Date: 9 July 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Endicott
HRA Sections: ss 13, 19, 25, 37, 48(1)
Rights Considered: Freedom of movement; Right to privacy and reputation; Right to health services
Other Legislation: Guardianship and Administration Act 2000 Qld ss 5, 12, 15(1), 28(1), 31(2) to (4) and Schedule 4; Powers of Attorney Act 1998 Qld s 63(1)
Keywords: Health, Mental Health, Guardianship

The Queensland Civil and Administrative Tribunal reviewed guardianship appointments for MJP, a young man who is unable to communicate decisions about his life. MJP’s rights to the freedom of movement (section 19), privacy and reputation (section 25), and health services (section 37) were considered by the Tribunal, which ultimately upheld the original guardianship appointments.

This matter concerned review of the guardianship appointments over MJP, a 24-year-old man with disabilities that affected his ability to communicate decisions about his life. At the time of the hearing, the Public Guardian assisted  MJP with  healthcare and contact decisions and ASD, MJP’s mother with whom he lived, assisted him with accommodation and service-related decisions. MJP’s father, GJP, had filed an application to be appointed as MJP’s sole guardian. Therefore, the Tribunal had to review the appointment of the Public Guardian as the decision-maker regarding MJP’s contact. The Guardianship and Administration Act 2000 (Qld) allows the Tribunal to ‘revoke’ or ‘continue or change the appointment at the end of the review’ if the criteria in section 12 of the Act are satisfied: at [4].

The Tribunal determined that the appointment of ASD as guardian should continue and that decision-making regarding health care should be added to her authority. The Tribunal noted the importance of section 48(1) of the Human Rights Act 2019 (Qld) and its role in interpreting statutory provisions ‘in a way that is compatible with human rights’. To this end, the Tribunal noted MJP’s rights to ‘freedom of movement, to choose where he lives, to privacy, not to be subjected to medical treatment without his full, free and informed consent’ were ‘engaged and limited by the guardianship appointments made by the Tribunal’: at [70].

The Tribunal also noted that ‘any limitation in the exercise of MJP’s rights’ arising from the appointment of a guardian was ‘not arbitrary’ but ‘reasonable and justified’ pursuant to section 13 of the Human Rights Act 2019 (Qld). This was largely because the purpose of the Guardianship and Administration Act 2000 (Qld) was to ‘enable decision-making to take place when a lack of legal capacity would otherwise prevent lawful decisions being made’: at [73]. The Tribunal remarked that it was ‘consistent with MJP’s human dignity that decisions about important and fundamental issues in his life are able to be made with lawful authority’ which would allow him to ‘live as an equal and valued member of our society,’ irrespective of his ‘lack of legal capacity’: at [73].

Visit the judgement:  MJP [2020] QCAT 253 (PDF, 336.4 KB)