Consent

'Capacity to Consent to Sex: A Historical Perspective' by Laura Lammasniemi in (2024) Oxford Journal of Legal Studies 

 provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or med- ical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.

Lammasniemi comments 

Who is allowed to consent to sex, and whose consent matters? How does a child gain capacity to consent, and can adults lose it? In this article, I will examine these questions in a historical context. Specifically, I will analyse the boundaries imposed upon women’s and girls’ capacity to consent by criminal law, and how those boundaries were interpreted in English criminal courts in the early 20th century, during the decades leading up to the enactment of the Sexual Offences Act 1956. 

In this article, I advance an argument that the undefined concept of capacity, as used in criminal courts, was neither a biological nor a medical assessment, but rather a social one, influenced by notions of class, gender and eugenic ideals. To support this argument, I will trace the legal history of capacity in this context and draw extensively from transcripts and testimonies in lower-level sexual offence cases. In so doing, I will build upon existing historical scholarship on sexual offences and show that the law failed vulnerable complainants in two distinct ways. First, it failed to sufficiently protect vulnerable people against sexual exploitation and harmful sexual activity. Secondly, it failed to protect the autonomy of those with different capacities, often labelled ‘mentally defective’, and prohibited them from engaging in consensual sexual encounters and romantic relationships. This article and the arguments within are drawn from an analysis of nearly 200 case files of sexual offence cases heard in lower-level courts,  namely the Central Criminal Court in London and the assizes outside London, in the years 1918–50. Of these 200 cases, 135 were accessed through a privileged agreement with the Ministry of Justice. In line with that agreement, all names, locations, dates and identifiable data have been removed, and pseudonyms are used throughout. These cases represent a small fraction of all cases heard in the period, and the files that remain in the archives are fragmented—particularly those from the early years of the 20th century—and consist of partial details of transcripts, testimonies and depositions given at the police station. While record-keeping improved during the interwar years, there are significant gaps in the records; for most cases heard in the period, there were no surviving records beyond names in the Court Books. Where partial details of the case exist, the case details have been triangulated using other available sources—mainly online newspaper archives, along with census and workhouse records—to form a fuller picture of the case or to find the sentence imposed. 

The argument and methods used in this article are significant in three ways. First, I demonstrate that—historically—capacity was a crucial, if undefined, tenet in sexual offences law. There is little legal historical scholarship on capacity to consent to sex. Throughout history, capacity and incapacity have been legislated through medical and mental health law, and therefore most scholarship on capac- ity is focused on this context.6 Yet, there is related historical literature on mental disabilities and institutions7 and on the age of consent, both of which touch upon the concept within a criminal context. Out of this broader, rich scholarship on institutions and regulatory regimes on mental disabilities, I will draw pre- dominantly on scholarship on ‘mental deficiency’, as laws regulating ‘deficiency’ directly interacted with sexual offences law. By analysing the legal history of the concept and associated narratives in criminal courts, I will demonstrate that, historically, capacity as it was used in the courts was not objectively assessed. Instead, this assessment, both in law and in practice, was clouded by external factors such as social class, gender and the ideals of the eugenics movement. Secondly, by examining a range of previously unanalysed, unreported lower-level cases, I shed light on women’s lived experience of law during the period. Analysis of these lower-level trials, rather than those in the then appellant courts of the Court for Crown Cases Reserved or the Court of Criminal Appeal, gives an insight into how criminal law functioned in practice. This practice was often far removed from set principles in the period. The analysis illustrates the difficult experiences of women and girls within the criminal justice system, and how they attempted to navigate that system. Both these contributions are of wider impor- tance, as it was during this period of the late 19th century and early 20th century when legal principles were solidified, and the conceptual foundations of modern sexual offences laws were laid. 

Finally, gaining a better understanding of that legal history is of contemporary relevance, as issues related to capacity are yet to be resolved, despite significant legislative advances in the 2000s. While an assessment of capacity is now built into the language of the law,11 there remains ambiguity over its definition, and the extent to which intoxication, power relations or mental disabilities can impact capacity. 

This article assesses the concept of capacity in the following three sections. In section 2, I discuss the fragmented laws on sexual offences in the period, to illustrate the importance of capacity to the contemporary sexual offences framework, and its conceptual inconsistencies within that framework. In section 3, I focus on children and young people, arguing that, despite clear boundaries setting a minimum age of consent, working-class girls in particular had to attest to their incapacity. Finally, I focus on prosecutions under the Mental Deficiency Act (1913, and discuss capacity and incapacity in the context of mental disability and institutionalisation. The case analysis in section 4 also illustrates the extent to which criminal courts enforced and opted into social control and eugenics, and the impact this had on the lives of women caught in those regulatory regimes.

Inclusive Juries

The Victorian Law Reform Commission consultation paper Inclusive Juries: Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (submissions due end February) highlights key issues for community discussion. 

  Barriers in current law and practice 

The role of a jury in criminal and civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. 

People in the subject groups may be called for jury service alongside others in the community but existing law and practice prevent many from serving as jurors. Concern has been expressed that this occurs without sufficient reasons. 

The Juries Act 2000 (Vic) does not specifically exclude people who are deaf, hard of hearing, blind or who have low vision from serving as jurors in Victoria. The Act specifies that a person is ineligible to serve if they are ‘unable to communicate in or understand the English language adequately’ or have ‘a physical disability that renders the person incapable of performing the duties of jury service’. 

Many limitations resulting from a person’s disability can be overcome with supports (also described as adjustments or accommodations) for example an Auslan interpreter or screen reading programs, but the Act does not state when courts should consider or provide supports. 

A further legal barrier is the old common law rule that there must not be more than 12 jurors present in jury deliberations (the jury room). This is known as the ‘13th person rule’ and it was re-affirmed by the High Court in 2016 [noted here]. The High Court held that a deaf juror could not be assisted by a non-juror in jury deliberations, because a jury needs to be ‘kept separate’ to maintain confidentiality, prevent influence or disruption, and to encourage frank discussion. 

