Date: 2 March 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Kanowski
Human Rights Act 2019 (Qld) Sections: ss 13, 21, 31
Rights Considered: Right to freedom of expression; Right to a fair hearing
Other Legislation: Guardian and Administration Act 2000 (Qld) ss 5, 6, 12; Powers of Attorney Act 1998 (Qld) s 82
Keywords: Health, Mental Health, Guardianship

This matter concerned the replacement of ADU’s enduring power of attorney for personal and health matters with the appointment of the Office of the Public Guardian. The Human Rights Act 2019 (Qld) was discussed in relation to ADU’s right to freedom of expression, right to a fair hearing and the circumstances in which a human right may be limited.

ADU had been in custody after serving sentences for sexual offences against children and was subject to a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’). In the course of the annual review of that order (‘DPSO Act proceedings'), the Supreme Court raised concerns about ADU’s capacity to defend the review proceeding and referred the matter to the Tribunal: at [2]. The Tribunal accordingly initiated applications for a declaration about capacity and to appoint a guardian. Further applications were made when it was realised that an enduring power of attorney had been executed appointing ADU’s father, FDA, as the attorney for financial and personal/health matters: at [4].

ADU’s schizophrenia manifested in delusional beliefs of being persecuted by courts, lawyers and mental health practitioners, particularly in relation to the convictions for sexual offences against children: at [29]. The Tribunal held that ADU was in no position to make informed and rational decisions about his review proceedings for continuing detention due to his delusions and preoccupations, and that the presumption of capacity had been rebutted: at [34]-[37].

FDA did not wish to have power of attorney in relation to personal decisions for ADU, especially those involving litigation, and did not realise he had been appointed to do this: at [41]. FDA resided in South Australia and was a retired accountant. FDA felt comfortable handling ADU’s financial matters, but felt ill-equipped to make personal decisions for ADU given his lack of understanding on the Queensland legal system, his age (76 years old), and other personal circumstances: at [41]. ADU also wished for FDA to remain as attorney only for financial matters: at [42]. The Tribunal considered it desirable for FDA to be relieved of the power of attorney, but only for decisions relating to the DPSO Act proceedings: at [46]. The Tribunal did not find it appropriate to grant leave to FDA to resign as ADU’s attorney completely for all personal/health matters: at [60].

The Office of the Public Guardian submitted that appointing a guardian would infringe on ADU’s rights without achieving the desired purpose, referring to section 13(2)(c) of the Human Rights Act 2019 (Qld): at [52]. The Tribunal found that it would be difficult to facilitate ADU’s right to a fair hearing under section 31(1) of the Human Rights Act 2019 (Qld) if his case was left entirely to him to self-represent, in light of his paranoid delusions about the litigation: at [53]. The Tribunal considered that any limitation on his rights by the appointment of a substitute decision-maker was reasonable in order to effectively advocate for ADU’s legitimate interest in being released from custody: at [54].

The Tribunal appointed a guardian, namely the Public Guardian, to overtake the enduring power of attorney for the purpose of the DPSO Act proceedings and refused leave to FDA to resign as attorney for all other personal/health matters: at [56], [59], [61].