauma response (panic attack, nightmares, disassociation, depression, etc). (c) He was unable to remember the name of the examiner (Para 60). (d) He was disorientated to the purpose and intent of the assessment (Para 78). (e) His recall was slow, erroneous, minimal and difficult but not patterned or suspicious. (f) He had slowness with higher executive function and abstract thought, processing speed and switching. (g) Dr Kingsbury regarded this as consistent with his age and cognitive function (Para 96). (h) She considered he was not engaged in avoidance strategy (para 111) and that he was frightened and confused with no indication of fabrication, malingering or confabulation and that he had a memory impairment (para 150). (i) Dr Kingsbury stated that (para 219) his memory loss initially extended to the names of his children but later recalled their name and that this is consistent with vascular dementia sufferers. (j) Dr Kingsbury refers to the report of Dr Renaut dated 21 October 2016 stating that FVH was, “unresponsive to treatment for many years”. (k) Dr Kingsbury states that Word finding issues and being perseverative are common symptoms of memory impairment and his decline in memory is consistent with his physical decline. (Para 267). (l) Dr Kingsbury stated that FHV attended the sessions in a wheelchair. (Para 270). (m) In one session with Dr Kingsbury FVH was observed to be unable to dress himself, requiring assistance. (Para 279). (n) Dr Kingsbury quoted Dr Renaut’s report dated 21 October 2010, “a rapid decline in his mental capacity” (Para 282) and that Dr Renaut summarised FVH as having “moderately advanced dementia” (Para 285). (o) FHV is described as unable to read or write or manage his medications (Para 276) (p) FHV had a tendency to disassociate (Para 225). (q) FHV has obvious issues with hearing, vision and has asthma (Para 243). [55] Dr Kingsbury states that, “learning and memory are FHV’s neuropsychological impairments hence his ability to become familiar and retain information across -- 8 of 21 -- 9 9 trials is severely limited “. Dr Kingsbury suggests a support person if he were to undergo a court process. [56] Both Dr Kingsbury and Dr Renaut state that FHV requires a formal diagnosis of his underlying progressive dementia. [57] Dr Kingsbury makes reference to the Presser criteria in her report and provides her opinion in respect of these criteria. These criteria are set out below. [58] The Presser criteria are as follows: (a) Ability to understand the charge — this involves a basic understanding of the essential facts of the charge and the elements of the offence. (b) Ability to plead to the charge and to exercise the right of challenge — the client must understand that a plea of guilty is an acceptance that the essential facts and elements of the offence are established. (c) An understanding of the nature of the proceedings, namely, that it is an inquiry as to whether he/she committed the offence charged — the client must understand that he/she is involved in a formal process inquiring into his/ her responsibility for the matter alleged and be aware of the potential consequences of that process. (d) Ability to follow the course of proceedings so as to understand what is happening in court in a general sense, though not necessarily understand the purpose of all the various court formalities — this involves following the proceedings and understanding the roles of the various participants. (e) Ability to understand the substantial effect of the evidence that may be given — the client must have an awareness of the implications of the prosecution evidence. (f) Ability to make a defence or answer to the charge — the client must be able to give the court a basic version of the facts as he/she claims them to be, if necessary, through his/her lawyer, by entering the witnesses box and responding to questions in evidence-in-chief and cross-examination [59] Dr Kingsbury was asked to assess FHV’s fitness for trial to which she responded that; he has basic understanding of his charges, his plea, the role of the judge, his solicitor and the prosecution. She stated that this indicated that he, “has a degree of fitness for trial”. She says that his diagnosis together with his visual and hearing impairment is such that he should be assisted at trial. (Paragraph 351-423). [60] Dr Kingsbury assessed his condition relative to complex legal proceedings that FHV had a residual but diminished capacity to participate in complex legal decisions. Further to this it is my opinion, based on his current neuropsychological and clinical assessment that this form is a permanent restriction of his decision - making capacity that will progressively deteriorate across time reflective of his underlying neurological disease. (Para 1167) [61] Dr Kingsbury opinion