DBY [2011] QCAT 220

CITATION: DBY [2011] QCAT 220 PARTIES: DBY APPLICATION NUMBER: GAA10316-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 17 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for a declaration about capacity is dismissed. CATCHWORDS: ADMINISTRATION – declaration sought that adult has capacity – no new evidence about capacity – application lacks substance – early end to proceeding Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] On 8 August 2008 the former Guardianship and Administration Tribunal appointed DL as guardian for DBY for all personal matters for a period of five years and continued the appointment of The Public Trustee of Queensland as her administrator for all financial matters until further order of the tribunal. DBY has applied to this tribunal for a declaration that she has capacity to make her own decisions. [2] No fresh medical evidence has been provided to the tribunal in support of the application by DBY. A staff member from the tribunal registry wrote to DBY on 24 December 2010 and on 30 March 2011 informing her that her -- 1 of 3 -- 2 application would not proceed until fresh medical evidence in support of her application was provided to the tribunal. There was no response to those letters and no fresh medical evidence was provided. [3] There is some information available to the tribunal about the capacity of DBY. A report from Janet Vacca, registered nurse then at Belmont Hospital, reported on 25 May 2004 that DBY had been diagnosed seven years previously with schizo-affective disorder. Ms Vacca reported that DBY denied she was ill and had non compliance issues with her medication. Ms Jacca expressed an opinion that DBY could not make any complex personal or financial decisions due to her psychiatric illness. [4] On 24 May 2008 Dr Murray Walters, a psychiatrist, reported that DBY had been diagnosed with schizoaffective disorder, not in remission. He stated that DBY had chronically impaired judgement with respect to her medical care and makes poor choices with respect to her accommodation. Dr Walters expressed the opinion that DBY was unable to effectively manage money and regularly would have no available funds if her spending was not controlled. Dr Walters expressed the opinion that DBY could not make any complex personal or financial decisions due to her psychiatric disorder which he described as severe, relapsing and treatment resistant schizophrenia. [5] On 3 December 2010 DBY lodged an application in the tribunal which purported to seek the appointment of herself as the guardian and administrator for her mother, DL. The application form contained several references to DL as being dangerous and insane but also contained information about DBY’s affairs. DBY sought outcomes in terms of being taken off an involuntary treatment order and having control of her finances. The application was completed in a manner that made it very difficult to understand as the information appeared to be tangential and not supporting the supposed purpose of the application. DBY subsequently lodged an application for a declaration about her capacity. [6] On 13 December 2010 DBY informed a staff member in the tribunal registry that she was on an involuntary treatment order. The registry officer later spoke to the mental health case manager for DBY on 13 December 2010. [7] General Principle 1 in Schedule 1 of the Guardianship and Administration Act 2000 states that an adult is presumed to have capacity to make decisions. The tribunal must comply with the General Principles when exercising its functions under that Act. The presumption of capacity can be rebutted by evidence. [8] Apart from DBY asserting in her application that she is not insane, evidence before the tribunal about the capacity of DBY is contained in the reports of Ms Jacca and Dr Walters. The tribunal notes that DBY has been diagnosed with schizoaffective disorder since about 1997. That condition has been described as severe, relapsing and treatment resistant. DBY was on an involuntary treatment order under the Mental Health Act 2000 at the time she lodged her application for a declaration about capacity. -- 2 of 3 -- 3 [9] The appointments of a guardian and an administrator are current. The medical evidence before the tribunal rebuts the presumption of capacity and does not give support to a declaration that DBY has capacity for decision making. [10] No evidence has been received from DBY that supports the tribunal making the declaration that she seeks. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. [11] The tribunal considers that the application lodged by DBY is lacking in substance as no satisfactory evidence has been provided to support her application. She has been asked to provide that evidence but she has not done so. The tribunal concludes that the application for a declaration of capacity must be dismissed as there is no basis on which to proceed to a final hearing. -- 3 of 3 --