Bucknall v Guardianship and Administration Tribunal & Ors (No. 1) [2009] QSC 128 [2009] 2 Qd R 402

SUPREME COURT OF QUEENSLAND CITATION: Bucknall v Guardianship and Administration Tribunal & Ors (No. 1) [2009] QSC 128 PARTIES: HISAKO BUCKNALL (appellant) v GUARDIANSHIP AND ADMINISTRATION TRIBUNAL (first respondent) PUBLIC TRUSTEE QUEENSLAND (second respondent) PUBLIC ADVOCATE (third respondent) FILE NO: 12035/08 DIVISION: Trial Division PROCEEDING: Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 June 2009 DELIVERED AT: Brisbane HEARING DATE: 15 April 2009 JUDGE: Byrne SJA ORDER: 1. Appeal allowed. 2. The decision of the Guardianship and Administration Tribunal made on 17 September 2008 is set aside. 3. The proceedings are remitted to the Tribunal to proceed according to law. CATCHWORDS: MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – Guardianship and Administration Tribunal – where appeal against decision of Tribunal for declaration of capacity and appointment of administrator – whether presumption of capacity applies to subsequent Tribunal decision – whether Tribunal correctly interpreted provisions of the Guardianship and Administration Act 2000 STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – where statutory provisions ambiguous as to -- 1 of 8 -- 2 application of general principles in Guardianship and Administration Act 2000 – whether general principle 1 (Presumption of Capacity) applies to declarations of capacity by Tribunal s 14A(1) Acts Interpretation Act 1954 ss 6, 7, 9, 10, 11, 12, 31, 130, 146(1) and general principle 1 Guardianship and Administration Act 2000 rr 766(1)(b), 785(1) Uniform Civil Procedure Rules 1999 Guardianship and Administration Bill 1999 – Explanatory Notes Queensland Law Reform Commission Report No. 49 “Assisted and Substituted Decisions: Decision-making by and for people with a decision-making disability” (June 1996) A. Raptis & Sons Holdings Pty Ltd v Commissioner of Stamp Duties (No. 1) [1999] 1 QdR 458 Nominal Defendant v Ravenscroft [2007] QCA 435 Owners of Strata Plan No. 23007 v Cross (2006) 233 ALR 296 White v Wilson (1806) 13 Ves 87 COUNSEL: Mr S J Keim SC for the appellant Ms J Brasch for the third respondent SOLICITORS: Carne Reidy Herd Lawyers for the appellant The Public Advocate for the third respondent GAAT Decisions [1] In 1998, Hisako Bucknall suffered a stroke. Serious brain injury resulted. A claim for damages was commenced. In May 2005, this Court appointed a trustee company to administer the settlement sum of more than $1,000,000. [2] In September 2006, the Guardianship and Administration Tribunal (“the Tribunal”) substituted the Public Trustee of Queensland as administrator for the financial matter of managing the settlement fund. At the same time, the Tribunal dismissed Mrs Bucknall’s application for a determination that she had capacity for that matter. [3] The appointment of an administrator was continued and Mrs Bucknall’s application refused because, on a consideration of the evidence, much of it psychiatric and psychological, the Tribunal found that Mrs Bucknall had an impaired capacity for making complex financial decisions, including concerning the “matter”. -- 2 of 8 -- 3 [4] In May 2008, Mrs Bucknall instituted two proceedings in the Tribunal. By one application, she sought a declaration about her capacity to make “complex financial decisions”. This was treated as an application under s 146(1) of the Guardianship and Administration Act 2000 (“the Act”) for a declaration about her capacity for the “matter”. The other sought a review, pursuant to s 31(1) of the Act, of the 2006 appointment, including an order discharging the administrator on the “basis that there is no need for the appointment”. [5] The Tribunal conducted the review and heard the application for declaratory relief concurrently and, on 17 September, disposed of both proceedings by the one order. The declaration about capacity was refused. The review resulted in the continuing appointment of the Public Trustee as administrator “for managing” the “matter”. Appeal [6] Mrs Bucknall brings this appeal against the dismissal of her application and the outcome of the review. Only two of the five grounds in the notice of appeal are pursued. Both raise issues of law and both are relied on to challenge the refusal of declaratory relief as well as the outcome of the review. [7] The first ground of appeal contends that the Tribunal misconstrued its statutory obligations in failing to apply General Principle 1 of the Act. Getting to the Principles [8] Section 6 of the Act declares that the statute seeks to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. [9] According to s 7 of the Act, the way that purpose is to be achieved is that: “This Act— (a) provides that an adult is presumed to have capacity for a matter; and … (c) states principles to be observed by anyone performing a function or exercising a power under the [legislative] scheme; …” [10] Section 9(1) declares that the Act authorises “the exercise of power for a matter for an adult with impaired capacity for the matter”. By s 10, the “types of matter” include a “financial matter.” -- 3 of 8 -- 4 [11] As s 7 insists, the Act does stipulate for a presumption of “capacity for a matter”. This is achieved through s 11. Headed “Principles for adults with impaired capacity”, the section provides: “(1) A person or other entity who performs a function or exercises a power under this Act for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in schedule 1 … Example 1— If an adult has impaired capacity for a matter, a guardian or administrator who may exercise power for the matter must— (a) apply the general principles. …” [12] Part 1 of Schedule 1 of the Act states the “General principles”. These include: “1 Presumption of capacity An adult is presumed to have capacity for a matter. 