LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

QLD Attendance at QCAT when Medically Inadvisable?

Discussion in 'Other/General Law Forum' started by praxidice, 25 July 2015.

  1. praxidice

    praxidice Well-Known Member

    Joined:
    30 May 2014
    Messages:
    60
    Likes Received:
    3
    My partner intends applying in the near future to Kangaroo Courts QCAT for a declaration of capacity. She has ongoing aphasia (communication issue) consequent to a stroke and significant anxiety disorder (at least partly due to a previous QCAT event) and will have at least four positive capacity reports. That said she has no impairment of consequence other than the aphasia.

    According to QCAT rules (which they clearly regard as optional) she has automatic right to representation, consequently there should be no need to inflict more trauma on her by forcing her to appear in person. In any case she would probably be unable to talk clearly due to the combination of expressive aphasia and anxiety when stressed (she can crap on perfectly fluently for hours with friends). That said, QCAT members 'like' to have their victims available so they can be harassed / intimidated / traumatized.

    For the peanut gallery, I've personally witnessed this on several occasions and have heard comparable reports from many other victims and carers. Official QCAT documentation threatens discounting of evidence (read totally disregard it) should the victim not appear, however given multiple letters from medical and allied health professionals stating that her attendance is inadvisable, not recommended and potentially harmful, is QCAT entitled to act on the documented threat ??
     
  2. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    Hi there,

    The way our legal system works is that one person gives evidence, and that evidence is analysed and challenged by the other side through cross-examination. If your partner is giving evidence, through her lawyer, that is okay. However, how will that evidence be analysed and challenged? This is why tribunals and courts only allow someone to be excused from cross-examination in exceptional circumstances. Your partner sounds like she is claiming/wanting to be excused on medical grounds. She will unfortunately need medical opinion stating to her unsuitability to appear. Recommending that it is inadvisable to appear may be insufficient given the importance of having someone present and able to be challenged in the hearing.

    Furthermore, QCAT's policy is that people should represent themselves. Only in exceptional circumstances can a person be represented by a lawyer. therefore, there is no automatic right to representation, they must apply to QCAT for this and get its approval: see Legal Advice and Representation - QCAT.
     
  3. praxidice

    praxidice Well-Known Member

    Joined:
    30 May 2014
    Messages:
    60
    Likes Received:
    3
    What you are saying is the way our legal system is **supposed** to work however in practice, QCAT is a completely different animal that only recognizes laws when they can be used to bludgeon a victim into submission. If normal discrimination laws applied or if Queensland had any human rights protection, I have no doubt most if not all QCAT members would be behind bars. Last time my partner attended a QCAT hearing, the member did her level best to harrass, intimidate and demoralize her. Subsequently the emotional distress resulting from the QCAT intervention required the services of two psychologists (different specialities) and two psychiatrists.

    Given the previous event, I would be lax if I knowingly subjected my partner to another round of abuse from some moronic lets-pretend judge. I notice a recent domestic violence taskforce headed by the former governor-general roundly criticized the judiciary (generally) for the damage they cause to victims so its obvious that I'm not the only one who is critical of the judiciary (especially the quasi-judiciary at QCAT). Unfortunately some lamebrained bureaucrazy or politician decreed that the judiciary is immune to laws which everyone else is expected to observe. NOT HAPPY JAN !!!
    Mind you we did encounter a common or garden variety magistrate in a DVO application but that was a completely different situation. Seems said magistrate had been through something similar herself and was quite conversant with the emotional trauma, consequently she went to great lengths to avoid stressing my partner. I suspect much of the difference in attitude can be attributed to the avenues for recourse should a magistrate get too far out of line whereas QCAT doesn't appear to be accountable to anyone. Even the appeal process is hopelessly limited, probably due to a number of successful Court of Appeal challenges to decisions made by a certain senior member. Subsequently QCAT does its level best to put appeals on hold indefinitely to deny its victims the opportunity to go to the Court of Appeal.

    There is no doubt we can provide a truckload of medical opinion stating that attendance at QCAT would be harmful but in view of QCAT members demonstrated contempt for laws generally, I can see my proposed course of action going down like a lead balloon. Why pray tell can quasi-judges completely ignore the combined opinions of highly qualified and experienced medical experts ??
     
  4. Sarah J

    Sarah J Well-Known Member

    Joined:
    16 July 2014
    Messages:
    1,314
    Likes Received:
    243
    If you don't agree with QCAT's procedures, you can commence action in the Magistrates Court. QCAT is not a court, it is a tribunal. You have a right to pull your application from QCAT and initiate in the Magistrates Court where you can get representation. However, your partner will still need to be involved in the process, especially if she is giving oral evidence or submitting evidence in the form of an affidavit.
     
  5. praxidice

    praxidice Well-Known Member

    Joined:
    30 May 2014
    Messages:
    60
    Likes Received:
    3
    Thanks for the response Sarah, we'd dearly love to move the matter to the magistrates court however my understanding is that every matter concerned with guardianship and administration must necessarily be handled in QCAT until appeal processes are concluded, after which the matter can go to the Court of Appeal. For what its worth, QCAT rules (which admittedly they rarely if ever observe) state that she has automatic right to representation due to a communication issue consequent to a stroke. She has been diagnosed with receptive and expressive aphasia which majority medical opinion concludes has no effect on intelligence but does involve varying degrees of difficulty finding words. Mind you the aphasia is only obvious when she is stressed, and in extreme cases becomes effectively mute.

    There is no doubt whatever that if she attended QCAT (even with her lawyer) she would undoubtedly be grilled unmercifully by some lamebrained member without a clue about aphasia who would then pronounce her non compos mentis because she won't be able to respond to their satisfaction. As I said earlier, if only anti-discrimination laws applied and / or human rights legislation existed, we be able to have the member on toast.
     
  6. praxidice

    praxidice Well-Known Member

    Joined:
    30 May 2014
    Messages:
    60
    Likes Received:
    3
    For what its worth, a party who the kangaroo court has decided lacks capacity has automatic right to counsel, although as far as the members are concerned, if the victim is present then the lawyer / barrister are merely decorative. Despite numerous Acts providing that verbal interrogation of a person with a communication order is not quite kosher (in fact it is criminal under federal and international law), members believe it is their God-given right to demolish a victim to rubble and to Hell with the psychological injuries.

    I have no idea why parliament decided to allow failed lawyers with a hate complex to have effectively unlimited authority to destroy the lives of their victims with no semblance of accountability. Surely even an entry-level magistrate would have infinitely more insight than some grubby basket-case lawyer with an ego a hundred sizes than his or her ability.

    The notes accompanying the Bill show that magistrates weren't even considered. Even if they get a berth in QCAT, they are awarded bottom rung status, well below very ordinary lawyers. We do have some exceptional magistrates in Queensland and even the most inept magistrate would be light-years ahead of any QCAT member.
     

Share This Page

Loading...