The combination of the 13th person rule and the lack of guidance about the provision of supports means that jury service is often not possible for people in the subject groups. In practice, it is likely that when people in the subject groups are selected for jury duty they are left with no option other than to seek to be excused or they are deemed ineligible to serve. 

Reasons to make juries more inclusive 

Participation as a juror is an ‘important aspect of civic life’ or a ‘manifestation of active citizenship’.6 People who are deaf, hard of hearing, blind or who have low vision should be represented on juries because they are part of our community. They should be able to participate in civic life on equal terms with others. 

Reform will respond to recent decisions by the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) calling for change to jury laws in Australia. 

Reform will also be consistent with the Victorian Charter of Human Rights and Responsibilities, which integrates international human rights standards into Victorian law. It includes the right to equality before the law and protection from discrimination, including on the basis of disability. 

Overseas jurisdictions in the United States, Canada and New Zealand have allowed and facilitated jury service for people in the subject groups with supports for at least ten years and in the United States for much longer. Supports are also provided in England outside of the jury room (where the 13th person rule still applies). We discuss the experiences of people in the subject groups who have served on juries overseas in Chapter 4 of the consultation paper. 

In 2018 the Australian Capital Territory (ACT) became the first jurisdiction in Australia to amend its laws to require consideration of the provision of reasonable supports, and to limit the application of the 13th person rule. 

Changing the law would align it with modern community standards and expectations. Communication tools for people in the subject groups are now increasingly visible in our community. Many may be surprised that the law does not impose any positive obligation on the courts to consider supports for jury service. 

In developing recommendations for reform, the Commission will be examining options for enabling more representative juries and equality of civic obligations that also enable delivery of a fair trial. Any reforms must ensure that a jury functions effectively, that jurors perform their duties adequately and confidence in the jury system is maintained. 

We intend to design practical reforms that will work in the context of a busy and demanding court environment with limited resources in both metropolitan and regional areas. 

Key reform ideas 

A system to make juries more inclusive 

Recent changes to the Juries Act in the ACT provide guidance about the provision and assessment of reasonable supports to enable people in the subject groups to serve as jurors. 

In the ACT if the judge thinks that someone needs supports to properly discharge their duties as a juror, and these supports can be reasonably provided, then they must be. Examples of supports in the notes to the ACT legislation are an Auslan interpreter, an assistance animal, disability aid or support person. 

The list of factors to be considered in determining whether supports can be reasonably given includes court resources, time frames and facilities, whether a non-juror would inhibit or restrict discussion in the jury room, and any other issue the judge thinks is relevant. 

The judge makes the final decision about whether reasonable supports can be provided. This judicial assessment process is similar to the approach in some overseas jurisdictions where people also serve with supports. 

The Commission is keen to hear community views about whether the judge should be given a specific power to exclude a juror when they cannot perform their role, even with supports. Some consider that this power is important to ensure the principle of a fair trial is not undermined. For example, in trials where the jury is called upon to assess pivotal voice or visual identification evidence, it may not be appropriate for a juror who is deaf or blind to serve. 

The ACT Act addresses concerns about participation of a 13th person in the jury room in a straightforward way. If a judge makes a direction allowing an interpreter or support person to assist in the jury room, then the old common law rule does not apply. The supporter must provide an oath or affirmation to the court not to participate in jury deliberations, to maintain confidentiality and to only assist the juror. 

The Commission is keen to hear from the community about whether the approach adopted in the ACT would work in Victoria. The ACT laws appear practical and straightforward and are supported by the practices and procedures of the ACT Sheriff’s Office. However, they have not yet been used to assist a person in the subject groups to serve on a jury in the ACT. 

Possible supports to enable inclusive juries 

Chapter 8 provides examples of supports that might assist people in the subject groups to serve as jurors. We are keen to hear from people who are deaf, hard of hearing, blind or who have low vision about what supports will help them to serve and how they could talk to the court or Juries Victoria about what they might need.

• Australian Sign Language (Auslan) interpreters Auslan interpreters generally work in pairs in approximately 20-minute shifts. This would mean that multiple interpreters might need to assist in trials and jury deliberations, making it 14 (not 13) people in the jury room. In lengthy trials a third interpreter might be needed to reduce the burden on the interpreters. - Auslan interpreters are certified and accredited through the National Accreditation Authority for Translators and Interpreters (NAATI). - When working in court rooms, Auslan interpreters are required to abide by the Australian Sign Language Interpreters Association Code of Ethics (ASLIA) which includes obligations about confidentiality and being impartial. - A limited number of interpreters in Victoria work in legal settings. It can be difficult to arrange an interpreter at short notice. 

• Hearing loops are used by Australian courts including the County Court and Supreme Court in Victoria. 

• Communication Access Real Time Translation (CART) is used by the Family Court of Australia and the Federal Court of Australia.  CART transcribes and translates spoken words and sounds into text, in real time, on a big screen, or phone, laptop or mobile device. CART operators utilise software to translate speech to text. CART can be combined with an audio component (such as hearing loops).  It involves CART writers, stenographers and court reporters. 

It may be necessary to provide supplementary written materials or transcripts to jurors who are deaf or hard of hearing. 

Automated speech recognition software/apps transcribe speech from multiple individuals onto a screen in close to real time by connecting to several devices with the app downloaded and microphones turned on. 

• Materials in audio form Screen-reading programs translate the written text displayed on a screen for a voice synthesizer which reproduces the text as speech.  Popular screen readers include the Jaws Screen Reader which speaks electronic or scanned material and can create Braille output.  Another example, Zoom Text ‘enlarges and enhances everything on [a] computer screen, echoes your typing and essential program activity, and automatically reads documents, web pages, email.’ 

• Changing the format of documents to larger font size, plain typeface with spacing between the words, or printing on tinted paper. Providing documents in Word so that they can be read by technology. 

• Magnifiers to enlarge print or pictures. Magnifiers can be non-electronic or electronic. CCTV magnifiers have a camera on a frame, displaying a magnified image on a monitor. Sometimes CCTV magnifiers also include speech output so that a person can hear the text being read as it is displayed on the monitor.   

