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It is hard to believe that 2015 is coming to an end so rapidly. It has been incredibly busy as you will see in our first article. Some of you may have seen Slater and Gordon in the media recently in regard to the share price. I would like to take this opportunity to assure you that the share price has no bearing on the operation of our business. Slater and Gordon is continuing to operate as usual and we all continue to provide the best legal and social work services that we can to assist our clients as they move through the legal claims process. If any of you have any specific queries in regard to this, please do not hesitate to contact me.
I am very pleased to announce that we have another social worker joining our team. Maggie Poole will be commencing in our Brisbane office on the 18th January. Maggie brings with her extensive hospital experience across many areas and specialist knowledge in mental health and trauma. With the addition of Maggie to the team we will be able to provide an extensive social work service to our clients across Queensland. Maggie will also be coordinating our legal education program for Queensland which will enable us to better meet requests. Maggie will make contact with Queensland social workers when she starts.
2015: the year in review
Since our Social Work Service was established in 2009 we have had 1414 clients referred to us and 236 referred so far this year.
Here is some recent feedback from our lawyers:
“Your help has been incredibly important for my client and an enormous help to me!”
“Thanks again, it is great that we have such an impressive holistic service for our clients.”
“My team and I on behalf of our client are most grateful for your assistance in this matter.”
“He (my client) could not be more grateful to you, and your wonderful support, and didn’t know how to thank you. He said what a complete lifesaver you were and that he didn’t know where he would be without you. Thank you from me too.”
“We were just talking about glad we were to have the social work team for help on things like this. I’m really glad that we (you, mostly!) managed to help our client. I know I keep saying it, but really, thank you.”
This year we have provided 45 legal education seminars to social workers in Victoria, New South Wales, Queensland, Western Australia and Tasmania. This was across 26 workplaces, to practice groups, universities and AASW offices. We also held legal education days in Brisbane, Melbourne, Sydney and Toowoomba. We appreciate the time our lawyers give to provide this free education to social workers and the interest shown by hundreds of social workers in the legal issues that impact on practice and the service we provide to clients. We will continue to endeavour to accommodate your requests and education needs whenever we can.
In November we partnered with Oncology Social Work Australia to provide a day of education to social workers in Tasmania. Our lawyers, Stephanie Latham and Nicolas Messel (pictured on the right) from our Hobart office enjoyed the opportunity to present to and meet social workers and answer the questions the audience raised. It gave them a great insight into the ethical and practical challenges faced by social workers in their daily practice. Highly regarded oncology social workers, Kim Hobbs, Dr Carrie Lethborg and Alison Hocking shared their knowledge and expertise in the afternoon sessions. Our thanks go to social workers, Anna Lovitt and Nick Hobbs (pictured left) for organising this inaugural OSWA Tasmania event in Hobart.
Slater and Gordon provided sponsorship monies to support a number of events this year. Once again we were a key sponsor for the 12th Biennial National Rural Remote Social Work Conference which was held in Shepparton and the Oncology Social Work Australia Conference in Sydney. We also sponsored the AASW National Symposium which was recently held in Sydney, the Hunter Area Health Service Social Work and End of Life Conference, the St George Hospital Social Work in Intensive Care Forum and the St George Hospital Red Rose Ball. As a recently departed four year member of the Rural Social Work Action Practice Group Committee, Olga was particularly pleased that we were able to sponsor Claire Rasmussen, via the AASW, a rural delegate who joined us from Townsville. Claire said she would not have been able to attend the conference without this support. Our team is fortunate that, not only do we facilitate opportunities for our organisation to support worthwhile events, we are also able to attend for our own professional development. Our team were able to meet up at the University of Sydney for the AASW conference.
We received an overwhelming response to our book giveaway in our last newsletter. Although we had two copies of ‘Silent Shock’ donated and autographed by our lawyer and author Michael Magazanik, the emails were so enthusiastic that Michael assisted us to obtain a significant discount and we purchased 60 books to give away so no one was left disappointed. We have developed a Legal Glossary for Queensland as an addition to our Victorian and New South Wales ones and Maggie will provide further information on how to obtain a free copy in the new year. Feedback from social workers at the AASW conference has us considering developing booklets for other parts of Australia as well.
