Welcome to the Spring edition
Our 5 year anniversary celebrations back in May seem a distant memory now. It was a great opportunity to reflect on what we have achieved and also think about how our service should develop for the future to best meet the needs of our clients and also the needs of the social work community. With this in mind, we would appreciate receiving feedback from you regarding the newsletter and what information you would like to see in it. Unfortunately we are restricted by legislation in some states as to what information we can include, however, we will accommodate social workers’ needs where we can. We hope you enjoy reading this bumper edition of the newsletter and welcome new readers including several from overseas.
Our New Look
You may have noticed that Slater and Gordon has introduced a new look to better represent our contemporary firm and to better symbolise our promise to guide our clients to brighter outcomes.
Our logo has also evolved. Our heritage blue is now brighter and the ampersand is gone, replaced by a symbol of positivity. You will see these differences in our website, advertising, brochures, signage, business cards and letterhead.
Although Slater and Gordon may look a little different, we are still founded on the values that have sustained us for 79 years. The commitment remains undiminished to champion the legal needs of everyday people in our community and to guide them to positive outcomes.
Our Social Work Team has embraced this new look and messaging. We believe it is completely complementary to what we try and achieve everyday through assisting our clients with their psychosocial issues. We have a new look Social Work brochure and for Victoria and NSW an updated version of our legal glossary is just around the corner.
End of life decisions
Following the article in our last e-news titled ‘Can a person under the age of 18 refuse lifesaving treatment?’ we have noticed that there has been some media attention around this issue. Often we receive requests for legal education on legal issues of capacity, and in particular, the use of Advanced Care Directives. We often receive feedback that social workers receive little training on these documents and how they are used, and we also often hear that different health facilities have different levels of awareness about the laws relating to end of life care. This was certainly echoed in the workshop we ran in our Melbourne office on the 12th September. Dr Grahame Simpson, Senior Research Fellow and Clinical Specialist Social Worker, provided education to hospital social workers about brain anatomy and function. Dr Simpson and Joanne Panagakis, one of our senior lawyers, then presented on the issue of capacity and the clinical and legal implications when capacity is called into question.
A very interesting article appeared in the Age in August regarding research published by the Medical Journal of Australia on the legal knowledge of doctors in Victoria. The research of 187 doctors identified ‘critical gaps’ in the legal knowledge of doctors relating to the withholding and withdrawing of life-sustaining medical treatment that could lead to civil liability or criminal charges. Read the article here.
On the 05/09/2014 the Australian Medical Association released a Position Statement on End of Life Care and Advance Care Planning 2014. This Statement outlines policy on end of life care issues such as medical futility, decision-making capacity, advance care planning, artificial nutrition and hydration, bereavement, workforce, and community awareness. Read this paper here.
Gender Dysphoria and ‘Gillick Competency’
Medical and legal professionals often refer to the Gillick case when talking about ‘mature minors’ (persons under 18 years old) and their legal rights with regard to medical decision making. ‘Gillick competency’ refers to a young person’s right to make a medical decision, based on their maturity.
The Gillick case heard in the House of Lords in the UK in 1985 involved a document that was circulated to a health department advising doctors about contraception of minors under 16. The circulated document stated that doctors could use their discretion in deciding whether to prescribe contraception for minors under 16 without parental consent.
An activist named Victoria Gillick, litigated this case as a campaign against the policy. Mrs Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent should come from the parent.
The issue was whether a minor could give consent. 'Consent' here was considered in the broad sense that in the absence of a patient’s consent to treatment, a doctor might be sued/charged with battery or assault..
The House of Lords focused on the issue of consent of the minor, rather than a notion of 'parental rights'. In fact, the court held that 'parental rights' were only to safeguard the best interests of the minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto the treatment.
Lord Scarman's test is generally considered to be the test of 'Gillick competency'. He required that a child could consent if he or she fully understood the medical treatment that is proposed: Lord Scarman said "As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed."
The ruling held particularly significant implications for the legal rights of minors in England and continues to be applied in the same way here in Australia. The test shows that the authority of parents to make decisions for their minor children diminishes with the child's evolving maturity, except in situations that are regulated otherwise by statute. The right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring a decision.
Reporting obligations for child protection
The issue of child protection is relevant for social workers no matter what setting you work in. The continued work of the Royal Commission has been of great interest to many social workers. The Royal Commission into Institutional Responses to Child Sexual Abuse is investigating how institutions like schools, churches, sports clubs and government organisations have responded to allegations and instances of child sexual abuse. It is the job of this Royal Commission to uncover where systems have failed to protect children so it can make recommendations on how to improve laws, policies and practices.
