Australian Association of Gerontology NT Division
Conference 2012
Elder Abuse – A Cause for Action
Capacity, Incapacity and Vulnerability
Introduction
1.
Our system of law has a deep concern with human autonomy and
responsibility. An adult’s freedom of will and freedom to make decisions is
recognized as a human value of the highest importance. This is tempered by a
realistic acknowledgment of the many ways is which this freedom may be
compromised, including physical or mental impairment or vulnerability to
influence or exploitation.
2.
There are no Northern Territory1 laws dealing specifically with elder abuse2 or
elder financial abuse. The issue of elder financial abuse is usually approached
more generally through laws about decision making capacity which focus on
the reality of consent in dispositions of property and other transactions.
3.
The term “capacity” may refer to an individual’s decision making capacity or
competence, usually asking whether that capacity is impaired in some way.
“Capacity” may also refer to formal capacity such as age e.g. a child cannot
conduct legal proceedings (without a litigation guardian) or marry (except with
permission if over 16) or make a contract (except for “necessaries”). Generally
in this paper “capacity” refers to mental or sometimes physical capacity.
4.
This paper is no more than a brief survey of the area. It is intended to give
those working with older adults a sense of the legal background and some of
the issues that arise.
Common law – the test of mental capacity
5.
The mental capacity necessary at law in order to make consent real in any
particular matter differs according to the nature of the transaction. The highest
degree of mental capacity is required for a will and special rules apply which
1
Section 63.1AA of the Commonwealth Aged Care Act requires approved providers of residential care to
report alleged or suspected assaults and unreasonable use of force to a police officer or the department
Secretary. See paragraph 59 below.
2
A preferable phrase is “abuse of older adults”.
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are touched on below. On the other hand, a lower degree of mental capacity is
required to contract a valid marriage3.
6.
In civil law there are some special rules in particular areas but in general terms
the test as expressed by the High Court is as follows:
…the mental capacity required by the law in respect of any instrument is
relative to the particular transaction which is being effected by means of
the instrument, and may be described as the capacity to understand the
nature of the transaction when it is explained…
Ordinarily the nature of the transaction means in this connection the broad
operation, the ‘general purport’ of the instrument; but in some cases it
may mean the effect of a wider transaction which the instrument is a
means of carrying out…”4
7.
A further complication is that a person’s mind is not one and indivisible so far as
legal capacity is concerned:
… a mind may be rendered partially unsound by the existence of
delusions or persecution mania or other aberration, and yet be capable of
the management and disposition of property… [O]nly when the partial
unsoundness has some governing and relevant influence on the
challenged disposition [does it] result in legal incapacity with respect to
that disposition5.
Contracts for value
8.
Contracts for value or consideration are governed by the same rules about
capacity but, in addition, a person attempting to avoid a contract generally
needs to show that the other party knew or ought to have known of the
incapacity or has unconscientiously exploited that person’s vulnerability6.
9.
An exception to this additional requirement of knowledge occurs where there is
such a serious misapprehension or incomprehension of the nature of a signed
document that the “pen does not follow the mind”. This may give rise to a
defence of non est factum (it is not my deed) and the contract being declared
void.
3
Marriage Act, section 23(1)(d), “… the consent of either of the parties was not a real consent because… that
party was mentally incapable of understanding the nature and effect of the marriage ceremony.” See also
Dunne v Brown [1982] 60 FLR 212.
4
Gibbons v Wright (1954) 91 CLR 423 at 438.6.
5
Crago v McIntyre [1976] 1 NSWLR 729 at 739.1.
6
Cheshire and Fifoot’s Law of Contract, 8th Aust. ed., [17.53].
2
10. Where a person contracts for “necessaries”: necessary goods or services
appropriate to their position in life, that person may be held to the contract even
if lacking legal capacity.
Wills and other voluntary settlements of property
11. The classic statement of the mental capacity necessary to make a valid will is
as follows:
It is essential to the exercise of such power that a testator shall
understand the nature of the act and its effects; shall understand the
extent of the property of which he is disposing; shall be able to
comprehend and appreciate the claims to which he ought to give effect;
and, with a view to the latter object, that no disorder of the mind shall
poison his affections, pervert his sense of right, or prevent the exercise of
his natural faculties – that no insane delusion shall influence his will in
disposing of his property and bring about a disposal of it which, if his mind
had been sound, would not have been made7.
