Brennan, Re [1990] QSC 251

( ' 10 20 IN THE SUPREME COURT OF QUEENSLAND CHAMBERS BEFORE MASTER WHITE BRISBANE, 16 JULY 1990 0.S. No. 544 of 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court ReportingBureau.) IN THE MATTER of the "Public Trustee Act 1978-1989" -and- IN THE MATTER of JOYCE KATHLEEN BRENNAN -and- IN THE MATTER of an application by GREGORY DAVID BRENNAN for a protection order. JUDGMENT MASTER: These are extempore reasons. 10 20 30 30 40 so 60 On 5 June 1990 Gregory David Brennan, a son from the second marriage of Joyce Kathleen Brennan, a lady aged some 78 years, sought an order that she be medically examined pursuant to ss.65, 66 of the Public Trustee Act, that a protection order be made and that the Public Trustee be appointed to manage her property. Mrs. Brennan owns a house in Toowoomba and is a pensioner. She has little else in her estate. She lived in her house with her son Michael Brennan and his family for some years. She moved to Dalby in about March this year and lived with her son John there. The applicant became aware of an opinion of Dr. John Lockwood, a general practitioner of Toowoomba, in January 1989 that Mrs. Brennan should live with her children because she was suffering from a condition which made her 1 40 50 60 -- 1 of 6 -- incapable of managing her affairs. In addition the applicant has referred in para.12 of his affidavit to certain incidents which caused him some concern. These incidents really must be regarded as relatively trivial but in the absence of any explanation and in conjunction with Dr. Lockwood's opinion they 10 may well have been sufficient to cause some concern. The application was opposed by another son, Edward Brennan. I was concerned by the opinion expressed by Dr. Lockwood sufficiently to make the preliminary orders sought. The application and supporting material had not been served upon Mrs. Brennan and 10 20 ithe orders made by me on that day which are relevant to today's 20 hearing were that service of the application and supporting material and the order be served upon Mrs. Brennan and that Mrs. Brennan have liberty to apply within 21 days of the receipt of the order and material to set aside the following 30 orders that I then made. 40 50 The relevant order was that Dr. Geoffrey David Thompson examine Mrs. Brennan and make a report with respect to his findings. Mrs. Brennan has availed herself of the order giving her liberty to apply to set aside the order for her examination. She has sworn an affidavit in which she opposes submitting to medical and psychological examination by Dr. Thompson. It is further her wish not to have her property managed by the Public Trustee of Queensland. She deposes that she is presently residing in Dalby with another of her sons, Trevor, from her first marriage and has done so for a month. She sets out some of her early circumstances. She responds to the matters set out in the applicant's affidavit which have caused him concern. It must!i be said that she gives a reasonable explanation for those I I 30 40 50 60 ---~-1----------···--·--·---·-·-~---"·----- ________.J 6C G0vL Prin~er, Oid 2 -- 2 of 6 -- incidents. It seems to be fairly clear from her evidence that she is fairly non-responsive to the applicant's questioning of her, which I understood from his affidavit to be tests he set up for her himself to see whether indeed she was a person whose affairs needed looking after. iO There has been some reference to Mrs. Brennan giving 10 20 JO so tO her passbook to the applicant and some veiled suggestions that the sums of money deposited in that account have not been accounted for. I shall not, however, dwell upon those matters. What is really in issue in this application by Mrs. Brennan to set aside the order made on 5 June is the 20 opinion of Dr. Lockwood and the opinion of Dr. Ian Keys, her present medical adviser, as to her health and capacity. Dr. Keys has been treating Mrs. Brennan since 21 February 1990 . .Dr. Lockwood had treated Mrs. Brennan from 17 At.1gust 1988 until early January 1990. Dr. Lockwood noted that in January 1989 he 30 was of the view that Mrs. Brennan was incompetent as far as shopping, payment of accounts, cooking or bathing were concerned. He was of· the view that she needed 24-hour-a-day company and supervision. He further noted that in March 1989 Mrs. Brennan had become aggressive and thought that she should be applying for convalescent home admission. When he last saw her on 4 January 1990 he was of the view that her mental state had not improved. It was his opinion that Mrs. Brennan suffers from some condition of mental infirmity or disease which has resulted in her being unable to manage her own affairs. It is his further opinion that her mental state will not improve with the passage of time on any medication. He swore that Mrs. Brennan has been incapable of managing her own affairs from the first day that she consulted with him. Govt. Pnn!er Q;d. 3 50 60 -- 3 of 6 -- On the other hand, Dr. Keys, who has also had long experience in general practice, confirmed the view that Mrs. Brennan was co-operative, able to communicate and carry on conversation, that she was bright and pleasant. He swore that she is able to care fully for herself and 10 is neat and tidy in every way. By that I understand Dr. Keys to be referring to her ability to care for herself physically. I His vp~.