The Border Force Act and Implications for Healthcare Workers
Ebony Birchall published this opinion piece in the Australian Lawyers Alliance Blog in July. We thought this article would be of interest to our readers so we are republishing it with thanks to Australian Lawyers Alliance for their permission. Ebony has also provided a post script to this article below.
Courageous Detention Centre Staff Challenge the Government
1st Jul 2015
Ebony Birchall, Lawyer, Commercial and Project Litigation team, Sydney
The medical profession has held a key health and public interest role informing other professionals and the community about conditions affecting their patients inside Australia’s immigration detention centres. For example, in November 2013, 15 doctors who had worked in the immigration centre on Christmas Island wrote a letter raising concerns for the welfare of detainees and highlighted the professional difficulties faced by doctors working in immigration centres. Then on 7 April 2015, 24 current and former employees (both medical and non-medical) from the Nauru detention centre, published an ‘Open Letter to the Australian People’, which informed the community of tolerance within the detention centre of physical and sexual assault of children, and the sexual harassment and assault of vulnerable women in the centre for more than 17 months.
The Border Force Act 2015 (Cth) comes into effect today and threatened to stop any further release of information to the public from within detention centres, with medical professionals and other workers at risk of up to two years imprisonment for disclosure of information. The Act also places these workers in an ethical dilemma. The fact that the operative provision of the Act is titled “Secrecy” says it all.
I have argued previously that doctors working in Australian detention centres may be subject to investigation for breaches of their professional obligations.* Therefore it is concerning that stories have emerged of health care practitioners working in detention centres, being required to undertake tasks that are contrary to their professional obligations, under direction of their employer.
Those concerns were so serious that a group of practitioners who had previously worked in detention centres have been calling for a profession wide boycott since at least August last year. An article published in the Medical Journal of Australia in August 2014 stated:
‘The potential role of a professional boycott to motivate change should be openly discussed… We call on the colleges and the AMA to lobby for effective change, so that asylum seekers receive appropriate care and those delivering it are not professionally compromised.’**
In addition to making it harder for practitioners to comply with professional obligations, the new laws impose even further ethical problems for medical practitioners.
Research has shown that practitioners in Australian detention centres are already affected by the ethical dilemma they face working under a conflicting dual loyalty to their patient and employer. A study into the ethical responses of workers in detention centres reported this statement from a worker in an offshore centre:
“I wake up in the middle of the night in a cold sweat, worried that one day we may have to face a royal commission and have to answer for the conditions under which these people were treated and which we didn’t have the guts to challenge the government on.”***
It has been recognised that medical practitioners have no real autonomy in detention centres to improve the level of care they provide to their patients. One way doctors have managed this dreadful conflict was by speaking out and advocating on behalf of their patient; as an advocate for their patient’s best interest. The new laws put medical practitioners in an impossible position as the dual loyalty conflict they are working under now threatens their own personal imprisonment if they choose to speak out. Without the ability to advocate for their patient’s best interest, some have even commented that a health care practitioner may be viewed as complicit in the mistreatment of their patient. Dr Marie Bismark has queried whether in five or ten years’ time, questions will be asked of health practitioners who may have been complicit in the mandatory detention regime.
The passing of this legislation was supported by both major political parties. Emeritus Professor Gillian Triggs, President of the Australian Human Rights Commission, in a recent speech rightly questioned: ‘What are the options for democracy when both major parties, in government and opposition, agree upon laws that violate fundamental freedoms?’
As Greg Barns, Australian Lawyers Alliance spokesperson, and George Newhouse, social justice lawyer, have argued, ‘[t]his legislation is antithetical to a society that professes to be a liberal democracy where independent scrutiny of, and protection for those who lift the veil on human rights abuses ought to be the norm.’
Today, 41 staff (most of whom had previously spoken out against conditions in detention) have published a courageous renewal of their criticisms and a direct challenge to the government:
‘We are aware that in publishing this letter we may be prosecuted under the Border Force Act and we challenge the department to prosecute so that these issues may be discussed in open court and in the full view of the Australian public.’
I expect in the not too distant future members of the legal profession will stand with such members of our medical profession to argue in Court why no penalty should be applied to those who have a duty to act in the best interests of their patients.
