AB [2010] QCAT 646

CITATION: AB [2010] QCAT 646 PARTIES: AB APPLICATION NUMBER: GAA3305-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 22 November 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 22 November 2010 DELIVERED AT: Brisbane ORDERS MADE: AB has capacity for proceeding with the claim for damages pending in the Supreme Court of Queensland numbered x of xxxx and for instructing legal practitioners in that claim. CATCHWORDS : CAPACITY – LEGAL PROCEEDINGS – where determination of capacity referred from the Court – where claim stayed until capacity determined – where presumption of capacity cannot be rebutted APPEARANCES and REPRESENTATION (if any): ADULT AB appeared for himself -- 1 of 4 -- REASONS FOR DECISION 1. In xxxx a claim was commenced on behalf of AB in the Supreme Court of Queensland for damages for injuries sustained in a motor vehicle accident on 10 May 1996. That claim came on for hearing in 2009 and was adjourned on the third day of hearing on the application of the counsel for AB who had become concerned that his client lacked capacity to provide instructions. The trial judge stayed the proceeding pending an enquiry into AB’s capacity. 2. The trial judge made an order referring the question of AB’s capacity to bring the proceedings pending in the Supreme Court to this tribunal for determination. The file of the Supreme Court was received by the tribunal on 5 May 2010. While the file contained many medical reports about AB’s injuries, the reports did not contain opinions on whether AB had any impairment of his capacity to make his own decisions about either the damages claim or financial matters in general. 3. On 1 June 2010 the tribunal held a directions hearing which was attended by AB and a representative of The Public Trustee of Queensland. The purpose of the hearing was to obtain information about AB’s current medical advisors and to ascertain whether AB would be prepared to undergo a capacity assessment to be conducted by an appropriate health professional. No directions were made at the hearing as AB declined to co-operate with steps to have a capacity assessment conducted and declined to provide any information about his current health care. 4. Enquiries made by the registry staff at the tribunal with Centrelink revealed on 23 July 2010 that no health reports had been provided about AB to Centrelink since 2005. Enquiries with Medicare revealed that AB had most recently consulted Dr Oscar Serrallach in Nimbin on 22 January 2010. At the request of the tribunal. Dr Serrallach provided a report to the tribunal on 19 August 2010. 5. In his report, Dr Serrallach stated that he had known AB since 2005. Dr Serrallach made no diagnosis of any medical condition relevant to his decision making capacity however he expressed the opinion that chronic cannabis use may affect AB’s decision making. Dr Serrallach stated that he had available to him letters from other general medical practitioners at the Nimbin Medical Centre stating that AB was fit in regards to decision making. 6. Dr Serrallach stated an opinion that AB has full understanding when making lifestyle choices and that AB has full understanding of financial affairs although Dr Serrallach stated that he did not have any direct proof for this statement about financial matters. Dr Serrallach was of the opinion that AB could make decisions freely and voluntarily and that he could make both simple and complex financial decisions. 7. On 22 November 2010 the tribunal held a hearing to determine whether AB had capacity to proceed with his damages claim. AB attended the hearing and made a variety of statements that provided the tribunal with the opportunity to consider what rationale and motivations underlie his behaviour which had caused concern to his counsel and legal -- 2 of 4 -- representatives and which had given rise to concern about a lack of decision making capacity. 8. AB contends that as a living creature his being is separate from the words that form the name of AB. Much of the written material by AB found in the court file derives from his prolix account of what he contends to be the dichotomy between his person and what the world at large calls that person and how it deals with him. While entertaining in nature, these contentions made at length in writing and orally tend to obscure initially the strategy employed by AB when he deals with figures of perceived authority. That strategy is to ridicule authority figures or as he described it, to take the mickey out of them when playing the game in court. 9. When pressed by the tribunal to address specific issues, AB was able to discuss his plans for the damages claim and was aware that he may have to act for himself in the event that his legal representatives decline to accept his ongoing instructions about that claim. AB stated that he had continued with his legal advisors as he thought it was the honourable course to follow as they had done so much work for him in the claim but he is prepared to act on his own behalf. 