Bodies

Another burial dispute. In Britt v Office of the State Coroner [2022] WASCA 75  Mitchell JA  states 

[37] The appellant, Ms Britt, is the mother of Ricky Chapman, who died without a will on 20 April 2022. The second respondent, Ms Schoppe, claims to have been in a de facto relationship with Mr Chapman at the time of his death. 

38 Ms Britt and Ms Schoppe are in dispute about the deceased's funeral arrangements. Ms Britt wants the deceased's body to be buried on Kaurna land in South Australia. Ms Schoppe wants the deceased's body to be cremated and his ashes released at the beach in Western Australia. 

39 On 7 June 2022, the primary judge heard and determined the dispute, finding in favour of Ms Schoppe. His Honour ordered that the deceased's body be released to Ms Schoppe and that she have carriage of his funeral. Ms Britt now appeals against the primary judge's orders. 

40 In my view, in the circumstances of the present case, the deceased's body should be released to the person who appears, on the current state of the evidence, to be most likely to be granted administration of the deceased's estate for her to make the relevant funeral arrangements. In the circumstances of this case, that person will be Ms Schoppe if she and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. 

41 I have taken a different view to Murphy and Beech JJA in relation to the proper construction of the primary judge's reasons for decision. I am not satisfied that the judge made any finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. I would uphold the ground of appeal which contends that the primary judge erred by failing to make that critical finding. 

42 However, considering the evidence for myself, it does appear to me that the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. Ultimately, I would exercise the court's discretion in the same manner as the primary judge and release the deceased's body to Ms Schoppe. Consequently, in my view, the appeal should be dismissed. 

Background 

The deceased 

43 The deceased was born in October 1989 in South Australia, and so was 32 years old at the time of his death. The deceased's father predeceased him. The family of the deceased's father reside in New South Wales. The deceased had one younger brother and three younger sisters. He maintained a close relationship with his brother (who is currently imprisoned in South Australia). 

44 The deceased had been in the care of a man named 'Bob' from the age of 12 years. He moved to Queensland with 'Bob' when he was around 13 or 14 years old. He then moved from Queensland to Western Australia approximately seven years ago. Shortly after moving to Western Australia, the deceased was imprisoned from October 2015 to April 2019. The deceased suffered non-fatal injuries from a bullet wound in December 2020 on the occasion when Ms Schoppe's stepfather was shot and killed.  He was again incarcerated between December 2020 and April 2021. 

45 The deceased was working as a fly in/fly out worker at a mine site at the time of his death. He had experienced seizures which had prevented him from working for about six months prior to his death. He died after suffering a seizure at work on 20 April 2022, some eight days after his return to work on the mine site. 

Coroner's decision 

46 On 12 May 2022, a coroner decided that a certificate should be issued under s 29 of the Coroners Act 1996 (WA), releasing the deceased's body to Ms Schoppe. The coroner proposed that he would, on 18 May 2022, issue the certificate to Ms Schoppe. 

Primary proceedings 

47 On 17 May 2022, Ms Britt commenced proceedings in the General Division of this court, seeking substantive orders that the deceased's body be released to her and that she have carriage of the deceased's funeral. 

48 On 18 May 2022, the primary judge granted an interim injunction restraining the coroner from issuing a certificate pursuant to s 29 of the Coroners Act or releasing the deceased's body to Ms Schoppe until further order of the court. His Honour also made orders programming the matter for final hearing on 27 May 2022 which included directions that: 1. Each of Ms Schoppe and Ms Britt file all affidavits on which they sought to rely by 4.00 pm on 25 May 2022; and 2. Each of Ms Schoppe and Ms Britt notify the other in writing of their intention to cross-examine on any affidavits by 12.00 pm on 26 May 2022. 

49 For reasons which are not entirely clear from the primary court file, the hearing did not occur until 7 June 2022. It may be noted that the appellant produced two further affidavits (of Ms Sullivan and Ms Walsh referred to at [86] - [88] and [89] - [94] below) and written submissions only on 6 - 7 June 2022. 

Primary judge's orders 

50 On 7 June 2022, the primary judge heard and determined Ms Britt's application for final relief. His Honour ordered that: 1. Ms Britt's application be dismissed. 2. The deceased's body be released to Ms Schoppe. 3. Ms Schoppe have carriage of the deceased's funeral arrangements. 

Legal framework 

51 The relevant legal framework may be summarised as follows. 

Scope of the court's discretion 

52 Section 4 of the Administration Act 1903 (WA) preserves the jurisdiction of the Supreme Court to determine who should have carriage of a funeral and where and how the body of a deceased person should be dealt with. 

53 The common law has long recognised the existence of rights and duties in connection with the burial of a corpse. An executor of the will of a deceased person has a duty to arrange for that person's funeral and a concomitant right to custody of the body for that purpose. The position is more complex when a person dies without leaving a will or naming an executor. 

54 Single judge decisions in Western Australia have held that the court will ordinarily order that the body be released to the executor of the deceased's will or, if there is no will, the person with the highest ranking entitlement to apply for letters of administration. The person to whom the body is released will then be left to determine funeral arrangements That proposition is derived from the decision of Young J in Smith v Tamworth City Council, in which his Honour described the rationale for the general approach in the following terms:

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, ... the person with the largest interest will normally be the person who is the one expected to bury the body. (citation omitted)

55 The passage just quoted was adopted by Perry J (Millhouse and Nyland JJ agreeing) in Jones v Dodd. In doing so, Perry J observed:

I have no difficulty in accepting the statement of the law so carefully expressed by Young J in that passage. But in the first place, it will be seen that in this statement of the principle, it is clear that it is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. In the second place, it is a statement of principle of more obvious application in cases where it is likely at some stage that there will be an application for administration.

56 Jones was a case in which an Aboriginal man died intestate without any significant assets and where there was unlikely ever to be an application for administration. The proper approach in such a case was described by Perry J in the following terms:

Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality. In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

57 Practical considerations may also be significant in a case where persons with equally-ranking rights to apply for administration are in dispute about funeral arrangements. 

58 A number of single judge decisions in other States have recognised the relevance, in disputes about burial, of considerations other than who is likely to be entitled to obtain letters of administration. Relevant matters have been recognised to include, to the extent they are known to the court, cultural considerations, the deceased's wishes and the wishes and sensitivities of living close relatives of the deceased. Regard has also been given to the need for the funeral and burial to be held in a timely way, and the costs and logistical difficulties attendant upon competing proposals. Various single judge decisions have recognised that, in some cases, it is not practicable to attempt to resolve disputes as to who has the better claim to be administrator where the proper resolution of the dispute would require substantial evidence and the testing of that evidence. The weight to be attributed to each of the relevant factors mentioned above is to be determined in the particular factual context of the dispute in the case. 

59 It appears from the above discussion that the court will ordinarily order that the body be released to: 1. the executor of the deceased's will; or 2. if there is no will, the person who appears on the state of the evidence before the court to be the person who is most likely to receive a grant of administration of the intestate estate (who will ordinarily be the person with the greatest interest in the estate). However, that is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied. The approach to be taken, and the weight to be given to the various considerations, depends upon the particular circumstances of the case. 

60 In determining the person to whom a deceased's body should be released, the court is not required to make any final determination of who is entitled to the intestate estate or administration of the estate. 

61 Often, as in the present case, the court will not be in a position to fairly and properly make a final determination as to who has such an interest or entitlement. Disputes about the release of a deceased's body must necessarily be resolved as soon as possible after the death of the deceased. There will always be an imperative for expedition in disputes of this nature, and it would be an affront to the dignity of the deceased and the emotional well-being of those close to the deceased for the funeral to be delayed for many months after death to allow questions of interest and entitlement to be fairly and properly resolved. That need for an expedited determination of the question of the deceased's funeral arrangements arises at a time when the parties to the dispute are in the midst of their grieving over the loss of a loved one. 

62 Particularly where the issue in dispute concerns the existence and duration of a de facto relationship, the fair final resolution of the dispute may require the parties to have the opportunity of presenting a large volume of evidence about the features of the relationship over a period of at least two years. The final determination of that dispute would require the court to give close attention to the detail of that evidence. It is well recognised that, outside the range of obvious cases, the evaluative judgment required in determining the existence and duration of a de facto relationship can be difficult and the characterisation of the relationship attended by a degree of uncertainty. In many such cases, it may be that different decision-makers could reasonably arrive at different conclusions on the same set of facts. In many cases, the fair and proper resolution of disputes as to the characterisation of a relationship between a deceased and another person may take time that is not available to the court. 

63 In Burrows, Pullin J observed:

However, I should add that even if the 'common or usual approach' is not a principle of law, it would have to be an extremely rare case to depart from the usual approach. I say this because a person who is granted letters of administration is the person who has the control over the burial arrangements ... If the 'common or usual approach' is not applied on nearly every occasion, then we might soon have the spectacle of intending applicants for a grant of letters of administration seeking injunctions to restrain any dealing with the body until there had been such a grant. That would be a most unsatisfactory course in practical terms. It is much better that the decision be made expeditiously and finally, as has occurred in recent cases. (citation omitted)

64 I agree with Pullin J's observations as to the need for expedition, and that the resolution of the question of the release of a deceased's body cannot await the grant of letters of administration. The considerations to which Pullin J referred in Burrows support the approach of the court making a swift decision as to who appears, on the state of the evidence before the court, to be the person who is most likely to receive a grant of administration of the intestate estate. It would seldom, if ever, be appropriate to await the outcome of a contested application for the grant of letters of administration. However, I would not say that the cases in which the court will depart from the usual approach would be 'extremely rare'. There may be a range of cases where the decision may be properly made by reference to, or having regard to, practical considerations. Examples include cases of a kind referred to at [56] and [57] above, or where those who appear most likely to receive a grant of administration are unwilling or unable to make proper funeral arrangements. 

65 Therefore, in determining how the discretion should be exercised in the case of a deceased who dies without a valid will, the court need not, and generally does not, finally resolve disputes as to the existence of an interest in, or entitlement to a grant of administration of, an intestate estate. Rather, the court is concerned with the question of who (if anyone) appears, on the state of the evidence then before the court, to be most likely to receive a grant of administration of the intestate estate. The court will usually determine that question in an expedited summary way without needing to resolve every factual dispute that may be relevant to the grant of administration and without undertaking any extensive cross‑examination. 

66 It is then necessary to turn to the provisions of the Administration Act in relation to the grant of administration of an intestate estate. 

Provisions of the Administration Act 

67 Section 25(1)(a) of the Administration Act empowers the court to grant administration of the estate of a person dying intestate (separately or conjointly) to 'one or more of the persons entitled in distribution to the estate of the intestate' who are over the age of 18 years. The normal approach to the exercise of this power is to grant letters of administration to the person who has the greatest interest as a beneficiary in the intestate estate. 

68 Section 14(1) of the Administration Act relevantly provides that, where a person dies intestate without issue (meaning without a lineal descendant), but leaving a wife, a parent and siblings, then:[65] 1. the wife is entitled to all household chattels included in the intestate property; 2. the wife is entitled to the first $705,000[66] of the net value of the other intestate property, together with interest on that sum and half of the net value of the other intestate property over $705,000; and 3. the parent and siblings are entitled to share in the other half of the net value of the other intestate property over $705,000. 

69 Section 15(1) of the Administration Act provides that: If the intestate dies leaving a de facto partner but no husband or wife, then where the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with section 14, to the intestate property to which a husband or wife of the intestate would have been entitled, had the intestate died leaving a husband or wife. 

70 Section 14(1) of the Administration Act also relevantly provides that, where a person dies intestate without a spouse or issue, but leaving a parent and siblings, then:[67] 1. the parent is entitled to the first $56,500[68] of the net value of the intestate property and one half of the net value of the intestate property over $56,500; and 2. the siblings are entitled to share in the other half of the net value of the intestate property over $56,500. 71 Therefore, if Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death, then she would have the greatest interest as a beneficiary in the deceased's estate and would normally be granted administration of the estate. If that were not the case, then Ms Schoppe would have no entitlement to the intestate property and Ms Britt, as the sole surviving parent of the deceased, would have the greatest interest in the deceased's estate and would normally be granted administration of the estate. 

Determining the existence of a de facto relationship 

72 The terms 'de facto relationship' and 'de facto partner' are defined in s 13A of the Interpretation Act 1984 (WA) in the following manner:

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship. 

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential: (a) the length of the relationship between them; (b) whether the 2 persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they care for and support children; (i) the reputation, and public aspects, of the relationship between them. 

(3) It does not matter whether: (a) the persons are different sexes or the same sex; or (b) either of the persons is legally married to someone else or in another de facto relationship. 

(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship. 

(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

73 This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O. The following general principles may be derived from the discussion in those cases: 1. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship. 2. The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship. 3. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances. 4. The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives. 

74 In H v P, Murphy JA (Pullin and Buss JJA concurring) made the following observations, in the context of family law proceedings, as to the assessment of whether and when a de facto relationship has come to an end: 

Just as it is difficult to discern when a relationship between two people can properly be said to be 'marriage-like', it can be equally difficult to determine when such a relationship comes to an end. In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage. Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. ... It follows that when a party to a de facto relationship determines that they no longer wish to live in a 'marriage-like' relationship and conducts their life on that basis, the de facto relationship comes to an end. Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives.

75 It has also been recognised that not every short interruption in a longer de facto relationship will bring the relationship to an end. Not every 'hiccup' in a longer marriage-like relationship will necessarily prevent the overall relationship from being characterised as a single de facto relationship rather than a series of discrete relationships. Depending on the circumstances, interspersed periods of separation may be characterised as merely bumps in the road, rather than the end of one road and the beginning of another.  ... 

98 Ms Britt deposed that she is an Aboriginal woman of the Kaurna nation, and that the deceased was an Aboriginal man of the Kaurna nation. She deposed that it is important that the deceased be buried rather than cremated as that is the Kaurna cultural practice, which is important to the community and her family. Mr Newchurch is an elder of the Kaurna people and deposed that it is important in Kaurna culture for burial rather than cremation to occur. He deposed that Kaurna funerals are important cultural events, at which large family gatherings are normal. He further deposed that the deceased's funeral on Kaurna land will be well-attended by Kaurna. 

99 Ms Britt also deposed that the deceased's younger brother, with whom he had a close relationship, is currently imprisoned in South Australia and so would not have the opportunity to attend a funeral in Western Australia. Ms Britt has given evidence of the brother's distress at the death of the deceased and her concern that if the brother cannot attend the deceased's funeral he will 'struggle significantly more than he is at the moment'. 

Ms Britt also deposed that she has health conditions which would prevent her from flying to Western Australia. 

100 Ms Schoppe's affidavit deposed that the deceased refused to acknowledge his Aboriginal heritage, and denied being Aboriginal when asked by her family and friends. After he was shot, he told Ms Schoppe that, if he did not wake up from surgery, he would want to be cremated and have his ashes spread along the beach. He had also told Ms Schoppe that he would never want to live back in South Australia because of the bad memories from his childhood.  ...

Primary judge's reasons for decision 

102 The primary judge gave ex tempore reasons for making the orders releasing the deceased's body to Ms Schoppe. His Honour identified the critical issue as being whether the deceased and Ms Schoppe were in a de facto relationship. After reviewing the evidence and having regard to the factors in s 13A(2) of the Interpretation Act, the primary judge concluded that they were in a de facto relationship. In that regard, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried. 

103 His Honour found that there was a period from late November 2021 ‑ early December 2021 when the deceased and Ms Schoppe were not residing together. His Honour characterised the period as a deterioration in the quality of the relationship, in which both parties were 'trying to work out the relationship', rather than an end to the relationship. 