Since this opinion piece was published on 1 July 2015 there has not been any charges brought under the Border Force Act 2015 (Cth). However, the legislation continues to exist as a deterrent for workers from detention centres to speak out about conditions inside those facilities. It is now clear that the legislation is not only affecting health care workers’ ability to speak out on detention conditions, but it is also preventing researchers from collecting empirical evidence from workers in detention centres as well as impeding lawyers investigating potential claims relating to conditions inside detention. While social workers and other health care workers may be discouraged from disclosing specific information obtained during employment within detention centres, they are still able to raise their concerns for the welfare of detainees in a general way, as was done by the AASW’s letter to the Prime Minister in October 2015. It is important that the professions continue to voice their concerns despite the government’s ongoing push for secrecy around detention centres.
Ebony Birchall is a lawyer in our Commercial and Project Litigation group. She is currently working on the class action Slater and Gordon are running on behalf of the asylum seekers detained on Manus Island. She is also completing a PhD looking at the healthcare and human rights implication of detention centres in Australia. Ebony is a litigation lawyer with specialist experience in professional negligence claims and asbestos litigation. As an experienced researcher, Ebony is often invited to present at legal seminars and events.
* Ebony Birchall, ‘Regulation of healthcare practitioners in immigration detention centres’ (2015) 127 Precedent 48.
** Sanggaran, Ferguson and Haire, ‘Ethical challenges for doctors working in immigration detention’, (2014) 201(7) Medical Journal of Australia 377.
*** Linda Briskman and Deborah Zion, ‘Dual Loyalties and Impossible Dilemmas: Health care in Immigration Detention’ (2014) 7 (3) Public Health Ethics 277-286 at 284.
The Issue of Confidentiality for the Medical Records of Deceased Persons
Sheri Carolan, Lawyer, Medical Law, Sydney
There are both legal and ethical reasons for social workers, and other health professionals, to protect their patients’ privacy and confidentiality when collecting and recording health information. The confidential nature of a patient’s medical record applies during their lifetime and beyond their death. There may be instances following a patient’s death when a social worker is approached by a friend or family member of the deceased requesting access to previously recorded health information, without the consent of that patient. The release of this information should be treated in the same way as if the patient was alive and, therefore, should not be disclosed to third parties without appropriate consent and authority.
A recent matter dealt with by the NSW Civil and Administrative Tribunal weighed up the importance of protecting the privacy of a deceased person against the personal factors surrounding a family member’s request to access their health information. The decision of Khoo v South Western Sydney Local Health District dealt with an application by Ms Khoo to access her deceased grandmother’s medical records.
Ms Khoo’s grandmother, Ms Goh, had suffered from dementia. Ms Goh lived with her daughter, who was also Ms Khoo’s aunt (“the aunt”). Ms Khoo provided care for her grandmother on weekends; while on weekdays her grandmother was cared for by her aunt. Ms Khoo and her aunt were estranged.
Late in the evening of 31 July 2012 (Tuesday) Ms Khoo’s grandmother was taken to hospital by ambulance. She passed away in hospital three days later.
Ms Khoo was concerned about the treatment her grandmother received from the Ambulance Service and Hospital. Accordingly, she made an application to the hospital to access her grandmother’s medical records.
The request for medical records was not considered by the hospital to be within the Government information (Public Access) Act (“the GIPA Act”). The hospital claimed it was against public interest considerations to comply with the request and decided to refuse the application.
Following a failed application for an internal review, Ms Khoo applied to the Information Commissioner to review the hospital’s decision. The Information Commissioner recommended that the hospital review its decision, stating that it had failed to explain which personal factors of the application it had considered and how these factors affected the outcome.
The hospital again declined Ms Khoo’s record request stating, in part, that its decision was based upon the aunt’s objection to the disclosure of Ms Goh’s medical records. The aunt had advised the hospital that she considered nothing would be achieved by the release of Ms Goh’s medical records. The aunt had also claimed that Ms Khoo had been harassing her and making false allegations that she had withheld treatment from Ms Goh.
On 1 December 2014, Ms Khoo applied to the NSW Civil and Administrative Tribunal to review the hospital’s decision.