• Braille material 

• Assistance animals or mobility canes may assist a prospective juror to navigate and feel comfortable in a court room, jury room and the court building. 

• Support person—for example, a person providing assistance during a trial or in jury deliberations to a juror who is blind or with low vision. 

Court processes and practices 

The following adjustments to court processes and practices may be helpful:

• adjustments to the layout of the court room and the jury room. 

• additional breaks to accommodate jurors with disability, along with the needs of Auslan interpreters, support people or assistance animals. 

• judicial directions to inform the Court about the running of the trial with supports. 

The logistics of arranging supports 

The jury selection process is unpredictable. It commences with random selection from the jury roll, the panel is selected by random ballot and the prospective juror may be challenged off late in the process. It is therefore impossible to say with certainty that a juror needing supports will be selected for jury duty. 

A prospective juror will need support through the empanelment process and may also need to call on supports during a trial and in jury deliberation. 

Community feedback 

We are keen to hear community views about:

• How to change legislation and practice to ensure that the court considers and assesses reasonable supports for people in the subject groups to allow them to serve. 

• What safeguards might be needed to ensure that participation of people in the subject groups does not prejudice the fairness of trials. Should the judge have a discretion to exclude a prospective juror where they would not be able to perform their role, even with supports, because of the type of evidence in a particular trial— for example, voice or photographic identification evidence? 

• How to overcome the prohibition on having 13 people in a jury room, and whether supporters and interpreters should provide an oath to court affirming that they will maintain confidentiality and not be involved in deliberations. 

• The types of supports that will assist people in the subject groups to serve, and processes to ensure that people can talk to the court about their needs. 

• Whether people in the subject groups should still have the option of being excused from service because of their disability. 

• How to overcome common misconceptions and prejudices about the abilities of people in the subject groups to serve as jurors.

The Commission will consider recent changes to the law in the ACT, recommendations of other law reform agencies and overseas practice, to develop recommendations for reform that will outline how change can be delivered.

Powers of Attorney

The South Australian Law Reform Institute June 2020 discussion paper regarding the Institute's Review of the Role and Operation of Powers of Attorney in South Australia features the following consultation questions 

 History and Use of Powers of Attorney 

 

1. How widely are EPAs used? 

 

2. How can the use of EPAs be promoted? 

 

3. What are the barriers to making EPAs? 

 

4. How does the POA Act compare to other Powers of Attorneys laws in Australia? What are its benefits/disadvantages? 

 

5. Should guiding principles be introduced in the POA Act? 

 

6. How can the POA Act be simplified? 

 

7. What are the issues with EPA forms? 

 

8. Should it be mandatory to use the standard EPA forms? 

 

9. Are the formal requirements for creating EPAs suitable? 

 

10. How many witnesses should be required to witness an EPA document? 

 

11. Should witnesses have to explicitly attest to the principal’s capacity? 

 

12. What qualifications (if any) should a witness hold? 

 

13. Who should be disqualified from being a witness? 

 

14. How can witnesses be supported in their role? 

 

Legislative Framework 

 

1. How should capacity be defined? 

 

2. Should the test in the 1870 case of Banks v Goodfellow continue to be the relevant test for assessing capacity? 

 

3. Who should be making the capacity assessment for the creation and activation of an EPA? 

 

4. How can the principal’s rights be protected when assessing capacity? 

 

5. Should there be principles to guide capacity assessment? 

 

6. What evidence should be required to create or activate an enduring Power of Attorney? 

 

7. Is there sufficient guidance and support for those making the assessment? 

 

Duties of Attorneys 

 

1. Who is an appropriate attorney? 

 

2. How many attorneys should a principal be able to appoint? 

 

3. What are the issues arising with multiple and alternative attorneys? 

 

4. What are the powers and duties of attorneys and are they understood by the public? 

 

5. How can attorneys’ understanding of their role, powers and duties be increased? 

 

6. Should there be requisite competencies that an attorney should demonstrate prior to appointment?  

 

7. Should it be mandatory to appoint two attorneys—one of whom is a professional (allied health)? 

 

8. Should any of the following become statutory limitations of an attorney’s power?

a) the principal and/or another nominated individual, receive copies of account statements on a regular basis; 

b) prior to certain transactions, such as sale of property, the attorney consult with nominated persons; 

c) that the principal’s finances be audited annually, with a report sent to nominated persons; 

d) that the principal undertake a capacity assessment, once deemed legally incapacitated; or 

e) other? 

 

Legal Remedies for the Abuse of an Enduring Power of Attorney / Practical Measures 

 

1. What is the level of abuse of EPAs? 

 

2. How are EPAs abused? 

 

3. Who are the victims? 

 

4. Who are the perpetrators? 

 

5. How can abuses of EPAs be better detected, reported and investigated? a. Should a referral system as outlined in the ACD Act be applied in the context of EPAs? 

 

6. What mechanisms can be implemented to provide oversight of an attorney's conduct, to identify and address abuse? 

 

7. What measures should be implemented to prevent abuses? 

 

8. How can data collection processes be improved to obtain accurate figures oabuse? 

 

9. What measures can be adopted to better protect vulnerable populations, specifically CALD individuals and Indigenous and Torres Strait Islander individuals? 

 

10. Are the current legal remedies adequate? 

 

11. How might the existing legal remedies be improved/reformed in order to prevent abuse? 

 

12. Are the practical remedies being used? 

 

13. How useful are the practical remedies in preventing abuse? 

 

14. Should any of the practical remedies become a legal remedy? 

 

Register 

 

1. Should South Australia introduce a compulsory register of EPAs? 

 

2. Should registration be national or state-based? 

 

3. What are the benefits and risks of introducing a register? 

 

4. Should registration be compulsory upon initial creation or when the principal loses decision-making capacity? 

 

5. Should there be a notification scheme as in England/Wales where designated persons are notified once the attorney attempts to first exercise their powers? 