2 Same human rights (1) The right of all adults to the same basic human rights regardless of a particular adult’s capacity must be recognised and taken into account. (2) The importance of empowering an adult to exercise the adult’s basic human rights must also be recognised and taken into account. 3 Individual value An adult’s right to respect for his or her human worth and dignity as an individual must be recognised and taken into account. …” [13] Mrs Bucknall contends that the Tribunal, which is “another entity …” within the meaning of s 11(1),1 erred in law in failing to presume her capacity for the matter of managing her settlement sum. Tribunal’s reasons [14] The Tribunal’s reasons record that, in dismissing Mrs Bucknall’s application in September 2006, the Tribunal then “found that the presumption of capacity had been rebutted”. Rejecting the submission that the presumption mattered for the two 2008 proceedings, the Tribunal said: “The Tribunal has previously found that Mrs Bucknall has impaired capacity and until such time as the Tribunal makes an order to the contrary, the presumption of capacity remains rebutted …” [15] It is a question whether the orders appealed from were influenced by the Tribunal’s view that, given the 2006 determination, there was no scope for the operation of a presumption of Mrs Bucknall’s capacity for her “matter”. 1 cf Example 2 to s 11: “The tribunal in deciding whether to consent to special health care … must apply the general principles ...”. -- 4 of 8 -- 5 [16] Having decided the legal issue as to the application of the presumption against Mrs Bucknall, the Tribunal nonetheless proceeded to say: “[84] In any event, the Tribunal relies on the evidence before the previous Tribunal about Mrs Bucknall’s ability to make decisions freely and voluntarily, and the extent of the influence exercised by Mr Bucknall on Mrs Bucknall. Section 130 of the Act requires the Tribunal to ensure that, as far as it considers practicable, it has all relevant information and material before it. It is therefore quite appropriate to take the previous Orders of the Court and the Tribunal and the supporting evidence into account when considering the issue of the application of the presumption of capacity. The fact that the evidence of Mrs Bucknall’s ability to make decisions is historical does not, in these circumstances, detract from its value.” [17] Is the Tribunal there saying that the presumption would make no difference to the outcomes in the light of evidence establishing that Ms Bucknall still suffered from an “impaired capacity for the matter”? For if the idea that the presumption was inapplicable did not affect the Tribunal’s decisions, the suggested error of law would be harmless. [18] A later segment of its reasons suggests that the Tribunal thought that it would have made no difference if effect had been given to the presumption. Under the heading “Conclusion”, the Tribunal wrote: “[86] After consideration of all the evidence, on balance the Tribunal is of the view that Mrs Bucknall’s ability to make decisions freely and voluntarily is still compromised by her disability…” [19] However, there are contrary indications. First, the Tribunal decided whether the presumption applied. The question was not left open. Secondly, the Tribunal expressly took its 2006 “orders” into account in forming a view about Mrs Bucknall’s capacity. These considerations expose the possibility – one not so slight that it should be ignored – that the decisions were influenced by rejection of the notion that the presumption had significance for the proceedings. [20] So it must now be decided whether the Tribunal was correct in concluding that there was no scope for the operation of the presumption in determining the application and review. Administrator’s Powers not analogous to Tribunal Functions [21] The Tribunal’s decision was influenced by an absurd consequence that would attend application of the presumption by an administrator appointed in respect of a matter like Mrs Bucknall’s. -- 5 of 8 -- 6 [22] Section 12 of the Act allows the Tribunal to appoint an administrator for a financial matter if three conditions are satisfied. One is that the “adult has impaired capacity for the matter”. [23] Section 11(1) requires an administrator who exercises a power under the Act to “apply the principles stated in schedule 1…”; and Example 1(a) makes that plain. But it would be a nonsense if an administrator had to give effect to the first of those principles: the presumption of capacity. [24] As the Tribunal observed, an administrator whose appointment depends upon a determination that the presumption had been rebutted could scarcely set about applying it in making decisions. To do so would be fundamentally at odds with a finding of fact by the Tribunal essential to the administrator’s appointment. And for an administrator to apply the presumption would inevitably frustrate