The Tribunal set aside the hospital’s decision to refuse the application, ruling that the hospital was to provide Ms Khoo with access to the records requested under the GIPA Act. The Tribunal also considered that the personal circumstances of Ms Khoo’s application were to be given substantial weight. These personal circumstances included that:
- the application was made by a grandchild and former carer of the deceased person;
- the applicant had an interest in gaining access to her grandmother’s medical records, given the nature of her relationship with the deceased person;
- the applicant was concerned as to the circumstances of her grandmother’s death;
- the applicant wanted to understand the cause of her grandmother’s death;
- the applicant wanted to investigate her suspicions that medical negligence may have occurred in connection with her grandmother’s death; and,
- that accessing the records and gaining an understanding of the cause of her grandmother’s death may provide the applicant with some closure.
The Tribunal acknowledged that health information is of a sensitive nature and, in most circumstances, strong public interest arguments for non-disclosure of health information exists. It was also noted that some of the weight given to non-disclosure arguments diminishes following an individual’s death, as the individual is no longer directly impacted.
These considerations were balanced against the personal factors of Ms Khoo’s application. Ultimately, it was decided that the personal factors of the application outweighed public interest against disclosure of information. The Tribunal did not deliberate on whether there was any negligent conduct in relation to Ms Goh’s death; however, it considered that Ms Khoo ought to be provided with an opportunity to explore this possibility.
This decision does not diminish the fact that social workers do need to maintain the privacy and confidentiality of deceased client’s records. It does, however, remind us that there are circumstances under which a person can take legal action to access medical records if this access is denied and that the court does recognise a number of personal circumstances that my impact on a person’s need to access deceased records. In circumstances such as these, expert legal advice should be sought.
Sheri Carolan works in our Medical Law team in Sydney and has been practicing law since 2009. While Sheri predominantly specialises in Medical Law, she has experience in other areas of compensation law, property and family law. Sheri grew up and studied in rural NSW and has a special interest in the issues our clients in rural and remote regions face.
Mental Health and Insurance Discrimination
Tristan Nathanielsz, Lawyer, Superannuation Law, Footscray, Victoria
Three issues in particular often arise in the context of mental health and insurance:
- Some insurers do not to provide life insurance cover, cover for death, or Total and Permanent Disability (TPD) as well as Income Protection or travel insurance to people with a history of mental illness.
- Some insurers only provide the cover with an exclusion for mental illness, or provide the insurance at significantly increased premiums; or
- A claim is declined, and insurance is cancelled, after a claimant has had years of cover, based on what the insurer considers is a history of mental illness that was not disclosed in the original application, regardless of the type of injury or illness being claimed for.
Typically, the greatest problems relate to the provision of income protection insurance, where many insurers do not provide insurance where the applicant has had any history of mental illness. This includes mothers previously diagnosed with post natal depression or those who require counselling for family difficulties and stresses. For example, if a person has experienced mental illness of some kind in the past, which is noted in their medical records, but have not thought to mention it to their insurer, and later can no longer work for any reason (even unrelated to their mental health), a claim on their income protection or other insurance may be denied due to failure to disclose their mental health history.
Insurers at times apply blanket exclusions or and include arguably unfavourable terms for mental health in their policies. There are also some policies that do not provide the insurance cover at all. While insurers may refuse coverage or require higher premiums based on statistical risk analysis, insurers cannot apply blanket rules, and they remain subject to Australia’s disability discrimination laws.
In order to comply with disability discrimination laws, Insurers must assess an applicant’s mental health history for insurance in the same way that physical injuries are assessed – on a case by case basis, and with due consideration of the history, duration and severity of the condition, together with the applicant’s response to ongoing treatment.
Like physical injuries, it is difficult to describe mental illness as a single condition. There is a significant difference between a strained back muscle and a prolapsed disc, which may ordinarily both be described as ‘a back injury’. The same applies to a history of mental illness which can be on a spectrum between the most severe psychosis, to a person who seeks advice from a psychologist in relation to marital problems, or reports to their GP that they are feeling melancholy and are prescribed anti-depressants which were never taken. In both of the latter circumstances, we have had the experience of dealing with insurers alleging that the claimant had failed to disclose a history of mental illness, even if it was a minor instance of treatment many, many years ago, an outcome which in our view is manifestly unjust for the claimant.
Blanket application of mental health rules by insurers is perhaps more unfair for applicants or claimants who have managed their condition well with ongoing treatment.
