What drives the dementia/capacity debate? Why are we so concerned
about a person's ability to look after themselves and their affairs?
The question is highlighted when considering borderline cases. We
accept that there are some people who are vulnerable and at risk.
Their ability to look after themselves and their affairs is uncertain.
There is a risk that they will be manipulated and taken advantage
of and that their physical and emotional wellbeing will suffer and
that their property, in whatever form, will be lost. Their condition
may worsen and they may become less able to care for themselves
and manage in society.
So why is there a debate about intervening in these people's lives?
Why don't we allow them to manage as best they can when their abilities
might be marginal until such time as there is a much clearer and
obvious need for intervention? Some people choose to live a life
that others would describe as degraded and squalid. They sleep on
the street and live on hand-outs from charity. They would say that
they have their autonomy and independence and can choose to direct
their lives as they please. They may be malnourished, have no personal
hygiene and are regularly ill. But society came to terms with this
situation long ago. No one intervenes in their lives even if, in
the past, they had family and friends and material well-being.
While we are less likely to be faced with the question of intervening
in the life of a person who chooses to live on the street, we are
more likely to have to respond to the person who chooses to live
in isolation with a growing unawareness as to their physical wellbeing
and safety and deteriorating insight into the management of their
financial affairs and property. Society chooses to intervene in
such situations. Such intervention may lead to the loss of the person's
independence and the power they have to direct their lives and their
affairs. As a society we impose on them a structure determined by
Before observing how this process operates it is worth considering
for a moment what may be the motives behind it. One explanation
is that society through its elected representatives decides that
as a matter of policy it is desirable to intervene in people's lives
to arrest a deterioration in the person's health, to provide care
earlier rather than later on the basis that this is more cost effective.
It is simply a better use of resources to enable the person to be
cared for at home rather than in an institution. Furthermore preserving
the person's property and estate by forceably removing it from the
person's control provides the funds that might be available to care
for the person. By reducing the cost to the State this is seen as
financially responsible. So one motive might be that intervention
by the State, albeit dressed up as being morally responsible, may
be driven largely by cost benefits.
Intervention in a person's life is also often initiated by a family
member or friend. When such person can anticipate a benefit from
the person's estate the motivation to move control of the person's
estate from the person to another party may be one of self-interest.
But family and friends are often motivated by straight forward love
and concern for the person and their general welfare. They recognise
the sadness and inevitability of their loved ones deteriorating
functions. They see the stark contrast between freedom and personal
integrity on the one hand and control and social compliance on the
other. The dilemma of maintaining or taking away power and independence
can be very painful. But with the advance in medical science we
have a steadily aging population and with the increasing value of
property in various forms, particularly real estate, we have the
increasing risk of loss of assets, and the likelihood of a call
So what does society actually do when faced with someone who may
not be able to care for themselves or manage their affairs, that
is, may not have capacity?
In the context of a conflict as to the question of capacity, how
is a decision arrived at that the person has or does not have capacity?
In the past, capacity was regarded as a global concept, that is,
it was either totally present or not present at all. The concept
has become much more refined and the question now is "Capacity
to do what?" It is now generally accepted that capacity can
be domain specific, that is, a person can have capacity in one area
of their life, e.g. personal hygiene, but lack it in others. Additionally,
within a particular domain a person's capacity may vary. They may
be able to make simple decisions about their money but not more
complicated ones. The process of assessing whether a person has
the capacity to make decisions about very simple matters may be
relatively easy. Nevertheless it is a decision that needs to be
made and professionals are in the front line in this regard. Nurses,
doctors, lawyers, social workers, psychologists etc will make thousands
of decisions in their day to day work about capacity that will never
be challenged. Nevertheless they should get it right. The starting
point is a presumption of capacity and a decision of lack of capacity
should only be made when it can be "firmly established"
that the person lacks the ability to make the decision and is therefore
at risk. The key to this process is whether the person can understand
and appreciate information not whether they are able to implement
the results of their decision.
It is the big decisions that are the problem. These are the ones
that create the conflict whether between the person and family,
the person and professionals, the family and professionals. A decision
as to ability to manage financial affairs, to instruct a solicitor,
to make a Will, to decide where to live can have far reaching effects
not only on the person but on those around them. So the process
of arriving at a decision as to capacity has been criticised and
refined for some time. Capacity is not something that can be produced
in Court and labelled as an exhibit.