12. This means that the testator must be able to:




understand the effect of the disposition of his or her property,
understand the extent and character of the property dealt with,
recognize and assess the moral claims of the people who ought to
be considered, and
his or her mind must be free to act in a natural, regular and ordinary
manner8.
13. Forms of unsound mind which do not compromise the testator's capacity in
these aspects are not material. Extreme old age, senility, alcoholism or suicide
does not necessarily indicate mental incapacity9.
Powers of attorney
14. A power of attorney granted by a person incapable of understanding the nature
of the acts or transactions which the particular power of attorney purports to
authorise is void.
15. A general power of attorney is immediately revoked by the donor’s subsequent
incapacity.
7
Banks v Goodfellow (1870) 5 QB 549, Cockburn CJ at 565.
In Will of Wilson (1897) 23 VLR 197, 199.
9
The Laws of Australia, [36.1.780].
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16. However, an enduring power of attorney granted under the Powers of Attorney
Act by a person who has capacity at the time of the grant but who subsequently
becomes incapable is not revoked.
Vulnerability to influence or exploitation
17. Contracts resulting from undue influence may be rescinded. The cases fall into
two categories:
 where there is no special relationship between the parties and
 where a special relationship exists.
18. The doctrine of undue influence arises when one party “occupies or assumes
towards another a position naturally involving an ascendancy or influence, or a
dependence or trust on his part”10. The questions of influence and capacity are
not separate. In Johnson v Buttress11 the party complaining of undue influence
had been a long term friend of the party exercising the influence. The existence
of influence was established from the illiteracy, ignorance of affairs and
“strangeness” of character of the subordinate party. Once it is established that
a relationship of this nature exists the fact that consideration (or value) is
inadequate requires the court to examine the propriety of the transaction and it
may infer the fact of undue influence from the circumstances.
19. The special relationships that give rise to an automatic presumption of undue
influence include solicitor and client, doctor and patient, the authorities in a
mental hospital and a patient, guardian and ward, parent and child and
religious adviser and disciple. Husband and wife are not included.
20. The related and overlapping doctrine of unconscionable conduct applies when
a party, by reason of some condition or circumstance, is at a special
disadvantage and unfair or unconscientious advantage is taken of the
opportunity thereby created12. Age and lack of understanding of English, or
even emotional infatuation13, may be a relevant condition. Transactions may be
set aside.
Consent to medical treatment and operations
21. The law recognizes a fundamental right to personal inviolability. This
underscores the principles of assault, both civil and criminal, and has its source
in the recognition that each person has a unique dignity.
10
Johnson v Buttress (1936) 56 CLR 113, 134 – 135.
Ibid.
12
Commercial Bank of Australia v Amadio (1983) 151 CLR 447, 463 – 4 Mason J.
13
Louth v Diprose (1992) 175 CLR 621.
11
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The law will protect equally the dignity of the hale and hearty and the
dignity of the weak and lame; the frail baby and of the frail aged; of the
intellectually able and the intellectually disabled…
Our law admits of no discrimination against the weak and disadvantaged
in their human dignity. Intellectual disability justifies no impairment of
human dignity, no invasion of the right to personal integrity14.
22. There are two aspects to consent to medical treatment and operations:
(a)
A patient's agreement after being advised in broad terms of the
nature of the procedure to be performed will negate an action for
trespass or assault and battery15.
(b)
A patient is entitled to participate in informed decision making about
his or her medical treatment so far as he or she is able. Informed
decision making requires a patient's medical adviser to advise about
the nature and consequences of the treatment or procedure, the
risks and complications involved and the likely consequences of not
undertaking the treatment or procedure. Failure to do so may give
rise to an action in negligence.
23. In the case of an adult with a degree of mental impairment or a child16 the
answer to the question of whether that person is capable of giving consent will
depend on the nature of the treatment or procedure proposed and whether he
or she has sufficient understanding to understand fully what is proposed.
24. If an adult patient is incapable of consent to medical treatment or a procedure it
is necessary to seek a guardianship order under the Adult Guardianship Act. If
the proposed procedure is "a major medical procedure", including a procedure
relating to contraception or the termination of pregnancy, it is, in addition,
necessary to seek the consent of the Local Court to the procedure.
