VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference NO. G53219	
CATCHWORDS	
Administration – rehearing of reassessment of administration order – decision-making capacity for financial matters – susceptibility to influence and vulnerability to exploitation as a factor in decision-making capacity – quality of medical evidence 
Guardianship and Administration Act 2019 (Vic) s 5, 6, 8, 30 Victorian Civil and Administrative Tribunal Rules 2018 (Vic) rule 4.15 – IFZ (Guardianship) [2020] VCAT 582	

PRINCIPAL	QSE	
WHERE HELD	Melbourne 	
BEFORE	Senior Member A Smith	
HEARING TYPE	Rehearing	
DATE OF HEARING	30 September 2024	
DATE OF ORDER	15 October 2024	
date of written reasons	17 October 2024	
citation	QSE (Guardianship) [2024] VCAT 1002	

Order
About the application 
On 5 September 2023, VCAT made a decision about QSE.
BWF applied for a re-hearing of the application.
VCAT orders that: 
Having re-heard the application, VCAT affirms the order made on 5 September 2023.

A. Smith
Senior Member			

APPEARANCES:		
Applicant	Ms. M Dib, counsel	
Mark Don Flicker	Mr B. Overend, counsel	

Reasons
Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 (Vic) that identifies or could lead to the identification of a party to the proceeding. 
1	In this statement of reasons, to protect the identity and confidentiality of the principal’s personal information and for consistency, I will adopt the same anonymised acronyms for the parties as were assigned in the decision of Member Hely in QSE (Guardianship) [2023] VCAT 1353.
Outline of the hearing
2	QSE has been the subject of administration orders from 2008 when VCAT appointed his father as his administrator. In 2012 VCAT appointed his brother, BWF, as administrator. QSE contested the reappointment of an administrator in 2023. On 5 September 2023, VCAT revoked the administration order and Member Hely published reasons for his decision, as noted above. BWF sought a rehearing of that decision.
3	Under section 157 of the Guardianship and Administration Act 2019 (Vic) (the Act), in a rehearing, VCAT has all the functions and powers that it had with respect to the matter at first instance. After the rehearing I can either affirm the order made on 5 September 2023, vary it, or set it aside and make another order in substitution for it.  It is a fresh hearing, proceeding on the same grounds as the last hearing but I can, and did, accept additional evidence. I had before me the same range of medical and Public Advocate reports as noted in Member Hely’s reasons. 
4	In Member Hely’s reasons, he noted a need for an updated assessment of QSE’s decision making capacity for financial matters. In preparation for the rehearing, BWF obtained a report from Dr Sophie Holmes. The rehearing is primarily about whether the historical reports about QSE’s decision-making capacity along with the newer report by Dr Holmes reach the threshold necessary to rebut the presumption of capacity. 
5	The rehearing was conducted in person on 30 September 2024. QSE and BWF both attended and were represented by counsel. Other members of their extended family and friends also attended and gave evidence. Dr Sophie Holmes spoke to her report. I reserved my decision at the end of the hearing. These are my findings from that hearing. 
About QSE
6	QSE is 62 years old. He is in receipt of a Disability Support Pension, and lives in an apartment owned by his father’s estate. He has one brother, cousins and family friends who remain engaged with him and attempt to support him and are very concerned to improve his living conditions and promote his wellbeing. According to his family and friends, QSE is the target of unscrupulous persons who use him for accommodation and access to his (or his family’s) money. QSE has had a difficult financial history and his family has frequently had to ‘bail him out’ of complex legal and financial problems caused by his attraction to the unscrupulous persons. 
7	BWF wants to be QSE’s administrator as he believes that this will promote his wellbeing and limit his vulnerability to financial exploitation and abuse. QSE opposes the making of an administration order. His will and preferences have remained consistent with those expressed to and recorded by Member Hely. 
Principles and legislative tests
8	When exercising powers functions and duties under the Act, VCAT must have regard to the principles set out in section 8 of the Act, which are:
a)	a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity;
b)	the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
c)	powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances.
9	Section 30(2) of the Act requires that to appoint an administrator, VCAT must be satisfied that because of a person’s disability, the person does not have decision‑making capacity in relation to the financial matter in relation to which the order is sought and the person is in need of an administrator. VCAT needs to be satisfied of both a lack of decision-making capacity and the need for an administrator. 
10	Section 5(1) defines decision-making capacity as the abilities:
a)	to understand the information relevant to the decision and the effect of the decision; and
b)	to retain that information to the extent necessary to make the decision; and
c)	to use or weigh that information as part of the process of making the decision; and
d)	to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means.
11	Section 5(2) reiterates the presumption that a person has decision-making capacity unless there is evidence to the contrary. The key issue in this case is whether the medical evidence reaches the threshold of rebutting that presumption. 
12	Section 5(4)(d) states:
it should not be assumed that a person does not have decision-making capacity in relation to a matter merely because the person makes a decision that, in the opinion of others, is unwise.
13	Section 6 of the Act requires that:
a person who is assessing whether a person has decision-making capacity in relation to a matter must take reasonable steps to conduct the assessment at a time at which, and in an environment in which, the person's decision-making capacity can be assessed most accurately.
Does QSE have decision-making capacity?
14	There was no suggestion that Member Hely misinterpreted the medical and other reports in the last hearing. The main submission from counsel for BWF is that Dr Sophie Holmes’ report augments previous reports and is sufficient to rebut the presumption in section 5(2) of the Act. Therefore, I will not reiterate the contents of the historical reports and rely on Member Hely’s characterisation of those reports. 
15	When requested by BWF’s solicitors, QSE refused to attend a further decision-making capacity assessment.