I’m applying for Insurance and I have a history of mental illness – what do I do?
Be honest with your insurer. It is likely that during the claim process, the Insurer will request a copy of your medical history, so it is in your best interest to disclose conditions up front. It is also important to read the fine print of your policy carefully, particularly any heading entitled ‘Exclusions’, to see whether the cover is suitable to your circumstances.
If the Insurer declines cover, or does not provide you with cover on terms which are suitable to you, and you believe that this outcome is unfair; you may be able to take legal action. It is wise to shop around with Insurers to see which providers will provide you with cover or provide more favourable terms. It may also be useful for you to contact an insurance broker to assist you.
I have made a claim, and the Insurer says that I didn’t disclose my mental health condition – what do I do?
It is important to seek expert legal advice immediately. The rejection of a claim can be challenged in three ways:
- Firstly, and with legal advice, it may be possible to obtain and submit further medical evidence to the insurer to enable them to reconsider the circumstances of your case
- If the insurance is held through a superannuation fund, a complaint can be made through the Superannuation Complaints Tribunal. If the Insurance policy is held directly with an insurer, an application can be made to the Financial Ombudsman Service.
- Following this, it is often possible to launch further legal proceedings to challenge the rejection of a claim.
Tristan Nathanielsz specialises in the area of Superannuation Insurance Law dealing with some of Australia’s largest insurers, and has been practicing in this area at Slater and Gordon since 2010. Tristan’s legal expertise covers the areas of Superannuation/Total and Permanent Disablement Insurance, Income protection, Incolink claims, rejected insurance claims, Private policy claims, Litigation and Disability Claims made under Industry Awards for Emergency Services Workers.
Reasonable and Necessary Supports: the Health System, and the Role of the NDIS
Reasonable and Necessary Supports: the Health System, and the Role of the NDIS
Bill Madden, National Practice Group Leader, Medical Law Social workers nationally have been watching the roll out of the NDIS with interest. There has been much discussion about the opportunities this funding presents for people with disabilities to have increased choice and improved access to services and activities to improve their quality of life.
The NDIS provides funds for eligible participants to access ‘reasonable and necessary’ supports that help a participant reach their goals and undertake activities to enable the participant’s social and economic participation.
In considering what is a ‘reasonable and necessary support’ to fund under the NDIS, the NDIA are said to take into account informal supports already available to the individual (informal arrangements that are part of family life or natural connections with friends and community services) as well as other formal supports, such as health and education.
Reasonable and necessary supports that are funded by the NDIS cover a range of areas, which may include: education; employment; social participation; independence; living arrangements; and, health and wellbeing.
However, Fear v National Disability Insurance Agency  AATA 706 provides a further Administrative Appeals Tribunal (“the Tribunal”) consideration of what may constitute reasonable and necessary supports and what should be funded by the health system rather than under the NDIS.
The applicant in this case had suffered a brain injury and received various supports under the scheme. The present dispute concerned the funding of a pulse oximeter, a bedside oral suctioning machine and a portable oral suctioning machine. There was no dispute as to need for the equipment.
The Tribunal considered the relevant section of the Act (at ), the Rules and the Operational Guidelines. At  it was noted that the Rules draw a distinction between supports enabling a participant to undertake activities of daily living and those better described as clinical treatment of health conditions, which ought to be funded through the health system.
The Tribunal concluded that the pulse oximeter was more closely related to health needs and so was not most appropriately funded by the NDIS; and while the suctioning equipment allowed the applicant to be cared for at home, that did not change its essential nature and health related purpose, therefore, it was not most appropriately funded by the NDIS.
In closing at  the Tribunal commented:
Mr and Mrs Fear say there is an element of unreality in attempting to separate aspects of their son’s care into those that are the responsibility of the NDIS from those that are the responsibility of the health system. We accept that is so, particularly where a participant’s needs are as complex as their son’s. There is no question that his need for this equipment is directly attributable to his acquired brain injury. We accept that, without them, he would have to be hospitalised. To that extent, they enable him to maximise his independence and remain at home with his family. However, for the reasons we have given, we find that the pulse oximeter and the oral suctioning equipment are more appropriately funded by the health system than by the NDIS and we affirm the decision under review.