25. If a child patient is incapable of consent (age alone is not determinative) usually
the consent of the child's guardian or guardians will be sufficient. If the medical
procedure is one such as sterilisation the consent of the Family Court is
required17.
26. The Emergency Medical Operations Act allows a medical practitioner to
perform an operation without consent in the case of medical emergency where
the patient is incapable, by reason of his or her medical condition, of giving
14
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR
218, 266 per Brennan J.
15
Rogers v Whitaker (1992) 175 CLR 479, 490.7
16
Gillick v West Norfolk Area Health Association [1986] AC 112.
17
Marion’s Case ((1992) 175 CLR 218.
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consent or, in the case of a child, where it is not practicable to delay the
operation to obtain the consent of a parent or guardian.
The statutory framework
Adult Guardianship Act
27. The Adult Guardianship Act applies to an adult with an intellectual disability
where the disability results from
…an illness, injury, congenital disorder or organic deterioration or of
unknown origin and by reason of which the person appears to be unable
to make reasonable judgements or informed decisions relevant to daily
living.
28. The Local Court may appoint an adult guardian where the person has an
intellectual disability and is in need of an adult guardian. It is the role of the
Minister as Public Guardian to apply for orders. Once an application is made a
Guardianship Panel is set up to advise, give reports and make
recommendations to the Court in respect of the application.
29. The best interests of the represented person are to be promoted and the
means least restrictive of the person's freedom of decision and action as is
possible are to be adopted. The wishes of the represented person are,
wherever possible, to be given effect.
30. The Court must be satisfied that the guardian will act in the best interests of the
proposed represented person, is not in a position of conflict of interest and is
suitable to act as the guardian.
31. If the Court is satisfied that the guardian is competent to manage the estate of
the person who is subject to the application it may appoint the guardian to be
manager of the person's estate on such terms as it thinks fit. If it is not satisfied
that the adult guardian is competent to manage the estate it may order the
Public Trustee or some other person to make an application under the Aged
and Infirm Persons Property Act for a protection order.
32. The Court may make full orders, conditional orders or temporary orders. Under
a full order the guardian has
…all the powers and duties which the guardian would have if he or she
were a parent and the represented person his or her infant child.
33. A conditional order confers on the guardian one or more of the powers and
duties of a guardian under a full order as the Court specifies in the order.
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34. The power of a guardian to consent to healthcare and medical procedures is
limited. A "major medical procedure" requires the consent of the Local Court.
"Major medical procedure" is somewhat confusingly defined as
(a) a medical or dental procedure that does not remove an immediate
threat to a person's health and which is generally accepted by the
medical profession or, as the case may be, dental profession as being
of a major nature; and
(b) a medical procedure relating to:
(i) contraception; or
(ii) the termination of a pregnancy.
35. It seems to be assumed that a major medical procedure intended to remove an
immediate threat to a person's health would be one subject to the Emergency
Medical Operations Act and consent would not be required.
36. An adult guardian pursuant to a full order or a conditional order that specifically
confers power to do so may consent to medical procedures that are not “major
medical procedures”. Neither an adult guardian nor the Local Court has power
to consent to a medical procedure such as sterilisation. In such a case it would
be necessary to apply to the Supreme Court for its consent under the parens
patriae jurisdiction18.
Aged and Infirm Persons Property Act
37. The Supreme Court may make a protection order in respect of the estate of a
person if it is satisfied that the person is
… by reason of age, disease, illness or mental or physical infirmity in a
position which renders it necessary in the interest of that person or the
interests of those dependent upon him that his estate be protected.
38. In deciding whether to make a protection order the Supreme Court must take
into account any report of an investigation by the relevant Minister and whether
the person in respect of whose estate the application has been made is
(i)
(ii)
unable, wholly or partly, to manage his affairs; or
subject to or liable to be subject to undue influence in respect of his
estate or the disposition thereof.
39. The Public Trustee or one or more other persons may be appointed to manage
the estate. The manager is a trustee of the estate.
18
Marion's Case (1992) 175 CLR 218.