104 The primary judge did not make any express finding as to when the de facto relationship between the deceased and Ms Schoppe began. The primary judge found that 'the longest period that the relationship might be said to exist was from sometime in late January 2020 to the date of Mr Chapman's death' on 20 April 2022. His Honour observed:

[W]hat has been submitted by the plaintiff is that you effectively cannot identify the start date of the relationship as being of the nature of a de facto relationship; however, in determining when the de facto relationship started, that will often be a process of looking back rather than requiring evidence of when they moved in. 

105 The primary judge concluded his consideration of the nature of the relationship between Ms Schoppe and the deceased by stating: So that means that I've found that [Ms Schoppe] was in a de facto relationship, and, in those circumstances, that she is entitled to conduct the funeral of Mr Chapman. 

106 The primary judge then held, in effect, that there was nothing disclosed in this case which would justify a departure from the common or usual approach that the person with the highest rank to take out administration of the estate will be given carriage of the funeral arrangements. 

The appeal to this court 

107 On 8 June 2022, Ms Britt instituted this appeal against the primary judge's orders. On that day, an interim order was made staying the enforcement of orders 2 and 3 set out at [50] above and restraining the coroner from issuing a certificate under s 29 of the Coroners Act, until 4.00 pm on 15 June 2022 unless otherwise ordered. An urgent appeal order was also made, programming the appeal for final hearing on 15 June 2022. 

108 Unfortunately, due to the late filing of the appellant's case and a proposed amendment to the grounds of appeal after the appellant's case was filed, it was necessary to defer the hearing of the appeal to 20 June 2022. The interim stay and injunction referred to above were extended to 4.00 pm on that date, and subsequently to the determination of the appeal. 

109 Ms Britt appeals to this court on the following three grounds: 1. [The primary judge] erred in fact and law when finding that [Ms Schoppe] had been continuously in a de facto relationship with Ricky Chapman (deceased) from, at least, 20 April 2020 until Mr Chapman’s death on 20 April 2022, within the meaning of 'de facto' provided in [s 13A of the Interpretation Act]. 1.1. His Honour erred in law by failing to determine that a de facto relationship between Mr Chapman and [Ms Schoppe] existed from, at least, 20 April 2020 with the consequence that the 2 year requirement in section 14 [of the] Administration Act was not met by the de facto relationship erroneously identified by him. 1.2. His Honour erred in law by making findings regarding the 'indicators' set out in [s 13A(2) of the Interpretation Act] contrary to the evidence before the Court on which His Honour relied when erroneously concluding there to have been a de facto relationship between Mr Chapman and [Ms Schoppe]. 2. [The primary judge] erred in fact when failing to find that any relationship between Mr Chapman and [Ms Schoppe] had broken down in or about late November 2021, prior to Mr Chapman’s death on 20 April 2022. 3. The learned Judge erred in law when failing to exercise his discretion to: 3.1. order the release of Mr Chapman’s body to [Ms Britt]; and 3.2. order that [Ms Britt] have carriage of the funeral arrangements for Mr Chapman according to the customs of the Kaurna Nation in South Australia. 

Error in failing to make a finding as to when the relationship began 

110 Ms Britt's written submissions in support of ground 1.1 contend that the primary judge erred by failing to make any finding as to when any de facto relationship between Ms Schoppe and the deceased began. In particular, Ms Britt contends that the primary judge failed to make any finding as to whether any de facto relationship had commenced prior to 20 April 2020. Ms Britt submits that it is an error to conflate the start of any kind of relationship between the deceased and Ms Schoppe with the point at which the parties to the relationship began living together in a marriage-like relationship. 

111 In my view, ground 1.1 is established to the extent that it asserts the primary judge to have erred in failing to make a finding as to whether any de facto relationship between the deceased and Ms Schoppe existed from at least 20 April 2020. 112 The primary judge's reasons are not directed to that correct legal question in relation to the potential entitlement of Ms Schoppe to the intestate estate. The reasons were rather directed to whether a de facto relationship existed and whether that relationship had ended in November - December 2021. The primary judge did not make any express finding as to the critical issue of when the de facto relationship, which his Honour found to exist, began. That was a fundamental issue as, unless the de facto relationship began prior to 20 April 2020, Ms Schoppe would not have any entitlement to the deceased's estate under s 15 of the Administration Act, and therefore would generally not be granted carriage of the deceased's funeral.   

113 The need for Ms Schoppe to establish that she and the deceased had lived as de facto partners for at least two years immediately before the deceased's death was highlighted in the appellant's submissions to the primary judge.[128] In those circumstances, particularly where the primary judge gave ex tempore reasons, the natural starting point might be to read the judge's finding as to the existence of a de facto relationship as an implicit finding that the relationship was of at least two years' duration. 

114 However, having regard to the primary judge's identification of the critical issue and to the structure and logic of his Honour's reasoning, I am not satisfied that his Honour made such an implicit finding. At the outset of his reasons, the judge twice identified the essential or principal issue as being whether the deceased and Ms Schoppe were in a de facto relationship. His Honour then directed attention to each of the matters in s 13A(2)(a) - s 13A(2)(i) of the Interpretation Act, so far as they were relevant. Next, the judge considered evidence bearing on whether the relationship had come to an end, before concluding that the relationship was a de facto relationship and that it had not come to an end. That structure of the reasons reveals and reflects the judge's identification of two issues: whether the relationship was a de facto relationship and whether it had come to an end. 

115 Moreover, in concluding that the relationship was a de facto relationship, the primary judge found it 'particularly persuasive', as an indication that they intended to create a family, that the deceased was excited when he found out that they were pregnant and was devastated when they miscarried.[133] Ms Schoppe discovered that she was pregnant in June 2020. The judge did not make any express finding that the deceased's response to the pregnancy and subsequent miscarriage shed light on the nature of the relationship as at April 2020. As discussed below, I would make such a finding. However, I do not regard such a finding to be so obvious as to go without saying, so as to be necessarily implicit in the judge's reasons. 

116 Further, the importance of showing that a marriage-like relationship existed prior to 20 April 2020 was emphasised at the conclusion of oral submissions advanced by counsel for Ms Britt, just before his Honour began his ex tempore reasons. I would expect the primary judge to have directly dealt with this submission if he had considered and rejected it. 

117 It is also significant that the primary judge's reasons did not make any reference to s 15(1) of the Administration Act or to a necessity for any de facto relationship to have subsisted from a particular period prior to the deceased's death. 

118 The only reference to s 15 in oral or written submissions was in a footnote to the second of the following quoted paragraphs: [Ms Schoppe] asserts that she was the de facto partner of the deceased for the purposes of the [Administration Act] at the time of his death. [Ms Britt] accepts that, should this Honourable Court determine that [Ms Schoppe] was the de facto partner of the deceased at the time of his death, [Ms Schoppe] would rank above [Ms Britt] for the purposes of the [Administration Act]. (emphasis added) 

119 Most of the oral and written submissions of counsel for Ms Britt were directed to whether the evidence established the existence of a de facto relationship at all, or whether any de facto relationship had ended by the time of the deceased's death. The passage quoted from the written submissions at [118] above suggests that these were the only critical issues. I am not convinced that the statutory requirement for any de facto relationship to subsist for at least two years prior to death was given such prominence in the written and oral submissions advanced on Ms Britt's behalf that it can be inferred that the primary judge could not possibly have overlooked the issue. 

120 I make full allowance for the fact that the primary judge properly decided to deliver ex tempore reasons at the conclusion of argument in an urgent matter. However, even making that allowance I am unable to construe the judge's reasons as making any express or implicit finding in relation to the critical issue of whether any de facto relationship began prior to 20 April 2020. Given: 1. The absence of any reference in the judge's reasons to the statutory requirement for a de facto relationship to subsist for any period prior to death; 2. The judge's statement that the critical issue was whether or not the deceased and Ms Schoppe were in a de facto relationship; 3. The structure of the judge's reasons and the findings his Honour made as to whether a de facto relationship existed at all and as to whether it ended; and 4. The judge's failure to deal with Ms Britt's submissions as to whether the evidence established that any relationship had begun by 20 April 2020, I cannot construe the reasons, having regard to the context of the preceding oral submissions and written submissions, as implicitly finding that the de facto relationship had subsisted for at least two years prior to the deceased's death. 

121 This is sufficient to establish a material express error in the primary judge's reasons, so as to require this court to consider for itself the proper exercise of the discretion. It is unnecessary and (given the urgency of the matter) undesirable for the matter to be remitted, as this court is in as good a position as the primary judge to make findings of primary fact and draw inferences from primary facts established by the evidence. The evidence adduced before the primary court was entirely documentary. No oral evidence was adduced, and no party sought to cross-examine any other party on their affidavits. In light of the established error, I will make my own assessment of the affidavit and other documentary evidence. 

122 It is, therefore, unnecessary for me to determine grounds 1.2, 2 and 3 of the appeal. It is also unnecessary to determine ground 1.1 so far as it contends that the evidence was not capable of satisfying the primary court that any de facto relationship commenced prior to 20 April 2020. Ms Britt's arguments as to the facts established directly or inferentially by the evidence will be addressed when I make my own factual findings and consider how the discretion ought to be exercised. 

Re-exercise of the discretion 

123 I therefore turn to make my own determination of whether, on the evidence adduced in the primary proceedings, Ms Schoppe or Ms Britt was the person who is most likely to receive a grant of administration of the deceased's intestate estate. 

124 As the party asserting the existence of the relationship, in a contested application for letters of administration Ms Schoppe would bear the onus of adducing admissible evidence to establish, on the balance of probabilities, that she and the deceased were in a de facto relationship for a period of at least two years immediately before the deceased's death. That is, in the circumstances of this case, Ms Schoppe would bear the onus of establishing that she and the deceased were continuously in a de facto relationship from a period beginning no later than 20 April 2020 up until the deceased's death on 20 April 2022. 

125 As noted above, the question at this stage is not whether Ms Schoppe has established an entitlement to administration of the intestate estate by establishing the continuation of a de facto relationship from 20 April 2020 to 20 April 2022. Rather, at this stage the question is whether, on the current state of the evidence, Ms Schoppe is the person who appears most likely to receive a grant of administration of the deceased's intestate estate. 

Appellant's submissions 

126 In essence, Ms Britt contends: 1. the evidence adduced by Ms Schoppe was insufficiently detailed and specific to support a conclusion that she and the deceased were in a de facto relationship at all; 2. the evidence did not support a conclusion that any de facto relationship began prior to 20 April 2020 (ie at least two years prior to the death of the deceased); and 3. the evidence established that any de facto relationship had broken down in or about late November 2021. 

127 Counsel for Ms Britt also contends that the cultural values and spiritual and religious beliefs of the deceased's maternal family (who are Aboriginal people of the Kaurna nation in South Australia) should be given weight. Counsel contends that the maternal family should be given the right to make the deceased's burial arrangements irrespective of the nature and duration of the relationship between Ms Schoppe and the deceased. 

Respondent's submissions 

128 Ms Schoppe submits that the primary judge made a fair and reasonable decision on the evidence before him. She accepts that '[i]n the innocence of inexperience, I could have worded things better'. However, Ms Schoppe in effect submits that the evidence supports the conclusion that she and the deceased were in a de facto relationship from January 2020 until his death in April 2022. 

129 Ms Schoppe also submits that the cultural values and spiritual beliefs of the deceased's family should not be considered because they were not values and beliefs shared by the deceased. 

Nature of Ms Schoppe's relationship with the deceased 

130 Putting aside questions of when the relationship began and whether it ended before the deceased died, it appears to me on the current state of the evidence that Ms Schoppe was in a marriage‑like relationship with the deceased. 

131 The evidence showed that their relationship existed from December 2019 until at least November 2021. During that time, they resided together in the same house, apart from the periods that the deceased was in prison or working away on his fly in/fly out shifts. It is significant that, when Ms Schoppe stayed with her mother to provide comfort and support after the death of her stepfather, Mr Nick Martin, the deceased went with her. Although not expressly stated, it is clearly implicit in Ms Schoppe's evidence that there was a sexual relationship between her and the deceased. The couple's reaction to Ms Schoppe's pregnancy and miscarriage demonstrated a commitment to living a shared life together. Irrespective of whether or not the pregnancy was planned, the reaction to it demonstrated a willingness to start a family together that was indicative of a deep commitment to an enduring relationship with each other. Ms Schoppe's commitment to a shared life with the deceased was also demonstrated by her emotional and (albeit unspecified) financial support for the deceased during his period of incarceration from December 2020 ‑ April 2021 and the period when he was unable to work in the approximately six months prior to his death. The only holiday which they are referred to taking was a holiday together with Ms Schoppe's friends. 

132 Counsel for Ms Britt submits that the lack of detail, or any evidence at all, as to the financial relations and other arrangements between the deceased and Ms Schoppe precludes a finding of a de facto relationship. I do not accept that submission. Findings about the living arrangements of and financial contributions by the deceased are not essential to the proper characterisation of the relationship. I accept that matters about which there is no evidence, or where there is an absence of detailed evidence, have the potential to affect the assessment of the nature of the relationship. However, the task of the court is to characterise the nature of the relationship by reference to the evidence that was adduced, rather than speculate about matters not in evidence. On the current state of the evidence, it appears to me that the relationship between Ms Schoppe and the deceased is properly characterised as a de facto relationship. Did the de facto relationship end before the deceased's death? 

133 Ms Schoppe's affidavit deposed to the fact that the deceased never moved out of her Mirrabooka house and the fact that they maintained their relationship up until his death. She deposed only that they had arguments that would last for a day or so. The evidence is expressed in very general and often conclusionary terms. However, if that evidence were to be accepted then it would indicate that the previously described relationship, which may be characterised as a de facto relationship, continued up until the time of the deceased's death. ...

Who appears more likely to be granted administration? 

145 In my view, the most probable inference, on the evidence before the primary judge, is that Ms Schoppe and the deceased lived as de facto partners for a period of at least two years immediately before the deceased's death. 

146 Therefore, it appears, on the current state of the evidence, that: 1. Ms Schoppe has an interest in the deceased's intestate estate under s 14 and s 15 of the Administration Act, so as to enable her to be granted administration under s 25(1)(a) of that Act; 2. Ms Schoppe has the greatest interest in the administration of the deceased's intestate estate under the Administration Act; and 3. Ms Schoppe is the most likely person to be granted administration of the deceased's estate. 

Manner in which the discretion ought to be exercised 

147 There is no sufficient reason in the present case to depart from the ordinary approach of releasing the deceased's body to the person who appears most likely to be granted administration of the deceased's estate (Ms Schoppe) for her to make the relevant funeral arrangements. 

148 I accept that the evidence, referred to at [98] above, of the cultural importance of burial to members of the deceased's maternal family is a factor counting in favour of the deceased being released for burial in South Australia. The fact that members of the deceased's family in South Australia may be unable to attend a funeral in Western Australia, as noted at [99] above, is another practical consideration counting in favour of releasing the deceased's body to Ms Britt for burial in South Australia. 

149 On the other hand, there is also evidence, referred to at [100] above, that the deceased did not acknowledge his Aboriginal heritage, has no continuing connection with South Australia and wished for his remains to be disposed of in the manner proposed by Ms Schoppe. 

150 On balance, I do not consider the evidence of these competing practical matters to justify a departure from the usual approach to the exercise of the court's discretion. In all of the circumstances, I consider that the appropriate exercise of the court's discretion is to order that the deceased's body be released to Ms Schoppe, who should have carriage of the funeral arrangements.