Bill Madden is the National Practice Group Leader of Medical Law at Slater and Gordon, with over 30 years’ experience as a lawyer and more than 20 years working on medical negligence compensation claims.
His experience and expertise includes claims for serious brain injury, brain haemorrhage, stroke and delayed cancer diagnosis.
Bill has a particular interest in claims regarding birth trauma (cerebral palsy), wrongful birth claims and claims based on genetic testing, such as for hereditary cancers and antenatal diagnosis. In addition to his work with Slater and Gordon, Bill teaches Medical Law at universities and is a co-author of three textbooks in the medical law and disability compensation areas.
In 2015 Bill became a fellow of the Australian Academy of Law.
Capacity in Health Care and the New Victorian Enduring Powers of Attorney Legislation
Anna Jennings-Edquist, Lawyer, Motor Vehicle Accident Compensation, Ringwood ,Victoria
The concept of capacity
As set out in the 2012 Supreme Court judgement, Goddard Elliott v Fritsch, a common law presumption exists that every person over 18 has capacity to manage their own affairs and make their own legal and medical decisions. For many professions - including lawyers, doctors and social workers - that presumption may be challenged when they are faced by a client or patient who appears not to be able understand the nature or effect of what is being discussed, or to analyse the information provided and to freely make – and communicate – their decision.
Action in the absence of capacity may result in an action against legal or medical practitioners for negligence or breach of contract. In Victoria, treatment provided by medical practitioners without consent may additionally result in a complaint to the Health Services Commissioner or even in an action in battery (assault).
Those working in the medical, social work or legal fields would, therefore, be wise to familiarise themselves with the new enduring powers of attorney laws in Victoria, which changed on 1 September 2015 with the commencement of the Powers of Attorney Act 2014 (‘the PAA’). A copy of the Act can be found at legislation.vic.gov.au. These changes will be of interest even if you are not working in Victoria.
For the purposes of this article, a person appointed to exercise powers under a power of attorney is known as the ‘attorney’ and the person appointing the attorney to make decisions on their behalf is known as a ‘principal’.
The rationale for the changes
One purpose of the creation of the PAA was to produce an Act which contained all laws regarding general and enduring non-medical powers of attorney, and which promoted and supported national harmonisation of power of attorney laws.
A further, and highly important purpose, was to improve protections against the abuse of powers of attorney. The Royal Commission into Family Violence highlighted the need for such improvements, claiming that in 2013 – 2014 alone, Victorians lost close to $57 million due to abuses of powers of attorney. The elderly are particularly vulnerable to financial abuse and abuse of powers of attorney. A recent analysis of Senior Rights Victoria’s Helpline data from July 2012 to June 2014 revealed that 37% of clients reported financial abuse.
The need for powers of attorney will only continue to grow as Australia’s population continues to age and more residents lose their capacity to manage their affairs. Due to sustained low fertility and increasing life expectancy, the number of Australians aged 65 years and over is expected to rise from 14% of the population to 22% in 2061 and to 25% in 2101.
The PAA achieves its goal of improving protections against abuse of powers of attorney by clarifying the law surrounding the powers while expanding VCAT’s jurisdiction to allow compensation for victims of abuse of powers of attorney. These protections will be set out in further detail later in this article.
Legal practitioners should turn their mind to the goal of protections from abuse when witnessing appointments of powers of attorney, by assessing whether their clients appear to fully comprehend the purpose and implications of appointing someone to manage their affairs.
What are the new changes?
The new powers of attorney
Whilst it may have been hoped that the PAA would clarify and simplify conduct around powers of attorney, the new legislation has instead essentially resulted in two systems working in tandem for financial and lifestyle decisions. This is because any existing powers of attorney made prior to 1 September 2015 (‘old powers of attorney’) will remain valid unless revoked, meaning that some principals will have attorneys under the ‘old’ law, and some under the ‘new’ law.
Old powers of attorney must be revoked using the forms and processes prescribed under the Instruments Act and Guardianship Act (the old Act), not those under the new Act. However, any other power of attorney appointments must now be made under the new PAA using the new forms and will be governed by the new Act.