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Powers of Attorney Act
40. A power of attorney is a signed written authority to act as another person's
agent. The power may be unlimited or limited to a particular subject matter. A
power of attorney may be registered with the Land Titles Office.
41. A power of attorney is usually considered to authorise dealings with property
only. There appears to be no common law rule allowing any person to consent
to medical treatment or surgery on behalf of another person as their agent19.
Some jurisdictions, but not the Northern Territory, have dealt with this through
legislation.
42. A general power of attorney is revoked by
(a)
(b)
(c)
(d)
(e)
the death of the donor or donee of the power;
the legal incapacity of the donor or donee of the of the power at any
time after the execution of the instrument;
the retirement of the donee of the power;
the donor or donee of the power becoming bankrupt etc.;
the revocation of the power by the donor.
43. An enduring power of attorney is created by signing the form of acceptance of
enduring power of attorney under the Powers of Attorney Act. The important
difference between a general power of attorney and an enduring power of
attorney is that an enduring power of attorney is not revoked by the legal
incapacity of the donor after the execution of the instrument.
44. The Supreme Court may revoke an enduring power of attorney or appoint a
substitute donee, including the Public Trustee. Subject to an exception that
need not be dealt with here, the making of a protection order under the Aged
and Infirm Persons Property Act revokes both a general and enduring power of
attorney to the extent that it authorises the donee to deal with property which is
subject to the protection order.
45. The appointment of a guardian under the Adult Guardianship Act does not
revoke an enduring power of attorney20.
46. Enduring powers of attorney are widely given, particularly by frail or elderly
people to members of their family. There is, in reality, little supervision of the
exercise of a general or enduring power of attorney and there is a danger that
the power may be abused. The theoretical authority of the Supreme Court to
supervise is rarely invoked.
19
20
Powers of Attorney in Australia and New Zealand, Colliers and Linds, p 154.
Section 21A Powers of Attorney Act.
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Emergency Medical Operations Act and Mental Health Act
47. The Emergency Medical Operations Act allows the performance of a surgical
operation without consent in an emergency where the patient is, in the opinion
of the medical practitioner performing the operation and at least one other
medical practitioner, in danger of dying or suffering serious permanent disability
unless the surgical operation is performed.
48. In the case of an adult otherwise able to give consent, the medical practitioner
is not entitled to perform the operation unless (1) the patient is, by reason of the
medical condition, incapable of giving consent and (2) the medical practitioner
is of the opinion that it is not practicable to delay the performance of the
operation until the consent of the patient or of his next of kin can be sought.
49. In the case of a child/infant the medical practitioner is not entitled to perform the
operation unless (1) the medical practitioner is of the opinion that it is not
practicable to delay the performance of the operation until the consent of a de
facto partner or parent or guardian of the infant can be sought or (2) the de
facto partner or parent or guardian of the infant fails to give consent.
50. In the case of an adult who is incapable in law of giving consent to the
operation the medical practitioner is not entitled to perform the operation unless
the medical practitioner is of the opinion that it is not practicable to delay the
performance of the operation until the consent of the person having authority in
law to consent can be sought.
51. The Mental Health and Related Services Act requires that voluntary patients
give informed consent to treatment or that a guardian appointed under the Adult
Guardianship Act give consent. If a psychiatrist is unable to determine whether
a voluntary patient has capacity the Mental Health Review Tribunal will
determine the person’s capacity. Pending the Tribunal’s decision treatment may
be given to prevent serious harm to the person or someone else, to prevent
further physical or mental deterioration of the person or to relieve acute
symptomatology.
52. In the case of involuntary patients treatment under the Act must not be
administered unless authorised by the Tribunal. Treatment not authorised by
the Tribunal must not be administered unless necessary to prevent serious
harm to the person or someone else, to prevent further physical or mental
deterioration of the person or to relieve acute symptomatology.
Domestic and Family Violence Act and the Aged Care Act (Cwth)
53. Mention should be made of the mandatory reporting requirements of the
Domestic and Family Violence Act. The Act has a wide coverage. It defines
"domestic relationship" to mean a family relationship, custody or guardianship
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or a right of access, living with another person, an intimate personal
relationship or a carer's relationship. A "carers relationship" exists between two
persons if one of them is dependent on the ongoing paid or unpaid care of the
other.