 

6. What information should be included in the register? 

 

7. Who should have access to the register? 

 

8. Where should the register be located? 

 

9. Will the costs of registration deter principals from creating EPAs? 

 

10. Should registration be online and/ or in person? 

 

11. Should the registration body take on the role of ensuring EPAs are correctly executed? 

 

12. Will the register help to detect fraud?

Tasmanian Identity Reforms

The Tasmanian Law Reform Institute report on Legal Recognition of Sex and Gender discusses 

amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas) and other matters relating to the legal recognition of sex and gender in Tasmania. ...  

 

The reference pre-dated the introduction and passage of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) and sought advice more generally regarding the legal recognition of sex and gender. However, the TLRI has necessarily taken account of the recent passage of this legislation and framed its review on the basis of: whether the recent changes are functional and achieve their stated objectives; and what, if any, further reforms are needed to improve consistency with existing laws and human rights obligations.

The Institute concludes 

 the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity.  ... [The] new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.

 

The TLRI was also asked to consider questions surrounding medical treatment on children, particularly as it relates to intersex children. An unresolved issue in Tasmanian law is the way intersex people are treated. This Report addresses surgical interventions on intersex children and the need to respect the right of children to have input into their own medical treatment. The issue of consent is especially important given the permanent impact, physical, mental and emotional, that can be caused by surgical interventions. This Report makes a number of recommendations intended to eliminate the practice of non-consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment. ....

 

By implementing these reforms, the TLRI believes that greater clarity in the law will be achieved, and that the rights of a frequently marginalised group will be better protected. This Report makes use of specific terminology relating to sex and gender, including the terms ‘sex’ and ‘gender’, in ways that may not be immediately familiar to all readers.

The Institute's Terms of Reference were 

In late 2018, the Attorney General, the Hon Elise Archer MHA, wrote to the Tasmania Law Reform Institute seeking its advice on several aspects of the law relevant to sex and gender. Accordingly, the Attorney General asked that the TLRI provide advice consistent with the following terms of reference: 

• Consider, with reference to laws in other Australian jurisdictions: what steps should be required in Tasmania to register a change of a person’s sex or a person’s intersex status on official documents; and what categories of sex and/or gender should be displayed on birth certificates and other documents. 
•  Review the law and make recommendations for any reforms in relation to consent to medical treatment to alter a person’s sex or gender. 
•  Review definitions and the use of terms relating to sex and gender in Tasmanian legislation and make recommendations for reform. 

The Institute's Recommendations are

Recommendation 1

 

The Tasmanian Government publish information resources and fund community awareness and education activities regarding amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas).

 

Recommendation 2

 

The Long Title of the Births, Deaths and Marriages Registration Act 1999 (Tas) be replaced by the following: An Act to provide for the registration of births, deaths and marriages and to provide legal recognition for trans and gender diverse Tasmanians and those with intersex variations of sex characteristics.

 

Recommendation 3

 

An additional birth registration option, ‘Unspecified’, be made available to accommodate the needs of parents who, after 120 days, are not in a position to nominate the sex of their child as either male or female.

 

Recommendation 4

 

The Registrar of Births, Deaths and Marriages develop and publish guidelines addressing:

• what the Registrar should, and should not, consider in assessing and exercising their discretion to refuse applications; 

• what additional information can and cannot be requested; guidance as to relevant factors to be considered in satisfying themselves regarding a child’s ‘will and preference’, including the child’s capacity to understand; 

• the circumstances in which counselling should be requested, and the circumstances in which counselling is considered unnecessary; 

• a regularly updated list of gender descriptors, with a notation that the list is a guide rather than an exhaustive list; and 

• information and referral details that should be provided to applicants when the Registrar requests further information or evidence or rejects an application.

 

The TLRI recommends that these guidelines be developed in consultation with the trans, gender diverse and intersex communities, the Commissioner for Children and Young People and registries in comparable jurisdictions.  

 

The TLRI recommends that these guidelines be subject to regular review to ensure they are responsive to developments in the law, society and needs of the relevant communities.

 

Recommendation 5

 

The Tasmanian Government conduct an audit of: • all government and statutory board composition requirements; and • eligibility criteria for grant programs to clarify whether selection is intended to be on the basis of sex or gender.

 

Recommendation 6

 

The Tasmanian Government enact all recommended reforms identified in Column 3 of Appendix 3 to ensure that the terms ‘sex’ and ‘gender’ are used consistently and accurately and in accordance with the definitions introduced or amended by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas).

 

Recommendation 7

 

The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:

 

178F Unnecessary medical intervention to change the sex characteristics of children.

 

(1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless: (a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or (b) it takes place with the informed consent of the child.

 

(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.

 

Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.

 

Recommendation 8

 

That intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed. Provision to this effect should be made in the Civil Liability Act 2002 (Tas).

 

The informed consent of the child on whom the intervention is performed should provide a defence in such cases. However, consent itself should not be a defence if the intervention was performed negligently and the child did not voluntarily assume the risk of such negligence.

 

The primary remedy should be compensatory damages for harm caused by any medical intervention to alter sex characteristics that did not satisfy the relevant factors.

 

Recommendation 9

 

The Tasmanian Government enact a Consent to Medical Treatment Act that covers the field with respect to children’s consent to medical care.

 

The TLRI recommends that this Act should enable a child of 16 years or older to obtain medical treatment and undergo surgical procedures when they consent to treatment and surgical procedures. For children under 16, the TLRI recommends that Gillick competence be enshrined in this Act.

 

The South Australian Consent to Medical Treatment and Palliative Care Act 1995 may provide useful guidance in this regard.

 

The TLRI does not recommend that counselling be a mandatory precondition to children receiving medical treatment or undergoing surgical procedures.

 

Recommendation 10

 

The Government give consideration to including in the Consent to Medical Treatment Act proposed in Recommendation 9 all the reforms recommended in Part 3 of this Report. The Act would be comprehensive in providing the entire legal framework for surgical intervention to alter the sex characteristics of children.