"Capacity is difficult to measure. It is a concept and not
a tangible material object which can be weighed on scales, seen
under a microscope or measured with a ruler."1
The law has constructed a variety of tests for capacity depending
on the particular situation. There is therefore a different test
for capacity to manage financial affairs, compared to capacity to
make a Will. When faced with the question of capacity the Courts
have turned to the medical profession for evidence upon which the
Court can decide as to the existence or not of capacity. In relation
to any of the tests the medical expert is required to give an opinion
on each of the various criteria set out in the test rather than
to express an opinion as to whether or not the person has capacity.
That decision is one for the Court.
"When such evidence is given it is the task of the tribunal
of fact to arrive at 'an understanding of the real content of the
medical opinion relied upon' and, with that understanding, to decide
whether the evidence which the expert gave in terms of scientific
possibility amounted to proof on the balance of probabilities for
legal purposes." 2
The question of capacity to make a Will continues to be brought
to the Courts. Medical assessment plays a significant part in these
cases. General practitioners and more often psychiatrists and psychologists,
particularly those specialising in geriatric medicine, are asked
to write reports. Quite often the professional evidence is conflicting.
It is therefore important that these reports be as thorough and
comprehensive as possible.
"The assessment of testamentary capacity which requires integration
of clinical assessment, cooperative family witness accounts and
medical record review can be a challenging exercise in 'detective
work' for the medical practitioner. Such an assessment should be
approached in a structured way with a systematic assessment of all
four elements of testamentary capacity." 3
Drs Peisah and Brodaty recommend a comprehensive approach to the
evaluation of capacity including an awareness by the practitioner
that the question of a challenged capacity is likely to arise in
regard to a substantial estate. There may therefore be a lot at
stake for the parties. The doctors recommend a detailed consultation
with the lawyer seeking the report. The interview with the client
should be as contemporaneous with the execution of the Will as possible
and if need be, more than one consultation might be required. The
advantage of a witness is raised and the importance of rapport with
the client. The nature of the examination is discussed in some detail
and the records that should be examined. Drs Peisah and Brodaty
also discuss the situation of providing a report after the person
has died without having had the benefit of a consultation. Such
reports can be prepared and are reliant on the medical and other
records that are available.
"The evidence is received as evidence of scientific or medical
fact. The purpose of the evidence is to give the judge or jury the
necessary scientific or medical criteria for testing the accuracy
of their conclusions, so as to enable them to form their own independent
judgment by the application of those criteria to the facts proved
in evidence." 4
But the Courts have experienced difficulties with expert evidence.
"……….the fact that it is now apparent that
many judges are so troubled about the quality of medical, accounting,
scientific and engineering evidence that they are prepared to give
serious consideration to such aids to expert evidence assessment
as the appointment of referees and assessors has many ramifications."
The survey of Australian judges carried out by Dr Freckelton and
others encompassed all 478 Australian judges. Over half of them
responded. This is the first time that such a survey has been conducted.
The results confirmed that the Courts need expert opinions so as
to have the benefit of these insights and perspectives. The quality
of the expert is frequently relied upon
"However the forensic reality is that experts, especially in
civil and family litigation, are retained by one party which is
intent upon winning the case, or, if that is not feasible, upon
minimising the extent of their loss. Each party pays for the experts
of its choice, selecting them on the basis of the extent to which,
by their opinions and the way that they express them, the experts
will advance the party's contentions (sic) case. Selection of expert
witnesses is not generated by a dispassionate quest for truth by
either the courts/tribunals or the parties." 6
The survey further referred to the expert being in a dilemma by
being responsive to the person paying his fee on the one hand and
the needs of the Court for fact finding. The response to this survey
expressed concern about experts' lack of objectivity and, on occasions,
overt bias. Further there was concern as to the "phenomenon
of the expert functioning principally as a forensic expert –
especially the medical practitioner retired or semi-retired from
active clinical practice." 7
A difficulty is the situation where eminent experts express irreconcible
views. The judge must then decide which, if any view, will be relied
upon. Some seventy per cent of respondents in the survey stated
that they had not understood the expert evidence. They blame this
on the inadequacies of the expert in articulating their evidence.