Powers of Attorney Pre 1 September 2015 Powers of Attorney
Pre 1 September 2015
General Power of Attorney General Non-Enduring Power of Attorney Enduring Power of Attorney - Financial Enduring Power of Attorney (Financial + Personal Matters) Enduring Power of Attorney - Guardianship Enduring Power of Attorney (Financial + Personal Matters)
The PAA clarifies and consolidates Victoria’s enduring powers of attorney by bringing the financial and personal enduring powers of attorney under the one document. Under the new Act, the principal can tailor the enduring powers of attorney to their requirements. They can nominate what type of powers they are granting the attorney (for example, personal or financial, or personal and financial) and the time or circumstance from which the power will commence to run.
The PAA also provides for an alternative attorney. This means that the principal can nominate an attorney to act if their primary attorney is unavailable.
Enduring Power of Attorney – Medical Treatment
It is important to note that the PAA does not, however, affect medical enduring powers of attorney, as that power is regulated by a different Act, namely, by the Medical Treatment Act 1988. Medical Power of Attorney appointments will continue to be made using the same form as before 1 September 2015.
Are thereir limits to the EPOA’s powers?
The attorney’s powers are limited by section 26 of the PAA, which sets out the matters about which an enduring power off attorney cannot make decisions.
As one would anticipate, an attorney cannot vote on the principal’s behalf, cannot consent to a marriage or a divorce, cannot consent to a sexual relationship or an unlawful act, cannot make or revoke a will, and cannot make decisions relating to the child of the principal including decisions regarding surrogacy arrangements.
A novel concept developed in the PAA is the role of the Supportive Attorney.
If an adult does have decision making capacity but requires support in making or giving effect to their decisions, they may wish to nominate a supportive attorney. The supportive attorney does not make decisions on behalf of the principal, but rather, can assist the principal in gathering information to assist the principal in making their decisions, to communicate their decisions and/or to give effect to their decisions.
This role transcends Privacy laws in a manner that is less restrictive than enduring powers of attorney, and provides options for people who require assistance with decision making, but who are not ready to relinquish control of their affairs.
An example of when a supportive attorney might be of assistance is when a person has decision making capacity but struggles to communicate their decisions due to a medical condition, such as a stroke or motor neuron disease.
A supportive attorney can be authorised to take any action necessary to give effect to a decisions, but cannot take action relating to giving effect to a significant financial transaction.
Restrictions exist as to who can be a supportive attorney. Eligibility of appointment to supportive attorney is set out in section 91 of the PAA, and appointment of more than one supportive attorney is set out in section 92.
The supportive attorney’s powers cease once the principal loses capacity.
Decision Making Capacity
Usefully, the PAA defines the circumstances in which a person will be considered to have decision making capacity. Specifically, a person will have capacity if they are able to do the following:
- understand the information relevant to the decision and the effect of the decision; and
- retain that information to the extent necessary to make the decision; and
- use or weigh that information as part of the process of making the decision; and
- communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.
In addition to defining capacity more clearly, the PAA also makes amendments to the creation and governing of powers of attorney, as set out below.
Improving Protections Against Abuse
Earlier in this article it is noted that the PAA endeavours to improve protections against abuse of enduring powers of attorneys. The key ways in which the Act aims to achieve these improvements are set out below.
The Principals and Duties Guiding Attorneys
The PAA creates a set of guiding principles, which attorneys must turn their mind to when conducting a principal’s affairs.
The Act specifies that an attorney exercising their powers under an enduring power of attorney must exercise their power in a way that is “the least restrictive of the principal’s ability to decide and act” as possible. The PAA also requires that the attorney must ensure that the principal is given practicable and appropriate support to participate in the decision making process as much as possible.
The attorney must give practicable and appropriate effect to the principal’s wishes. The attorney must also promote the personal and social wellbeing of the principal by having regard to the principal’s existing relationships, values, religion and culture, by recognising their inherent dignity and by respecting the confidentiality of information relating to the principal.
In addition to setting out principles, section 63 of the PAA also sets out the duties owed by attorneys. These duties align with common sense, and dictate that an attorney under an enduring power of attorney must act honestly, diligently and in good faith, exercising reasonable skill and care and to not use the position for profit. Additional duties can be found at section 63.
Other protections in the PAA can be found in:
- section 64 and 65 re Conflict Transactions and Gifts
- section 135 and section 136 re Offenses related to abuses of powers of attorney
- Part 8 re Additional powers of VCAT
Where to from here?
