MGT [2021] QCAT 151

Date: 28 April 2021
Court: Queensland Civil and Administrative Tribunal
Judicial Officer: Member Pennell
Human Rights Act 2019 (Qld) Sections: ss 3(1), 13(2)(d).
Rights Considered: N/A.
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 6, 11B, 11B(3), 12, 14(2), 15, 31.
Keywords: Health, Mental Health, Guardianship

This matter concerned a review of the appointment of the Public Guardian and the Public Trustee of Queensland as Guardian and Administrator respectively for MGT, in circumstances where the Public Guardian had made the accommodation decision to remove MGT from his mother’s (BC) place of residence. The Human Rights Act 2019 (Qld) was mentioned in acknowledging that certain fundamental human rights exist, irrespective of capacity.

The Tribunal was required to review an earlier decision made on 12 March 2020 appointing the Public Guardian for decisions regarding accommodation, health care, and the provision of services including the National Disability Insurance Scheme, and the Public Trustee for financial matters. MGT’s advocate submitted that MGT had decision-making capacity for personal and accommodation matters: at [7]. The Tribunal dismissed this submission, in the absence of expert material to support that MGT had regained capacity, and upheld the prior determination that the presumption of capacity had been rebutted: at [25].

MGT suffered from a variety of medical conditions including paraplegia which meant he had high care needs. At the time of the Public Guardian’s appointment, MGT’s mother (BC) was his primary informal support and he was residing in her home. The Public Guardian had received numerous complaints regarding BC’s attitude and interference towards the staff of support services and MGT, and no service providers were prepared to provide MGT any services if he were to remain living with BC: at [11]. Subsequently, the guardian determined it was not in MGT’s best interests for him to remain residing with BC and found alternative accommodation and care arrangements. BC resisted this arrangement and MGT expressed to the Tribunal a desire to return to his mother’s residence: at [6].

The Tribunal cited section 3 of the Human Rights Act 2019 (Qld) and section 11b of the Guardianship and Administration Act 2000 (Qld) to acknowledge the principle that all adults have the same human rights and fundamental freedoms irrespective of decisions regarding capacity, and that humans have an inherent dignity and worth, equal and inalienable rights, and fundamental freedoms: at [26]. The Tribunal also stated that to be satisfied of the requirement for continuing appointment orders, consideration should be directed to whether less restrictive limitations on the relevant adult’s rights are appropriate: at [27]. The Tribunal accordingly cited section 13(2) of the Human Rights Act 2019 (Qld), which allows human rights to be limited where reasonable and justifiable, although there was no substantive discussion on this: at [27].

The Tribunal concluded that without the continuing appointments of the Public Guardian and Public Trustee of Queensland, there was an ‘unreasonable risk to MGT’s health, welfare, and property’ such that MGT’s needs ‘would not be adequately met, and nor would his interests be adequately protected’: at [34]. Thus, the Tribunal ordered that ‘the appointment of the Public Guardian as guardian for MGT is continued for matters the personal matters of accommodation, health care and the provision of services, including in relation to the NDIS’: at [36]. Additionally, the Tribunal ordered that the appointment of the Public Trustee of Queensland as administrator for all MGT’s financial matters is also continued: at [37].

Visit the judgment: MGT [2021] QCAT 151