is supported by the series of cognitive testing which she administered to FHV, including the following: (a) Weshler Adult Intelligence-4th edition (WASI-IV) select subtests; -- 9 of 21 -- 10 10 (b) Weshler Memory Scales-4th edition (WMS-IV) select subtests; (c) Advanced Clinical Solutions-Test of premorbid functioning; (d) Advanced Clinical Solutions-Word Choice /Effort (discontinued administration due to memory impairment); (e) Delis-Kaplan Executive Function System (DKEFS); select subtests; (f) The Dot counting system (discontinued administration due to visual impairment); (g) Rey Complex Figure Test (RCFT); (h) California verbal learning Test (CVLT); (i) Self-report measures; (j) Depression anxiety distress (DASS); (k) in which FHV scores low or extremely low. [62] FHV’s test scores were that his general IQ fell in the low average range except for his perceptual reasoning which was in the average range. [63] With respect to his Verbal cognitive reasoning Dr Kingsbury states at (Para 582) that his gross expressive language and language architecture is currently impacted by the likely presence of a dementia process. [64] Dr Kingsbury states at Paragraph 666 of her report that: “diminished processing speed is a hallmark characteristic of vascular brain change, given that neurologically the brain is working harder to integrate, process or retrieve information, across compromised microvascular structures. This test observation is congruent with a hypothesis of vascular dementia”. [65] On the Rey test, Dr Kingsbury observed at paragraph 822 that overall, his performance suggests, “cerebrovascular change …which negatively impacts the individual’s ability to interpret, perceive and respond to lines in their environment. “When we interpret FHV’s performance on the Rey Complex figure in conjunction with functional, language and memory declines there is strong evidence for a vascular dementia.” [66] Regarding executive function, she concluded that he had reduced task persistence which is suggestive of both mood disorder and neurological change. The two areas affected by cerebrovascular change are “Language and Executive function”. (Para 858). [67] Her summary is found at paragraph 1014 where she states that FHV meets the criteria for a diagnosis of major Neurocognitive Disorder: Vascular Dementia characterised by patchy memory recall and slowed or difficult memory retrieval. The criteria for DSM V include declines in memory and learning, changes to complex attention, executive function language, perceptual organisation. This is supported by clinical presentation and neuropsychological data. (Para 1017). [68] Dr Mapfumo is a general practitioner who provided a Health Professional Report dated 24 March 2022. He states that he has known FHV since 22 June 2020. -- 10 of 21 -- 11 11 [69] He states that he conducted a cognitive test on HFV. This is a cognitive test entitled GPCOG test. The test was administered on the 24 March 2022 and FHV scored 9 out of a possible 9. This score indicates, “no cognitive impairment.” [70] Dr Mapfumo’s opinion is that the FHV can make decisions freely and voluntarily and that he has capacity to make an Enduring Power of Attorney. Dr Mapfumo states that FHV has capacity for complex decision making in the areas of complex financial matters and complex personal decisions in the areas of personal health care and lifestyle and accommodation choices. [71] Doctor Mapfumo states that FHV was able to participate in a discussion about his decision-making ability and whether he should have a person appointed to make decisions for him. Doctor Mapfumo states that he compiled the report with access to his previous consultation notes. [72] Dr Mapfumo states that he believes that FHV fully understands his responsibilities, mentioning that he can pay automatic payments, aware his rental is $128 per week. [73] Dr Mapfumo does not refer to any other reports or tests regarding FHV in the preparation of his report. It is unknown if Dr Mapfumo was aware of the history or background for his patient and why his affairs were under management or the change of name. Dr Mapfumo listed the medical conditions and medications which do not include the earlier history. Legislative framework [74] Section 146 GAA states that the Tribunal may make a declaration about the capacity of an adult, guardian, administrator or attorney for matter. This section enables the Tribunal to make a declaration about the capacity of an adult for a matter. The application may be made by the Tribunal on its own initiative or on the application of the individual or another interested person. [75] All adults are presumed to have capacity. Section 7(a) GAA Act provides that an adult is presumed to have capacity for a matter. The presumption is rebuttable. This means that an adult is presumed to have capacity unless there is evidence which shows this not to be the case. [76] In this case because FHV seeks a Declaration that he has capacity for a decision about a matter, the Tribunal must consider this issue in the first instance. [77] The Tribunal applies the criteria of capacity found in schedule 4 to the GAA Act which are: (a) Understanding the nature and effect of decisions about the matter; and (b) Freely and voluntarily making decisions about the matter. (c) Communicating the decision in some way.’ [78] Capacity varies according to the type of decision and support available. In section 5(c) of the GAA Act acknowledges that ‘the capacity of an adult to make decisions may differ according to— (i) The type of decision to be made including, for example, the complexity of the decision to be made; and -- 11 of 21 -- 12 12 (ii) The support available from members of the adult’s existing support network. [79] The Act categorises matters as follows: (a) personal matter (b) special personal matter (c) special health matter (d) financial matter. [80] This hearing is examining the issue of FHV’s capacity for a decision about a financial matter. He seeks to remove the current administrator on the basis that an administrator is not required as FHV has capacity to manage his own financial affairs. [81] Financial matter is defined in Schedule 2, part 1 of the GAA Act as follows: A financial matter, for an adult, is a matter relating to the adult's financial or property matters, including, for example, a matter relating to 1 or more of the following— (a) paying maintenance and accommodation expenses for the adult and the adult's dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult. (b) paying the adult's debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law. (c) receiving and recovering money payable to the adult. (d) carrying on a trade or business of the adult; (e) performing contracts entered into by the adult; (f) discharging a mortgage over the adult's property; (g) paying rates, taxes, insurance premiums or other outgoings for the adult; (h) Insuring the adult of the adult’s property, (i) otherwise preserving or improving the adult’s real estate: (j) Investing for the adult in authorised investments: (k) Continuing investments of the adult, including taking up rights to issues of new shares, or options for new shares, to which the adult has become entitled because of the adult’s existing shareholding ; (l) Undertaking a real estate transaction for the adult; (m) Dealing with land for the adult under the Land Title Act 1994 or the Land Title Act 1994; (n) undertaking a transaction for the adult involving the use of the adult's property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult; -- 12 of 21 -- 13 13 (o) a legal matter relating to the adult's financial or property matters; (p) withdrawing money from, or depositing money into, the adult's account with a financial institution adult's property; [82] The Tribunal when determining capacity is able to take account of relevant medical history and, based on that history, what is likely to occur in the foreseeable future. [83] Relevantly, it is appropriate to consider the nature and extent of the adult’s severe impairments noted in the medical history and the probability that, in the foreseeable future the adult will continue to decline as considered in these reports. It is reasonable to see his significant debilitation then as impacting his capacity to make decisions regarding financial matters as defined in the legislation now and in the future. Discussion of the Evidence regarding capacity [84] In determining capacity for a decision about a matter; in this instance a financial matter as defined in schedule 2 to the GAA Act, the Tribunal applies the definition of capacity found in schedule 4 to the GAA Act. The adult must be able to understand the nature and effect of decisions about the matter and to freely and voluntarily make decisions about a matter and to communicate the decisions in some way. [85] The Tribunal is satisfied that FHV is presently able to communicate. He participated in the hearing and responded to the questions of the Tribunal. His memory was clearly impaired and his reporting of events “patchy” as described by Dr Kingsbury in her report. She stated this characteristic to be in keeping with her provisional diagnosis of vascular dementia. [86] The Tribunal has reviewed the medical evidence available together with other commentary by the Public Guardian and the Public Trustee. Whilst the Tribunal is satisfied as to the current ability of the adult to communicate a decision, the Tribunal has concerns about his capacity based upon his understanding of the nature and effect of decisions about the matter and the ability to make decisions without