Coroners

'Turnaround time data for Coronial autopsies – time to complete forensic post-mortem examination reports and influencing factors for Australia and New Zealand in 2015 and 2010' by Neil E I.Langlois, Claire J Sully and Suzanne Edwards in (2019) 15(1) Forensic Science, Medicine and Pathology 56–66 comments

This study aimed to provide information regarding key performance indicators (KPIs) for forensic pathology in Australia and New Zealand, focusing on the time to complete a Coronial post-mortem examination report. Data was obtained from the National Coronial Information System (NCIS). The mean and median time to complete a post-mortem examination report in 2015 was determined from a sample of 100 cases from each of the nine Coronial jurisdictions. Results of univariate and multivariable analysis of factors potentially influencing the completion time are presented. The multivariable analysis indicated the time to complete a post-mortem examination report was significantly dependent on if any internal examination had been performed, the Coronial jurisdiction and requesting toxicological analysis. The number of days for Coroners to close cases is also presented as well as the number of days for a post-mortem examination to be performed. A comparison between 2015 and 2010 was instigated. However, this data had to be constrained to eight of the Coronial jurisdictions. Within this dataset, the time to complete a post-mortem examination report when an internal examination had been performed was statistically significant greater in 2015. However, the time to complete reports for all Coronial post-mortem examinations in 2015 was not statistically significantly different to 2010. This could be attributed to a higher proportion of post-mortem examinations without internal examination (‘external only’) in 2015. The time to perform a post-mortem examination following the death being reported to a Coroner increased, but the time for Coroners to close a case decreased.

In Paterson v Coroner King [2019] WASC 25 the Western Australia Supreme Court has considered Indigenous concerns regarding autopsies, a matter discussed in  'Autopsies, scans and cultural exceptionalism' by Bruce Baer Arnold and Wendy Bonython in (2016) 41(1) Alternative Law Journal 27.

The Court responded to an application made by senior next of kin for an order that no post mortem examination be performed on a deceased child, noting the relevance of spiritual and cultural beliefs in relation to the Coroners Act 1996 (WA) s 37 before ordering

 No post mortem examination is to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of any permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased 

The Court states

The deceased died on 10 January 2019 at Perth Children's Hospital. She was 14 years old. The applicant is the deceased's mother, and for the purpose of the Coroners Act s 37, the applicant is the senior next of kin. The application is supported by the deceased's father, Mr Geoffrey Dean Pryor. On 10 January 2019, the Coroner 's Court was advised by the Western Australian Police Force of the death of the deceased, and that the deceased's father objected to a post mortem examination being performed on the deceased. On 11 January 2019, the respondent wrote to the applicant and to Mr Pryor, informing them that he had decided that a post mortem examination was necessary. 

The respondent proffered the following reason for his decision: On the basis of information available to me at this time, it does seem likely that [the deceased] died from ligature compression of the neck, though a forensic pathologist has not yet examined her body. Despite that likelihood, even if a coroner can determine what caused [the deceased's] death the coroner will also have to determine the circumstances surrounding her death. The information currently available indicates, among other things, that [the deceased] may have ended her life due to psychological stress associated with circumstances that might be identified through a full post mortem examination. I have therefore decided that a post mortem examination is necessary. 

This correspondence constituted notice in writing to the senior next of kin for the purposes of the Coroners Act s 37(1). The Coroners Act s 37(2) provides that unless the Coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision, or until after the end of any extension of time granted by the Supreme Court under s 37(3a). The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. 

On 15 January 2019, the applicant made an urgent ex parte application pursuant to s 37(3a). I heard the application and granted the applicant an extension of time in which to apply to this court for an order that no postmortem examination be conducted, having been satisfied that exceptional circumstances existed so that it was necessary in the interests of justice to grant the extension. The substantive application was promptly made on behalf of the applicant and listed for hearing on an urgent basis. ... 

The applicant opposes the performance of a post mortem examination on the deceased on spiritual and cultural grounds. The applicant is an Aboriginal woman who was raised in South Australia, and who has lived in Western Australia and Victoria. She was brought up by her father's parents, who were a part of the Aboriginal community in the Riverland area of South Australia, and was encouraged to learn about her Aboriginal culture. The applicant's evidence is that it is her absolute belief that if an autopsy is carried out, the deceased's soul will be forever tormented and will never have peace; but if her body is buried whole, her spirit will be at peace. The applicant also deposes to her belief as to the distress that will be caused to her family by the performance of a post mortem examination. 

Mr Pryor is a Noongar man, whose ancestors were from the Perth area. He deposes to his belief in an Aboriginal afterlife, and that it is his belief that the deceased should not be cut. The applicant also relied (without objection) on the evidence of Ms Hayden, cultural advisor and social worker. Ms Hayden is recognised by the Noongar community of the South West of Western Australia as an Elder. Ms Hayden deposes to having shared her cultural knowledge and expertise in various capacities with the Western Australian community, Aboriginal community, the Government of Western Australia, and non-government organisations. Ms Hayden does not know the applicant, Mr Pryor, nor the deceased personally. Ms Hayden deposes that it is her understanding of Noongar culture and spirituality that the body of the deceased should not be disturbed as it will prevent peaceful passage to the Dreamtime; the consequence of disturbance will be that the spirits of the deceased and her surviving family will be unsettled; and that these cultural and spiritual beliefs are shared by other Aboriginal groups in Western Australia. 

Ms Hayden further deposes that: By undertaking a post mortem examination, the deceased's body will be disturbed. The scars created by the post mortem examination will unsettle the spirit of the deceased and will prevent her peaceful passage into the Dreamtime.

The Coroner

did not take issue with the admission of the evidence of the spiritual and cultural beliefs of the deceased's family, nor with the admission of the evidence of Ms Hayden. The respondent accepted that the applicant's cultural beliefs, and the effect on the applicant and her family of the performance of a post mortem examination on the deceased, are relevant considerations in the determination of an application made pursuant to s 37(3). 

The respondent maintained however, that while great care should be taken to ensure that spiritual and cultural beliefs are not disregarded or abused, they are not determinative and must be balanced against the public interest. As at the time of the hearing of the application, no post mortem examination of any kind had been performed on the deceased. 

It was clear from the evidence of Ms White that a post mortem examination may include a range of procedures. Less invasive procedures include xraying the body and obtaining samples for toxicology testing without making incisions in the body, such as obtaining blood, fluid from the back of the eye, and (where the bladder appears to be full) obtaining a urine sample. Invasive procedures (that might be conducted in a 'full' post mortem examination) include the removal of tissue and internal examination. 

It was the respondent's position that a 'full' post mortem examination was necessary in the circumstances of this case in light of the following. 

First, the coroner must find, if possible, the cause of death. The respondent says that while it seems likely that the deceased's death was caused by ligature compression of the neck, the cause of death cannot be determined without a post mortem examination. In this regard, Ms White deposes that from the information that she had been provided by the coroner in relation to the deceased, it is possible that she may be able to determine the cause of death without a full post mortem examination. However, if a 'full' post mortem examination was to be performed, she would be able to exclude certain possibilities as to the cause of death of the deceased that she could not otherwise exclude. 

Secondly, in the absence of a decision (which had not been made) that there was no public interest in making a finding, the coroner must find if possible how the death occurred. The respondent observed that limited information had been obtained about how the death of the deceased occurred (that is, the surrounding circumstances), but the information that was available required further investigation which may be assisted by a 'full' post mortem examination.

The Court notes that under the statute

The term 'post mortem examination' is given a broad definition, being an examination of the body of a person who has died, for the purpose of investigating the death. It is an examination conducted by a pathologist or a doctor.A post mortem examination does not necessarily involve cutting, or the removal of tissue. A coroner may however, direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.This power is subject to the limits prescribed in s 34. 

Post mortem examinations

(1) If a coroner reasonably believes that it is necessary for an investigation of a death, the coroner may direct a pathologist or a doctor to perform a post mortem examination on the body. 

(2) The coroner may direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death. 

(3) The pathologist or doctor performing the post mortem examination may cause tissue to be removed from the body - (a) in accordance with a direction under subsection (2); or (b) in accordance with the written permission of the deceased; or (c) subject to subsection (5)(b), in accordance with the written informed consent, in the prescribed form, of the senior next of kin of the deceased specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed. 

(4) The coroner may direct the pathologist or doctor performing the post mortem examination not to cause tissue to be removed as authorised under subsection (3)(c) if the coroner is satisfied that the removal would be contrary to or inconsistent with wishes expressed in writing by the deceased. 

(5) Where a post mortem examination is performed under this Act a person who causes tissue to be removed from the body - (a) otherwise than as authorised under subsection (3); or (b) contrary to a direction of a coroner under subsection (4), commits an offence. Penalty: $10 000. 

(6) Tissue removed under subsection (2) is to be dealt with in accordance with the coroner ’s directions and any relevant guidelines. 

(7) Where tissue is to be removed as authorised under subsection (3)(b), the coroner is to ensure that before the tissue is removed, the senior next of kin of the deceased is informed in writing what tissue is to be removed and the purpose for which it is to be removed and is given a chance to view the written permission of the deceased.

Importantly the Coroners Act s 37(2)

provides that unless the coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision or until after the end of any extension of time granted by the court under s 37(3a). 

The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. The court may make an order that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances. ... 

This court is not being empowered to sit on appeal from the coroner 's decision, but to exercise the jurisdiction afresh, to balance compelling and competing views, and to look into what is desirable in all of the circumstances. This approach was adopted by Anderson J in Ronan v The State Coroner where at [7], his Honour found as follows: It is always of course a balancing exercise; the interests on one side have to be weighed against the interests on the other, essentially. Because there is in this case absolutely no indication that there are suspicious circumstances, I have come to the conclusion that the spiritual and cultural beliefs to which I have referred outweigh the public interest in knowing the precise cause of this death. For these reasons, I am prepared to make the order which I have indicated that I will make. For the sake of formality, I will put a proviso into the order: save for the taking of blood and urine samples. At the hearing of the application, counsel for the applicant confirmed that the applicant did not object to an external examination of the body being performed. The applicant's concern, and the concern of her family, arose from the amount of time that had elapsed, but more so from the act of autopsy, and the cutting and scarring of the body of the deceased. The concern did not arise from the possibility of any examination being performed at all.

Accordingly, in Paterson the Court states

In exercising the jurisdiction afresh and in giving consideration to what is desirable in all of the circumstances, I determined that it was appropriate to order that no post mortem examination was to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of a permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased. 

In coming to this decision, I weighed the following matters in the balance. The spiritual and cultural beliefs of the deceased person's family It is clear on the authorities that it is appropriate and proper to have regard to the spiritual, cultural and religious beliefs of a deceased person's family in determining whether a post mortem examination ought to take place. On the affidavit evidence that was before me, I accepted that it was the strong wish of the deceased's parents that no post mortem examination take place; that the applicant was especially concerned that if the deceased's body was subject to a post mortem examination, her daughter's spirit would not be able to find peace; that this is a concern was genuine and was shared by her immediate family; and that it is a genuinely and strongly held belief which is found in Aboriginal cultural broadly, and is reflected in local Aboriginal cultural groups including the Noongar People. ... 

The respondent said, to which I agreed, that the applicant's cultural and spiritual beliefs, and the effect on the applicant and her family of the performance of a post mortem on the deceased must be balanced against the public interest. I also agreed with the respondent that where a post mortem examination would be of more than marginal assistance in the proper exercise of coronial functions, functions which the coroner is legally obliged to perform, the public interest in undertaking an examination will often outweigh the great distress that performing that examination will have on the family of the deceased person. 

On behalf of the respondent, the following circumstances were cited by way of example: where there are suspicious circumstances surrounding the death; where a pathologist is unable to conclude a cause of death absent a post mortem examination; and where a post mortem examination may reveal something meaningful about the circumstances of death. 

Counsel for the applicant cited a number of cases where the court ordered that no post mortem examination be conducted despite the fact that in each instance, the public interest factors that had led the coroners in question to direct the performance of post mortem examinations were compelling. 

Whilst examination of the authorities was undoubtedly relevant, and I had regard to them, it was necessary to adjudicate upon the particular facts that applied in this case.... 

In coming to my decision, I weighed in the balance that a coroner must find, if possible, the cause of death. This is not a case where death was a result of natural causes. In this case, while it seemed likely that the deceased's death was caused by a ligature pressure to the neck, I accepted that the cause was unlikely to be able to be conclusively determined without a post mortem examination. I weighed in the balance the fact that the information available to the police as at the date of hearing was limited. At that time, the police did not have the benefit of a complete statement from the deceased's father. However, from the notice issued by the coroner, it could be reasonably construed that as at 11 January 2019, the coroner did not harbour any particular suspicion that the deceased's death was caused by anything other than suicide. It would appear that the coroner 's purpose in ordering a post mortem examination was to better understand the factors that might have contributed to her death, rather than to determine the actual cause of death. ... 

Taking into account and balancing all of the evidence and the interests before me, including the public interest, I found that it was desirable that the cultural and spiritual beliefs of the applicant prevailed and that there be no examination of the deceased which involves making a cut or incision into the body of the deceased, or the making of a permanent mark on the body of the deceased. may be performed on the body of the deceased.

Suicide and Australian Coroners

'Determining A Suicide Under Australian Law' by Stephanie Jowett, Belinda Carpenter and Gordon Tait in (2018) 41(2) UNSW Law Journal 355 comments

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

The authors argue

 Coroners’ findings contribute to national suicide statistics in Australia. Indeed, coroners are presently the only legal persons who make routine determinations of suicide so that it may be coded as such. As a result, the process by which coroners make determinations of suicide is critically linked with policymaking in public health and mental health, as well as planning and funding of suicide prevention strategies. Issues surrounding coronial determinations of suicide have been the subject of increased scrutiny and commentary in Australia since the Australian Senate’s report, The Hidden Toll: Suicide in Australia (‘The Hidden Toll’), revealed the extent of underreporting of suicides. As recently as 2014, a report by the Coronial Council of Victoria expanded on the ways in which the law relating to suicide contributes to that problem. It has been suggested that key reasons for underreporting are inconsistencies in coronial practices and a reluctance by coroners to make explicit findings of intent. 

Given that coroners are the only persons tasked with making routine legal determinations of suicide in Australia, the process by which coroners come to such a finding is an important yet relatively under-researched and under-analysed element of this process. To date, most research to investigate the process of suicide determination by coroners has focused on the output of coronial decision-making in the form of secondary analysis of coronial data. In contrast, this article examines the legislation, case law and secondary literature relating to suicide determinations in all Australian jurisdictions to determine precisely what law informs coroners in their suicide deliberations. 

As the first comprehensive review and analysis of the Australian law in this area, this article builds on recommendations made by the Coronial Council of Victoria and the Senate Community Affairs References Committee in their report, The Hidden Toll. It suggests that a major barrier to consistent and accurate suicide reporting is the lack of clarity in the law guiding coroners in their practice. Specifically, that the impediments to uniform approaches to determinations of suicide may be caused by practical barriers, including requirements to hold an inquest or make a definitive finding within the binary of suicide/not suicide, and interpretational barriers, including what constitutes a suicide and the applicable standard of proof. It concludes that a severely underdeveloped legal framework for the identification of suicide in Coroners Acts is compounded by a lack of definitional clarity, and a subsequent over-reliance on English coronial law and Australian criminal law, both of which rely on a standard of proof beyond that required within the coronial jurisdiction. It is recommended that clarification of the law as well as the publication of inquest findings would be a minimum required for Australian coronial law to develop in this area. 

To determine the law applicable in this area, the approach taken in this review is multifaceted. First, the Coroners Acts in each jurisdiction have been searched for any mention of suicide or intent as well as any sections relevant to when findings can be made and what they may contain. The websites of Coroners Courts have also been searched for any other sources of official guidance. Second, legal databases have been searched for case law relating to determinations of suicide under Australian law. Third, secondary literature has been reviewed in the form of scholarly academic literature as well as key coronial texts. Due to the difficulty of accessing inquests online, details from inquests have generally been included only where the case was raised in the literature. For this reason, emphasis is given to discussion of the law in selected inquests, such as Tyler Cassidy and Rebekah Lawrence.It is important to note that within Australia, inquests are notoriously difficult to access and search.[9] As a consequence of this, there exists no readily available pool of relevant case law, experience, and precedent related to findings of suicide for the coroners to access and apply within their own decision-making processes.

