CS [2014] QCAT 605

CITATION: CS [2014] QCAT 605 PARTIES: CS APPLICATION NUMBER: GAA7213–14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 4 September 2014 HEARD AT: Townsville DECISION OF: Member Johnston DELIVERED ON: 20 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal dismisses the application of CS for a Declaration of Capacity. CATCHWORDS: Evidence of an improvement of acquired brain injury. APPEARANCES: Mr CS – Applicant Mr SB – Public Trustee of Queensland (the Trustee) REASONS FOR DECISION Background [1] CS is a 49-year-old man who lives in shared private rental accommodation. CS suffered a head injury in an alleged assault on 20 December 2007. He sustained an acquired brain injury from this incident and was been diagnosed with a cognitive impairment. This was the basis for the appointment of the Trustee as his administrator on 15 April 2008. The Trustee’s appointment was continued on 25 February 2010. Does CS have capacity to manage his own finances? [2] CS told the Tribunal that there had been a significant improvement in his capabilities and he wanted to take back the management of his finances. He provided a Health Professional Report with his Application from one of the doctors at the Townsville Hospital in support of his Application. CS was not able to name the doctor when asked by the Tribunal. -- 1 of 4 -- 2 CS could not talk about the neuropsychologist’s assessment that was referred to in the Report. He was also unable to name the neuropsychologist who had undertaken the neuropsychology assessment. [3] Dr MC, GP provided a Health Professional Report dated 30 September 2009 in which she stated that she had known CS for a period of one year. She described in paragraph 4 of the Report that CS’s current medical conditions were: a head injury; ex-alcoholic and drug use; hemi paresis; cognitive impairment; and hepatitis C. She was of the view that he would be unlikely to manage his bills and budget. In her summary at paragraph 9 of the Report, she finds that CS is only able to make simple decisions about financial matters. [4] Dr MC provided a further Health Professional Report on 14 January 2011 at which time she had known CS for a period of two years. The doctor continued to hold the view that CS did not have capacity to manage complex financial matters stating at paragraph 5.1 of the Report that he had a gambling and drinking problem. [5] Dr CD a Senior Medical Officer provided a Health Professional Report dated 10 July 2014 in which he stated that he had known CS for a period of two months. He describes at paragraph 4 of the Report that CS suffers from the following medical conditions: severe traumatic brain injury – right sided - hemi paresis and cognitive impairment. He refers at paragraph 4.6 to Dr SL neuropsychologist having reviewed CS and undertakes an assessment and that the assessment was available on request. Dr CD finds in paragraph 5.1 of the Report that the assessment suggests that CS has regained some executive functioning and has the ability to do mental arithmetic. The doctor says that CS continues to have residual issues with his acquired brain injury. Dr CD in the summary at paragraph 9.1 of the Report says that CS is able to manage complex affairs. [6] Mr SB from the Trustee told the Tribunal that the Trustee had engaged Maurice Blackburn to pursue a claim against CS's superannuation fund. He is of the view that CS does not have the ability to give instructions and pursue this claim. [7] CS told the Tribunal that he was happy for the Trustee to pursue his claim on his behalf. Discussion of the evidence [8] The Tribunal has reports from two different doctors that provide different views about CS's capacity to manage financial matters. The two doctors agreed that CS suffered a severe traumatic brain injury that has affected on his cognitive functioning. [9] The Tribunal was concerned that CS could not name either of the health professionals who were apparently supporting his Application. -- 2 of 4 -- 3 [10] The Tribunal was also concerned that CS would not have the capacity to pursue legal claim against his superannuation fund. He had no idea what was involved in pursuing this claim. [11] The Tribunal asked CS about the neuropsychologist’s assessment and again he was very vague about what had taken place. He could not explain to the Tribunal why Dr SL’s assessment had not been provided with his Application. [12] CS gave an undertaking to the Tribunal that he would obtain the Assessment. The Tribunal pointed out this would be a very valuable piece of information. The Tribunal issued a direction to CS in these terms: a) The Tribunal directs that CS is to provide a copy of Dr SL’s neuropsychologist report within 28 days to the Tribunal. [13] CS has not filed a copy of the report/assessment. CS rather rang the registry to advice that an appointment had been booked on 20 December 2014 so that a report could be completed for the Tribunal. This represents a complete lack of misunderstanding of what was required by the Tribunal. [14] The Tribunal is of the view that CS's inability to follow through with such an important piece of evidence is a reflection on his cognitive impairment. He was unable to follow through with this requirement. This was a simple Direction. The Tribunal explained to CS quite clearly, what was required. He told the Tribunal that he understood what was required of him. [15] The Tribunal notes that the Application contains little supporting information and that CS has not used the opportunity to put more information before the Tribunal. [16] The Tribunal prefers the report of Dr MC who had known CS for a longer period than Dr CD. Dr MC also had access to collateral information from CS's landlord. [17] The Tribunal makes the following findings. CS experienced a severe traumatic head injury on 20 December 2007 and consequent cognitive impairment. CS is able to talk about his wishes and plans but has problems with more complex matters. He has been unable to demonstrate that he has acquired budgeting skills. He was unable to provide to the Tribunal the neuropsychology assessment. The Tribunal's decision regarding CS's capacity [18] The Application for a Declaration of capacity is dismissed. [19] The Tribunal suggests that CS when he obtains the further report can file a fresh application. The Tribunal recommends to CS that on filing a new application he provide some other evidence that supports his contention that he has made substantial improvement. The Tribunal would like to receive some collateral information from other people involved in CS's life who can corroborate his evidence. -- 3 of 4 -- 4 [20] The Tribunal also notes that CS's finances will be simplified when the legal action involving his superannuation fund has been finalised. This would be a more appropriate time for him to bring a further application. -- 4 of 4 --