PJ [2021] QCAT 194

Date: 28 May 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Bayne
Human Rights Act 2019 (Qld) Sections: ss 13, 48
Rights Considered: N/A
Other Legislation: Disability Services Act 2006 (Qld) ss 140, 144, 145, 150, 166, 173, 178; Guardianship and Administration Act 2000 (Qld) ss 6, 12, 14, 15, 16, 31, 34, 35, 36, Schedule 1, Schedule 4; Mental Health Act 2016 (Qld); National Disability Insurance Scheme Act 2013 (Cth); National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth); Public Guardian Act 2014 (Qld) s 41
Keywords: Health, Mental Health and Guardianship

This case concerned applications for the removal of PL, PJ’s mother, as guardian and administrator of PJ, and the appointment of the Office of the Public Guardian and Public Trustee of Queensland. The Tribunal briefly considered the Human Rights Act 2019 (Qld) and was satisfied that the limits imposed by the guardianship order were reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld).

This case concerned two applications for the removal of PL, PJ’s mother, as guardian and administrator of PJ, and the appointment of the Office of the Public Guardian and the Public Trustee of Queensland.

The Tribunal held that the presumption of capacity had been rebutted: at [28]. After reviewing the personal decisions that needed to be made for PJ, the Tribunal found that there was a need for the appointment of a guardian for the provision of services, including in relation to the National Disability Insurance Scheme: at [39].

The Tribunal found that PJ’s needs and interests were not being adequately met or protected: at [128]. PL, as a guardian for PJ, had not applied the General Principles nor exercised her decision-making power ‘with reasonable diligence to protect PJ’s interests’: at [129]. The Tribunal concluded that this constituted a ‘serious risk’ and that PL was not competent: at [130]. Therefore, the Tribunal’s only option was to appoint the Office of the Public Guardian, as no other appropriate person had been identified: at [131].

The Tribunal determined that it was necessary to appoint an administrator to protect PJ’s needs and interests: at [138]. The Tribunal accepted that PL together with MMS, PJ’s sister, ‘should be given the opportunity to demonstrate that together they would be competent as administrators’: at [147].

The Tribunal stated that the appointment of a substitute decision-maker invoked ‘various aspects’ of the Human Rights Act 2019 (Qld) and acknowledged ‘that people have a right to self-determination, and decisions made by Tribunals or courts have to be compatible with the Human Rights Act 2019 (Qld)’: at [17]. The Tribunal also noted that section 13(2) of the Human Rights Act 2019 (Qld) indicated that human rights may be limited in certain circumstances: at [17].

The Tribunal concluded that the Human Rights Act 2019 (Qld) had been taken into account, particularly section 48(1): at [148]. The Tribunal recognised that PJ’s rights were ‘engaged by these appointments’: at [149]. When balanced with the ‘findings in relation to capacity, need and appropriateness’, the Tribunal was satisfied that the limits imposed by the guardianship order were ‘reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld)’: at [149].

Visit the judgement: PJ [2021] QCAT 194