NSW Guardianship Recommendations

Recommendations in the NSW Law Reform Guardianship report noted in the preceding post are

4. A new assisted decision-making framework 

4.1 A new Act 

(1) There should be a new Act to provide for supported decision-making and substitute decision-making called the Assisted Decision-Making Act (“the new Act”). 

(2) The new Act should replace the Guardianship Act 1987 (NSW) and the enduring power of attorney provisions in the Powers of Attorney Act 2003 (NSW). 

(3) The new Act should include: (a) statutory objects and general principles that reflect the values upon which the Act is based and guide its interpretation and implementation (b) principles to guide the assessment of decision-making ability (c) assisted decision-making arrangements and the mechanisms for putting these in place, including processes for personal appointments, court and tribunal appointments and default arrangements (d) principles to guide people acting under the new Act (e) the roles and responsibilities of people acting under the new Act (f) safeguards that ensure accountability of people acting under the new Act, including monitoring and review of orders and decisions, and (g) the functions and powers of a new Public Advocate role. 

4.2 Language and structure of the Act 

The new Act should contain language and a structure that are as simple and as accessible as possible. 

4.3 Key terms 

The new Act should provide: (1) The Guardianship Division of the NSW Civil and Administrative Tribunal is to be renamed the Assisted Decision-Making Division (“the Tribunal”). (2) When someone appoints another person to make personal, financial, healthcare and/or restrictive practices decisions on their behalf, that person is to be referred to as an “enduring representative” and the person on whose behalf they act as a “represented person”. (3) A person appointed by the Supreme Court or Tribunal to make personal, financial, healthcare and/or restrictive practices decisions on behalf of someone else is to be referred to as a “representative” and the person on whose behalf they act as a “represented person”. (4) A person appointed by the Tribunal or under a support agreement to support someone else make decisions is to be referred to as a “supporter” and the person they support as a “supported person”. (5) The NSW Trustee and Guardian is to be renamed the NSW Trustee. (6) The Public Guardian is to be renamed the Public Representative. 

4.4 Personal decisions 

The new Act should provide: (1) A “personal decision” is a decision that relates to personal or lifestyle matters. (2) The following are examples of personal decisions: (a) where a person lives (b) who a person lives with (c) whether a person works and, if a person works, where and how the person works (d) what education and training a person undertakes (e) what kind of personal services the person receives (for example, in-home care, respite services, or occupational therapy) (f) whether a person applies for a licence or permit (g) day-to-day decisions about, for example, dress and diet (h) whether to consent to a forensic examination of a person (i) whether a person will go on a holiday and where, and (j) legal matters relating to a person’s personal care. 

4.5 Financial decisions 

The new Act should provide: (1) A “financial decision” is a decision about one or more aspects of a person’s property. (2) The following are examples of financial decisions: (a) paying maintenance and accommodation expenses (including future expenses) for a person and the person’s dependants (b) paying a person’s debts and expenses (c) receiving and recovering money payable to a person (d) carrying on a person’s trade or business (e) performing contracts entered into by a person (f) discharging a mortgage over a person’s property (g) paying rates, taxes and other outgoings for a person’s property (h) insuring a person or their property (i) preserving or improving a person’s property (j) buying and disposing of property (k) dealing with land for a person (l) making or continuing investments for a person (m) making gifts and donations (n) executing documents (for example, contract for sale of goods or property, signing a lease, and authorising bank payments) (o) undertaking a transaction for a person involving the use of the person’s property as security for the benefit of the person (p) withdrawing money from, or depositing money into, a person’s account with a financial institution (q) taking up the rights to the issue of new shares to which the person is entitled, and (r) making decisions on legal matters relating to a person’s finances or property (for example, bankruptcy, signing contracts or deeds, and retaining a lawyer for legal advice).   

4.6 Healthcare decisions 

The new Act should provide: (1) A “healthcare decision” is a decision about a person’s healthcare. (2) “Healthcare” has the meaning set out in Recommendation 10.4. 

4.7 Restrictive practices decisions 

The new Act should provide that: (a) A “restrictive practices decision” is a decision to approve or disapprove the use of restrictive practices on a person. (b) “Restrictive practice” means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person. 

5. Objects and principles 

5.1 Statutory objects 

The new Act should include a statement of statutory objects that sets out that: (a) the Act is founded on the principle that people in need of decision-making assistance have the same human rights as all members of the community and that the State and the community have a responsibility to facilitate the exercise of those rights, and (b) the objects of the Act are accordingly to: (i) implement the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities, and (ii) promote the independence and personal and social wellbeing of people in need of decision-making assistance and provide safeguards in relation to the activities governed by the Act. 

5.2 General principles 

The new Act should provide that it is the duty of everyone exercising functions under the Act to observe the following principles with respect to people in need of decision-making assistance: (a) Their will and preferences should be given effect wherever possible, in accordance with Recommendation 5.4. (b) They have an inherent right to respect for their worth and dignity as individuals. (c) Their personal and social wellbeing should be promoted. (d) They have the right to participate in and contribute to social and economic life. (e) They have the right to make decisions that affect their lives (including decisions involving risk) to the full extent of their ability to do so and to be assisted in making those decisions if they want or require assistance. (f) They have the right to respect for their age, sex, gender, sexual orientation, cultural and linguistic circumstances, and religious beliefs. (g) They should be supported to develop and enhance their skills and experience. (h) They have the right to privacy and confidentiality. (i) They have the right to live free from neglect, abuse and exploitation. (j) Their relationships with their families, carers and other significant people should be recognised. (k) Their existing informal supportive relationships should be recognised. (l) Their rights and autonomy should be restricted as little as possible. 

5.3 Additional general principles for Aboriginal people and Torres Strait Islanders 

The new Act should provide that everyone exercising functions under this Act with respect to a person in need of decision-making assistance who is an Aboriginal person or Torres Strait Islander must: (a) to the extent that it is practicable and appropriate to do so, act in accordance with that person’s customary law, culture, values and beliefs (b) recognise that Aboriginal people and Torres Strait Islanders have a right to respect and acknowledgment as the first peoples of Australia and for their unique history, culture and kinship relationships and connection to their traditional land and waters (c) recognise that many Aboriginal people and Torres Strait Islanders may face multiple disadvantages (d) address that disadvantage and the needs of Aboriginal people and Torres Strait Islanders, and (e) work in partnership with Aboriginal people and Torres Strait Islanders in need of decision-making assistance to enhance their lives. 

5.4 Determining a person’s will and preferences 

The new Act should state that anyone exercising functions under it should approach the task of giving effect to a person’s will and preferences wherever possible, as follows: (a) First, to be guided by the person’s expressed will and preferences (including a valid advance care directive) wherever possible. (b) If these cannot be determined, to be guided by the person’s likely will and preferences. These may be determined by the person’s previously expressed will and preferences, and by consulting people who have a genuine and ongoing relationship with the person and who may be or have been aware of the person’s will and preferences. (c) If these too cannot be determined, to make decisions that promote the person’s personal and social wellbeing. (d) If giving effect to a person’s will and preferences creates an unacceptable risk to the person (including the risk of criminal or civil liability), to make decisions that promote the person’s personal and social wellbeing. (e) Regardless, a person’s decision to refuse healthcare in a valid advance care directive must be respected if that refusal is clear and extends to the situation at hand. 

6. Decision-making ability 

6.1 Definition of decision-making ability 

The new Act should provide that a person has decision-making ability for a particular decision if they can, when the decision needs to be made: (a) understand the relevant information (b) understand the nature of the decision and the consequences of making or failing to make that decision (c) retain the information to the extent necessary to make the decision (d) use the information or weigh it as part of the decision-making process, and (e) communicate the decision in some way. 

6.2 Presumption of decision-making ability 

The new Act should include a rebuttable presumption that a person has decision-making ability. 6.3 Determining decision-making ability The new Act should provide that: (1) Anyone who must determine whether a person lacks decision-making ability for the purposes of the new Act must be satisfied that the person is or has been assessed at a time and in an environment in which their decision-making ability can be assessed most accurately. (2) Anyone determining whether a person lacks decision-making ability should consider that: (a) decision-making ability is specific to the decision being made (b) inability to make a decision may be temporary or permanent and may fluctuate over time (c) decision-making ability may be different at different times (d) a person may develop, gain or regain decision-making ability, and (e) a person has decision-making ability for a matter if it is possible for the person to make the decision with practicable and appropriate support. (3) Anyone making a determination cannot conclude that a person does not have decision-making ability only because of one or more of the following: (a) the person’s age (b) the person’s appearance (c) an aspect of the person’s behaviour (or manner) (d) the person’s political, religious, or philosophical beliefs (e) the fact that people may disagree with the person’s decisions (on any grounds, including moral, political or religious) or think the person’s decisions are unwise (f) the fact that the person has a physical or mental condition (g) the fact that a person is a forensic patient, or may become a forensic patient (h) the person’s methods of communication (i) the person’s sex, gender, sexual preference or sexual conduct (j) the person’s cultural and linguistic circumstances, or (k) the person’s history of drug or alcohol use. 

6.4 Determining decision-making ability of Aboriginal people and Torres Strait Islanders  

The new Act should provide that, to the extent that it is appropriate and practicable to do so, anyone who must determine the decision-making ability of an Aboriginal person or Torres Strait Islander should have regard to: (a) any cultural or linguistic factors that may impact on an assessment of the person’s decision-making ability, and (b) any other relevant considerations pertaining to the person’s culture. 

7. Supported decision-making 

7.1 Eligibility to appoint a supporter under a support agreement 

The new Act should provide that a person may appoint a supporter through a support agreement if the person making the appointment: (a) is at least 18 years of age (b) has decision-making ability to enter the agreement, and (c) is making the agreement voluntarily. 

7.2 Eligibility for appointment as a supporter under a support agreement 

The new Act should provide that a person is not eligible to be appointed as a supporter if: (a) the person is under 16 years of age (b) they are to assist with financial decision-making and they have been bankrupt or been found guilty of an offence involving dishonesty, unless they have recorded this in the support agreement, or (c) they are the Public Representative or the NSW Trustee.   

7.3 Making a support agreement 

The new Act should provide: (1) that a support agreement must be in a prescribed form and be signed by the person making the appointment and the proposed supporter accepting the appointment (although not necessarily at the same time or in the presence of each other). (2) for an eligible signer, where required, to sign for the person in the person’s presence and at their direction. (3) for eligible witnesses to witness the signature, and certify that: (a) they explained the effect of the agreement to the person making the agreement before it was signed, and (b) the person making the agreement signed voluntarily and appeared to have decision-making ability in relation to the agreement. 

7.4 Referral to the Public Advocate 

The Tribunal may refer parties to the Public Advocate to facilitate the development of a support agreement. 

7.5 Tribunal may declare appointment has effect 

The new Act should provide that a supporter, a supported person, or other person with a genuine interest in the personal and social wellbeing of the supported person, may apply to the Tribunal for a declaration that an appointment under a person support agreement is valid. 

7.6 Application for a Tribunal support order 

The new Act should provide: (1) An application to the Tribunal for a support order may be made by: (a) the person to whom the order will apply (b) the Public Representative or the Public Advocate, or (c) a person with a genuine interest in the personal and social wellbeing of the person who is the subject of the application. (2) An application must specify the grounds upon which there is a need for an order. (3) As soon as practicable after making the application, the applicant must serve the application on each of the parties. (4) Before conducting a hearing into the application, the Tribunal must notify each party of the hearing’s time, date and location. (5) Failing to serve a copy of the application or a notice does not invalidate the Tribunal’s decision on the application. (6) The Tribunal may treat an application for a representation order, review of a support order, support agreement or enduring representation agreement as an application for a support order.   

7.7 Making a support order 

(1) The new Act should provide that, after conducting a hearing into an application, the Tribunal may appoint a supporter to assist the person if: (a) the person needing support (“the person”) is of or above the age of 18 (b) there are one or more decisions to be made (c) an eligible and suitable supporter is available (d) the person would have decision-making ability in relation to the decision(s) covered by the order if assisted by the proposed supporter (e) less intrusive and restrictive measures have already been considered and are either unavailable or not suitable (f) the proposed supporter consents to the appointment, and (g) the person consents to the appointment. (2) A support order must set out the supporter’s functions and any limits on those functions. 

7.8 Additional Tribunal considerations for orders about Aboriginal people and Torres Strait Islanders 

The new Act should provide that, to the extent that it is appropriate and practicable to do so, the Tribunal must, when determining whether a support order should be made for an Aboriginal person or Torres Strait Islander, have regard to: (a) the likely impact of the order on the person’s culture, values, beliefs (including religious beliefs) and linguistic environment (b) the likely impact of the order on the person’s standing or reputation in their indigenous community, and (c) any other relevant consideration pertaining to the person’s culture. 

7.9 Eligibility for appointment as a supporter under a support order 

The new Act should provide that the Tribunal may not appoint a person as a supporter under a support order if: (a) the person is under 16 years of age, or (b) they are the Public Representative or the NSW Trustee. 

7.10 Suitability for appointment as a supporter under a support order 

The new Act should provide: (1) In deciding whether a proposed supporter is suitable, the Tribunal must take into account: (a) the will and preferences of the person in need of decision-making assistance (“the person”), determined as set out in Recommendation 5.4 (b) the nature of the relationship between the proposed supporter and the person (c) the abilities and availability of the proposed supporter (d) whether the proposed supporter will be likely to act honestly, diligently and in good faith in the role (e) whether the proposed supporter has or may have a conflict of interest in relation to any of the decisions referred to in the order, and will be aware of and respond appropriately to any conflicts (f) whether the supporter would promote the person’s personal and social wellbeing (g) the person’s cultural identity, and (h) where the proposed supporter will assist with financial decision-making, whether they have been bankrupt or been convicted of a dishonesty offence. (2) A person should not be prohibited from appointment as a supporter on the basis that they will receive financial remuneration for their appointment. 

7.11 Effect of order on other appointments 

The new Act should provide that a support order (including an order of the Supreme Court to like effect) operates to suspend any support agreement in its entirety, unless the Tribunal or Court allows limited operation of the agreement. 

7.12 Functions of supporters 

The new Act should provide: (1) A supporter’s functions are determined by the support agreement or order and are limited to the following: (a) to communicate or assist the supported person in communicating their decisions to other people, and advocate for the implementation of the decision where necessary, and (b) to access, collect or obtain, or assist the supported person in accessing, collecting or obtaining any relevant personal information (including financial and health information) about the supported person in order to assist the supported person to understand the information. (2) A supporter is not authorised to: (a) make decisions on behalf of the supported person (b) exercise their functions without the supported person’s knowledge and consent, or (c) access, collect or obtain personal information about the supported person that the supported person would not be entitled to access, or collect or obtain personal information beyond that permitted by the agreement or order (as applicable). (3) Unless otherwise specified in the agreement or order, a supporter may, on behalf of a supported person, sign and do all such things as are necessary to give effect to any function under the agreement or order. 

7.13 Responsibilities of supporters 

The new Act should provide: (1) Supporters must: (a) observe the Act’s general principles (b) act honestly, diligently and in good faith and not coerce, intimidate or unduly influence the supported person (c) act within the conditions or limitations of the agreement or order (d) ensure that they identify and respond to situations where their interests conflict with those of the supported person, ensure the supported person’s interests are always the paramount consideration, and seek external advice where necessary (e) treat the supported person and important people in their life with dignity and respect (f) if they are assisting with financial decision-making, keep accurate records and accounts (g) respect the supported person’s privacy and confidentiality by: (i) only collecting personal information to the extent necessary for carrying out the supporter’s role, and (ii) only disclosing such information in circumstances permitted by Recommendation 14.3, and (h) notify the Public Representative, if the supported person no longer has the decision-making ability to be supported to make the relevant decision. (2) Supporters must sign an acknowledgement that they have read and understood these responsibilities. 