16	BWF submitted Dr Sophie Holmes’s report dated 25 June 2024 and she gave evidence at the hearing and was questioned by QSE’s counsel. She is a qualified specialist psychologist and family therapist. She has known QSE and his family since 1977 when QSE was 16 years old. She assisted QSE and his family in her capacity as a psychologist until he was in his mid-forties when he refused to attend more sessions. As a therapist, she was constantly assessing his capacity and responses, but she did not conduct formal assessments due to his longstanding opposition to such assessments. It has been over 20 years since she last spoke directly with QSE. Based on his diagnoses as described in the extract of her report below, and her knowledge of him, she concluded:
QSE’s financial decision making is impaired due to his concrete thinking, understanding information, impaired recall, problems in processing complex verbal and nonverbal information. He does not recognise, recall and or correct patterns of mistakes or maladaptive thinking or behaviour. … Change is near impossible for QSE because of his [Intellectual Development Disorder], cognitive and emotional rigidity, attachment disorder and personality disorder. QSE’s financial wellbeing needs to be protected due to his disability.  
17	Counsel for QSE asked questions of Dr Holmes and she responded as follows:
Counsel: You cannot say that QSE doesn’t have decision-making capacity for a particular matter?
Holmes: No. I don’t know how he is currently managing. 
18	Counsel for BWF contended that a 30-year therapeutic relationship enabled Dr Holmes to be able to draw conclusions about his decision-making capacity. She noted that he has a significant impairment and is very vulnerable to financial exploitation and abuse. He risks the complete loss of his resources to unscrupulous persons. He actively participates in his own exploitation. She relied on the decision of Judge Millane in IFZ as authority for vulnerability to exploitation and undue influence as a factor in determining that a person lacks decision making capacity. 
19	Counsel for QSE did not dispute that QSE has a disability. However, he submitted that there was not sufficient evidence to rebut the presumption of capacity for decision-making about financial matters. He argued that Dr Holmes’ report has limited probative value and is insufficient evidence on which to make a finding that, because of his disability, QSE lacks capacity for financial decision-making. He referred to alternative medical reports (as set out in Member Hely’s reasons) which opined that QSE has decision-making capacity for financial matters. He also noted that people without disabilities can be vulnerable to scams and exploitation and also make poor financial decisions. 
findings
20	I accept that genuine familial concerns cause BWF to want to be administrator to his brother to prevent the rolling series of adversities that befall his brother. It is his opportunity to limit damage and instigate life-saving measures to prevent harm and starvation. It might also assist him to limit the financial damage to himself and others in their immediate circle who are prevailed upon to use their own funds to keep QSE safe. However, these issues go to the question of whether QSE needs an administrator and not whether he has decision-making capacity for financial matters, and the question of ‘need’ is not engaged if the question of incapacity is not proven. 
21	Dr Holmes’ report was prepared with good intentions, but it is not good evidence. Section 6 establishes certain requirements for the assessment process to ensure fairness to the proposed represented person, which stresses the importance of the assessment process in the taking of evidence about decision-making capacity. If I were to accept a report where the proposed represented person has not been formally assessed, let alone seen by the reporter for over 20 years, it would in my view be an error of law. I am unable to accept Dr Holmes’ report. 
22	Given the more recent reports made available to VCAT that state QSE has decision-making capacity for financial matters and the presumption of capacity, I cannot be satisfied that QSE lacks decision-making capacity for financial matters.
23	I accept the applicant’s interpretation that IFZ is authority for finding that vulnerability to undue influence and exploitation is a valid factor to consider, both in the question of decision-making capacity and in the question of the need for an administrator. But, it is taking a step too far to suggest that IFZ is authority for a proposition that such vulnerability, on the background of an existing disability, is conclusive or sufficient to rebut the presumption of capacity in the absence of reliable assessment and testing of a person’s decision-making capacity. 
24	An issue in IFZ was that factors other than her potential disability (such as a lack of education, language and cultural factors) may have accounted for IFZ’s lack of decision-making capacity.  In that context, Judge Millane accepted the evidence of an expert witness that the mere co-existence of a disability with a lack of decision-making capacity did not establish the causal nexus required in the legislation without additional evidence. IFZ was assessed with a plethora of psychometric and neuropsychological tests by various highly qualified expert witnesses who also exercised their clinical judgments in forming opinions about why IFZ lacked decision-making capacity. 
25	That is a very different context to QSE’s, where there are no assessments and no current evidence that can establish why he makes such objectively unwise financial decisions – or in other words whether he makes unwise decisions because of his disability or because of other factors.  Given the operation of section 5(4)(d), it is not adequate when he is opposed to appointment of an administrator, to couple QSE’s disability with his vulnerability and the results of his poor decision-making, and thereby conclude that he lacks decision-making capacity without other reliable evidence arising from a valid assessment of the specific skill sets described in section 5(1) of the Act.    
26	Counsel for the applicant submitted in the alternative that I should make a direction under Rule 4.15 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) directing QSE to attend an assessment of his decision-making capacity. Evidence shows a long and consistent history of QSE rejecting attempts to be assessed. That leads me to three conclusions about the alternative submission. First, his very strong will and preference is not to be assessed for his decision-making capacity. Second, such a direction would be likely to be breached for lack of any practicable means to have him attend and participate in a capacity assessment. Third, the results of a capacity assessment where the subject refuses to participate or is participating under objection are likely to be unreliable and not produce probative evidence. The direction is likely to be futile. I do not consider such a direction to be just in these circumstances. 
Outcome
27	There is no evidence to rebut the presumption that QSE has decision-making capacity for financial matters. The decision made by VCAT on 5 September 2023 is affirmed.  

A. Smith
Senior Member