MEDICUS MARCH 2016

I N D U S T R I A L

Expert Witness Doctors play an integral role in guardianship and administration hearings at the State Administrative Tribunal of WA

T he State Administrative Tribunal of Western Australia (Tribunal) was established in 2005 as one of the first ‘super tribunals’ in Australia, replacing a number of specialist tribunals and boards. A large part of the jurisdiction of the Tribunal from its inception is guardianship and administration proceedings. To give an idea of volume, the Tribunal received approximately 8,000 applications in the last 12 months, of which approximately 5,500 were guardianship and administration- related applications. It is therefore a very high volume jurisdiction, which is steadily increasing every year. The large percentage of guardianship and administration matters requires the Tribunal to make a decision as to whether someone can make reasonable Q. In what capacity is a medical practitioner requested to complete a medical report making an assessment of a person’s decision- making capacity? CW: When a medical practitioner completes a medical report in relation to a guardianship or administration application, they do so as a witness providing evidence to the Tribunal to assist it in reaching a decision in the person’s best interests. Q. What is involved in completing a medical report? CW: In many instances, a medical practitioner completes the medical

decisions in their own best interests, or whether they require the appointment of a guardian (to make personal decisions in relation to matters such as medical treatment, accommodation and provision of services) and/or an administrator (to make financial decisions and decisions in relation to property). The starting position in guardianship and administration hearings is a presumption that the person is capable of making their own decisions. The Tribunal is cautious in removing this important right from individuals and will only do so as a last resort. Fundamental to guardianship and administration hearings, is the question as to whether the person currently has cognitive capacity to make decisions and if not, whether report from their recollection of the person and their particular diagnosis assisted by a review of their file notes and any relevant assessments. On occasion, the medical practitioner may complete the report following a consultation or formal assessment of the person. Q. What is the capacity of a medical practitioner to refuse to complete a medical report if not having assessed the person? CW: If the medical practitioner has not assessed the person and is not suitably familiar with the person to provide a reliable opinion on their

there are any less restrictive options available rather than appointing a

substitute decision-maker. The Tribunal must make an

assessment of a person’s decision- making capabilities and therefore relies heavily on medical evidence. Therefore when the Tribunal receives an application, it must be accompanied with a medical report (also known as a 'doctor's guide) or the Tribunal will require, by way of an order, a treating medical practitioner to provide a WALLACE, Member of the State Administrative Tribunal about the requirements a doctor must fulfil when providing such medical evidence and the relevant implications. decision-making capability, then they ought to refuse to provide the report on that basis. However, if they are the person’s current or regular treating medical practitioner, it may be appropriate for them to arrange a consultation or assessment to enable them to provide the report. Q. What is the capacity of the medical practitioner to discuss any concerns they may have concerning the person, the subject of a guardianship application, with the SAT without incurring a penalty? CW: Medical practitioners complete the report and/or provide written report prior to the hearing. Medicus asked CHARLOTTE

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