54. "Domestic violence" means, in a domestic relationship, causing harm,
damaging property, intimidation, stalking and economic abuse or threatening
any of these. "Economic abuse" means coercing a person to relinquish control
over assets or income, unreasonably disposing of property (whether owned by
the person or jointly with someone else) without consent, unreasonably
preventing a person from taking part in decisions over household expenditure
or the disposition of joint property and withholding money reasonably necessary
for the maintenance of the person or a child of the person.
55. The mandatory reporting requirements are set out in section 124A. An adult
commits an offence if he or she believes on reasonable grounds that either or
both of the following circumstances exist:
(i)
another person has caused, or is likely to cause, serious physical
harm to another person in a domestic relationship;
(ii)
the life or safety of another person is under serious imminent threat
because domestic violence has been, is being or is about to be
committed; and
as soon as practicable after forming the belief does not report the matter to a
police officer (either orally or in writing) including the belief, the knowledge
forming the grounds of the belief and any factual circumstances in which that
knowledge is based.
56. Defences to a prosecution include a reasonable belief that someone else had
reported the matter or that the person was engaged in planning for removal of
the victim and intended to report the matter soon as practicable after the
removal or that the person reasonably believed, in the case of a threat of
serious physical harm, that if a report was made as soon as practicable a
serious and imminent threat to the life or safety of any person may result.
57. A report made in good faith does not give rise to any civil or criminal liability or
breach of any professional code of conduct.
58. The mandatory reporting requirements are concerned with the threat of serious
physical harm or a threat to the life or safety of a person in a domestic
relationship. The mandatory reporting requirements do not extend to economic
abuse alone. Nevertheless, it is to be hoped that health professionals, should
they become aware of such abuse, would take steps to raise, and a document,
their concerns with the appropriate persons or authorities.
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59. The Commonwealth Aged Care Act requires approved providers of residential
care to report an allegation or reasonable suspicion of a “reportable assault” to
a police officer or the department Secretary as soon as practicable and, in any
case, within 24 hours. A “reportable assault” is defined as “unlawful sexual
contact, unreasonable use of force, or assault specified in the Accountability
Principles and constituting an offence against a law of the Commonwealth or a
State or Territory”.
Adult Decision Making Bill
60. The Adult Decision Making Bill was not passed by the last parliament. Its future
is uncertain. The Bill proposes a major overhaul of the legislative framework
applying to adults with impaired decision making capacity. The Adult
Guardianship Act would be repealed.
61. The bill provides for the creation of an independent Tribunal for Adult Decision
Making and for a Commissioner for Adult Decision Making and Advocacy.
62. Alternate decision makers (ADM) may be appointed depending upon the
circumstances. An ADM (Tribunal) could be appointed for an adult with
impaired decision making capacity, an ADM (Substitute) could be appointed by
an adult through a life management document that provides advance care
instructions in the event of the adult’s incapacity. An ADM (Health) is a close
friend of an adult with a close personal relationship and a genuine personal
interest in the adult’s care and welfare or, if an Aboriginal or Torres Strait
Islander, a customary carer. If there is no ADM (Tribunal) or ADM (Substitute)
for an adult with impaired capacity an ADM (Health) may consent to certain
healthcare actions.
63. An important provision of the bill allows for an adult to make decisions in
advance with a life management document that gives instructions to an
alternate decision maker about health care decisions in the event that he or she
loses decision making capacity. There are formal requirements for the life
management document including certification by a medical practitioner of the
maker's capacity to understand the nature and effect of the life management
document.
64. I understand that the Powers of Attorney Act will be amended if the Bill is
passed. While I am not aware of the amendments proposed it is desirable to
address any inconsistency with the Adult Decision Making Bill and the potential
for misuse of an enduring power of attorney.
65. The Adult Decision Making Bill is an important step in the right direction. If
passed into law it will provide for stronger protections for elders who have
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impaired decision making capacity or are otherwise vulnerable and increase the
degree of supervision of their welfare. A specialist Adult Decision Making
Tribunal is likely to produce faster and better decisions. A Commissioner for
Adult Decision Making and Advocacy, if properly resourced, has the potential to
foster community concern and awareness and deliver real advances for elders.
Anthony Young
William Forster Chambers
2 September 2012
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