-::.. - ..... ,,,:::,c, n::;,,-;!;'.",,01,~"te was happy in her present situation I1 and able to cope. She was suffering no emotional disturbances, no signs of aphasia, apraxic disturbances, abnormalities of 20 space perception and no extra pyramidal signs. Dr. Keys caused a brain scan to be carried out on Mrs. Brennan on 11 July 1990, the results of which are exhibited to his affidavit. The effect of the report is that Mrs. Brennan suffers from mild dementia normal for her age and 10 20 30 that accords with the observations which he made. It should be 30 noted that he refers to her short-term memory loss but says that, with prodding by those around her, she is generally able 50 to overcome this. Mrs. Brennan herself swears that she did not have confidence in Dr. Lockwood and, it would appear, had a verbal ! altercation of some kind with him on an occasion. She took the :medication which Dr. Lockwood had prescribed for her but she says she did not know what the tablets were for or felt that she needed them. She swears that when she moved to Dalby she saw Dr. Keys and he discontinued that medication and since that time she has felt well. The medication prescribed by Dr. Lockwood, she says, made her sleepy and would give her headaches. She says that since stopping taking tablets, she from her activities of housework and 4 40 SU f.() -- 4 of 6 -- looking after the garden which are her main activities. Mrs. Brennan has given a power of attorney to two of her sons, one from her first marriage and one from her second marriage. She is happy for that power of attorney to continue. It has been submitted on behalf of the applicant that since 10 there is a clearly held difference of opinion between the two medical practitioners, this difference should be resolved by reference to a third specialist who could resolve the conflict. The position of the Public Trustee is that generally he requires the advice of two medical practitioners that a person 20 is incapable, by reason of the matters set out in s.65 of the Public Trustee Act, to manage or control his or her affairs. In the absence of two such reports, my impression was that the Public Trustee did not support this application and 10 20 30 would not regard it _as appropriate for the Public Trustee to I attempt to take control of Mrs. Brennan's affairs and would not 30 initiate any such application. 40 50 No deponents have been requested to attend for cross-examination so it falls to me to make a decision as to whether Mrs. Brennan ought to undergo the medical examination that she opposes and on the basis of the material before me. I have been referred to the decision of Re Stone (O.S. No. 297 of 1981), an extensive consideration of this area of the law by Master Lee Q.C. as he then was of 22 June 1983 and also i a decision of Master Weld, Re Burnham (unreported). It seems to me that the explanation offered by Mrs. Brennan for the incidents which cause concern to the applicant are reasonable, that it is possible to resolve the difference of opinion between Dr. Lockwood and Dr. Keys without1 the need to refer to further medical advice on the basis that I 40 50 ______ __iill____~-------------------------- ___________ _J 60 Govt. Printer, Qid 5 -- 5 of 6 -- 10 Mrs. Brennan apparently did not have a cordial relationship with Dr. Lockwood, that she last saw him in January 1990, that she herself admits that she was not as well as she might have been whilst taking the medication but since ceasing to do so she has been able to enjoy life better. Dr. Keys' opinion would coincide with that change in Mrs. Brennan's situation. I am also comforted by the fact that in Re Burnham (supra), there were persons looking after the estate of the subject of the application which Master Weld thought was a protection for her property. The two sons from 10 20 both marriages are represented in the power of attorney. 20 Mrs. Brennan seems happy and cared for at the present time and I am of the view that it would be inappropriate for her to be now subjected to psychological and medical examination and, accordingly, I would set aside the orders made by me on 5 June 30 1990 that she be so examined and the consequential orders that 30 40 ::n.i 60 flowed from such an examination. MASTER: I would make no order as to costs for the appearance of 5 June 1990. As to today's appearance, I would 1 order that the apr,Xicant pay the costs of and incidental to 40 Joyce Kathleen Brennan's appearance to set aside the order to 1 be taxed. I would make no order as to the costs of the Public• Trustee on either appldcation. MASTER: I make a specific order about the Public Trustee's costs in view of s.75 of the Public Trustee Act to make it clear beyond doubt that there is no order as to costs in relation to the Public Trustee's appearance on 5 June or 16 July 1990. Govt. Printe~·. Ok1. 6 50 60 -- 6 of 6 --