The PAA is a useful step towards better protections for those requiring assistance with decision making, and in simplifying and consolidating enduring powers of attorney. However, in our aging society with increasing rates of dementia and other mental illnesses, it is likely that the law – and the protections it provides – will need to continue to evolve.
The concept of capacity is one that is here to stay. A legal or medical practitioner’s failure to identify and address a client’s lack of decision making capacity could have significant repercussions for the client and the practitioner. For this reason, a practitioner must familiarise themselves not only with the ‘red flag’ warning signs that a client may not have capacity and with the PAA, but also with alternative solutions, such as a VCAT appointed Administrator or Guardian. Given the trust placed by clients in their legal practitioners, medical practitioners and social workers, often at their most vulnerable times, this obligation is not only a legal and professional one, but is also a moral obligation.
Anna Jennings-Edquist is a lawyer in our Motor Vehicle Accident team in Slater and Gordon’s Ringwood office.
Anna specialises in assisting clients who have sustained permanent injuries as a result of motor vehicle accidents.
Prior to joining this team, Anna worked in the area of Medical Negligence and assisted in the class action against anaesthetist James Peters, who infected over 50 women with Hepatitis C. Anna has also held positions at the United Nations International Criminal Tribunal for the Former Yugoslavia in The Hague and at domestic violence legal centre Sanctuary For Families in New York.
Slater and Gordon Projects and Research Fund
The Slater and Gordon Health Projects and Research Fund is a philanthropic grants initiative focussed on improving care and treatment for people with asbestos related illnesses, occupation caused cancers or who have significant disability caused by a catastrophic injury. The 2015 grants were recently announced and we proudly share these with you. Applications from social workers are welcomed so please look out for further information on the Slater and Gordon website in 2016.
In Australia, Slater and Gordon grants are being provided to:
Asbestos Diseases Research Institute
The Asbestos Diseases Research Institute will receive $25,000 for their project to utilise next-generation sequencing technology to examine the potential of molecular markers for early malignant pleural mesothelioma diagnosis.
Victorian Spinal Cord Service
Occupational therapists at the Victorian Spinal Cord Service at The Austin Hospital will receive $25,000 to investigate if neural plasticity can help improve hand function in people with paralysis of the arm following spinal cord injury.
Brain Injury Service at Kids Rehab (Westmead)
Kids Rehab at the Children’s Hospital in Westmead will receive $25,000 for their study to better understand the health outcomes and healthcare needs of children who sustain traumatic brain injuries resulting from non-accidental injuries inflicted by a caregiver.
Olivia Newton-John Cancer Research Institute
The Olivia Newton-John Cancer Research Institute will receive a $25,000 grant to fund research into ways to impede the biological environment in which mesotheliomas are able to grow and flourish.
In the UK, Slater and Gordon grants are being provided to:
Roy Castle Lung Cancer Foundation
Professor Angela Cox will receive a grant of £12,500 to help launch a pilot study aimed at developing a blood test that will improve the ability to identify people with early lung cancers. The proposed testing brings minimal risk and allows for repetitive testing and has the potential to inform future national screening programs in the UK.
Imperial Neurotrauma Centre
The Imperial Neurotrauma Centre, a part of St Mary’s Major Trauma Centre in London, will receive £13,650 for its project, which will investigate and develop a non-invasive technique to detect Spreading Depolarisations; an important component of secondary brain injury which often bring a patient to greater harm.
Royal Hospital for Neuro-disability
The Royal Hospital for Neuro-disability is a medical charity providing rehabilitation and long-term care for adults living with severe brain injury or illness. It will receive £8,340 to fund a project to verify the effectiveness of a one-day SMART tracker assessment protocol for patients who are medically unstable or who have previously received a full assessment but require follow up assessment or record changes through rehabilitation.
Buckinghamshire Healthcare NHS Trust
The Buckinghamshire Healthcare NHS Trust will receive a £12,009 grant to develop a technology and peer mentoring project to facilitate the self-management of cognitive difficulties by those affected by both acquired and traumatic brain injury.
Spinal Injuries Association
The Spinal Injuries Association will receive £3,501 towards a pilot program to introduce SIA Nurse Advocates in the North West England to support patients and teach them the vital skills they need to advocate for themselves for the rest of their lives.