The AASW made a number of submissions to the enquiry, along with other peak bodies and organisations. A detailed report by Associate Professor Ben Matthews from the Faculty of Law at Queensland University of Technology, Australian Centre for Health Law Research is now available. The report was written for the Royal Commission into institutional responses to child sexual abuse.
The report is available online and is entitled ‘Mandatory reporting laws for child sexual abuse in Australia: A legislative history’.
The analysis notes a number of disparities between the Australian laws including: differing reporter groups; definitions of ‘child’; and, harms triggering the reporting duty. This comprehensive report covers the history of mandatory reporting and the Legislative developments within each State and Territory in Australia over time, including key changes in reporting.
If you would like to access the report, click here
If you would like to view the AASW submissions, click here
The National Disability Insurance Scheme one year on
The National Disability Insurance Agency (NDIA) has published online its ‘Strategic Progress Report for Year One’ of the scheme. The Progress Report benchmarks how the NDIA are tracking against the goals and outcomes identified in the NDIA’s Strategic Plan 2013-2016. The Strategic Plan sets out the Agency’s values, goals and what achievements are expected over the trial period of the Scheme from 2013 to 2016.
As expected, the trial period has raised a number of questions, while the scheme finds its feet. A recent case Burston v National Disability Insurance Agency  AATA 456, saw the Administrative Appeals Tribunal (AAT) called upon to determine whether a particular decision of the NDIA was reviewable.
The decision in question related to an application for one on one support for a disabled person on weekends. Section 99 of the relevant legislation specifies the decisions of the Agency (26 in all) that are reviewable. After internal review an NDIS participant can ask the AAT to further review the internal reviewer’s decision.
The Tribunal found that, because of some technical deficiencies in the internal review process, it did not have power to review the relevant decision in this case.
The concluding remarks stated:
- None of what I have said should be taken to be criticism of the Planner. The legislation is new. It refers to different kinds of reviews. It is not surprising, especially in the early days, if there is some confusion on the part of participants and Planners. What this underlines is the importance of making as clear as possible to participants what kinds of reviews are available, clarifying what kind of review a participant is seeking, whether a review because circumstances have changed or because the participant is dissatisfied with the plan, and the implications of the different kinds of reviews.
What does ‘reasonable and necessary’ really mean, and how are decisions being reviewed?
A number of social workers have voiced concerns during our legal education seminars, about the legislation’s ‘reasonable and necessary’ clause, and how this clause might impact on decisions. A recent decision in the matter TKCW v National Disability Insurance Agency  AATA 501 (23 July 2014) saw the Administrative Appeals Tribunal (AAT) being called upon to consider reasonable and necessary supports, in the context of a child participant aged 3 years living with autism spectrum disorder.
The child (TKCW) had a twin brother. The NDIA had deemed 2 requested supports to not meet the requirements of ‘reasonable and necessary’. These were:
- Funding for a particular form of therapy for TKCW, known as The Listening Program (TLP); and
- Funding to pay for a carer for the twin brother, whilst TKCW's mother took TKCW to speech and occupational therapy: .
When considering the decision not to fund the TLP therapy, there was debate about the established benefits of TLP therapy, which was argued to be innovative. Discussion followed regarding the tension between "innovative" and "current good practice":
One of the objects of the NDIS Act is "to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community": s 3(g). There may be some tension between this object and s 34(1)(d) which requires that the CEO of the NDIA (and so the Tribunal), be satisfied that a support "will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice" but, whatever innovative supports s 3(g) has in mind, they must be "of high quality". The most that we can say at this early point in the life of the NDIS is that we are bound to be satisfied of all of the criteria in s 34(1), and innovation, of itself, cannot displace those criteria.
In ultimately upholding the NDIA refusal to fund TLP, the Tribunal commented that:
- There is insufficient information on which to say with any confidence that TLP will be, or is likely to be, effective and beneficial for TKCW having regard to current good practice. However evidence, even if anecdotal, from a sufficient number of qualified therapists of positive outcomes in sufficient numbers of children may be enough to say that it should be regarded as current good practice.
- It could undermine that financial sustainability to provide funding for a support whose effectiveness and benefits are largely unknown, especially where a reliable means of measuring any benefits of the support in a single case is lacking.
The AAT concluded that TLP did not represent value for money in this case because of the lack of confidence as to the benefits likely to be achieved.
This raises a number of questions for innovative social work practice, and the importance of social work research that demonstrates the effectiveness of interventions.
When the AAT considered the decision not to fund the provision of a carer for TKCW’s twin brother, The Tribunal observed that TKCW's mother had been, and continued to receive, assistance with in-home support from Disability South Australia (DSA) for tasks such as cleaning, going to the shops and hanging out washing. She and the DSA helper had arranged their hours so that the helper cared for the brother, while TKCW attended therapy appointments with his mother.