7.14 Types of decisions that can be made under a support arrangement 

The new Act should provide that a supporter may assist a person to make decisions including those about personal matters, financial matters, healthcare and restrictive practices. The support agreement or order should specify what decisions or types of decisions the supporter may make as well as any conditions or limitations. 

7.15 When support agreement or order has effect 

The new Act should provide that a support agreement or order has effect in relation to a decision to which it applies except for any period during which: (a) the supported person does not have decision-making ability for that decision even when assisted by the supporter, or (b) the agreement or order is terminated or suspended or has lapsed. 

7.16 Appointment of multiple supporters 

The new Act should allow a person or the Tribunal to appoint more than one supporter to assist a person, either together or separately, in relation to one or more functions. 7.17 Appointment of reserve supporters The new Act should allow a person or the Tribunal to appoint one or more reserve supporters to act if the original supporter dies, resigns or does not have the decision-making ability (temporarily or permanently) to act under the agreement or order. 

7.18 Resignation of a supporter 

The new Act should provide that a supporter may resign their appointment: (a) if the supported person understands the nature and consequences of the resignation, by giving notice in writing to the supported person, or (b) if the supported person does not understand the nature and consequences of the resignation, with the approval of the Tribunal. 

7.19 End or suspension of a support agreement or order 

The new Act should provide that: (1) A supported person may terminate, in writing, an appointment under a support agreement if the supported person: (a) has decision-making ability in relation to the agreement and its termination, and (b) terminates the agreement voluntarily. (2) A supported person may seek approval from the Tribunal to terminate a support order, if the supported person: (a) has decision-making ability in relation to the termination of the order, and (b) seeks the termination of the order voluntarily. (3) A support agreement or order lapses if the sole supporter appointed to carry out a function dies, or the end date is reached, or in any other circumstances specified in the agreement or order. (4) A support agreement or order does not lapse when a supporter dies if there is another supporter appointed to carry out the functions. (5) A support agreement or order is suspended, so far as it appoints a supporter, if the supporter becomes a person who does not have the decision-making ability to act as a supporter. (6) If a supported person becomes subject to a Tribunal representation order, any support agreement or order is suspended for the duration of the order, unless the Tribunal orders otherwise. 

7.20 Tribunal review of support agreements and orders 

The new Act should provide: (1) The Tribunal may review a support agreement or order on its own motion. (2) The Tribunal must review a support agreement or order if requested to do so by: (a) the supported person (b) the supporter (c) the Public Representative or Public Advocate (d) a person with a proper interest in the proceedings, or (e) a person with a genuine interest in the personal and social wellbeing of the supported person unless the request does not disclose grounds that warrant a review. (3) The Tribunal must, before carrying out the review, notify each party of the date, time and place of the review (although failure to do so will not invalidate a decision). (4) The Tribunal may order that the support agreement or order is suspended until the review is complete. 

7.21 Tribunal action on review 

The new Act should provide: (1) The Tribunal, when reviewing a support agreement, should consider, where relevant: (a) whether the person met the eligibility criteria for entering into the agreement, and (b) if the person did meet the eligibility criteria to enter into the agreement: (i) the fact that the supporter was chosen by the person (ii) whether the eligibility criteria for a supporter are still met, and (iii) whether the supporter is meeting their responsibilities and carrying out their required functions. (2) The Tribunal must, when reviewing a support order, have regard to whether: (a) there is still a need for a support order (b) the eligibility and suitability criteria for a supporter are still met, and (c) the supporter is meeting their responsibilities and carrying out their required functions (3) The Tribunal may, following its review, do any of the following to the agreement or order, in whole or in part: (a) confirm it (with the consent of the supported person) (b) vary it, including by appointing a replacement supporter who is suitable and eligible (c) suspend it, or (d) terminate it. (4) The Tribunal may make a fresh order in accordance with the new Act, including a representation order, to supersede the support agreement or order which has been suspended or revoked. 

8. Personal appointments of representatives 

8.1 Types of decisions an enduring representation agreement may cover 

The new Act should provide that: (1) A person may appoint an enduring representative or representatives through an enduring representation agreement. (2) An enduring representation agreement may apply to decisions including those about personal matters, financial matters, healthcare and restrictive practices. (3) The agreement should specify what decisions or types of decisions the enduring representative or representatives may make as well as any conditions or limitations. 

8.2 Eligibility to appoint an enduring representative 

The new Act should provide that a person may appoint an enduring representative through an enduring representation agreement if the person making the appointment: (a) is at least 18 years of age (b) has decision-making ability to enter into the agreement, and (c) is making the agreement voluntarily. 

8.3 Eligibility for appointment as an enduring representative 

The new Act should provide: (1) A person is not eligible to be appointed as an enduring representative if: (a) they are under 18 years of age (b) they (or their spouse, child, brother or sister) provide, for fee or reward, healthcare, accommodation or other support services to the appointing person (c) they are to be given a financial function and they have been bankrupt or been found guilty of an offence involving dishonesty, unless they have recorded this in the enduring representation agreement, or (d) they are the Public Representative. (2) A person may only appoint the NSW Trustee as an enduring representative in relation to financial decision-making functions. (3) The appointment does not lapse if an enduring representative (or their spouse, child, brother or sister) is subsequently engaged to provide for fee or reward healthcare, accommodation or other support services to the represented person. 

8.4 Making an enduring representation agreement 

The new Act should provide: (1) that an enduring representation agreement must be in a prescribed form and be signed by the person making the appointment and the proposed enduring representative accepting the appointment (although not necessarily at the same time or in the presence of each other) (2) for an eligible signer, where required, to sign for the person in the person’s presence and at their direction, and (3) for eligible witnesses to witness the signatures and certify that: (a) they explained the effect of the document to the person making the agreement before it was signed, and (b) the person making the agreement signed voluntarily and appeared to have decision-making ability in relation to the agreement.   

8.5 Appointment of multiple and reserve enduring representatives 

(1) The new Act should: (a) allow a person to appoint two or more enduring representatives to act jointly or severally, in relation to one or more functions, and (b) provide for situations where one or more enduring representatives cannot act (by reason of death, resignation, or loss of decision-making ability). (2) The new Act should allow a person to appoint one or more reserve enduring representatives to act if an original enduring representative dies, resigns or does not have the decision-making ability (temporarily or permanently) to act under the agreement. 

8.6 Functions of enduring representatives 

The new Act should provide that: (1) An enduring representative’s decision-making functions (and any limits or lawful conditions on them) are determined by the enduring representation agreement. (2) An enduring representative may sign and do all such things as are necessary to give effect to any decision-making function. (3) An enduring representative can access, collect or obtain personal information (including financial information and health records) about a person that that person would be entitled to access and that is relevant to and necessary for carrying out their functions. (4) The following functions cannot be given under an enduring representation agreement: making or revoking a will, making or revoking an enduring representation agreement, voting in elections, consenting to marriage, divorce, surrogacy arrangements or sexual relations, making decisions regarding the care and wellbeing or adoption of children, and managing the represented person’s property after their death. 

8.7 Responsibilities of enduring representatives 

The new Act should provide: (1) Enduring representatives must: (a) observe the Act’s general principles (b) act honestly, diligently and in good faith and not coerce, intimidate or unduly influence the represented person (c) act within the conditions or limitations of the agreement (d) ensure that they identify and respond to situations where their interests conflict with those of the represented person, ensure the represented person’s interests are always the paramount consideration, and seek external advice where necessary (e) communicate with the represented person when making decisions on their behalf and explain the decisions as far as possible (f) treat the represented person and important people in their life with dignity and respect (g) if they have a financial decision-making function: (i) keep accurate records and accounts (ii) keep their money and property separate from the represented person’s money and property, and (iii) not gain a benefit from being a representative unless expressly authorised (h) respect the represented person’s privacy and confidentiality by: (i) only collecting personal information to the extent necessary for carrying out the enduring representative’s role, and (ii) only disclosing such information when permitted by Recommendation 14.3. (2) Enduring representatives are expected, where possible, to: (a) develop a person’s decision-making skills (b) promote and maximise a person’s autonomy, and (c) provide decision-making support. (3) Enduring representatives, other than the NSW Trustee, must sign an acknowledgement that they have read and understood these responsibilities. 

8.8 When an enduring representation agreement has effect 

(1) The new Act should allow a person to specify a time from which, a circumstance in which, or an occasion on which the decision-making functions for all matters or the decision-making functions for a specified matter are exercisable. (2) If the person does not specify when the representation agreement comes into effect: (a) for financial matters, the agreement shall come into effect at the time the appointment is made (b) for personal, health and restrictive-practices decisions, the agreement shall come into effect when the represented person does not have decision-making ability for that decision. (3) A representative may exercise decision-making functions during any period when the represented person does not have decision-making ability, even if the specified time, circumstances or occasion has not arisen. 

8.9 Tribunal may declare appointment has effect 

The new Act should provide that the Tribunal may, on application by a person appointed as an enduring representative, declare that the appointment has effect if it is satisfied that: (a) the represented person does not have decision-making ability for a decision covered +by the enduring representation agreement, and (b) the appointment is valid.   

8.10 Tribunal review of enduring representation agreements 

The new Act should provide: (1) The Tribunal may review an enduring representation agreement on its own motion. (2) The Tribunal must review an enduring representation agreement if requested to do so by: (a) the represented person (b) a person with a proper interest in the proceedings (c) a person with a genuine interest in the personal and social wellbeing of the represented person, or (d) the enduring representative unless the request does not disclose grounds that warrant a review. (3) The Tribunal must, before carrying out a review, notify each party of the date, time and place of the review (although failure to do so will not invalidate any decision). (4) The Tribunal may order that the agreement is suspended until the review is complete. 

8.11 Tribunal action on review 

The new Act should provide: (1) The Tribunal, when reviewing the agreement, should consider, where relevant: (a) whether the represented person met the eligibility criteria for entering into the agreement, and (b) if the represented person did meet the eligibility criteria to enter into the agreement: (i) the fact that the representative was chosen by the person (ii) whether the eligibility criteria for a representative are still being met, and (iii) whether the representative is meeting their responsibilities and carrying out their required functions. (2) The Tribunal may, on reviewing an enduring representation agreement, confirm it, vary it (including appointing a replacement enduring representative who is eligible and suitable), suspend it or revoke it, in whole or in part. (3) Where there is doubt about the validity of an appointment, the Tribunal may confirm the appointment if the Tribunal is satisfied it was the appointment the person intended to make. (4) The Tribunal may make a representation order or support order in accordance with the new Act to supersede an enduring representation agreement that has been suspended or revoked, in whole or in part. 

8.12 Supreme Court review of an enduring representation agreement 

The new Act should provide that the Supreme Court may review the appointment (or purported appointment) of an enduring representative under an enduring representation agreement and may make such orders as it thinks appropriate. 

8.13 Supreme Court may confirm any function of an enduring representative 

The new Act should provide that the Supreme Court may, on application by a person appointed as an enduring representative, confirm (in whole or in part) any function under the enduring representation agreement if: (a) it appears that the represented person does not have decision-making ability to confirm the function, and (b) confirming the function is in accordance with the represented person’s will and preferences. 

8.14 Resignation of an enduring representative 

The new Act should provide that an enduring representative may resign their appointment: (a) if the represented person understands the nature and consequences of the resignation — by giving notice in writing to the represented person. (b) if the represented person does not understand the nature and consequences of the resignation — with the approval of the Tribunal. 

8.15 End or suspension of an enduring representation agreement 

The new Act should provide that: (1) A represented person may, by a prescribed form that is signed and witnessed, revoke an appointment under an enduring representation agreement if the represented person: (a) has decision-making ability in relation to the agreement and its revocation, and (b) revokes the agreement voluntarily. (2) An enduring representation agreement lapses if an enduring representative dies, unless there is a joint or reserve representative to carry out the functions. (3) An enduring representation agreement is suspended, so far as it appoints an enduring representative, when the enduring representative does not have the decision-making ability to act under the agreement. (4) An enduring representation agreement is suspended, in so far as it appoints an enduring representative with a financial function, if the enduring representative becomes bankrupt or is found guilty of an offence involving dishonesty. 

8.16 Possession or control of a represented person’s property 

The new Act should provide that: (1) Nothing in the new Act operates to change the ownership of any part of a represented person’s property. (2) An enduring representative, upon ceasing to act as such, must ensure that possession or control of any part of a represented person’s property in relation to which they have functions, is transferred, as the case may require, to: (a) the formerly represented person, or (b) any replacement representative who has functions in relation to that part of the represented person’s property. 

8.17 Status of an advance care directive in an agreement that has ended 

The new Act should provide that an advance care directive made in compliance with NSW law is valid notwithstanding that it is contained in an enduring representation agreement that has been suspended or revoked (unless revoked by the person making the appointment at a time when they have decision-making ability) or has lapsed. 

8.18 Effect of marriage on an enduring representation agreement 

The new Act should not provide that the marriage of a person who has made an enduring representation agreement automatically revokes the agreement. 

9. Representation orders 

9.1 Types of decisions a representation order may cover 

The new Act should provide that a representation order may apply to decisions about personal matters, financial matters, healthcare and/or restrictive practices. The order should specify what decisions or types of decisions the representative may make as well as any conditions or limitations. 

9.2 Application for a representation order 

The new Act should provide that: (1) The following people may apply to the Tribunal for a representation order: (a) the person to whom the order will apply (b) the Public Representative, Public Advocate, and NSW Trustee, and (c) a person with a genuine interest in the personal and social wellbeing of the person the subject of the application. (2) An application must specify the grounds upon which there is a need for an order. (3) The Tribunal may treat an application for a support order, or review of a support order, support agreement or enduring representation agreement as an application for a representation order. 

9.3 Grounds for an order 

The new Act should provide that: (1) The Tribunal may, after conducting a hearing into an application, appoint a person to be a representative under a representation order if: (a) the proposed represented person is at least 17 years old (b) the proposed represented person does not have decision-making ability for one or more decisions (c) less intrusive and restrictive measures are neither available nor suitable, and (d) there is a need for an order. (2) In considering whether there is a need for an order, the Tribunal should take into account, where relevant: (a) the adequacy of existing or available formal or informal arrangements in meeting the person’s decision-making needs, and (b) the availability and suitability of less restrictive and intrusive measures to meet the person’s needs, including but not limited to a support order or support agreement. 

9.4 Additional Tribunal considerations for orders in respect of Aboriginal people and Torres Strait Islanders 

The new Act should provide that, to the extent that it is appropriate and practicable to do so, the Tribunal must, when determining whether a representation order should be made for an Aboriginal person or Torres Strait Islander, have regard to: (a) the likely impact of the order on the person’s culture, values, beliefs (including religious beliefs) and linguistic environment (b) the likely impact of the order on the person’s standing or reputation in their Indigenous community, and (c) any other relevant consideration pertaining to the person’s culture. 

9.5 Eligibility for appointment as a representative 

The new Act should provide that: (1) The Tribunal can appoint, as a representative, under a representation order: (a) an eligible person, or (b) in relation to personal, healthcare and/or restrictive practices decision-making functions - the Public Representative (c) in relation to financial decision-making functions - the NSW Trustee. (2) A person is an “eligible person” if they are: (a) at least 18 years old, or (b) at least 16 years old and: (i) they are the person’s primary carer, and (ii) they are already supporting the person or making decisions on their behalf, and (iii) the proposed functions are consistent with their decision-making abilities. (3) The Tribunal (other than in an emergency representation order) must not appoint the Public Representative or the NSW Trustee as a representative if some other person can be appointed.   