Unwell

In Health Care Complaints Commission v McGregor [2020] NSWCATOD 13 the NSW Civil and Administrative Tribunal has cancelled the registration of Sydney psychiatrist Dr McGregor after the practitioner posted a blog on his practice website which was “bizarre and suggestive of impaired reality testing” and verbally abused Medical Council panel members. NSWCAT considered whether McGregor's conduct constituted unsatisfactory professional conduct and professional misconduct, whether the practitioner is impaired whether he has “sufficient physical and/or mental capacity to practise medicine”, accordingly imposing appropriate protective orders.

The action was initiated by the NSW Health Care Complaints Commission. NSWCAT notes that

During 2017 Dr McGregor became suspicious that his wife, who was a receptionist at the practice, was having an affair with another psychiatrist in the practice. Around July 2017 he engaged a private investigator to download data from his wife’s mobile phone. On 22 December 2017 he provided that data, together with his own commentary, to the Australian Health Practitioner Regulation Agency (AHPRA). Dr McGregor characterised the notification as a “mandatory notification” alleging that the other psychiatrist had breached ethical guidelines. On 18 January 2018 a colleague who practised in the same building as Dr McGregor, complained to AHPRA about Dr McGregor’s behaviour in forwarding her a copy of the complaint he had sent to AHPRA. Dr McGregor said that he sent the complaint to his colleague to protect his reputation. As part of the investigation of the colleague’s complaint, investigators accessed Dr McGregor’s practice website and found a blog  - characterised by McGregor as his “Australian patriot blog” - on that psychiatric practice website.

Shortly thereafter an employee of the NSW Health Pharmaceutical Regulatory Unit (PRU)  poke with the Medical Director of the NSW Medical Council about the content of the blog. That content might politely be described as colourful, featuring reference to ' FISA wiretapping, M 16 connection, Assassination plots and ... unmentionable satanic ritual evidence'.

In praising QAnon and President Trump for fighting the satanic 'deep state' the blog stated

 Julian Assange is not in the Ecuadorian Embassy. He is either in Switzerland or Washington. Q and the MoD, SVR (Kremlin) confirm this. He is an Australian hero and would make a fine future PM. When the infant torture, rape and satanic rites cannibalism by elites is provided by Trump on tape – seek the comfort of others. Pay attention to the news cycle. Follow Q breadcrumbs on 8chan. Message, tweet, post and discuss with friends and family. Be open to new knowledge and cross check information thoroughly. Await the Australian Treason Trials (TT’s). 

After reviewing the blog, the NSW Medical Council decided to raise an 'own motion' complaint against McGregor with the Health Care Complaints Commission, expressing considerable concern for the practitioner's mental health and well-being. The Commission referred the complaint to NSWCAT as a serious complaint under s 145D of the Health Practitioner Regulation National Law, seeking an order from the Tribunal that McGregor’s registration be cancelled either because he is not competent to practise medicine or because he is guilty of professional misconduct: s 149C(1)(a) and (b). The Commission also sought an order under National Law s 149C(7) that McGregor cannot reapply for registration for a period of 12 months.

McGregor was on notice that the Tribunal would hear the complaint on 11 December 2019 but   did not attend. The HCCC provided McGregor with a copy of all the material it had lodged with the Tribunal, including the orders it was seeking.  Rather than alleging that McGregor had expressed extreme political views on his blog, the HCCC alleged that “the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment.”

McGregor did not respond and had not attended a meeting with a consultant psychiatrist, required by the Council. NSWCAT states 'We note that if a medical practitioner fails, without reasonable excuse, to comply with a requirement to attend a medical appointment, that failure is evidence the person does not have sufficient physical or mental capacity to practise medicine: National Law, s 152B(4)'.  McGregor did not respond to subsequent contact by the Medical Council apart from stating 'regardless of what Council does, it won’t change his political views and he won’t remove the blog from his website'.

NSWCAT states

On 5 March 2018, the Council held a hearing under s 150 of the National Law. During that hearing, the panel attempted to contact Dr McGregor by phone. Eventually Dr McGregor spoke with the three Council delegates on the panel. He repeatedly asserted that it was his politically views, as expressed in his blog that had brought him to the Council’s attention. Despite the Presiding Member telling him that it was concerns about his mental health that had triggered their response, Dr McGregor continued to assert that he was being persecuted because of his political opinions. At one stage during the phone call, Dr McGregor explained that, “there are great political changes occurring in the world at the moment and um I uh you know I need to uh uh get that across to other people and um ah if you uh feel that because uh my opinion is a little different to yours that you need to take away my registration that’s up to you . . um but . . .” He went on. “Um if you had any understanding of politics um you would understand that that that the beliefs that are actually put on the blog are actually um the uh directives um from ah from President Trump.” 

The issue for the Council delegates at that hearing was whether McGregor’s registration should be suspended to protect the health or safety of any persons or because the delegates were satisfied that suspension was necessary in the public interest. The delegates concluded that Dr McGregor showed such impaired judgment that exposure to those views had significant potential to expose his patients to risk of harm. McGregor’s response on hearing of the consequent suspension was visceral.
McGregor later stated on his blog

Sadly I was deregistered from practicing as a doctor today. The Medical Council of NSW found me guilty of publishing a website and expressing a political opinion which they disagreed with. . . . I sincerely apologise to all of my patients who have been terribly affected by this. I am very sorry to have caused you so many difficulties. . . . The truth is that it is very likely that I shall go bankrupt, and shut down, as my practice has enormous running costs. Thus it is best not to wait to see if The Medical Council of NSW will change its mind, but rather to find another Psychiatrist. 

He then requested an 'immediate reinstatement of my right to practice medicine', claiming the Presiding Member 'knowingly used the power of Political Correctness to inflict woman to male intimidation and assault against me. She knew that my political beliefs were different to hers and as such I felt she was using legal, financial and reputational intimidation as a woman against me. I feel her behaviour was that of a feminist thug used to deny me consent and respect'.