influence; that it is free and voluntary. [87] The Tribunal reviewed six health professional reports, letters or notes relating to medical history of FHV. Their relevance and the weight given to them are discussed below. The medical information includes the following information: (a) Report of Dr Sui dated 14 August 1997 (b) Report of Dr Grimes dated 19 September 1997 (c) Report of Dr Renaut dated 21 October 2016 (d) Report of Dr Kingsbury dated 19 June 2017 (e) The progress notes of the Princess Alexandra Hospital dated 12 April 2017 (f) Report of Dr Mapfumo dated 24 March 2022 [88] Dr Kingsbury conducted comprehensive neurological testing in three separate interviews with FHV. She found that his full-scale IQ fell in the low average range (para 531) and that he had suffered a clinically significant decline in his general cognitive functioning (Para 573). -- 13 of 21 -- 14 14 [89] She states at paragraph 666, that he is his processing speed was compromised and so the brain is working harder to integrate process or retrieve information across compromised microvascular structures. this is congruent with vascular dementia. FHV stated to Dr Kingsbury that he wakes up and does not know where he is. She provided a provisional diagnosis of vascular dementia. [90] Dr Kingsbury asserts that her provisional diagnosis would have a clear implication for FHV’s ability to undertake a process of reasoning, requiring weighing options and utilising intact memory and judgment in proposed complex legal proceedings and by inference financial decisions. [91] Though provisional, her diagnosis is supported by both Dr Grimes and Dr Renault. Dr Renaut in his report dated 21 October 2010 at page 3, states that he considers FHV has had a rapid decline in his mental capacity and that FHV is suffering a moderately advanced dementia. [92] The Tribunal finds the fact that Dr Kingsbury’s diagnosis is provisional does not detract from the veracity and comprehensive nature of the conclusions ipon which it is based. These included FHV’s consistent presentation across three interviews; neuropsychological testing and the medical reports of medical specialists to which she refers. Both Dr Grimes and Dr Renault concur with Dr Kingsbury’s findings of vascular dementia. [93] Dr Kingsbury states on more than one occasion that she considers FHV’s condition to be genuine not malingering or feigned. [94] The Tribunal finds that Dr Kingsbury’s provisional diagnosis based on analysis of the cognitive testing and consultations with the adult indicates a clear lack of the capacity on the part of FHV to understand the nature and effect of decisions. [95] The Tribunal exercises caution regarding the free and voluntary nature of FHV’s decisions when considering his responses to Dr Kingsbury regarding the extradition charges. At paragraphs 354-357 he responded to the doctor’s question on this topic…America. … America. FBI. My son was over there…On Business…not me ..I’ve never been to America….I got sick with cancer.” [96] It is not clear as to the significance of these remarks, but they demonstrate confusion and raise a question as to FHV’s understanding of his potential culpability or otherwise. The Tribunal concludes that the free and voluntary nature of his decisions regarding this matter is in doubt. [97] At the time of Dr Kingsbury’s assessment, FHV remained indicted in 2005 by a grand jury of the USA for which he served a period of imprisonment awaiting possible extradition to face those charges. [98] FHV continued to assert, in the hearing that he was detained without charge or conviction which is clearly untrue. This assertion by him and confusion about the charges goes to issue of his ability to understand the nature and effect of decisions. [99] The Tribunal finds he demonstrates a confused mental state as the reasons for his incarceration as recently at the date of the Tribunal hearing. The Tribunal notes the illogicality of his response to Dr Kingsbury where he states that the extradition cannot relate to him as he has never been to America but that his son has. -- 14 of 21 -- 15 15 [100] Dr Mapfumo is the general practitioner for FHV. The Tribunal considers his report to rely solely on what he has been told by FHV as opposed to any independent verification of his medical and relevant personal circumstances. His report is lacking the authority of the report by Dr Kingsbury who undertook specific testing and analysis of her findings. [101] Dr Mapfumo makes no reference to the protracted nature of the extradition proceedings and the impact on FHV which is shown in fact of his admission to the Princess Alexandra hospital in 2017. Dr Mapfumo does not refer to the progress notes nor FHV’s requests for a mental health assessment in this period. [102] Dr Mapfumo makes no reference to the provisional