9.6 Suitability for appointment as a representative 

The new Act should provide that: (1) The Tribunal may only appoint a person as a representative if it is satisfied that they are suitable and the proposed representative consents to the appointment. (2) In deciding whether a person (other than the Public Representative or NSW Trustee) is suitable, the Tribunal must take into account: (a) the will and preferences of the person in need of decision-making assistance (“the person”) (b) the nature of the relationship between the proposed representative and the person (c) the abilities and availability of the proposed representative (d) whether the proposed representative is likely to act honestly, diligently and in good faith (e) whether the proposed representative has or may have a conflict of interest in relation to any of the decisions referred to in the order, and will be aware of and respond appropriately to any conflicts (f) whether the proposed representative will promote the person’s personal and social wellbeing (g) the person’s cultural identity (h) whether the proposed representative has been convicted of a serious indictable offence, and (i) where they will have a financial function, whether the proposed representative has been bankrupt or been convicted of a dishonesty offence. 

9.7 Remuneration of professional representatives with financial functions 

The new Act should provide that: (1) The Tribunal may determine that a representative with financial functions, who carries on a business that includes the administration of estates, is entitled to remuneration out of the represented person’s estate for their work in administering that estate. (2) As part of any oversight and direction of representatives with financial functions, the NSW Trustee should decide the amount of any remuneration. 

9.8 When a representation order has effect 

The new Act should provide that: (1) A representation order has effect only if the represented person is aged 18 years or over. (2) Unless a representation order is revoked or suspended or has lapsed, it has effect in relation to a decision to which the order applies only when the represented person does not have decision-making ability for that decision. (3) The Tribunal must specify that an order (except for an emergency order) has effect for no more than: (a) 1 year for an initial order, or (b) 3 years for an order that is renewed following review. (4) However, if the Tribunal is satisfied that the represented person will never have the relevant decision-making ability and there is a need for an order of longer duration the Tribunal may specify that the order (except for an emergency order) has effect for no more than: (a) 3 years for an initial order, and (b) 5 years for an order that is renewed following review. (5) The Tribunal may specify that an order will not be reviewed at the end of the period for which it has effect, but only if the Tribunal is satisfied that, in all the circumstances, not reviewing the order promotes the personal and social wellbeing of the represented person. 

9.9 Emergency orders 

The new Act should provide: (1) The Tribunal may, where it considers it appropriate by reason of unacceptable risk to the person and urgency, (a) make an order it considers appropriate in the circumstances in respect of a person that remains in effect for a specified period of no more than 30 days, if it addresses the unacceptable risk to the person, and (b) renew the order for a further specified period of not more than 30 days if it addresses the unacceptable risk to the person. (2) The Tribunal may make the order at the request of the person to whom the order relates, or at the request of a person with a genuine interest in the personal and social wellbeing of the person to whom the order relates. (3) In making an emergency order, the Tribunal may appoint the Public Representative (in relation to personal, healthcare and/or restrictive practices decisions) and/or the NSW Trustee (in relation to financial decisions) as representative if the person does not have a representative or person responsible, and it considers that there may be grounds for making an order. (4) The Tribunal is not prevented from making an emergency order just because evidence about a person’s decision-making ability is limited. (5) In making an emergency order, the Tribunal must specify the extent (if any) to which the proposed representative has custody of the person. (6) The Tribunal cannot make an emergency order if: (a) there is a valid advance care directive that expressly prohibits the decision for which the order is sought, or (b) another order would be more appropriate. 

9.10 Multiple representatives 

The new Act should: (a) allow the Tribunal to appoint two or more representatives to act jointly or severally, in relation to one or more functions (b) provide for situations where one or more representatives cannot act (by reason of death, resignation, or loss of decision-making ability), and (c) ensure that the Public Representative and NSW Trustee are not appointed as joint representatives for the same decision-making functions with each other or with anyone else. 

9.11 Reserve representatives 

The new Act should allow the Tribunal to appoint a reserve representative to act if an original representative dies, resigns or does not have the decision-making ability (temporarily or permanently) to act under the order. 

9.12 Functions of representatives 

The new Act should provide: (1) A representative’s decision-making functions (and any limits or conditions on them) are determined by the representation order. (2) A representative may sign and do all such things as are necessary to give effect to any decision-making function. (3) A representative can access, collect or obtain personal information (including financial information and health records) about a person that that person would be entitled to access and that is relevant to and necessary for carrying out their functions. 

9.13 Responsibilities of representatives 

The new Act should provide that: (1) Representatives must: (a) observe the Act’s general principles (b) act honestly, diligently and in good faith and not coerce, intimidate or unduly influence the represented person (c) act within any conditions and limitations of the order (d) ensure that they identify and respond to situations where their interests conflict with those of the represented person, ensure the represented person’s interests are always the paramount consideration, and seek external advice where necessary (e) communicate with the represented person when making decisions on their behalf and explain the decisions as far as possible (f) treat the represented person and important people in their life with dignity and respect (g) if they have a financial decision-making function: (i) keep accurate records and accounts (ii) keep their money and property separate from the represented person’s money and property, and (iii) not gain a benefit from being a representative unless expressly authorised (h) respect the represented person’s privacy and confidentiality by: (i) only collecting personal information to the extent necessary for carrying out the representative’s role, and (ii) only disclosing such information when permitted by Recommendation 14.3. (2) Representatives are expected, where possible, to: (a) develop a person’s decision-making skills (b) promote and maximise a person’s autonomy, and (c) provide decision-making support. (3) Representatives, other than the NSW Trustee or the Public Representative, must sign an acknowledgement that they have read and understood these responsibilities. 

9.14 Effect of order on other appointments or agreements 

The new Act should provide that a representation order (including an order of the Supreme Court to like effect) suspends any enduring representation agreement, support agreement, or support order in its entirety, unless the Court or Tribunal order expressly allows a limited continuing operation. 

9.15 Orders to be forwarded to Public Representative and/or NSW Trustee 

The new Act should provide that if the Tribunal makes a representation order appointing a person other than: (a) the Public Representative as a representative in relation to a personal, healthcare or restrictive practices decision-making function, and/or (b) the NSW Trustee as a representative in relation to a financial decision-making function, it should forward a copy to the Public Representative and/or the NSW Trustee as the case may require. 

9.16 Tribunal review of representation orders 

The new Act should provide that: (1) The Tribunal may review a representation order on its own motion. (2) The Tribunal must review a representation order: (a) at the end of the period for which the order has effect (unless the order provides there is to be no review at the end of the period), or (b) if requested to do so by: (i) the represented person (ii) a person with a proper interest in the proceedings (iii) a person with genuine interest in the personal and social wellbeing of the represented person (iv) the representative, or (v) the Public Representative, the NSW Trustee or the Public Advocate, unless the request does not disclose grounds that warrant a review order. (3) The Tribunal should, before carrying out the review, notify each party of the date, time and place of the review (although failure to do so will not invalidate any decision). 

9.17 Tribunal action on review The new Act should provide that: (1) The Tribunal should, when reviewing an order, consider, where relevant: (a) whether there is still a need for the order (b) whether eligibility and suitability criteria for a representative are still met, and (c) whether the representative is meeting their responsibilities and carrying out their required functions. (2) The Tribunal may, on reviewing a representation order: (a) at the end of the period for which the order has effect, renew it, renew and vary it, or decide that it may lapse (b) confirm, vary, suspend (in whole or in part) or revoke the order, or (c) make a support order in accordance with the new Act. 

9.18 Administrative review of decisions of the Public Representative and NSW Trustee 

The new Act should provide that: (1) A person may apply to the Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 (NSW) for an administrative review of a decision of the Public Representative or the NSW Trustee that: (a) is made in connection with the exercise of the Public Representative’s or NSW Trustee’s functions as a representative under the new Act, and (b) is of a class of decision prescribed by the regulations for the purposes of these provisions. (2) Such an application may be made by: (a) the person to whom the decision relates, (b) the spouse of the person (c) the person who has the care of the person, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision. 

9.19 Supervising representatives with a financial function 

(1) The new Act should provide that: (a) The Tribunal may require the NSW Trustee to supervise a representative with a financial function, but only if the Tribunal considers it necessary. (b) In considering whether supervision is necessary, the Tribunal must take into account: (i) the size and complexity of the represented person’s property (ii) whether there are other measures to protect the represented person (iii) any potential conflicts of interest between the represented person and the representative, and (iv) any other relevant matters. (c) The Tribunal must always require NSW Trustee supervision when appointing a professional representative with a financial function. (d) If the order requires NSW Trustee authorisation for the representative to make financial decisions, the representative can do what is necessary to protect the property pending authorisation. (2) The NSW Trustee and Guardian Act 2009 (NSW) should provide that the NSW Trustee, when supervising a representative with a financial function, may decide the nature and timing of any financial reporting. 

9.20 Enforcing representatives’ decisions 

The new Act should provide that: (1) A Tribunal order may specify the actions that: (a) a representative (b) a specified person or a person of a specified class, or (c) a person authorised by the representative may take (including the use of force) to ensure that the represented person complies with any decision of the representative in the exercise of the representative’s functions. (2) However, the Tribunal may not make such an order unless the Tribunal is satisfied that: (a) the represented person will be exposed to an unacceptable risk of harm, including by way of neglect, abuse or exploitation, if the order is not made (b) allowing such action is the least restrictive option for ensuring the represented person is not exposed to the harm in (2)(a) (c) the actions authorised by the order are appropriate and proportionate to the circumstances, and (d) the order is for the shortest period necessary to give effect to the order. (3) The Tribunal may at any time: (a) impose conditions or give directions about exercising the actions specified in the order, or (b) revoke the order. (4) A person permitted in the order to use force may use such force as is reasonably necessary in the circumstances. (5) A person acting in accordance with such an order, in good faith, is not liable to any action, liability, claim or demand arising from the action. 

9.21 Resignation of a representative 

The new Act should provide that a representative, other than the Public Representative or the NSW Trustee, may resign with the approval of the Tribunal.   

9.22 End or suspension of a representation order 

The new Act should provide that: (1) A representation order lapses if a representative dies, unless there is a joint or reserve representative to carry out the functions. (2) The Tribunal shall, on application or its own motion, review a representation order and appoint a replacement representative, where necessary (for example, if the order has lapsed). Until the Tribunal makes an order following review: (a) the Public Representative shall act as a representative for personal, healthcare and/or restrictive practices decision-making functions, and (b) the NSW Trustee shall act as a representative for financial decision-making functions. (3) A representation order is suspended, so far as it appoints a representative, when the representative does not have the decision-making ability to act under the order. 

9.23 Possession or control of a represented person’s property 

The new Act should provide that: (1) Nothing in the Act operates to change the ownership of any part of a represented person’s property. (2) A representative, upon ceasing to act as such, must ensure that possession or control of any part of a represented person’s property in relation to which they have functions, is transferred, as the case may require, to: (a) the formerly represented person, or (b) any replacement representative who has functions in relation to that part of the represented person’s property. 

10. Healthcare 

10.1 Statutory objects 

The new Act should not have separate statutory objects for healthcare decision-making. 

10.2 Application of healthcare provisions 

The new Act should provide that its healthcare provisions apply to a patient: (a) who is of or above the age of 16 years, and (b) who does not have decision-making ability for a healthcare decision. 

10.3 Decision-making ability 

The definition of decision-making ability in Recommendation 6.1 should apply to the new Act’s healthcare provisions.   

10.4 Definition of “healthcare” 

The new Act should provide that: (1) “Healthcare” includes: (a) any care, service, procedure or treatment provided by, or under the supervision of, a registered health practitioner for the purpose of diagnosing, maintaining or treating a physical or mental condition of a person (b) in the case of healthcare in the course of a medical research procedure — the giving of placebos, and (c) any other act declared by the regulations to be healthcare. (2) “Healthcare” does not include: (a) any non-intrusive examination for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears) (b) first-aid (c) administering a pharmaceutical drug for which a prescription is not required and which is normally self-administered in accordance with the manufacturer’s recommendations as to purpose and dosage level (d) mental health treatment given to a patient or affected person under the Mental Health Act 2007 (NSW) or Mental Health (Forensic Provisions) Act 1990 (NSW), or (e) anything else that the regulations declare is not healthcare for the purposes of these provisions. (3) “Registered health practitioner” means a person who practises in: (a) a health profession within the meaning of the Health Practitioner Regulation National Law (NSW), and/or (b) any other profession or practice as declared by the regulations. 

10.5 Advance care directives 

The new Act should provide: (1) A patient may consent to healthcare or a medical research procedure in a valid advance care directive. (2) Healthcare must not be given and a medical research procedure must not be undertaken if it would be against a patient’s will and preference as expressed in an advance care directive that is clear and extends to the situation at hand. (3) An advance care directive can be made in any form, including orally. (4) An advance care directive can include instructions on specific matters as well as expressions of values and preferences. (5) The provisions do not limit the common law about advance care directives. (6) A requirement to consider a person’s will and preferences includes considering any valid advance care directive (see also Recommendation 5.4). (7) A registered health practitioner must make a reasonable effort in the circumstances to find out if a patient who does not have decision-making ability has an advance care directive before treating them or seeking another person’s consent to treat them. (8) Notwithstanding an advance care directive, a registered health practitioner is not under any obligation to deliver a life-sustaining measure if to do so would be inconsistent with standard medical practice. 

10.6 Urgent healthcare 

The new Act should provide: (1) Healthcare may be provided to a patient without consent if the registered health practitioner carrying out or supervising the healthcare considers the healthcare is necessary, as a matter of urgency: (a) to save the patient’s life, or (b) to prevent serious damage to the patient’s health, or (c) except in the case of special healthcare — to prevent the patient from suffering or continuing to suffer significant pain or distress. (2) In urgent circumstances, a registered health practitioner is not required to search for an advance care directive that is not readily available. 

10.7 Definition of “special healthcare” 

The new Act should provide that “special healthcare” means: (a) any healthcare that is intended, or is reasonably likely, to render the patient permanently infertile (b) any healthcare that is not supported by a substantial number of registered health practitioners specialising in the relevant practice area, or (c) any healthcare that the regulations declare to be special healthcare. 

10.8 Tribunal consent to special healthcare 

The new Act should provide: (1) The Tribunal may consent to special healthcare for a patient if it is satisfied that it is necessary: (a) to save the patient’s life, or (b) to prevent serious damage to the patient’s emotional, psychological or physical health. (2) In the case of healthcare intended or reasonably likely to render the patient permanently infertile, the Tribunal must be satisfied that the patient will not regain decision-making ability in the foreseeable future. (3) In the case of healthcare that is not supported by a substantial number of health practitioners specialising in the relevant practice area, the Tribunal may give consent only if: (a) the treatment is the only or most appropriate way of treating the patient, and (b) it is satisfied that any relevant National Health and Medical Research Council guidelines have been or will be complied with. For matters that the Tribunal must consider before giving consent, see Recommendation 10.24. 

10.9 Consent to continuing or further special healthcare 

The new Act should provide: (1) The Tribunal may, when consenting to special healthcare, authorise the patient’s representative to consent to: (a) continuing the special healthcare, or (b) further special healthcare of a similar nature. (2) The Tribunal may only give such an authority if the representative requests it or consents to it. (3) The Tribunal may at any time: (a) impose conditions or give directions as to the exercise of such an authority, or (b) revoke such an authority. (4) If the representative has such an authority, any person may ask the representative for their consent to give the relevant special healthcare. (5) In considering a request for consent to further or continuing healthcare, a representative must give effect to the will and preferences of the patient (to be determined as set out in Recommendation 5.4). 

10.10 Definition of “major healthcare” 

(1) The new Act should provide that “major healthcare” means healthcare that the regulations declare to be major healthcare. (2) The new regulations should mirror the present regulations except that HIV testing should not be included. 