"In short, the decision-maker needs to feel secure that their
application of an expert opinion to facts in dispute is truly fair
and reasonable. In turn, this will be a function of their perception
of the quality of the evidence before them." 8
A majority of the judges responding believed that the reliability
of an expert is adequately evaluated in a court situation. However
there was "overwhelming support for training for expert witnesses
to communicate their views better and to fulfil their role as forensic
witnesses more professionally, as well as for lawyers to discharge
their roles as examiners and cross-examiners more effectively."
There was strong, in principal support, for Court appointed expert
witnesses and assessors and a clear underlining theme that judges
want expert help that is objective and reliable. They believe that
there should be a code of ethics and practice for forensic experts
and the surveyors suggest a mandatory declaration for all expert
reports (see appendix A) so that judges can feel that there concerns
are dealt with. These concerns indicate a lack of partisanship,
relevant prior experience, stay within their special competence
and be thoroughly prepared.
In February, 2001 Mr Justice Foster dealt with a case of Shorten
v. Shorten (2001) NSW SC 100 (3 April, 2001). The case involved
a dispute concerning the last Will of the deceased. The dispute
was between the various children of the deceased. The deceased died
on the 6 February, 1999 and had made her last Will on 25 January
1996, aged 84 years. It was claimed that at the time she made her
last Will she did not have testamentary capacity and that a prior
Will should apply. The Court found that at the time the deceased
made the last Will she did in fact have testamentary capacity.
The Court heard what Mr Justice Foster described as, "the lay
evidence" and "the medical evidence". The lay evidence
was considerable and involved a number of people who had directly
communicated with the deceased during her life. At the time the
last Will was made the solicitor instructed by the deceased arranged
for an independent solicitor to make an assessment as to the deceased's
testamentary capacity. The Court spent some time dealing with the
evidence of the independent solicitor who, amongst other things,
referred to the fact that he had spent one and a half hours with
the deceased who had considerable difficulty expressing herself
due to a stroke. The medical evidence was in the form of several
specialists engaged for the purpose of the hearing. Mr Justice Foster's
judgment includes the following:
"100 …….Neither of these specialists had attended
the deceased in her lifetime. Each gave opinions based upon medical
and nursing records from the Tamworth Base Hospital and the Peel
Nursing Home together with the witness affidavits filed in the case.
As might be expected their evidence was highly technical. It was
His Honour then referred to some of the transcript taken in the
course of the hearing
"110 Dr Bell also made the following observations in answer
'HIS HONOUR: I suppose, we are dealing here with diagnostic categories,
within which there are graduations and variations is that right?
Q. But to a large extent with cases of this kind, they have to be
fleshed out by what reputable observers can tell you about the way
a person behaves?
Q. And that would be so whether a layman is trying to understand
the situation as well as a person in the medical profession?
A. Yes your Honour."
111 I accept this evidence of Dr Bell. It indicates to me the great
significance that should be accorded in this case to the observed
abilities of the deceased."
Despite the detailed evidence put before the Court by the experts
the judge clearly placed great weight on the evidence of the lay
witnesses who had direct contact with the deceased ("observed
abilities"). It appears that there was no attempt to obtain
medical evidence of the deceased's capacity at the time she executed
the Will apart from the limited evidence of her general practitioner
which did not sway the judge. One wonders what the effect of a report
along the lines of that recommended by Drs Peisah and Brodaty would
have had on the Court.
In Ranclaud v. Cabban (1988) NSW SC a 79 year old woman asked the
Court for an Order directing that her cousin hand over documents
held by him under a Power of Attorney which had been revoked. The
cousin asked the Court to order that she did not have capacity to
manage her affairs and therefore was not able to instruct her lawyers
in regard to the conduct of the case and that therefore her application
should be dismissed. The Court agreed with the defendant. In the
course of the hearing the Court referred to the test as to capacity
to manage her affairs established by Powell J in PY v RJS (see appendix
B). The plaintiff had during a period of six months, shortly before
the hearing, executed alternating Powers of Attorney on six occasions.
These facts weighed on the Court. However the Court also heard a
considerable amount of contemporaneous medical evidence from both
sides some of which was in direct conflict. The Court found that
the plaintiff consistently held the view that she did not wish her
cousin to manage her affairs but that she wished Mr Trisley to manage
her affairs. Notwithstanding these consistent and firmly held views
by the plaintiff the Court nevertheless held that she did not have
capacity. In the course of the hearing the plaintiff was cross-examined
by the defendant's Counsel. Mr Justice Young went to some lengths
to allay fears that such a process for the plaintiff, given her
age, would be unreliable. Nevertheless it is interesting to contemplate
the extract from the transcript included by His Honour in the Judgment.
