JSC [2022] QCAT 358

Date: 18 October 2022
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Casey
Human Rights Act 2019 (Qld) Sections: ss 13, 17, 19, 24, 25, 48 Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Freedom of movement; Property rights; Right to privacy and reputation.
Other Legislation: Guardianship and Administration Act 2000 (Qld) (‘GAA’) ss 5, 11, 12, 14, 15, Schedule 4; Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCATA’) ss 61, 118; Powers of Attorney Act 1998 (Qld) s 62
Keywords: Health, Disability, Guardianship

This case concerned the decision of the appointment for the position of public guardian and administrator of JSC where there were separate applications by both the Public Guardian and the Public Trustee of Queensland as well as the Mother and Grandmother of JSC. In making an order that the Public Guardian and the Public Trustee be appointed these roles pending a review in three years, the Tribunal considered JSC’s right to privacy (section 25), freedom of movement (section 19), property rights (section 24) and protection from being subjected to medical treatment without her full, free and informed consent.

The Tribunal was satisfied that the medical evidence indicated that JSC is not capable of making complex personal and financial decisions due to her intellectual disability, developmental delay, and ADHD related behaviours: at [23].

Member Casey was concerned of the risk of domestic violence through financial control of JSC by TS. Concerning KJ, a conflict of interest was raised between her responsibilities to JSC as a decision maker and her relationship with TS.

The Tribunal noted it must interpret statutory provisions to the extent possible that is consistent with their purpose in a way that is compatible with human rights. It noted, but did not expand on, the right to privacy (section 25), freedom of movement (section 19), property (section 24), and protection from being subjected to medical treatment without her full, free, and informed consent (section 17(c)) under the Human Rights Act 2019 (Qld): at [56]. Member Case also considered that weighing against these was the adult's need to be safely discharged from hospital, and to have proper accommodation and care arranged. Member Casey was satisfied that any limitations placed on JSC’s human rights were outweighed by these benefits considered their decision as the least restrictive option given JSC’s vulnerability, and thus reasonable and demonstrably justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [56].

Member Casey found the Public Guardian and the Public Trustee to be the more appropriate guardian and administrator for JSC and allowed a review of this appointment in three years: at [55].

Visit the reported judgment: JSC [2022] QCAT 358