10.11 Consent to major healthcare 

The new Act should provide that the person responsible or the Tribunal may consent to major healthcare for a patient. For matters that the person responsible must consider before giving consent, see Recommendation 10.22. For matters that the Tribunal must consider before giving consent, see Recommendation 10.24. 

10.12 Definition of “minor healthcare” 

The new Act should provide that “minor healthcare” means healthcare that is not special healthcare or major healthcare. 

10.13 Consent to minor healthcare 

The new Act should provide: (1) The person responsible may consent to minor healthcare for a patient. (2) If there is no person responsible, minor healthcare may be carried out on a patient without consent provided that the registered health practitioner carrying out, or supervising the minor healthcare, certifies in writing in the patient’s clinical record that: (a) the healthcare is necessary and is in a form that will most successfully promote the patient’s health and personal and social wellbeing, and (b) the patient does not object to the healthcare. (3) The Tribunal may consent to minor health care for a patient in any case. For matters that the person responsible must consider before giving consent, see Recommendation 10.22. For matters that the Tribunal must consider before giving consent, see Recommendation 10.24. 

10.14 Consent to withdrawing or withholding life-sustaining measures 

The new Act should provide: (1) The person responsible or Tribunal may consent to withholding or withdrawing a life-sustaining measure, but only if: (a) starting or continuing the measure would be inconsistent with good medical practice, and (b) the decision gives effect to the patient’s will and preferences, as set out in Recommendation 5.4. (2) Death as a result of withdrawing or withholding life-sustaining measures is not necessarily incompatible with promoting a patient’s personal and social wellbeing. 

10.15 Patient objections to healthcare 

The new Act should provide that a patient is taken to object to healthcare: (a) if the patient indicates (by whatever means) that they do not want the healthcare, or (b) if the patient: (i) has previously indicated, in similar circumstances, that they did not then want the healthcare (including in an advance care directive that is clear and unambiguous and extends to the situation at hand), and (ii) has not subsequently indicated otherwise. 

10.16 Overriding a patient’s objection to major or minor healthcare 

The new Act should provide: (1) The Tribunal may authorise a representative (at their request or with their consent) to override the patient’s objection to major or minor healthcare if satisfied that: (a) the patient has not refused the healthcare in an advance care directive that is clear and extends to the situation at hand (b) there would be an unacceptable risk to the patient if the healthcare was not given, and (c) receiving the healthcare would promote the patient’s health and personal and social wellbeing. (2) The Tribunal may at any time: (a) impose conditions on or give directions about exercising the authority, or (b) revoke the authority. (3) The patient’s representative may exercise the authority only if satisfied that the healthcare promotes the patient’s health and personal and social wellbeing. (4) These provisions do not apply to healthcare delivered in the course of a medical research procedure. 

10.17 Effect of consent and objections 

The new Act should provide: (1) A healthcare consent has effect as if: (a) the patient had decision-making ability, as defined in Recommendation 6.1, to consent to the healthcare, and (b) the healthcare had been given with the patient’s consent. (2) A consent given by the person responsible has no effect: (a) if the person giving or supervising the healthcare knows, or ought reasonably to know, that the patient objects to the healthcare, or (b) if the healthcare is to be carried out for any purpose other than that of promoting the patient’s health and personal and social wellbeing. (3) A consent given by the patient’s representative has effect even if the patient objects when the representative is authorised by the Tribunal under Recommendation 10.16. 

10.18 Identifying the person responsible 

(1) The new Act should define the “person responsible” as follows: (a) The person responsible for a young person aged 16 or 17 is the person with parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998). (b) The person responsible for an adult is the first person in the person responsible hierarchy who: (i) has decision-making ability for the decision (ii) is reasonably available to make a decision, and (iii) has not, if asked, declined to make a decision. See Recommendation 10.19 for the person responsible hierarchy. (2) The new Act should provide for a record to be made if a person in the hierarchy declines to make a decision, or if the health practitioner decides that a person who would otherwise be the person responsible is not reasonably available or does not have decision-making ability for the decision. The regulations should make provisions about the keeping of such records. (3) The new Act should provide that disputes about who is the person responsible may be referred to the Public Advocate for mediation. 1 

0.19 The person responsible hierarchy 

The new Act should provide: (1) The person responsible hierarchy is: (a) a person who is empowered to make the relevant decision under an enduring representation agreement or representation order (b) the spouse of the person, if they have decision-making ability for the decision and the relationship is close and continuing (c) a person who has the care of the person, or (d) a close friend or relative of the person. (2) The “spouse” of an Aboriginal person or a Torres Strait Islander includes a spouse married according to customary law. 

10.20 When a person “has the care of another person” 

(1) The new Act should provide that a person may be regarded as “having the care of another person” where, for example, they, on a regular basis: (a) provide domestic services and support for another person (b) arrange such services and support for another person, or (c) provided or arranged such services and support immediately before the other person moved to a place where they receive care (such as a hospital, nursing home, group home, boarding-house or hostel), provided they are or were not paid for the services and support by the other person or from any other source (except for a carer’s pension). (2) The definition of “has care of another person” should appear in the same section or part of the new Act as the person responsible hierarchy. 

10.21 Definition of “close friend or relative” 

The new Act should provide: (1) A “close friend or relative” of another person is a friend or relative (including a member of the extended family or kin of an Aboriginal or Torres Strait Islander person according to their culture) who maintains: (a) a close personal relationship with the other person through frequent personal contact, and (b) a personal interest in the other person’s welfare provided they are not paid by the other person or from any other source (except for a carer’s pension) for, or have a financial interest in, any care services that they perform for the person. (2) The definition of “close friend or relative” should appear in the same section of the new Act as the person responsible hierarchy. 

10.22 Consent of the person responsible 

(1) The new Act should provide: (a) Any person may ask the person responsible to consent to a course of healthcare for a patient. (b) The request must explain: (i) that the patient does not have decision-making ability for the decisions that need to be made (ii) the patient’s condition that requires healthcare (iii) the courses of healthcare that are available for that condition (iv) the general nature and effect of each of those courses (v) the nature and degree of any significant risks associated with those courses, and (vi) the reasons why any particular course should be carried out. (c) In considering such a request, the person responsible must: (i) give effect to the patient’s will and preferences (to be determined as set out in Recommendation 5.4), and (ii) have regard to the matters referred to in the request. (2) The regulations should provide when a consent or request for consent must be in writing.   

10.23 Application to Tribunal for consent 

The new Act should provide: (1) Any person can apply to the Tribunal for consent for healthcare for a patient. (2) The application shall state: (a) how the patient does not have decision-making ability for the decision or decisions that need to be made (b) the patient’s condition that requires healthcare (c) the courses of healthcare that are available for that condition (d) the general nature and effect of each of those courses (e) the nature and degree of any significant risks associated with those courses, and (f) the reasons why any particular course should be carried out. (3) The Tribunal need not consider an application if it is not satisfied that the applicant has a sufficient interest in the patient’s health and personal and social wellbeing. (4) Whenever an application is made for consent to healthcare and the healthcare cannot be given without that consent, the Tribunal may: (a) order the person who is to give the healthcare not to start it, or (b) if the healthcare has already started, order the person who is carrying out the healthcare to stop it, until the Tribunal has determined the application. (5) The service arrangements set out in s 43 of the Guardianship Act 1987 (NSW) should continue to apply. 

10.24 Tribunal consent to healthcare 

The new Act should provide: (1) In considering an application for consent to healthcare, the Tribunal must have regard to the matters that must be stated in the application (as set out in Recommendation 10.23(2)). (2) After conducting a hearing, the Tribunal may consent to the healthcare if it is satisfied that it is the most appropriate form of healthcare and gives effect to the patient’s will and preferences (as set out in Recommendation 5.4). 

10.25 Liability for healthcare 

The new Act should provide that nothing in the Act relieves a person from liability in respect of giving healthcare to a patient, if they would have been liable: (a) had the patient been able to consent to the healthcare, and (b) had the healthcare been given with the patient’s consent. 

10.26 Clinical records 

The new Act should provide that the regulations may make provision about keeping records of a patient’s healthcare carried out under the Act. 

10.27 Offences 

The new Act should provide: (1) A person must not give healthcare to a patient unless: (a) consent for the healthcare has been given in accordance with the new Act, or (b) the healthcare provisions authorise the healthcare without consent, or (c) the healthcare is given in accordance with an order of the Supreme Court in the exercise of its inherent jurisdiction. (2) A registered health practitioner has a defence if they have, in good faith and without negligence, administered or not administered healthcare to a patient and believed on reasonable grounds that the requirements of the Act have been complied with. (3) A person must not take another person without decision-making ability outside Australia to obtain an unauthorised sterilisation procedure. 

11. Medical research 

11.1 Definition of “medical research procedure” 

The new Act should provide: (1) A “medical research procedure” is: (a) a procedure carried out for the purposes of medical research, including (as part of a clinical trial or otherwise): (i) administering pharmaceuticals, or (ii) using equipment or a device, or (b) anything prescribed by the regulations as a medical research procedure. (2) “Medical research procedure” does not include any of the following: (a) any non-intrusive examination including: (i) a visual examination of the mouth, throat, nasal cavity, eyes or ears, or (ii) the measurement of a person’s height, weight or vision (b) observing a person’s activities (c) administering a survey (d) collecting or using information, including: (i) personal information within the meaning of the Privacy and Personal Information Protection Act 1998 (NSW) (ii) health information within the meaning of the Health Records and Information Privacy Act 2002 (NSW), or (e) any other procedure prescribed by the regulations as not being a medical research procedure. (3) “Medical research practitioner” includes a person who practises in a health profession within the meaning of the Health Practitioner Regulation National Law (NSW). 

11.2 Approval and consent to a medical research procedure 

The new Act should provide that: (1) A person can consent to a medical research procedure in an advance care directive. (2) A medical research practitioner must not administer a medical research procedure to a participant who does not have decision-making ability for that procedure unless the relevant human research ethics committee has approved the research; and (a) the participant has consented to the medical research procedure or medical research procedures of a similar nature in a valid advance care directive (b) if there is no relevant advance care directive, the person responsible has consented to the procedure, or (c) if there is no person responsible, the Tribunal has consented to the procedure. (3) The approval of the relevant human research ethics committee will not be effective for the purposes of (2) unless the committee has satisfied itself that the consent material gives sufficient information in a clear enough form to enable the person responsible to make an informed decision about participation. (4) The person responsible or the Tribunal may consent to the medical research procedure only if they are satisfied the decision gives effect to the participant’s will and preferences (to be determined as set out in Recommendation 5.4) taking into account: (a) the likely effects and consequences of the medical research procedure, including the likely effectiveness of the procedure, and (b) whether there are any alternatives, including not administering the medical research procedure. (5) The fact that a research procedure may involve administering placebos should not necessarily prevent the person responsible or the Tribunal from being satisfied that taking part would promote the participant’s personal and social wellbeing. (6) A medical research practitioner must not administer a medical research procedure if they know that the participant has refused the particular procedure in an advance care directive. (7) An interested person can apply to the Tribunal to review the decision of the person responsible and whether it gives effect to a participant’s will and preferences or promotes their personal and social wellbeing. This may include interpreting a participant’s will and preferences as expressed in an advance care directive. 

11.3 Requirement to find advance care directives 

The new Act should provide that: (1) Before a medical research practitioner administers a medical research procedure to a participant who does not have decision-making ability, they must make reasonable efforts in the circumstances to ascertain if the participant has an advance care directive. (2) Failure to take these steps is unprofessional conduct. 

11.4 Effect of a participant’s objection 

The new Act should provide that nothing may be done to a participant in the course of a medical research procedure if the participant objects orally or by conduct. This includes an objection given in an advance care directive that is clear and extends to the situation at hand. 

11.5 Medical research involving emergency treatment 

The new Act should provide that: (1) A human research ethics committee may approve a research project that involves the administration of emergency medical treatment (involving participants who do not have decision-making ability) without prior consent in accordance with Chapter 4.4 of the National Statement on Ethical Conduct in Human Research. (2) Once approved, a medical research practitioner may carry out a medical research procedure without seeking consent from the participant or the person responsible if the procedure involves administering accepted emergency treatment. (3) “Accepted emergency treatment” means urgent treatment that aligns with standard clinical practice. (4) A medical research practitioner must not administer a medical research procedure if they are aware that the participant has refused the particular procedure or a procedure of a similar nature in an advance care directive. However, a practitioner is not required to search for an advance care directive not readily available in urgent circumstances. (5) A medical research practitioner must notify the participant or the person responsible that they have been included in a medical research project as soon as reasonably possible. The participant or the person responsible must have the opportunity to stop the procedure and withdraw from the research without compromising the person’s ability to receive any available alternative medical treatment or care. 

11.6 Records to be filed with the Public Advocate 

(1) The new Act should require: (a) medical research practitioners to file a record with the Public Advocate when a person who does not have decision-making ability is enrolled as a participant in a medical research procedure, including in relation to emergency treatment, and (b) the Public Advocate to use these records to monitor and report on medical research in NSW that involves participants who do not have decision-making ability. (2) The new Act should provide that the failure of a medical research practitioner to file the necessary records with the Public Advocate amounts to unprofessional conduct. 

11.7 Offences 

The new Act should provide: (1) It is an offence for a medical research practitioner to administer a medical research procedure to a person who does not have decision-making ability, unless: (a) a human research ethics committee has approved the procedure, and (b) consent has been obtained in accordance with the new Act. (2) A medical research practitioner has a defence if they have, in good faith and without negligence, administered or not administered healthcare to a person and believes on reasonable grounds that the Act’s requirements have been complied with. 

12. Restrictive practices 

12.1 Regulation of restrictive practices 

(1) The NSW government should closely monitor the implementation of the NDIS restrictive practices regulatory scheme with a view to considering whether to apply comparable regulation in the sectors that NSW regulates, including education and mental health. (2) The new Act should provide that the Public Advocate has the function of educating families, carers and community groups about restrictive practices and the need for their reduction and eventual elimination. (3) The NSW government should consider giving the NSW Law Reform Commission a standalone reference on the use and regulation of restrictive practices in NSW once the NDIS is rolled out and all details of the scheme are known. 

13. The Public Advocate 

13.1 New advocacy and investigative functions 

(1) The new Act should introduce new advocacy and investigative functions. (2) The new Act should provide that these functions are to be carried out by a new statutory agency known as the Public Advocate. (3) The new functions should be to: (a) mediate disputes about assisted decision-making, including between: (i) parties to a court or tribunal application (ii) enduring representatives, representatives and/or persons responsible, and (iii) formal and informal supporters (b) undertake systemic advocacy for people in need of decision-making assistance through: (i) educating the community and public agencies about the decision-making framework and the role of family and friends (ii) educating and advising families, carers and community groups about restrictive practices and the need for their reduction and eventual elimination (iii) supporting organisations that promote advocacy and undertake community education (iv) monitoring, investigating, researching, reporting, making recommendations and advising on any aspect of the system the relevant Minister refers to it, and (v) having standing in court and tribunal matters of general interest to people who need decision-making assistance (c) provide decision-making advice and assistance to people who do not have access to formal decision-making support, including: (i) seeking help for people who need decision-making assistance from government agencies (including the NDIS), institutions, welfare organisations and service providers, and negotiating on their behalf to resolve issues (ii) advising people on making applications for support and representation orders (iii) advising people on and facilitating the development of support and representation agreements, and (iv) administering and/or promoting decision-making assistance services and facilities (including its own) (d) provide information and training to supporters and representatives (e) set guidelines for supporters and representatives (f) investigate suspected abuse, neglect and exploitation on its own motion or in response to a complaint, with powers to: (i) apply to an authorised officer under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) for a search warrant of any premises, if the Public Advocate has reasonable grounds to believe that a person in need of decision-making assistance is at risk of abuse, neglect or exploitation on the specified premises or that the new Act is being contravened (ii) execute a search warrant issued by an authorised officer under LEPRA including by entering specified premises, inspecting those premises for evidence of abuse, neglect or exploitation and seizing any evidence relevant to abuse, neglect or exploitation of a person in need of decision-making assistance (iii) require people, departments, authorities, service providers, institutions and organisations to provide documents, answer questions, and attend compulsory conferences (iv) refer complaints or allegations of abuse and neglect to Public Advocates (or equivalent) outside NSW for investigation or other appropriate action in response to alleged victims and/or alleged abusers moving across borders (v) exchange information with the relevant bodies (including the Tribunal, the NSW Ombudsman’s office, the National Disability Insurance Agency, the NDIS Quality and Safeguarding Commissioner, and relevant non-government organisations) on matters affecting the safety of a person in need of decision-making assistance – such as information relating to allegations of abuse and neglect, and (vi) have read-only access to the police (COPS) and child protection (KiDS) databases (g) when an application for a support or representation order is before the court or Tribunal, investigate, on its own motion or by request from the court or Tribunal, whether there is a need for a support or representation order and if it is the least restrictive option being taken (h) intervene in court or Tribunal proceedings in certain cases (for example, if the Public Advocate has been closely connected with the person subject to the hearing), and (i) refer possible offences under the new Act to law enforcement and prosecuting authorities. (4) The new Act should provide that it is an offence to fail to produce documents, answer questions or attend a conference in response to a request from the Public Advocate, except where doing so would result in self-incrimination or disclosure of material that is the subject of legal professional privilege. 

