MEDICUS MARCH 2016

I N D U S T R I A L

or oral evidence to the Tribunal as a witness who is required to do so by the Tribunal. Therefore, on the basis that they are providing their honestly held opinions, there should be no penalty for providing information requested by the Tribunal. Q. What is the SAT process involved in a guardian being appointed to make decisions for a person? Does SAT have options available to avoid making the ultimate decision depriving a person of their decision-making rights? CW: There is a legal presumption that people have the capability of making their own decisions. Before appointing a guardian or administrator, the Tribunal must be able to rebut the presumption of capability on the basis of clear medical evidence. If the medical evidence is insufficient to rebut the presumption, or supports that the person has capacity, then the Tribunal will dismiss the application. In addition, to appoint an administrator, the Tribunal must find that the lack of capability to make reasonable judgments is due to a mental disability. Even if the Tribunal finds that the presumption of capability can be rebutted, it must still find a need for the appointment of a guardian or administrator. To consider the question of need, the Tribunal must explore whether less restrictive options are available to support the person. Less restrictive options include the ability to execute an Enduring Power of Attorney or

Enduring Power of Guardianship, the ability of a family member to make treatment decisions as next-of-kin, joint signatories to banks and Centrelink and so forth. Q. Can a medical practitioner apply to SAT either on behalf of a patient arguing against an application for guardianship or seeking more information on behalf of a patient about a guardianship application? CW: The most effective way to oppose an application seeking the appointment of a guardian or administrator is for a medical practitioner to provide the Tribunal with a medical report stating that in their view, the person has the capability of making their own decisions. If the medical practitioner wishes to assist the person to access information from the Tribunal, there is an application which can be completed seeking access to the application and other documents held on the Tribunal file. The doctor can also telephone Tribunal staff to discuss general questions in relation to the application and proceedings. The practitioner is also welcome to accompany the person to the hearing or attend by telephone with the person. Q. Do medical practitioners have access to information provided to SAT in relation to a patient who is the subject of a guardianship application? CW: If a medical practitioner is a party to the guardianship/administration proceedings or has been asked to provide a medical report to the Tribunal, they

can seek access to other reports and documents filed with the Tribunal. Q. Is a medical practitioner remunerated for the time spent completing a medical report? CW: Unfortunately the Tribunal is unable to remunerate medical practitioners for time spent completing medical reports for the purposes of a hearing at the Tribunal. The medical report has been drafted by the Tribunal with consideration of the practitioner’s time taken to complete it and with the expectation that completing the report will prevent the need for the practitioner to attend the hearing, which would otherwise be required. Q. What happens to a medical practitioner who does not return a completed form? Are there penalties applied? CW: If a medical practitioner does not complete the medical report, having been ordered to do so by the Tribunal, and without providing the Tribunal with a reasonable explanation, then the medical practitioner is likely to be summonsed to give oral evidence at the hearing. Q. If a medical practitioner is required to give evidence in a case concerning a patient, can the practitioner give such evidence remotely? CW: It is rare that a medical practitioner would be required to personally attend a guardianship or administration hearing at the Tribunal. Attendance is usually by telephone and occasionally by way of video conferencing. ■ ■

Charlotte Wallace LLB LLM practised as a litigation lawyer from 1998 until 2011 and is also an accredited and experienced mediator. She was appointed as a full-time legal member of the State Administrative Tribunal in June 2011. Charlotte manages the guardianship and administration jurisdiction of the Tribunal and is also actively involved in the civil and commercial and vocational regulation areas of the Tribunal’s jurisdiction. Charlotte also established the Tribunal’s inaugural Pro Bono Scheme and is the Scheme Coordinator.

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