 In the written decision next month the Council delegates gave detailed reasons for suspending the registration, expressing the view that McGregor has an impairment with severely distorted judgement, construed as evident in the 'bizarre nature of aspects of his blogs (such as his reference to cannibalism and Satanic rituals) and publishing such disturbing material on his practice website where vulnerable patients could easily access the content'. Later in April a lengthy email from McGregor to the Council about the proposed s 150A hearing appears to have characterised the Council as 'clearly a Government Institution with bigoted/intolerant socially left wing zealots who conform to groupthink and take political views to further their careers'. The Council set aside the decision to suspend Dr McGregor’s registration and instead, imposed a condition that he is not to practise medicine, referring the matter to the Commission under s 150F to the HCCC. Doubling up, McGregor stated

 The Medical Council of New South Wales is a Paedophile Protection Agency. The operatives who have been involved in Politically destroying me are deranged President Trump haters and those who are Political sycophants of what the Deep State represents. That is, they Sensor and Punish any Patriot who criticises Paedophilia, and other Deep State crimes. . . . Furthermore, the Council has allowed a Politically malevolent pre-determined report be used against me by a Council affiliated Psychiatrist/Political activist/operative for the intention to entrap by The Political Abuse of Psychiatry.  ...
 Elite globalist satanic paedophiliac rituals, child trafficking, torture and cannibalism will be exposed in time. It will change the political landscape forever. The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. The in-group allegiance is absolute with these binding behaviours. The initiation rites enforce compliance with the aims of the NWO – which is subjugation of the world’s people for their own benefit.

NSWCAT concluded

Complaint 1 

(1) Are the facts of the four incidents of alleged inappropriate conduct set out in Complaint 1 proved? Yes. 

(2) Did the blog publication conduct have the potential to expose Dr McGregor’s patients to harm when accessing the practice website for information or to make an appointment? Yes. 

(3) Did each of the four incidents of alleged inappropriate conduct set out in Complaint 1 relate to “the practice or purported practice of medicine”? Yes. 

(4) If so, (a) is the “complaint to Council” conduct “any other improper or unethical conduct”? No. (b) is the “distribution of the complaint to another medical practitioner” “any other improper or unethical conduct”? No. (c) is the “publication of blog” conduct; “any other improper or unethical conduct”? Yes. (d) Is the “abusive language” conduct “any other improper or unethical conduct”? Yes. 

Complaint 2 

(5) Did Dr McGregor self-prescribe the medications in the quantities and on the dates listed in the table set out under complaint 2, particular 1? Yes. 

(6) If so, was any self-prescribing in breach of the code of practice or the self-treatment guidelines? Yes, if Dr McGregor initiated these medications. 

(7) If so, has Dr McGregor “engaged in any other improper or unethical conduct relating to the practice or purported practice of medicine”? No. 

Complaint 3 

(8) Are any of the particulars in complaint 1 or complaint 2 sufficiently serious to justify suspension or cancellation of Dr McGregor’s registration? No. 

(9) If not, are all the particulars in complaints 1 and 2, or any other combination of particulars in complaints 1 and 2, when considered together, of a sufficiently serious nature to justify suspension or cancellation of Dr McGregor’s registration? Yes. 

Complaint 4 

(10) Does Dr McGregor have a “physical or mental impairment, disability, condition or disorder (including substance abuse or dependence)? Yes. 

(11) Does that disability, condition or disorder detrimentally affect or is it likely to detrimentally affect his capacity to practise medicine? Yes. 

Complaint 5 

(12) Does Dr McGregor have “sufficient physical and/or mental capacity to practise medicine”? No.

NSWCAT states

Between February 2018 and March 2019, the practitioner inappropriately published a personal Internet ‘blog on a website attached to his medical practice and identified himself as the author of the blog where the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment. (“publication of blog” – particular 1) Around 5 March 2018, the practitioner engaged in inappropriate and abusive language to the Council section 150 delegates by stating to the delegates, [abusive language]

NSWCAT bites the view that

McGregor's response to his marriage breakdown and concerns about harm to his reputation was “highly unusual . . . and likely to cause an escalation in conflict, and certainly took no account of his former wife’s privacy.” In the complaint to the Tribunal, the HCCC characterised this conduct as “inappropriate”. However, it must be more than inappropriate to meet the definition of unsatisfactory professional conduct in s 139B(1)(l). It must be “improper or unethical conduct.” In our view, Dr McGregor lacked judgment in making a complaint to AHPRA about his colleague and his wife having an affair. Their relationship is a private matter. The fact that Dr McGregor perceived that it impacted on his reputation, is not a sufficient reason for making the complaint. Dr McGregor did not point to any guidelines or codes of practice applicable to the medical profession which Dr Keighran was said to have breached. In our view, Dr McGregor’s complaint was misguided, but his conduct in making the complaint was not improper or unethical.   

... asked whether he thought he had breached his wife’s privacy in distributing such personal information, “he said that his wife gave him the mobile phone”, and that, “I still feel it was the right decision.” When Dr Wright asked him whether he thought there might be an ethical problem in distributing such material, he replied that, “there’s something in the back of my mind . . .” As with the previous particular, the HCCC characterised this conduct as “inappropriate”. In our view, Dr McGregor lacked judgment in distributing the complaint to a colleague especially when it contained sensitive personal information about his former wife. As we have said, her relationship with one of Dr McGregor’s colleagues is a private matter. His fears about loss of reputation do not justify distributing this material. In our view, Dr McGregor was misguided, but his conduct in distributing the complaint was not improper or unethical.

In discussing the blog on the practice site, NSWCAT comments

We find that Dr McGregor was the author of all the material lodged by the HCCC for that period and we rely on that material. In his 27 March 2018 report, Dr Wright accurately described the content of the blog: A review of the blog content shows it included opinions reflective of a global conspiracy perspective. Dr McGregor identifies the content as his opinions, and if they are indeed his opinions, some of the material is quite disturbing. They include references to “infant torture, rape and Satanic Rites cannibalism by elites is provided by Trump on tape . . elite globalist satanic paedophiliac (sic) rituals, child trafficking, torture and cannibalism will be exposed in time . . The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. . expect the paedophilia and child torture/cannibalism to be fully exposed prior to the mid terms in November. 

Dr Wright expressed the view that: These are extraordinary beliefs for a consultant psychiatrist to publicly associate himself with, particularly on a website associated with his clinical practice. 