the very object of the appointment. [25] In short, the Tribunal was correct in holding that, so far as an administrator’s powers and functions go, the presumption has no work to do. [26] It does not follow, however, that the presumption has no potential operation in Tribunal proceedings where capacity is revisited after a s 12 appointment has been made. Ramification of the Rival Interpretations [27] The Parliament might, sensibly enough, have adopted a regime under which, once found by the Tribunal, mental impairment is presumed to continue until the contrary is established. That, after all, was the general law solution.2 However, it is not the only rational choice. [28] There is nothing absurd about the Tribunal’s applying the presumption every time it investigates capacity. For one thing, cognitive functions sometimes improve over time; and an adult with impaired capacity at one time might not lack capacity a year or two later. [29] Even if the issue is revisited soon after impaired capacity is found, no particularly inconvenient consequences would attend a fresh application of the presumption. The Tribunal is empowered to gather the evidence needed to make an informed decision. 3 And, as with Mrs Bucknall’s case, a Tribunal that revisits capacity may take into account, if still relevant, evidence adduced in the earlier proceeding when the impaired capacity was declared. 2 White v Wilson (1806) 13 Ves 87, 88-89; 33 ER 227, 228; cf Owners of Strata Plan No. 23007 v Cross (2006) 233 ALR 296, 310 [67]-[68]. 3 s. 130(1), (2) of the Act. -- 6 of 8 -- 7 [30] For the Tribunal to give effect to the presumption more than once is not so bothersome that the Parliament is unlikely to have intended that to be done. [31] In any event, the Act contains an explicit indication that the legislature did expect that the presumption would apply in such circumstances. Significance of Section 31 [32] Section 31 of the Act authorises the Tribunal to conduct a review of an appointment of a guardian or administrator. By s 31(2): “At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.” [33] Relevantly for present purposes, s 31(2) directs attention to the conditions required to be satisfied for a s 12 appointment. The reference to a “new” application appears to be concerned with the conditions to be satisfied where an appointment is first proposed. On initial application for a s 12 appointment, the presumption is to be applied. [34] It would be distinctly odd if the presumption applies in a s 31 review but does not in proceedings under s 146 for a declaration about capacity. And there is no indication that such a difference was envisaged. Absurdity in Section 11 [35] Another problem of statutory interpretation derives from s 11, which stipulates that the general principles apply where the Tribunal exercises a statutory power “for a matter in relation to an adult with impaired capacity for the matter”. [36] Literally construed, this provision means that only those adults who suffer impaired capacity can invoke the presumption. Such an interpretation would deny the presumption any operation in capacity proceedings in the Tribunal. Especially as s 7(a) promises that “[t]his Act … provides that an adult is presumed to have capacity for a matter”, so capricious a result cannot have been intended. [37] That the Parliament did not intend what its words naturally mean is confirmed by the extrinsic material. [38] The explanatory notes accompanying the Guardianship and Administration Bill 1999 mentioned that “[t]he Bill will implement those aspects of the Queensland Law Reform Commission Report Number 49…released in June 1996 (QLRC Report 49) that were not implemented in the Powers of Attorney Act 1998”. -- 7 of 8 -- 8 [39] Relevantly, the draft Bill with that report provided: “General principles must be complied with by all 21. The principles in part 2 (“the general principles”) must be complied with by a person or other entity who performs a function or exercises a power under this Act.” [40] In part 2, headed “List of General Principles”, s 23 stipulated: “An adult is presumed to have the capacity to make the adult’s own decisions”. [41] The extrinsic material does not reveal why clause 21 of the draft Bill was altered when s 11 was enacted. But that drafting change to add the problematic words could not be explained by an anxiety to make a mockery of the s 7(a) assurance. [42] The absurdity produced by a literal interpretation of s 11 should be avoided by according the provision a purposive construction. 4 In respect of Mrs Bucknall’s proceedings, this involves ignoring the words “for a matter in relation to an adult with impaired capacity for the matter”. Presumption Applied [43] The Tribunal was obliged to give effect to the presumption of capacity in respect of both application and review. It erred in law in concluding otherwise. Disposition [44] In the circumstances, it is unnecessary to consider the other ground of appeal. [45] The appeal is allowed. The Tribunal’s order made on 17 September 2008 is set aside. The proceedings are remitted to the Tribunal to proceed according to law.5 4 See s.14(A)(1) Acts Interpretation Act 1954; cf. A. Raptis & Sons Holdings Pty Ltd v Commissioner of Stamp Duties (No. 1) [1999] 1 QdR 458, 460-461; Nominal Defendant v Ravenscroft [2007] QCA 435, [36]-[50]. 5 cf UCPR 766(1)(b), 782 and 785(1). -- 8 of 8 --