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O'Neill, Nick; Peisah, Carmelle --- "Preface" [2011] SydUPLawBk 2; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)


With the ageing of society and the associated onslaught of neurodegenerative diseases such as dementia, and the increasing awareness of the needs and human rights of those with intellectual disability, head injury and mental illness, there has been an emerging recognition of the importance of decision-making capacity. The need for capacity to be understood and for the parliaments and the judges to respond appropriately and justly to the needs of those who have lost capacity became apparent last century. In Australia, the parliaments created new institutions including guardianship tribunals, offices of public guardians. They also broadened the role of public trustees. The judges began to develop the common law to respond to the newly developing circumstances. Those institutions, the statute law and the common law (judge-made law) continue to develop in the 21st century. This is the first book to deal comprehensively with the issue of capacity and the common law and statute law in Australia over a wide range of the situations in which questions of capacity arise.

We start the book with a chapter describing “capacity”, the legal tests for determining it or the lack of it and the medical conditions that can compromise capacity. We follow with chapters dealing with the impact of incapacity on an individual’s ability to enter and leave relationships, to enter contracts and to give gifts during lifetime. Those chapters are followed by a chapter dealing with capacity and will-making. That chapter surveys both the established and the developing common law in this area and notes the changing expectations on lawyers who advise clients and draft wills. The law developed to protect those taken advantage of because of their incapacity as well as how that incapacity is assessed by those qualified to assess it is discussed in these three chapters.

The next part of the book deals with tribunal appointed guardians for personal decision-making and administrators (financial managers) to manage the property and financial affairs of those who lack the capacity to manage their own affairs and need a substitute appointed to manage their finances for them. The first chapter in this part traces the evolution of this area of the law from a court based system developed by the judges and essentially available only to the rich to a tribunal based system, enacted by the parliament of each State and Territory, and accessible to all who need substitute decision-makers appointed for them. The next three chapters describe what guardianship and administration is and what guardians and administrators (financial managers) can do. As they deal with the current law in relation to guardianship and administration in all States and Territories, they are aimed at helping readers to decide whether or not seeking to get a substitute decision-maker appointed would be useful in a particular case and if so the processes for doing so in the relevant State or Territory. These chapters also deal comprehensively with the assessment evidence required to demonstrate loss of capacity and the need for the appointment of a guardian or administrator.

This part of the law is still developing with significant changes in the law continuing to occur. For example, the legislative changes that occurred in NSW in mid 2009.

The two chapters in Part 3 of the book deal with the new legislation designed to allow people appoint who they wish to act as their substitute decision-makers in the event of them losing their capacity to make their own decisions. These chapters deal with enduring guardianship and enduring powers of attorney respectively. They too cover the legislation in all those States and Territories that have enduring guardianship legislation, and with enduring powers of attorney that exist in each Australian jurisdiction. The introduction of the mechanisms to allow people to appoint those they want as their substitute decision-makers for personal decisions as well as for managing their financial affairs was important development in the late 20th century.

The final part of the book deals with substitute consent to medical treatment, advance directives, decision-making about treatment and care at the end of life, the sterilisation of incapable people and capacity to consent to research. The six chapters of Part 4 of the book set out the relevant legislation and common law. They also deal with assessing capacity and with the legal and ethical issues facing doctors and other health professionals dealing with the matters covered by this part of the book.

The book is intended for the general reader wishing to be informed about the issues it discusses. This explains why the book avoids technical terms where possible. For example “testator” is replaced by “will-maker” and “proposed represented person” by “the person the hearing is about”. There are other similar changes throughout the book.

We believe that this book, in any event but particularly because it is accessible on the internet free of charge, will be of great assistance to doctors, lawyers, psychologists, social workers, nurses and other health professionals whose work involves them dealing with people whose decisions-making capacity is in doubt and who need decisions made for them or whose transactions or other actions may not have been carried out in their interests.

In particular the book provides clear assistance to health professionals who are asked to provide assessments, write reports or act as expert witnesses in cases in which the capacity of one of those involved is questioned.

We shared the writing of this book. However, as Chapter 1 is about capacity, Carmelle Peisah was the lead author in relation to it. She also played the initiating role in relation to Chapters 2, 3, and 4 and wrote most of Chapter 16 on capacity to consent to research.

Nick O’Neill was the initiator and lead writer of the other chapters. However, those parts of any of those chapters dealing with capacity from a non-legal perspective or about writing reports about capacity assessments and related matters, for example Chapter 6.12, were written either wholly or in substantial part by Carmelle Peisah.

This substantial book would not have been completed and brought to publication if we had not enjoyed working together and learning from one another as well as supporting one another to see the project through to this point.

We would like to thank the following for their assistance in answering questions about or comments on parts of the book or in generously providing other assistance. Nick O’Neill wishes to thank in particular Imelda Dodds, John Billings, Ron Joachim, Anita Smith and Esther Cho. He thanks Annette O’Neill for her encouragement and support over the nearly six years it has taken to progress this project to the point of initial publication. He also wishes to apologise to anyone he should have remembered to thank. Carmelle Peisah would like to thank Anne Mellor and Ken Shulman for their suggestions regarding Chapters 4, 13 and 14. She also thanks her husband and children for putting up with her obsession with the computer.

Nick O’Neill could not have undertaken this project without his appointment as a professorial visiting fellow in the Faculty of Law at the University of New South Wales. At the Faculty he was provided with the physical means of undertaking his research but also he was made welcome by and assisted in a myriad of ways by members of the research, teaching and administrative staff of the Faculty.

August 2011

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