Some of the consecutive questions put to the plaintiff in a short
space of time were:
"Q. Did you give him authority to draw on your account?
Q. Is that what you want to do?
Q. What is it that you want?
Q. It is true, isn't it, that you moved to the rest home in Thirroul
in August last year?
Q. Do you want Mr Cabban to look after your finances?
Q. Who is Mr Trisley?
Q. Who do you want to manage your affairs?
Q. Have you always wanted that?
Q. Where do you now live?
Q. What is your address in Newcastle?
Q. How long have you lived there?
Q. Have you ever lived at Thirroul?
Q. Do you remember the day on which you were born?
Q. What year?"
It is difficult to understand that the Court imagined that it had
some kind of rapport with the plaintiff and that the evidence received
directly from her was reliable. Notwithstanding her persisting with
wanting Mr Trisley to manage her affairs rather than Mr Cabban the
Court took the view that the plaintiff had severe problems. It was
not enough that she appoint a Power of Attorney but that she also
be able to direct the attorney as to what he could not do. Further
it was not enough that she be able to instruct a solicitor to act
for her but that she also be able to accept his advice and to then
give further instructions. Again notwithstanding that she persisted
with her instructions concerning Mr Trisley the Court stated "however
she just does not in my view have the ability to weigh up alternatives
and make decisions and give instructions to any representative which
are likely to remain constant from one day to the next."
In addition, the Court heard considerable medical evidence. As to
the medical evidence for the plaintiff the Court expressed the view
that the medical experts had not been informed by those seeking
their opinion as to the nature of the test that the experts were
being asked to comment on insofar as testamentary capacity is concerned.
It appears that the Court held that because this question was not
adequately addressed by the plaintiff's experts that the evidence
therefore suffered. Again one wonders whether a medical report along
the lines of Drs Peisah and Brodaty, or comprehensive lay evidence,
would have effected the Court's decision.
"The capacity assessment process is not a value free undertaking.
The values, beliefs and goals of the people being assessed, of the
assessors, of substitute decision makers and the society in which
the process is operating all affect the assessment process, the
final judgements made and the actions taken. This adds an extra
layer and complexity to the whole process.
Capacity assessments should not be used as a tool to protect capable
people from bad choices." 10
"The cognitive rational definitions of capacity commonly used
in the law do not deal with unusual values." 11
There is some times evidence to suggest that substitute decision
makers fail to realise that they are required to make a decision
on the basis that they are "in the shoes" of the person
for whom they are deciding. The decision should be made on the basis
of what the person would decide if they had capacity not what the
decision maker thinks is best for the person. Dr Darzins and his
colleagues propound a procedure for consistently dealing with the
assessment of capacity. It is a six step process admirably described
in their publication "Who Can Decide?". They take the
process advocated by Drs Peisah and Brodaty considerably further.
"At present, we continue to foster a system which makes these
vital determinations in an ad hoc manner, void of standardisation
and largely hidden from public scrutiny and discussion. The unwieldy,
non-accountable, non-transparent, unvalidated system continues to
operate in the absence of evidence of benefit either to the people
declared incapable or to society in general. Is this acceptable?"
It should also be borne in mind that there may be a tendency for
there to be a correlation between consequences of the particular
decision and the threshold of capacity that must be attained to
be able to pursue that decision. The more at stake the higher the
"Competence is assessed in relation to specific functions or
purposes. A person fit for one legal purpose, such as marriage,
may be unfit for another such as the legally more exacting task
of making a Will. The former requires little more than a willingness
to share one's life permanently with another. Testamentary capacity
illustrates the relativity of legal fitness. To make a Will a person
must have a sense of his or her assets, enduring and foreseeable
debts and family and wider responsibilities." 13
Is marriage more complex than making a Will? Perhaps complexity
is in the eye of the beholder?