diagnosis of vascular dementia. [103] Dr Mapfumo does not refer to the following medical evidence which was provided to FHV or his legal representatives by the Office of the Public Guardian (referred to in their report dated 17 April 2020): (i) On 6 September 2018; his Prison Health Services records. (ii) On 4 December 2008; his Medication Information from H Correctional centre. (iii) On 5 November 2019; his medical records pursuant to section 249 of the GAA Act [104] All this information was given to FHV prior to his consultation with the doctor 24 March 2022. [105] Dr Mapfumo’s test, GPCOG dated 24 March 2022 indicating no cognitive impairment should be viewed cautiously against the weight of evidence and conclusions of Dr Kingsbury and Dr Renaut, Dr Grimes and FHV’s own statements showing memory loss and confusion. [106] The Tribunal is unable to give the same weight to the report of Dr Mapfumo due to the absence of reference to other relevant and available medical reports, assessments or data. [107] At paragraph 8 of his report, Dr Mapfumo states that there are no other health professional reports related to capacity. This is inaccurate and to FHV’s actual knowledge it is inaccurate given the direct role FHV had in obtaining his medical records on 5 November 2019. [108] FHV lacked capacity due to cognitive impairment from 2017. Dr Kingsbury’s comprehensive findings demonstrate this and are to be preferred over that of Dr Mapfumo for these reasons. [109] FHV has not produced any evidence to the Tribunal which contradicts the evidence of Dr Kingsbury’s report apart from the limited information contained in the report of Dr Mapfumo. It is improbable from the Tribunal’s perspective based upon the careful testing and analysis that FHV has suddenly regained capacity to manage complex financial decisions. [110] Further comment on FHV’s capacity to manage his affairs post-release is evidenced by the assessment of the then guardian the Public Guardian in their report dated 27 March 2018: -- 15 of 21 -- 16 16 The Tribunal may consider initiating an application to have a guardian appointed for FHV in relation to health care, accommodation and service provision matters in addition to legal matters not relating to financial or property matters. This will facilitate any supported or substituted decision-making that is required to transition FHV from prison to a nursing home in the event he is granted bail. [111] The same report refers to FHV making groaning noises and being unable to converse with the Public Guardian’s representative when he was telephoned. [112] In the hearing, FHV displayed significant deficits in executive reasoning showing a lack of insight which is critical to being able to make complex financial decisions. [113] FHV’s personal finances are of concern. He has significant debt, limited income and an intention to continue on a litigious path irrespective of the prospects for success and so the expense of unsuccessful litigation. [114] He has incurred costs in unsuccessful litigation in which he has engaged. He has a debt to Centrelink and the SPER as well as outstanding legal fees to the Official Solicitor of the Public Trustee. [115] He stated his intention to continue with his pattern of litigious activity stating as much in the hearing saying he intended to appeal against the decision in relation to the SPER fine but was not able to give the date and nature of the proceeding, the outcome, or the merit of an appeal. [116] Capacity requires a person to understand and demonstrate an understanding of the consequences of their choices. FHV’s fails to demonstrate this understanding. [117] Additionally, FHV wishes to gift money to his son in preference to the payment of existing debts and in preference to the provision for payment of any future debts should be unsuccessful in future litigation. [118] The only evidence of FHV’s understanding of his financial status is found in Dr Mapfumo’s report which refers to FVH’s statement that FHV is aware of his rental of $128 and his “responsibilities”. [119] The views and wishes of FHV have been considered. In the hearing FHV expressed a strong view and desire to make his own financial decisions. I have taken that into account. He described his intention, if he were to regain control of his financial affairs to purchase a vehicle and caravan and travel around Australia with his former wife, KLO. [120] There is significant evidence that his incarceration and time spent waiting for his desired but uncertain outcome has impacted him significantly based upon his appearance and presentation to Dr Kingsbury. [121] FHV does not appear to the Tribunal to make his decisions in a free and voluntary manner. If Dr Kingsbury’ observation that she found FHV at paragraph 143, to be frightened and confused and not