PGV [2023] QCAT 130

Date: 22 March 2023
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Kanowski
Human Rights Act 2019 (Qld) Sections: ss 13, 17(b), 19
Rights Considered: Right to freedom of movement; Right to protection from torture and cruel, inhuman or degrading treatment.
Other Legislation: Guardianship and Administration Act 2000 (Qld) ss 5, 6, 11B, 12, 31, 34, 35; Powers of Attorney Act 1998 (Qld) ss 41, 47(1).
Keywords: Health, Mental Health and Guardianship

The decision relates to a man in his mid-60s with alcoholic dementia, PGV, who applied to the Tribunal for a declaration about his capacity and a revocation of the appointment of his guardians. The Tribunal considered the applicant’s right not to be treated in a degrading way (section 17) and his right to freedom of movement (section 19) in the context of determining whether a guardian should continue to be appointed. The Tribunal did not consider other rights raised by the applicant and ultimately found that PGV’s interests could not be safeguarded in a less restrictive way than by the continued appointment of guardians, and that the existing guardians had protected PGV’s interests despite limiting his rights.

PGV applied to the Tribunal for a declaration about his capacity and for a revocation of the appointment of his guardians. In the course of the proceedings, PGV alleged that his former wife and daughter, who were his guardians, violated his rights to freedom of movement (section 19), freedom of association (section 22), freedom of expression (section 21), freedom of accommodation, right to privacy and reputation (section 25), property rights (section 24), and the right to health services (section 37) in relation to their decisions made about his accommodation and access to outings. PGV had expressed concerns about his current accommodation, chosen by his guardians, and expressed his wishes to purchase a property in a residential aged care complex in the inner city.

The Tribunal noted that the right not to be treated in a degrading way under section 17 of the Human Rights Act 2019 (Qld) was engaged because the continued appointment of guardians may result in PGV receiving services contrary to his wishes, and he may be subject to in-home surveillance. The Tribunal also refers to the right to freedom of movement (section 19), in terms of a person’s right to choose where to live but did not specifically acknowledge that the other rights raised by the applicant were engaged. The Tribunal acknowledged that human rights may be limited and concluded that, despite PGV’s opposition and the impact on his rights and liberty, his interests could not be safeguarded in any less restrictive way than by the continued appointment of guardians. In doing so, the Tribunal effectively combined the test under the Human Rights Act 2019 (Qld) with the test under the Guardianship and Administration Act 2000 (Qld).

In determining whether the existing guardians should be replaced, the Tribunal acknowledged the applicant’s right to privacy and freedom of movement but concluded that “would not prevent a guardian, having taken into account the adult’s views, wishes and preferences, from making a decision that the adult live somewhere other than the place the adult prefers, or insisting that the adult be accompanied on outings, if the guardian concluded that such decisions were necessary to protect the adult’s interests.”

View the judgement: PGV [2023] QCAT 130