1. "Who Can Decide?" Dr P Darzins & Ors pg 7
2. "Medical Causation" Richard Travers ALJ April, 2002
3. "Dementia and the Will making Process: the role of the medical
practitioner" The Medical Journal of Australia Vol. 161, 19
September, 1994, Drs. C. Peisah and H. Brodaty pg 384
4. R Travers ALJ, p268
5. The Australian Institute of Judicial Administration Incorporated
– "Australian Judicial Perspectives on Expert Evidence:
An Empirical Study", Dr I Freckelton & Others, 1997 pg
6. Ibid, pg 2
7. Ibid, pg 3
8. Ibid, pg 4
9. Ibid, pg 5
10. Darzins pg 134
11. Ibid, pg 135
12. Ibid, pg 143
13. "The Legal Aspects of the Dementias" B M Dickens,
The Lancet, March 29, 1997
v349 n9056 p948(3)
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DECLARE THAT: 1. I recognise that my overriding duty in writing
reports and in giving evidence is to the Court/Tribunal, rather
than to the party commissioning me and/or paying my fees. 2. I have
used my best endeavours to produce my report in sufficient time
to enable proper consideration of it. 3. I have made myself reasonably
available for discussion of the contents of my report with professional
representatives of all parties involved in the litigation. 4. I
have provided within my report
(a) details of my relevant qualifications;
(b) details of the literature and other significant material that
I have used in arriving at my opinions;
(c) identification of any person, and their qualifications, who
has carried out any data selection, data inspection, tests or experiments
upon which I have relied in compiling my report; and
(d) details of any instructions (whether in writing or oral, original
or supplementary) which have affected the scope of my report. 5.
I have used my best endeavours in my report, and will endeavour
in any evidence which I am called to give,
(a) to confine myself to expressing opinions as an expert within
those areas in which I am specially knowledgeable by reason of my
skill, training or experience;
(b) to distinguish among the data upon which I have relied, the
assumptions which I have made, the methods that I have employed,
and the opinions at which I have arrived;
(c) to indicate those data, assumptions and methods upon which I
have significantly relied to arrive at my opinions;
(d) to give succinct reasons for each of the opinions which I express;
(e) to be objective and unbiased;
(f) to make the opinions which I express clear, comprehensible and
accessible to those not expert in my discipline;
(g) to be scrupulous in terms of accuracy and care in relation to
the data upon which I rely, my choice of methods, and the opinions
which I express arising from those data;
(h) to indicate whether I have been provided with all the data necessary
for me to arrive at the views which I have expressed and whether
I need further information;
(i) to indicate whether I have been apprised of any data or choice
of method which might entail opinions which are inconsistent with
the opinions which I have expressed; and
(j) to indicate whether I have been unable for any reason to employ
the methodology which I would prefer to use before expressing an
6. If I become aware of any error or any data which impact significantly
upon the accuracy of my report, or the evidence that I give, prior
to the legal dispute being finally resolved, I shall use my best
endeavours to notify those who commissioned my report or called
me to give evidence. 7. I shall use my best endeavours in giving
evidence to ensure that my opinions and the data upon which they
are based are not misunderstood or misinterpreted by the Court/Tribunal.
8. I have not entered into any arrangement which makes the fees
to which I am entitled dependent upon the views I express or the
outcome of the case in which my report is used or in which I give
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PY v. RJS (1982) 2 N.S.W.L.R. 700 at p. 702, Powell J. said:
"a person is incapable of managing himself or herself if it
appears that there is a real risk of: (a) his or her inflicting
upon himself or herself serious injury;
(b) his or her sustaining serious injury by reason of his or her
being unable adequately to protect himself or herself against such
(c) serious deterioration in his or her general health or well-being
by reason of his or her being unable to take reasonably adequate
steps to prevent such deterioration occurring ………a
person is not shown to be incapable of managing his or her own affairs
unless, at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably
competent fashion, with the ordinary routine affairs of man; and
(b) that, by reason of that lack of competence there is shown to
be a real risk that either:
(i) he or she may be disadvantaged in the conduct of such affairs;
(ii) that such moneys or property which he or she may possess may
be dissipated or lost (see re an alleged incapable person (1959)
76 W.N. (N.S.W.) 477); it is not sufficient, in my view, merely
to demonstrate that the person lacks the high level of ability needed
to deal with complicated transactions or that he or she does not
deal with even simple or routine transactions in a most efficient
manner: see In the matter of Case (1915) 214 N.Y. 199, at p.203,
per Cardozo J…."
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