10. AB told the tribunal that he would prefer to finalise the claim successfully, preferably by way of negotiation, but he is aware of the possibility that his claim may be dismissed by the court as a result of his own actions. He stated that he is prepared for the claim to “get messy” but that prospect did not bother him. 11. The tribunal pressed AB for his plans about managing any damages he might recover in his claim. He told the tribunal that he intends to use the damages to obtain the use of some land to grow food and cannabis for pain relief purposes. His stated goal is not to have to worry about money into the future and to be left alone. 12. Again when pressed to describe the initial steps he would need to take to implement his plans, AB conceded that he would have to keep open a bank account for sufficient time to receive the damages and to take steps to obtain some land. Apart from those steps, he expressed a lack of trust in conventional investments or banking arrangements which was consistent with the apparent unconventional lifestyle choices he has made while a resident of Nimbin over the past few years. 13. The tribunal considered that AB’s closing comments expressed succinctly his attitude to the various legal proceedings in which he was engaged both currently and in the past. He identified his actions with a motto from his days in the armed forces: a depiction of an eagle swooping onto a mouse which had a finger raised towards the eagle and bearing the caption of one last great act of defiance. 14. There is a statutory presumption that adults have capacity to make their own decisions as stated in section 7 of the Guardianship and Administration Act 2000 (“the Act”). Unless there is sufficient evidence to rebut that presumption, it must stand. 15. The Act defines capacity as: “capacity”, for a person for a matter, means the person is capable of- a) understanding the nature and effect of decisions about the matter; and -- 3 of 4 -- b) freely and voluntarily making decisions about the matter; and c) communicating the decisions in some way. 16. The Act recognises that an adult’s right to make decisions is fundamental to the adult’s inherent dignity and the right to make decisions includes the right to make decisions with which other people may not agree.1 The tribunal regards the decision making process as bringing into account the information that is needed to make a decision and in ways that are not necessarily conventional but are at least rational. The test is not whether or not the decision is a wise one; it is whether or not the decision making process used is a wise one. 17. Capacity is a functional concept, related to a person’s ability to identify, retain and understand information relevant to a decision, to evaluate consequences arising from the formulation of choices from the analysis of that information and to process the means of implementation of the choice of action made in the process. 18. In assessing capacity account must be taken of an adult’s individual values and preferences. AB has expressed to the tribunal that he holds unconventional values about lifestyle that many people would not agree with and would indeed object to, such as the use of cannabis for pain relief and production of that drug as a potential means of income support. However the evidence before the tribunal falls far short of establishing a conclusion that the process of decision making used by AB has become impaired as a result of chronic cannabis use. 19. In assessing the capacity of AB to make his own decisions the tribunal must start with the presumption that he has that capacity. The evidence of Dr Serrallach that AB has the capacity for decision making has not been contradicted by evidence from other medical practitioners. The evidence of Dr Serrallach is accepted by the tribunal. 20. AB has made many unusual and bizarre comments. Nevertheless the tribunal is satisfied that he has insight into his actions despite his discursive narratives about the concept of being. The tribunal is satisfied that he can understand the nature and effect of decisions about the damages claim. His comments about that claim indicated to the tribunal an awareness of the potentiality that his actions could result in financial disadvantage to him but such an outcome was of no real concern to him as he would continue to support himself using unconventional methods. 21. AB’s concession that he is effectively playing a game with the courts explains his behaviour to the tribunal more aptly than imputing some psychological or cognitive impairment as the basis for his actions. 22. The tribunal finds that the evidence from Dr Serrallach and the evidence of AB at the hearing did not rebut the presumption of capacity and with that finding, the tribunal concludes that AB has capacity for proceeding with the damages claim in the Supreme Court and for instructing legal representatives in that claim. 1 Section 5 (a) and (b) of the Guardianship and Administration Act 2000 -- 4 of 4 --