HH [2021] QCAT 103

Date: 1 March 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Traves
HRA Sections: s 9(4)
Rights Considered: N/A
Other Legislation: Guardianship and Administration Act 2000 (Qld), s 129
Keywords: Health, Mental Health and Guardianship

This particular hearing concerned an application for an interim order seeking the appointment of the Public Guardian and Public Trustee of Queensland to manage HH’s personal and financial decisions, respectively. In its reasons, the Tribunal recognised that it was subject to the Human Rights Act 2019 (Qld). The Tribunal noted that such an appointment on an interim basis without a fair hearing is a serious incursion on a person’s human rights.

This matter arose out of an application made by AJ, a social worker at the Hervey Bay Hospital, seeking the appointment of the Public Guardian and Public Trustee of Queensland to manage HH’s personal and financial decisions, respectively. That particular application was listed for a hearing on a later date, 13 May 2021. These proceedings concerned AJ’s concurrent application for an interim order to the same effect.

In support of the appointment of the Public Guardian, the application stated that HH’s National Disability Insurance Scheme (NDIS) service providers could not attend HH’s home due to safety concerns. It also stated that there was a Domestic Violence Order in place, which named D as responsible for family and domestic violence towards HH: at [7]. In support of the appointment of the Public Trustee of Queensland, the application stated that D was misusing HH’s pension to support his own gambling habits: at [7].

The Tribunal accepted that it was subject to the Human Rights Act 2019 (Qld) as a ‘public entity’ because it acts in an ‘administrative capacity’ when making decisions to appoint a guardian or administrator: at [8]. The Tribunal recognised that ‘[t]he appointment of a guardian or administrator on an interim basis is a serious incursion on a person’s human rights’: at [8]. Such an appointment ‘undermines the personal autonomy of the individual and their right to make decisions which significantly affect their life’: at [9]. Although there was no direct reference to the right to a fair hearing under section 31 of the Human Rights Act 2019 (Qld), it was stated in general terms that the ‘usual legal protections and rights of adults with impaired capacity do not apply’ when making an interim order as there is no opportunity for the adult to be given a fair hearing: at [9]. 

The Tribunal made an interim order appointing the Public Guardian to make decisions with respect to HH’s health care only and the Public Trustee of Queensland to make decisions regarding all financial matters, finding that this ‘restricted HH’s right to make decisions to the least possible extent’: at [10]. The Tribunal noted that the application did not explain the type of personal decisions required to be made and did not clearly demonstrate an immediate risk of harm to HH to justify expansion of the Public Guardian’s appointment: at [6].

(On further application by the Public Guardian, the Tribunal Order was amended on 4 March 2021 to extend their appointment to decisions about accommodation, with whom HH has contact and the provision of services: at [5].)

Visit the reported judgement: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/103/pdf