TKCW's mother wished to reallocate that time to helping in the evening when she found things more demanding.
Ultimately upholding the NDIA decision not to provide funding for the brother's carer, the Tribunal commented that:
One of the principles in s 4 of the NDIS Act is that the role of families, carers and other significant persons in the lives of persons with disability is to be acknowledged and respected. Section 34(1)(e) also recognises that it may be reasonable to expect families, carers, informal networks and the community to provide support.
The need for childcare for the brother was already being met by a helper provided by another organisation, so the Tribunal was not satisfied that it was a necessary support at this time.
Social workers who would like to read the National Disability Insurance Agency Strategic Progress Report for Year One can find the report here.
Responding to legal documents
One of your clients has just handed you a document and tells you that they have been served with a Complaint, Writ, or Statement of Claim (also known as the Originating Process). What does this all mean, and what do they need to do?
The legal documents above are a means for commencing Court proceedings against a party (your client in this instance). The document sets out the claim the issuing party (known as the plaintiff) has against another party (known as the defendant), as well as the facts and circumstances which give rise to that claim. Claims can be as simple as owing someone money, or as complex as copyright infringement.
We recommend that people seek timely legal advice after they have been served so that it is fully understood what the claim is about, what the strengths and weaknesses of the claim are, and whether your client has a counterclaim against the plaintiff. All of these factors will help inform the decision about what action to take.
What if your client wants to dispute the claim?
From the moment that your client has been served with a legal document, the litigation process begins and there are a number of procedures that must take place within a certain timeframe.
- Your client will need to file a defence with the relevant Court (within 3-4 weeks, depending on the Court)
- Your client will need to serve a copy of the defence on the plaintiff at the same time
Sometimes people prepare their own legal defence, however, this can become costly and time-consuming if the documents do not comply with court rules or contain necessary information. To facilitate the best outcome, your client should engage a lawyer to prepare the defence.
What if my client does nothing?
If your client does nothing after being served, and the deadline to prepare a defence has expired, the plaintiff may apply to the court to obtain default judgment against your client without any further notice.
What this means is that the Court may automatically grant the plaintiff the relief that it seeks from your client, without hearing their side of the story. For example, if the plaintiff claims that your client owes them $1,000, and if your client does not file a defence, the Court can make an order that your client must pay the plaintiff $1,000.
Once the plaintiff has an order against your client, the plaintiff may take steps to enforce that order such as by obtaining a warrant to seize and sell your client’s assets to pay the debt if your client has no other capacity to pay.
Taking no action can result in costly and undesirable consequences. The best advice social workers can give clients in these circumstances is to seek legal advice. Legal advice may be sought through community legal centres, legal aid, or through private solicitors depending on their circumstances.
NB. This article is adapted from one written by our lawyer Eileen Nguyen from the Melbourne Commercial and Project Litigation Practice Group.
Assisting a Social Work client through a life transition
Uncommonly, our Social Work Service received a referral from our Estate Litigation team. ‘Laura’ was a middle-aged single woman who had been a long term, full time carer to her now deceased parents. Laura could not remain in the family home as it now formed part of the Estate and was to be sold. Laura was quite anxious about finding new accommodation and what that would entail.
Laura’s whole life had been focussed on attending to the medical and care needs of her parents. She had never lived outside of the family home, had no independent social life, had never been in paid employment and had minimal contact with the community. Laura also had her own physical and psychological health needs to manage.
Laura identified that she needed to secure accommodation and all the elements that go along with this, as nothing was recoverable from the family home. Laura felt disempowered by her situation and did not feel that she had the life skills to address her needs.
Laura experienced acute anxiety due to many years of social isolation. She was also highly concerned about the privacy of her conversations with all people, including real estate agents, utility company staff and social work. Laura was concerned about any information that was being collected and how it would be used.
Social work provided counselling to Laura, beginning with assisting her to identify the strengths she had displayed in her carer role over the years. Education was provided on a range of organisations she could access and the processes that Laura would need to undertake to locate and establish a new home.
To assist this, role plays regarding her impending interactions with real estate agencies and companies were used to ensure Laura understood the transactions she was undertaking and to build up her confidence to complete the tasks independently. Initially, after each interaction, Laura would call Social Work in a panicked and distressed state, overwhelmed by the smallest contact with people and often immobilised as to what she needed to do next.
Over time Laura was able identify the elements in her behaviour and thinking that were part of her social anxiety response, she began to reflect on her interactions and was able to implement some strategies to reduce her anxiety response. We also looked at some future life skills she was interested in developing, that had been put on hold during her time as a carer.
Although Laura engaged well with the Social Work Service and could identify the goals and life skills she had achieved during sessions, she would often mention that she was just waiting for everything to be settled so that she did not have to deal with people any more.