malingering or fabricating responses is correct, it is reasonable to infer that FHV did not fully understand his extradition charges and the consequences. [122] In these circumstances the Tribunal finds that the weight of evidence provided by the assessment of Doctors Renaut, Grimes and Kingsbury concerning capacity, notwithstanding the absence of a formal diagnosis by a specialist is that FHV lacked -- 16 of 21 -- 17 17 capacity due to cognitive impairment from 2017. The Tribunal is therefore satisfied that the presumption of capacity contained in section 7 the GAA Act for financial matters as defined in Schedule 2 GAA Act is rebutted. [123] The Tribunal therefore finds that as the adult does not have capacity for financial decisions, his application is dismissed. [124] The Tribunal, therefore, proceeded to consider the need for the appointment of an administrator in accordance with the review application before it. Review of the appointment of the Public Trustee of Queensland [125] Section 12 of the GAA Act provides that the Tribunal may appoint an administrator for a financial 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 a financial 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. [126] The Public Trustee of Queensland was appointed to administer the financial affairs of FVH on the 29 May 2020. [127] When conducting a review of an appointment of a guardian or administrator, the Tribunal must apply section 31 of the GAA Act which provides: (1) The tribunal may conduct a review of an appointment of a guardian or administrator (an appointee) for an adult in the way it considers appropriate. (2) At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made. (3) If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either— (a) continue its order making the appointment; or (b) change its order making the appointment, including, for example, by— (i) changing the terms of the appointment; or (ii) removing an appointee; or (iii) making a new appointment. (4) However, the tribunal may make an order removing an appointee, other than the public guardian, only if the tribunal considers— (a) the appointee is no longer competent; or (b) another person is more appropriate for appointment. (5) An appointee is no longer competent if, for example— -- 17 of 21 -- 18 18 (a) a relevant interest of the adult has not been, or is not being, adequately protected; or (b) the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or (c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or (d) the appointee has otherwise contravened this Act. (6) The tribunal may make an order removing the public guardian as an appointee if there is an appropriate person mentioned in section 14(1) available for appointment. (7) The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the titles registry fee for giving or withdrawing the advice of the change or revocation. [128] The Tribunal is satisfied based having made a finding that FVH has impaired capacity that it would make an appointment of an administrator for FHV. It would continue the current appointment without alteration to the terms of the order or a change of the appointee. [129] The Tribunal is satisfied in terms of sections 31(4) and (5) that the Public Trustee of Queensland is competent and had addressed the financial interests of the adult appropriately. [130] This is demonstrated by the fact that the Public Trustee has prepared a budget, identified assets and liabilities for the adult and investigated various claims by and against the adult. The Public Trustee has assisted FHV to apply for and locate suitable accommodation. [131] The Public Trustee of Queensland’s budget allows for a rebate of the majority of the fees and charges for which FHV is liable for administrative tasks undertaken by the Public Trustee. The Public Trustee of Queensland has received a sum of money on behalf of FHV from the National Redress Scheme which is held in trust. [132] The total indebtedness of the adult identified by the Administrator is $75,000. Based upon the significant memory deficits in evidence in his medical assessments, FHV does not have the capacity to manage his assets and pay his debts. He has stated an intention to continue to challenge the debts irrespective of any consideration of prospects of success or an ability to weigh the costs of legal action in this course of action. [133] FHV consistently gives the payment of debts a low priority indicating to the Tribunal that he wished to apply his funds to the purchase of a vehicle and travel expenses. Given his age, it is unclear as to whether he has the physical stamina to proceed with this plan safely, considering Dr Kingsbury’s report which was undertaken by him in whilst he was in a wheelchair and where he required assistance to dress. This does call into question