Some of this material reflects a loss of perspective and potential loss of reality testing. We agree with that opinion. Contrary to Dr McGregor’s assertions, the content of the blogs are not merely expressions of his political beliefs. Existing and potential patients had access to the website to obtain information or make an appointment. The publication of this material relates to the practice of medicine because it is on the practice website. The fact that Dr McGregor identifies himself as a medical practitioner and psychiatrist on the website gives his comments added credibility.

Consent

The NSW Law Reform Commission has released its consultation paper regarding Consent in relation to sexual offences.

The Commission's Terms of Reference are

 to review and report on consent and knowledge of consent in relation to sexual assault offences, as dealt with in s 61HA of the Crimes Act 1900 (NSW). In undertaking this review, the Commission should have regard to:

1. Whether s 61HA should be amended, including how the section could be simplified or modernised; 

2. All relevant issues relating to the practical application of s 61HA, including the experiences of sexual assault survivors in the criminal justice system; 

3. Sexual assault research and expert opinion; 

4. The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally, on the content and application of s 61HA; and 

5. Any other matters that the NSW Law Reform Commission considers relevant.

The Papaper asks the following questions -

3. The meaning of consent 

Q3.1: Alternatives to a consent-based approach (1) Should the law in NSW retain a definition of sexual assault based on an absence of consent? If so, why? If not, why not? (2) If the law was to define sexual assault differently, how should this be done? 

Q3.2: The meaning of consent (1) Is the NSW definition of consent clear and adequate? (2) What are the benefits, if any, of the NSW definition? (3) What problems, if any, arise from the NSW definition? (4) What are the potential benefits of adopting an affirmative consent standard? (5) What are the potential problems with adopting an affirmative consent standard? (6) If NSW was to adopt an affirmative consent standard, how should it be framed? (7) Should the NSW definition of consent recognise other aspects of consent, such as withdrawal of consent and use of contraception? If so, what should it say? (8) Do you have any other ideas about how the definition of consent should be framed? 

4. Negation of consent 

Q4.1: Negation of consent (1) Should NSW law continue to list circumstances that negate consent or may negate consent? If not, in what other ways should the law be framed? (2) Should the lists of circumstances that negate consent, or may negate consent, be changed? If so, how? 

5. Knowledge about consent 

Q5.1: Actual knowledge and recklessness (1) Should “actual knowledge” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (2) Should “recklessness” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (3) Should “reckless” be defined in the legislation? If so, how should it be defined? (4) Should the term “reckless” be replaced by “indifferent”? If so, why? If not, why not? 

Q5.2: The “no reCasonable grounds” test (1) What are the benefits of the “no reasonable grounds” test? (2) What are the disadvantages of the “no reasonable grounds” test? 

Q5.3: A “reasonable belief” test (1) Should NSW adopt a “reasonable belief” test? If so, why? If not, why not? (2) If so, what form should this take? 

Q5.4: Legislative guidance on “reasonable grounds” (1) Should there be legislative guidance on what constitutes “reasonable grounds” or “reasonable belief”? If so, why? If not, why not? (2) If so, what should this include? 

Q5.5: Evidence of the accused’s belief (1) Should the law require the accused to provide evidence of the “reasonableness” of their belief? If so, why? If not, why not? (2) If so, what form should this requirement take? 

Q5.6: “Negligent” sexual assault Should NSW adopt a “negligent” sexual assault offence? If so, why? If not, why not? 

Q5.7: “No reasonable grounds” and other forms of knowledge (1) Should a test of “no reasonable grounds” (or similar) remain part of the mental element for sexual assault offences? (2) If not, are other forms of knowledge sufficient? 

Q5.8: Defining “steps” (1) Should the legislation define “steps taken to ascertain consent”? If so, why? If not, why not? (2) If so, how should “steps” be defined? 

Q5.9: Steps to ascertain consent (1) Should the law require people to take steps to work out if their sexual partner consents? If so, why? If not, why not? (2) If so, what steps should the law require people to take? 

Q5.10: Considering other matters (1) Should the law require a fact finder to consider other matters when making findings about the accused’s knowledge? If so, why? If not, why not? (2) If so, what should these other matters be? 

Q5.11: Excluding the accused’s self-induced intoxication (1) Should a fact finder be required to exclude the accused’s self-induced intoxication from consideration when making findings about knowledge? If so, why? If not, why not? (2) Should the legislation provide detail on when the accused’s intoxication can be regarded as self-induced? If so, what details should be included? 

Q5.12: Excluding other matters (1) Should the legislation direct a fact finder to exclude other matters from consideration when making findings about the accused’s knowledge? If so, what matters should be excluded? (2) Is there another way to exclude certain considerations when making findings about the accused’s knowledge? If so, what form could this take? 

Q5.13: A single mental element (1) Should all three forms of knowledge be retained? If so, why? If not, why not? (2) If not, what should be the mental element for sexual assault offences? 

Q5.14: Knowledge of consent under a mistaken belief Does the law regarding knowledge of consent under a mistaken belief need to be clarified? If so, how should it be clarified? 

Q5.15: Other issues about the mental element Are there any other issues about the mental element of sexual assault offences that you wish to raise? 

6. Issues related to s 61HA 

Q6.1: Upcoming amendments (1) What are the benefits of the new s 61HE applying to other sexual offences? (2) What are the problems with the new s 61HE applying to other sexual offences? (3) Do you support applying the legislative definition of consent and the knowledge element to the new offences? If so, why? If not, why not? 

Q6.2: Language and structure (1) Should changes be made to the language and/or structure of s 61HA (and the new s 61HE)? If so, what changes should be made? (2) Should the definition of “sexual intercourse” be amended? If so, how should sexual intercourse be defined? 

Q6.3: Jury directions on consent Are the current jury directions on consent in the NSW Criminal Trial Courts Bench Book clear and adequate? If not, how could they be improved? 

Q6.4: Jury directions on other related matters Should jury directions about consent deal with other related matters in addition to those that they currently deal with? If so, what matters should they deal with? 

