Date: 20 September 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member McDonald
Human Rights Act 2019 (Qld) Sections: ss 13, 25, 48
Rights Considered: Right to privacy and reputation.
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 31, 12, Schedule 4.
Keywords: Health, Mental Health, Guardianship

This case concerned a review of the appointment of RM as Guardian for AM for legal matters. AM’s mother, FK, applied for a review of this appointment.

The Tribunal previously appointed AM’s father as Guardian for legal matters including visa applications or immigration issues relating directly or indirectly to AM and his family in circumstances where AM was a 25 year old male with Down Syndrome. An application was subsequently made by AM’s mother, FK, who moved from Fiji to Australia under a carer visa to provide care for AM in circumstances where she was concerned about the adequacy of care being provided to him.

The Tribunal conducted a review of the appointment of RM as guardian pursuant to s 31 of the Guardianship and Administration Act 2000 (Qld). The Tribunal was satisfied that the medical evidence established that AM’s Down Syndrome and intellectual disability impaired his capacity to make decisions about simple lifestyle, accommodation and financial matters: at [13].

In the context of the dispute between AM’s parents, the Tribunal considered that the Public Guardian was more appropriate to bring an independent decision-making framework to the decisions at hand, and appointed the Public Guardian as guardian for AM on a short-term basis, to be reviewed by the Tribunal in 6 months: at [24].

Member McDonald recognised that section 48 of the Human Rights Act 2019 (Qld) obliged the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way compatible with human rights, and that appointing a guardian would result in some incursions on an adult’s right to privacy (section 25 of the Human Rights Act 2019 (Qld)): at [25].

Member McDonald was satisfied that the limits imposed by the order were reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld) as it sought to ensure AM’s interests were adequately protected in exercising substituted decision making around his lifestyle and accommodation decisions: at [26].

Visit the judgment: AM [2021] QCAT 394