his insight into his limitations. -- 18 of 21 -- 19 19 [134] The Tribunal is satisfied that the Public Trustee of Queensland’s performance as administrator satisfies the requirements of section 15 of the GAA Act, which are as follows: (1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters (appropriateness considerations)— (a) the general principles and whether the person is likely to apply them. (b) if the appointment is for a health matter—the health care principles and whether the person is likely to apply the principles. (c) the extent to which the adult’s and person’s interests are likely to conflict. (d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult. (e) if more than 1 person is to be appointed—whether the persons are compatible. (f) whether the person would be available and accessible to the adult. (g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order, including whether the person has ever been a paid carer for the adult. (2) The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict. (3) Also, the fact a person may be a beneficiary of the adult’s estate on the adult’s death does not, of itself, mean the adult’s and person’s interests are likely to conflict. (4) In considering the person’s appropriateness and competence, the tribunal must have regard to the following— (a) the nature and circumstances of any criminal history, whether in Queensland or elsewhere, of the person including the likelihood the commission of any offence in the criminal history may adversely affect the adult. (b) the nature and circumstances of any refusal of, or removal from, appointment, whether in Queensland or elsewhere, as a guardian, administrator, attorney or other person making a decision for someone else. (c) if the proposed appointment is of an administrator and the person is an individual— (i) the nature and circumstances of the person having been a bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; and -- 19 of 21 -- 20 20 (ii) the nature and circumstances of a proposed, current or previous arrangement with the person’s creditors under the Bankruptcy Act 1966 (Cwlth), part 10 or a similar law of a foreign jurisdiction; and (iii) the nature and circumstances of a proposed, current or previous external administration of a corporation, partnership or other entity of which the person is or was a director, secretary or partner or in whose management, direction or control the person is or was involved. (5) In this section— attorney means— (a) an attorney under a power of attorney; or (b) an attorney under an advance health directive or similar document under the law of another jurisdiction. power of attorney means— (a) a general power of attorney made under the Powers of Attorney Act 1998; or (b) an enduring power of attorney; or (c) a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or (d) a similar document under the law of another jurisdiction. [135] The Tribunal is satisfied that there is a continuing need in terms of section 12 of the GAA Act to assist the adult with decisions with the formal appointment of an administrator and that without an appointment his needs will not be met. [136] The Tribunal must also consider the Human Rights Act 2019 (Qld) (‘HRA’) in making the decision. Section 31 of the HRA requires FHV to be given a fair hearing and that he has had the opportunity to participate and express his views to the Tribunal. [137] Section 24 of the HRA is impacted by the making of this Order limiting FHV’s right to manage his own property. Under section 48 of the HRA where a decision is incompatible with human right it must be reasonable and justifiable and the least restrictive decision. [138] In this instance the Administration order needs to be formalised due to the extent of the adult’s incapacity and lack of insight. He has a debilitating diagnosis of vascular dementia which affects memory, processing, and judgment. It is a progressive illness, and the prognosis is a gradual decline. [139] Although it is a provisional diagnosis, there is compelling evidence of its reliability due to the careful assessments undertaken by Dr Kingsbury and the fact it is concurred with by Dr Renaut and Dr Sui. The deficits of reasoning and patchy memory were in evidence in the hearing. [140] In these circumstances the Tribunal is prepared to continue the appointment of the Public Trustee of Queensland having dismissed the application for a declaration of capacity. -- 20 of 21 -- 21 21 [141] The views and wishes of the adult have been considered. The Order is time-limited, and the actions of the Public Trustee of Queensland are constrained by legislative imperatives, including the Trusts Act 1973 (Qld) and the Public Trustee Act 1978 (Qld) in addition to the HRA and the GAA Act, which all govern its actions as a Trustee. -- 21 of 21 --