Q6.5: Legislated jury directions (1) Should jury directions on consent and/or other related matters be set out in NSW legislation? If so, how should these directions be expressed? (2) What are the benefits of legislated jury directions on consent and/or other related matters? (3) What are the disadvantages of legislated jury directions on consent and/or other related matters? 

Question 6.6: Amendments to expert evidence law (1) Is the law on expert evidence sufficiently clear about the use of expert evidence about the behavioural responses of people who experience sexual assault? If so, why? If not, why not? (2) Should the law expressly provide for the introduction of expert evidence on the behavioural responses of people who experience sexual assault? If so, why? If not, why not?

Aged Care Royal Commission

The terms of Reference for the Aged Care Royal Commission (headed by the Honourable Justice Joseph McGrath) are

RECOGNISING the contribution of older Australians to society, and that older Australians deserve high quality care in a safe environment that protects their wellbeing and dignity. 

AND the importance of building a national culture of respect for ageing and older persons. · 

AND that Australia's population is ageing and the proportion and number of people accessing and ne~ding care is increasing. 

AND the many positive examples of high quality care within the Australian aged care sector which engages thousands of dedicated people providing aged care services every day, complemented by the important contribution of families and volunteers. 

AND that as a community all Australians expect high standards of quality and safety from our aged care services, and it is important that the Australian Government has the best regulatory and policy framework to provide a sustainable aged care system that meets the needs of older Australians in the future. 

AND that it is important that frail, older people needing care should receive services that reflect and address their care needs. 

AND that the Commonwealth provides funding to, and regulates, providers of aged care services. . 

AND that some people residing in aged care facilities, including younger people, or otherwise receiving aged care services, have disabilities and Australia has undertaken relevant international obligations, including to take all appropriate legislative, administrative and other measures for the implementation of the rights of people with disabilities. 

NOW THEREFORE We do, by Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and under the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and every other enabling power, appoint you to be a Commission of inquiry, and require and authorise you, to inquire into the following matters:

(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response; 

(b) how best to deliver aged care services to: (i) people with disabilities residing in aged care facilities, including younger people; and (ii) the increasing number of Australians living with dementia, having regard to the importance of dementia care for the future of aged care services; 

(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including: (i) in the context of changing demographics and preferences, in particular people's desire to remain living at home as they age; and (ii) in remote, rural and regional Australia; 

(d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe; 

(e) how to ensure that aged care services are person-centred, including through allowing people to exercise greater choice, control and independence in relation to their care, and improving engagement with families and carers on care-related matters; 

(f) how best to deliver aged care services in a sustainable way, including through innovative models of care, increased use of technology, and investment in the aged care workforce and capital infrastructure; 

(g) any matter reasonably incidental to a matter referred to in paragraphs (a) to (f) or that you believe is reasonably relevant to the inquiry. 

AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters: 

(h) all forms of Commonwealth-funded aged care services, whatever the setting or environment in which those services are delivered; 

(i) all aspects of the quality and safety of aged care services, including but not limited to the following: (i) dignity; (ii) choice and control; (iii) clinical care; (iv) medication management; (v) mental health; (vi) personal care; (vii) nutrition; (viii) positive behaviour supportsto reduce or eliminate the use of restrictive practices; (ix) end of life care; (x) systems to ensure that high quality care is delivered, such as governance arrangements and management support systems; 

(j) the critical role of the aged care workforce in delivering high quality, safe, person-centred care, and the need for close partnerships with families, carers and others providing care and support; 

(k) the wide diversity of older Australians and the barriers they face in' accessing and receiving high quality aged care services. This should take into account the increasing incidence of chronic and complex conditions; 

(1) the interface with other services accessed by people receiving aged care services, including primary health care services, acute care and disability services, and relevant regulatory systems. This should take into account how people transition from other care environments or between aged care settings; · 

(m) examples of good practice and innovative models in delivering aged care services; 

(n) the findings and recommendations of previous relevant reports and inquiries. 

AND We further declare that you are not required by these Our Letters Patent· to inquire, or to continue to inquire, into a particular matter to the extent that you are satisfied that the matter has been, is being, or will be, sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiryand recommendations, to consider the following matters, and We authorise you, as you consider appropriate, to take (or refrain from taking) any action arising out of your consideration: 

(o) the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law, including, for example, for the purpose of enabling the timely investigation and prosecution of offences; 

(p) the need to ensure that evidence that may be received by you that identifies particular individuals as having been subject to inappropriate treatment is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries; 

(q) the need to establish appropriate arrangements in relation to current and previous inquiries, in Australia and elsewhere, for evidence and information to be shared with you in ways consistent with relevant obligations so that the work of those inquiries, including, with any necessary consents, the testimony of witnesses, can be taken into account by you in a way that avoids unnecessary duplication, improves efficiency and avoids unnecessary trauma to witnesses; 

(r) the need to establish, as you see fit and having regard to the date by which. you are required to submit your final report, appropriate arrangements for evidence and information to be shared with you by people about their experiences, including people receiving aged care services, their families, carers and others who provide · care and support, recognising that some people will need special support to share their experiences.  ...

AND We declare that, in exercising your powers under Part 2 of the Royal Commissions Act 1902, you are to inquire into the matters falling within the scope of paragraphs (a) to (g) only to the extent that Commonwealth constitutional power extends to those subjects of inquiry. 

AND We declare that you are a Royal Commission to which item 5 of the table in subsection 355-70(1) in Schedule 1 to the Taxation Administration Act 1953 applies. 

AND We declare that in these Our Letters Patent:  aged care services means services provided by any of the following: · (a) approved providers within the meaning of the Aged Care Act 1997; (b) entities to which a grant is payable under Chapter 5 of the Aged Care Act 1997; (c) entities to which funding is payable under a program relating to aged care specified in Schedule lAA or lAB to the Financial Framework (Supplementary Powers) Regulations 1997; (d) entities that receive funding for the purposes of the Veterans' Home Care Program established under the Veterans' Entitlements Act 1986.

The Commission is  to submit  an interim report  not later than 31 October 2019 (ie safely after the election)  and a final report   not later than 30 April 2020