NHI [2022] QCAT 357; NHI [2022] QCAT 366

Date: 17 October 2022
Court: Queensland Civil and Administrative Tribunal
Judicial Officer: Member Casey
Human Rights Act 2019 (Qld) Section: 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), s 5, s 11, s 12, s 14, s 15, Schedule 4; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 118; Powers of Attorney Act 1998 (Qld), s 62.
Keywords: Health, Mental Health, Guardianship

This case concerned an application for the appointment of the Public Guardian and Public Trustee of Queensland as guardian and administrator respectively, for a 90-year-old adult male (‘NHI’). NHI was diagnosed with dementia of mixed aetiology (amidst other health concerns), when admitted to hospital after being found on the floor in his remote residence, where he lives alone. The Tribunal briefly considered relevant human rights under the Human Rights Act 2019 (Qld), discussing that statutory provisions must be interpreted to the extent possible that is consistent with their purpose, and in a way compatible with human rights.

Member Casey noted that the Tribunal must first be satisfied that NHI has impaired capacity before it can consider applications for the appointment of a guardian and administrator: at [6]. The Tribunal was satisfied that the appointment of a guardian was necessary to meet NHI’s needs regarding accommodation and health care matters: at [28]. The Tribunal also concluded that the appointment of an administrator for all of NHI’s financial matters was needed: at [38].

The Tribunal was not persuaded by the submissions of a friend of NHI (‘YLH’), who submitted that they should be appointed as NHI’s guardian and administrator. Specifically, the Tribunal was not satisfied that YLH understood the nature and extent of the adult’s personal circumstances, and functional and cognitive deficits: at [51]. As such, the Tribunal concluded that the Public Guardian and the Public Trustee of Queensland were appropriate appointees in the context of the Guardianship and Administration Act 2000 (Qld): at [55].

In arriving at this conclusion, Member Casey considered relevant human rights set out within the Human Rights Act 2019 (Qld). Section 48 of the Human Rights Act 2019 (Qld) requires the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose, in a way that is compatible with human rights. Member Casey considered that NHI’s rights to privacy, freedom of movement, property, and protection from being subjected to medical treatment without NHI’s full, free, and informed consent, may be engaged and limited by the decision of the Tribunal to appoint a guardian and administrator: at [58].

Member Casey stated that the Tribunal’s decision provides the opportunity for the adult to be safely discharged from hospital, to have access to appropriate accommodation and health care, and for his income and assets to be utilised in his best interests. Considering these findings in line with criteria in the Guardianship and Administration Act 2000 (Qld), the Tribunal concluded that this decision was the least restrictive option with regards to NHI’s vulnerability.

Ultimately, the benefits of the Tribunal’s decision outweigh any limitations imposed upon NHI’s human rights. Regardless, Member Casey expressed that any limits which may be imposed are reasonable and demonstrably justified, in line with section 13 of the Human Rights Act 2019 (Qld): at [58].

Visit the judgment: NHI [2022] QCAT 357; NHI [2022] QCAT 366