While we had discussed the benefits of ongoing counselling to support and assist her, this transition from engaging in crisis intervention to a planned long term counselling relationship in the community, is still a work in process for Laura.
Slater and Gordon Community Fund
You may not be aware that Slater and Gordon has a Community Fund, which was set up by management and staff in 2001 to offer philanthropic support to individuals and groups for community projects.
When the fund was launched, it focused on assisting people who were marginalised or vulnerable as a result of the catastrophic financial effects of an incident. The focus of the fund has since widened to include projects that embrace social justice values and are in need of financial support. Examples include issues involving the disabled and disenfranchised; research into occupational diseases; improving access to justice and legal education for minority groups and the disadvantaged. Financial support is given to both short and long-term activities.
The fund is supported by donations from Slater and Gordon itself, as well as from the firm’s staff, friends and clients. In fact, our firm matches the contributions of employees to the fund dollar for dollar. We are proud to say that more than $280,000 has been distributed since the fund was set up.
Recently, $8000 in funding was given to the Western Australian Motor Industry Foundation (WA) Wheels for Hope. ‘Wheels for Hope’ reconditions and equips second-hand vehicles with a wheelchair hoist ready to loan to WA families living with a disability. With an average annual running cost of $4000 per vehicle per year the grant will fund two vehicles for 12 months.
Also, $7500 in funding was given to Physical disABILITY Sports (TAS); Sports for Life. The project gives people with physical disabilities the opportunity to participate in sport at their skill level and with their peers. The grant money will be used to pay for venue hire and equipment for weekly sport sessions of specific sports and facilitated by elite athletes with physical disabilities over the next 12 months. Some of the sports participants will have the chance to try are Wheelchair Basketball, Table Tennis, Boccia, Tennis, and Wheelchair AFL.
Cottage by the Sea (VIC); Take a Break was given $5000. Cottage by the Sea cater for families in distress including those experiencing: domestic violence; emotional trauma; foster care fatigue; sudden death; departure of a parent or carer or other social or economic disadvantage. The grant will provide for a 5 day ‘Take a Break’ camp for 20 disadvantaged children from Victoria.
If you would like to know more about the Slater and Gordon Fund, please contact us. You can also contact the Slater and Gordon Social Responsibility Manager, Suzy Mallett on (03) 9602 6832 or SMallett@slatergordon.com.au
Our Social Work Service - Out and About
The Social Work Service has enjoyed a busy few months out and about at a number of social work conferences and events. Here is a sample of what our social workers have been involved in recently:
Joint World Conference on Social Work, Education and Social Development: Promoting Social and Economic Equality
The Social Work team were fortunate to attend the Joint World Social Work, Education and Social Development Conference in Melbourne in July. There were 1500 delegates from across the world including many from Australia. Our team had a table at the event which gave us a great opportunity to meet social workers from various settings from around the world and learn and share about innovative social work practice. In conjunction with attending many interesting and inspiring presentations, Olga was selected to present a paper. This paper was entitled ‘Facilitating Equal Access to Justice’. It described our work with clients with a focus on the research we have been doing in relation to clients referred to our service for suicidal ideation or intent. An article about this work will appear in our next newsletter.
Oncology Social Work Australia Conference - ‘The Fabric of Modern Family: Working with Life, Love and Loss’
Our social workers Olga (OSWA Co-secretary) and Alexis travelled to Adelaide in August for the annual OSWA conference. Our role often involves supporting clients affected by cancer, so attending this conference provided us with a great opportunity to learn from experts in this field. We were particularly inspired by key note speaker Shirley Otis-Green and her paper: 'The Challenges of Being a Change Agent: Strategies for Transforming Care in an Evolving Health Care Environment.’ The energy and enthusiasm of the presenters and their passion for social work and social justice made this a fantastic conference. Slater and Gordon were proud to be platinum sponsors for this worthwhile event.
2014 Acquired Brain Injury National Conference
In conjunction with staffing a table at the National ABI conference, our social workers Olga and Lorraine attended the Bendigo conference presentations. While there were many high quality papers from practitioners, it was the insightful presentations from people with an acquired brain injury and their family members that were the most inspiring and many stories of hope were taken from this experience as we reflected on our work with clients.
Olga was also fortunate to attend ‘Positive Behaviour Support’, a one day workshop presented by Dr Tim Feeney, a prominent American psychologist and one of the world’s leading practitioners in brain injury and autism. Dr Feeney, an extremely knowledgeable and engaging presenter, was also a key note speaker at the National ABI conference. Approximately 100 professionals attended the workshop from a wide range of practice fields including health, disability and education. The workshop was arranged Brain Injuries Australia with support from our firm.