DMJ [2013] QCAT 326

CITATION: DMJ (No 2) [2013] QCAT 326 PARTIES: DMJ APPLICATION NUMBER: GAA2334-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 6 May 2013 DELIVERED AT: Brisbane ORDERS MADE: The application for a declaration about the capacity of DMJ is dismissed. CATCHWORDS: GUARDIANSHIP – where declaration sought as to capacity – where evidence did not support declaration being made – where application lacked substance – where early end brought to proceedings Queensland Civil and Administrative Tribunal Act 2009 s 47 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] DMJ had been found by the Guardianship and Administration Tribunal to have impaired decision making capacity for making financial decisions on 4 August 2008. Since the commencement of QCAT at the end of 2009, this tribunal has on 16 March 2010 and 15 October 2012 conducted hearings and determined that DMJ has impaired capacity for making decision about his financial affairs. [2] The determination in October 2012 had been based in part on evidence from DMJ’s general medical practitioner, Dr Cruickshank, who stated that DMJ has an acquired brain injury, Attention Deficit and Hyperactivity -- 1 of 4 -- 2 Disorder and an intellectual impairment. The doctor expressed an opinion that DMJ had no knowledge of financial affairs and that he could not make complex financial decisions due to his acquired brain injury, cognitive disability and psychiatric disability. [3] Within nine weeks of the hearing in October 2012, DMJ filed an application seeking a declaration that he had capacity to make his own financial decisions. A report by Dr Catherine Curson, a psychiatrist, was subsequently filed. Dr Curson stated that DMJ had been diagnosed with an acquired brain injury, Attention Deficit and Hyperactivity Disorder, organic personality disorder and generalised anxiety disorder. She expressed the opinion that DMJ would have a moderate impairment in his ability to understand and act on information relevant for decision making about his financial affairs. Dr Curson also referred to DMJ being impulsive, having poor decision making skills and being unable to make complex financial decisions due to an acquired brain injury, cognitive impairment and an intellectual disability. [4] A report was also provided from Dr McEniery who had been treating DMJ for 10 years. His report stated that DMJ has an intellectual disability as the result of an acquired brain injury. The doctor reported that DMJ can at times be aggressive and impulsive with outbursts of anger and rage with some violent behaviour. The report stated that DMJ is unreliable, inconsistent, unpredictable and not compliant with his medications. Dr McEniery stated his opinion that DMJ requires close supervision in managing his financial affairs. [5] On 8 March 2013 a determination was made that an early end should be brought to the application for a declaration about capacity and the application was dismissed. Separate written reasons have been provided for that decision. [6] Subsequent to that decision, DMJ filed on 12 March 2013 another application for a declaration that he has capacity to make financial decisions. A photocopied report by Dr Cruickshank dated 18 July 2012 was filed in the tribunal but a change had been made to the information on one of the pages of that report. It appeared that Dr Cruickshank had on 18 March 2013 made and initialled a change on page 9 of his report to indicate that in his opinion DMJ could make complex financial decisions where the original version of the same report had the notation that DMJ could not make complex financial decisions. [7] A new report was also provided on 8 April 2013 to the tribunal from Dr Cruickshank. That report was however unsigned and was faxed back by the tribunal registry to Dr Cruickshank to sign. Dr Cruickshank signed the last page of the report on 9 April 2013. In this latest report, Dr Cruickshank states that DMJ has an acquired brain injury, an intellectual impairment, possible bipolar disorder and possible schizophrenia. Dr Cruickshank did not express an opinion about whether DMJ could understand and act on information about financial matters but he stated that this information would need to be obtained from a psychiatrist. He -- 2 of 4 -- 3 stated on page 6 of the report that he was uncertain as to whether DMJ was capable of making decisions freely and voluntarily. [8] On page 9 of this version of his report Dr Cruickshank had written the words “not certain” next to the words “financial affairs” indicating that he was not certain whether DMJ could make decisions about his financial affairs. That notation is consistent with the information completed by Dr Cruickshank on page 6 of the report. [9] However there was a tick in the box under the heading “complex decisions” on the line of the report asking whether DMJ could make simple or complex decisions about his financial affairs. The tick is in a different pen to that used by Dr Cruickshank for the rest of the report. It has the appearance of being added in at a different time to when the rest of the report was completed. Dr Cruickshank had ticked other boxes on page 9 to indicate that DMJ could not make complex decisions about personal health care and about lifestyle/accommodation choices and stated on page 10 that the cause of DMJ’s impaired decision making capacity was his intellectual disability and psychiatric disability. [10] On 12 April 2013 a letter was sent by the tribunal registry to DMJ informing him that the medical information provided to QCAT did not support a declaration being made about capacity. DMJ was informed that his application would be considered for dismissal unless medical evidence supporting his application was provided to QCAT by 30 April 2013. [11] No further information was provided by DMJ. [12] However information was provided to QCAT by The Public Trustee of Queensland about dealings between that office and DMJ. In late October 2012 The Public Trustee commenced a trial of paying $710 per fortnight to DMJ with a view to ascertaining whether he could pay his board and lodging by himself. On 30 November 2012 DMJ asked The Public Trustee to commence of trial of weekly payments as he was not coping with fortnightly payments as he exhausted those funds immediately and had no funds for the rest of the fortnight. [13] A trial of weekly payments of $400 commenced on 3 December 2012. In mid January 2013 DMJ requested a change back to multiple payments per week as he was not coping with a once weekly payment. As from 21 January 2013 payments were being made with $225 per week board and lodging direct to DMJ’s father, $50 paid on each Monday to DMJ, $50 paid each Wednesday to DMJ, $50 paid each Thursday to DMJ and $20 paid each Friday to DMJ. The Public Trustee makes payment in addition for medical expenses, private health insurance, life and funeral insurance, and makes funds available for clothing, electronic goods and miscellaneous requests. [14] The application for a declaration that DMJ has capacity to make his own financial decisions was not in my opinion supported by the report of Dr Cruickshank. I find that Dr Cruickshank was not able to, and did not, -- 3 of 4 -- 4 express an opinion on whether DMJ could make his own financial decisions in his report now dated 9 April 2013. [15] In addition I accept the evidence from The Public Trustee that DMJ had not coped with receiving either weekly or fortnightly payments from The Public Trustee as his funds were exhausted well before the next payment was due. The evidence established that DMJ was receiving small payments on four days a week and all other expenses were being paid for him. [16] There was no evidence provided by DMJ to support his application. Under s 47 of the QCAT Act a proceeding can be brought to an early end if the proceeding lacks substance. In the absence of evidence supporting the application and the existence of evidence from Dr Curson and Dr McEniery as to DMJ’s impaired decision making capacity, I determined that this was a case where an early end should be brought to this application. DMJ had been provided with an opportunity to provide supporting evidence but he had failed to do so. [17] The application was dismissed. -- 4 of 4 --