DK [2011] QCAT 600

CITATION: DK [2011] QCAT 600 PARTIES: DK APPLICATION NUMBER: GAA8268-11 / GAA8270-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 4 November 2011 HEARD AT: Carrara DECISION OF: Barbara Bayne, Member DELIVERED ON: 4 November 2011 DELIVERED AT: Carrara ORDERS MADE: 1. The Adult Guardian is appointed as guardian for DK for decisions about the following personal matter: (a) Legal matters not relating to the adult’s financial or property matters. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years. 3. The application for the appointment of an administrator for DK is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: GUARDIANSHIP – capacity for decision making – mental disorder – where adult found unable to understand personal matters Guardianship and Administration Act 2000, ss 12, 14, 15 APPEARANCES and REPRESENTATION (if any): Ms DK The adult (not present at the hearing) Dr T Consultant psychiatrist -- 1 of 4 -- 2 Ms T Independent lawyer for DK’s children in proceedings in the Family Court of Australia. REASONS FOR DECISION [1] Ms DK is 44 years of age and is currently involved in proceedings in the Family Court of Australia. These, described as ongoing and very complex, involve a dispute between DK and her former husband. [2] On 26 September 2011 the Tribunal received an application from the treating team of the Mental Health Unit, Gold Coast Hospital seeking the appointment of a guardian for DK. [3] When the application was processed by the Tribunal, an additional application for the appointment of an administrator was inadvertently registered, and included in the Notices of Hearing. The parties present at the hearing confirmed that there had been no intention of, or current need for, such an application; it is therefore dismissed. [4] Relevant legislation includes ss 12, 14 and 15 and Schedule 4 of the Guardianship and Administration Act 2000. [5] The first consideration was that of DK’s capacity1; she is presumed to have capacity in accordance with section 7 of the Act and General Principle 1 under Schedule 1 of the Act. I considered the evidence available to determine if the presumption of capacity had been rebutted. [6] Dr T, a consultant psychiatrist with the Health Service District, is part of the multidisciplinary team which has been treating DK since mid-June 2011. Dr T spoke to several written reports and documents provided by various members of the team and gave her own views on DK’s recent and current circumstances. [7] The evidence supports that DK has had episodes of psychosis since 2009 and currently has a working diagnosis of paranoid schizophrenia. She was hospitalised in Queensland and NSW on several occasions in 2009, 2010 and 2011; various abscondings and incidents of non- compliance with medications are on record. She was admitted to the Mental Health Unit of the Hospital under an emergency examination order on 11 June 2011; an Involuntary Treatment Order, made on 14 June 2011, was reviewed and continued in late June 2011. [8] DK absconded from the MHU in late September 2011 and is presently living in NSW. There has been some recent contact between DK and a case manager from the Homeless Health Outreach Team; the team is convinced that DK is avoiding the ITO and the mental health services. 1 Defined in Schedule 4 of the Act of the Guardian and Administration Act 2000. -- 2 of 4 -- 3 [9] There is consistency in the health professional reports and other documents with regards to DK’s mental health as at mid-2011; Dr T described DK’s condition up to the end of September as very delusional, paranoiac, persecutory, thought disorganised and frequently agitated. She has been assessed as vulnerable, being at risk to herself in that she did not believe she had a mental disorder or that she needed medications other than dexamphetamine. Dr T is convinced that there has been no marked change in DK’s mental health from June 2011 until the end of September 2011 and that this is unlikely to have improved since then. [10] The treating team is considerably concerned that DK’s mental state will further deteriorate due to her (likely) noncompliance with prescribed antipsychotic medications and what they describe as a concomitant substance abuse problem regarding dexamphetamine. The team considers that, living on her own with ongoing psychosis, DK will almost certainly take dexamphetamine. The use of this drug could have an extremely detrimental effect on DK’s psychotic conditions. [11] Although, potentially, a mental disorder causing acute or chronic impairment of cognitive functioning might compromise capacity, incapacity cannot be assumed solely because of such a diagnosis. By definition, capacity is dependent on the functional process involved in decision making; it must be considered in terms of the matters at hand and at the specific time that these decisions have to be made. [12] The evidence of Dr T and the treating team indicates that over the past six months at least, DK has failed to demonstrate sufficient insight, memory and reasoning to know that she needs help and to accept it voluntarily. I also accept that it is highly probable that there has been no improvement in her condition recently and that her mental state continues to significantly compromise her ability to understand the complexity of her personal matters and to make informed decisions in that regard, notably through lack of insight, impaired judgement and an inability to appreciate the realities of decision making and their consequences. [13] I am satisfied that DK will be unable to understand what is involved in the decisions needed to defend or settle the current Family Court matters, understand the nature of the litigation, its purpose, its possible outcomes, and any possible risk of having to pay costs if she is unsuccessful in the case. [14] I conclude that DK has impaired capacity for decisions about personal matters and find that the presumption of capacity for personal matters for DK is rebutted. [15] The treating team seeks the appointment of an independent party to represent DK’s legal interests in the ongoing legal/court matters. I am satisfied that this is necessary. -- 3 of 4 -- 4 [16] Section 14(2) of the Act empowers the Tribunal to appoint the Adult Guardian as guardian for an adult only if there is no other appropriate person available for appointment. In this case, no other appropriate person has been identified as available. [17] The Adult Guardian is an independent decision maker with extensive skills and experience who will be able to assess the relative merits of various options for DK and make decisions to meet her needs and protect her interests. [18] Orders were made accordingly. -- 4 of 4 --