13.2 The Public Representative 

In addition to incorporating the new functions proposed in Recommendation 13.1, the new Act should apply the provisions currently in part 7 (the Public Guardian) of the Guardianship Act 1987 (NSW) insofar as they are consistent with the new framework. 

14. Provisions of general application 

14.1 Directions to supporters, representatives and persons responsible 

The new Act should provide that: (1) Supporters, representatives and persons responsible can apply to the Tribunal for directions about the exercise of their functions. (2) Where a person is authorised to take a particular action by an order of the Supreme Court acting in its inherent protective jurisdiction, and a Tribunal direction might conflict with this order, the Tribunal may only give directions if the Supreme Court consents. (3) Supporters, representatives and persons responsible are not liable for any acts or omissions carried out in good faith in accordance with such a direction. (4) If the Tribunal gives a direction under this section, it should ensure a copy is forwarded to the Public Representative and/or NSW Trustee, as appropriate. 

14.2 Access to personal information 

The new Act should provide that: (1) A representative, supporter or person responsible should be entitled to access, collect or obtain personal information (including financial and health information) about a person that that person would be entitled to access and that is relevant to and necessary for carrying out their functions. (2) A person holding that information, on being satisfied that a person is entitled to access that information, must allow them to access that information. 

14.3 Non-disclosure of personal information 

The new Act should provide that it is an offence for a person, including a representative or supporter, to disclose any information obtained in connection with the administration or execution of the Act unless it is: (a) for the purpose of acting as the person’s representative or supporter, including, where relevant, to seek legal or financial advice, or counselling, advice or other treatment (b) in connection with the administration or execution of the Act (c) necessary for proceedings under the Act (d) authorised by law (e) authorised by the person to whom the information relates if they have decision-making ability to do so (f) authorised by a court or tribunal in the interests of justice, or (g) disclosed to authorities as necessary to prevent serious risk to life, health or safety or to report a suspected serious indictable offence. 

14.4 Protection from liability where an agreement or order does not have effect 

The new Act should provide that: (1) A person who: (a) purports to act as a supporter or representative under a relevant agreement or order, and (b) does so in good faith, and without knowing the agreement or order does not have effect, can rely on the agreement or order in any case.   (2) A third party who: (a) relies on a person who purports to act as a supporter or representative under a relevant agreement or order, and (b) does so in good faith, and without knowing the agreement or order does not have effect, can rely on the agreement or order in any case. 

14.5 Resolving disputes between substitute decision-makers 

The new Act should provide that, if there are 2 or more people who can make a decision under the Act and they cannot agree about one or more decisions that need to be made, after attempting to resolve the disagreement (whether informally or through mediation), a person may apply to the Tribunal for directions to resolve any such disagreement by dispute resolution processes. 

14.6 No separate provision for exercising rights under adoption laws 

The new Act should not make separate provision for people who need help exercising their rights under adoption laws. 

14.7 Provisions in part 9 of the Guardianship Act 1987 (NSW) 

The new Act should incorporate the substance of the provisions contained in part 9 of the Guardianship Act 1987 (NSW), except where to do so would contradict another recommendation, and with adjustments to ensure consistency with the new framework. 

14.8 Proof of certain matters and evidential certificates 

Provisions to the effect of s 107 and s 107A of the Guardianship Act 1987 (NSW) concerning proof of certain matters and evidential certificates should not be included in the new Act. 

14.9 No mandatory registration 

(1) The new Act should not require registration of any agreement or order. (2) The new Act should provide that: (a) an enduring representation agreement that includes financial functions may be registered as though it were a power of attorney under s 51 or s 52 of the Powers of Attorney Act 2003 (NSW) (b) it does not limit a requirement or option for registration for the purposes of any other Act. 

15. The Supreme Court 

15.1 Supreme Court’s inherent protective jurisdiction 

The new Act should state that it does not limit the Supreme Court’s inherent protective jurisdiction, including its parens patriae jurisdiction.   

15.2 Jurisdiction to make orders 

The new Act should provide: (1) The Tribunal does not have jurisdiction to make a support order or representation order where: (a) an application in respect of anything that can be the subject of the support order or representation order is before the Supreme Court, or (b) an appeal resulting from such an application is before a court. (2) Where the Supreme Court has made an order, a subsequent representation order or support order by the Tribunal in respect of the same subject matter will take effect only in accordance with an order of the Supreme Court. The original Supreme Court order then ceases to have effect with respect to that subject matter. (3) Where the Tribunal has made a representation order or support order, a subsequent order by the Supreme Court will cause the Tribunal order to have no effect to the extent that it covers the same subject matter. (4) The Supreme Court may: (a) on application by the Tribunal, or by a party in relation to any proceedings before the Tribunal, order that the proceedings before the Tribunal be transferred to the Supreme Court; (b) on its own motion, or on application, order that any proceedings before it be transferred to the Tribunal to be dealt with under the new Act. 

15.3 Review of representation agreements

The new Act should provide: (1) The Supreme Court may review part or all of an enduring representation agreement (or purported agreement), provided that an application for review of the same matter is not before the Tribunal. (2) The Tribunal may review part or all of an enduring representation agreement (or purported agreement), provided that an application for review of the same matter is not before the Supreme Court. (3) An application for review may be withdrawn with the leave of: (a) the Supreme Court (if the application was made to the Supreme Court), or (b) the Tribunal (if the application was made to the Tribunal). (4) If an application for review is made: (a) to the Supreme Court, the Supreme Court may (on its own motion or on request) refer the application to the Tribunal; (b) to the Tribunal, the Tribunal may (on its own motion or on request) refer the application to the Supreme Court. 

16. Tribunal composition and procedures 

16.1 Composition of the Assisted Decision-Making Division and Appeal Panels 

The composition of the Assisted Decision-Making Division and Appeal Panels of the NSW Civil and Administrative Tribunal should be determined by the provisions of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW). 

16.2 Parties to proceedings 

The new Act should: (1) retain the definition of a party to Tribunal proceedings set out under s 3F of the Guardianship Act 1987 (NSW) with amendments to reflect the new framework (including the addition of the Public Advocate as a party in all cases). (2) expressly provide that a child or young person is a party to proceedings before the Tribunal if: (i) they are the person to whom the application relates (ii) they are the primary carer of the person to whom the application relates, or (iii) they would be directly affected by any support or representation order. 

16.3 The appointment process for representatives who are parents 

Under the new Act, the appointment process for parents of people who do not have decision-making ability, where this has been the case since before the person turned 18, should be the same process as the appointment process for other representatives. 

16.4 Notice and service requirements 

The new Act should provide that: (1) As soon as practicable after making a Tribunal application, the applicant must serve a copy of the application on each of the parties. (2) Before conducting a hearing into the application, the Tribunal must notify each party of the date, time and place of the hearing. (3) Failing to serve a copy of the application or a notice does not invalidate the Tribunal’s decision on the application. (4) The Tribunal should consider whether it needs to change its procedures to ensure that its registry staff: (a) take reasonable efforts to determine and notify people with a genuine interest in the person who is the subject of a hearing (b) have regard to any family violence considerations evident on the face of the available materials when deciding whether to notify family members, and (c) advise all people notified of a hearing of the outcome of the hearing. 

16.5 Representation of parties 

The new Act should provide: (1) A legal representative of the person who is the subject of an application before the Tribunal may appear without seeking leave. (2) Separate representatives must act according to the general principles set out in Recommendation 5.2. 16.6 Requirement to give evidence under oath or on affirmation The Tribunal should consider whether it needs to change its procedures to ensure parties to a Tribunal hearing give their evidence under oath or on affirmation where the Tribunal considers that there are material facts in dispute. 

17. Powers of entry, search and removal 

17.1 Powers of entry, search and removal 

The new Act should provide: (1) If the Tribunal is satisfied, on application or its own motion, that a person in need of, or receiving, decision-making assistance under the new Act, is at immediate risk of unacceptable harm (that can be mitigated by removal from premises), the Tribunal may order that an employee of the Public Advocate or a police officer enter and search premises and remove the person from those premises, using such force as is reasonably necessary in the circumstances. (2) A police officer or medical practitioner, or both, may accompany an employee of the Public Advocate executing a search and may take all reasonable steps to assist the employee. (3) When a person is removed from premises, the Public Advocate must, if necessary, assist them to find alternative accommodation and may, if necessary, apply to the Tribunal for a support order or representation order. 

18. Interaction with mental health legislation 

18.1 Interaction with the Mental Health Act 

The new Act should provide: (1) An order or agreement for support or representation may be made in respect of a patient or affected person within the meaning of the Mental Health Act 2007 (NSW). (2) An order or agreement for support or representation made under the new Act is not suspended or revoked if the supported or represented person becomes subject to the Mental Health Act 2007 (NSW). (3) If a supported or represented person is, or becomes, subject to orders under the Mental Health Act 2007 (NSW), any order or agreement for support or representation made under the new Act is only effective to the extent it does not conflict with orders made under the Mental Health Act 2007 (NSW). 

18.2 Interaction with the Mental Health (Forensic Provisions) Act 

The new Act should provide: (1) An order or agreement for support or representation may be made in respect of a forensic patient or a correctional patient within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW). (2) An order or agreement for support or representation made under the new Act is not suspended or revoked if the supported or represented person becomes subject to the Mental Health (Forensic Provisions) Act 1990 (NSW). (3) If a supported or represented person is, or becomes, subject to orders under the Mental Health (Forensic Provisions) Act 1990 (NSW), any order or agreement for support or representation made under the new Act is only effective to the extent it does not conflict with orders made under the Mental Health (Forensic Provisions) Act 1990 (NSW). 

18.3 Decision-making for “mental health treatment” 

(1) The new Act should provide: (a) An authorised medical officer (as defined in the Mental Health Act 2007 (NSW)) may give, or authorise: (i) any mental health treatment which they consider appropriate, to a supported or represented person who is detained in a mental health facility (as defined in the Mental Health Act 2007 (NSW)) (ii) any healthcare that is incidental to mental health treatment. (b) “Mental health treatment” is a course of action taken to: (i) remedy a mental illness (ii) diagnose a mental illness (iii) alleviate or manage the symptoms or reduce the effects of the illness (iv) reduce the risks posed by or to the person with the mental illness, or (v) monitor and evaluate a person’s mental health. (c) “Mental illness” refers to a mental illness or mental disorder as defined in the Mental Health Act 2007 (NSW) or a mental condition as defined in the Mental Health (Forensic Provisions) Act 1990 (NSW). (d) Any decisions relating to healthcare other than mental health treatment for supported or represented people are subject to the new Act. (2) The Mental Health Act 2007 (NSW) should be amended to include an identical definition for “mental health treatment”. 

18.4 Consent for special healthcare 

(1) The provisions in the new Act relating to special healthcare should apply universally, including to people subject to the Mental Health Act 2007 (NSW). (2) The Mental Health Act 2007 (NSW) should refer to the new Act for matters relating to special healthcare and all provisions relating to “special medical treatment” in the Mental Health Act 2007 (NSW) should be repealed. (3) The Mental Health Act 2007 (NSW) should continue to regulate Electro-Convulsive Treatment. 

18.5 Voluntary patients 

Sections 7 and 8 of the Mental Health Act 2007 (NSW) should be amended to provide that, in cases where a representative has relevant healthcare and/or personal functions: (1) a represented person may be admitted to a mental health facility as a voluntary patient if their representative makes a request to an authorised medical officer and the represented person does not object to this request being made (2) a represented person must not be admitted as a voluntary patient if they, or their representative, objects to the admission to the authorised medical officer (3) an authorised medical officer must discharge a represented person who has been admitted as a voluntary patient if the represented person requests to be discharged, and (4) an authorised medical officer must give notice of the discharge of a voluntary patient who is a represented person to the person’s representative. 

18.6 Financial arrangements for involuntary patients 

(1) The provisions of the NSW Trustee and Guardian Act 2009 (NSW) that relate to Mental Health Review Tribunal orders for management of estates of mental health patients (s 43-51 and 88) should be repealed to remove the Mental Health Review Tribunal’s jurisdiction over a detained patient’s financial matters. (2) The new Act should provide that the Assisted Decision-Making Division of the NSW Civil and Administrative Tribunal has the power to revoke any orders relating to financial management that were made by the Mental Health Review Tribunal pursuant to the NSW Trustee and Guardian Act 2009 (NSW) or by a magistrate conducting a mental health inquiry. 

19. Recognising appointments made outside NSW 

19.1 Recognition of appointments made outside NSW 

(1) The new Act should: (a) provide for automatic recognition of valid enduring personal substitute decision-making and supported decision-making appointments made outside NSW, and (b) allow people appointed with substitute decision-making or supported decision-making functions by a court or tribunal under the law of another jurisdiction, which is listed in the regulations, to apply to the Tribunal to have their status recognised. (2) The regulations to the new Act should recognise forms of personal substitute decision-making and supported decision-making appointments and orders made outside of NSW that grant powers substantially similar to those that can be lawfully granted in NSW. 

19.2 Effect of recognition 

The new Act should provide that: (1) Recognition does not affect the validity of the original appointment in its originating jurisdiction. (2) Recognition gives the applicant the same powers as if they had been appointed in NSW. The applicant can only exercise functions authorised by their original appointment and only if those functions can be authorised in NSW. (3) Automatic recognition of a personal enduring appointment made in another jurisdiction will not bring a representative with financial functions under the supervision of the NSW Trustee. 

19.3 Tribunal review 

The new Act should provide: (1) The Tribunal has the power, after review in accordance with relevant review provisions in Recommendations 7.21(1), 7.21(2), 8.11(1), and 9.17(1), to vary, revoke, replace or confirm an order or personal appointment made in another jurisdiction as it operates in NSW. This does not affect the operation of the personal appointment or order in its originating jurisdiction. (2) The Tribunal has discretion to order that a person with a financial decision-making function under an appointment or order made in another jurisdiction be supervised by the NSW Trustee in relation to their operations in NSW. (3) Where the Tribunal varies, revokes, replaces or confirms an order as it operates in NSW, it should notify the relevant court or tribunal in the place where the original order or personal appointment was made. 19.4 Registration NSW should not introduce a compulsory register for appointments made in other jurisdictions. 

20. Transitional provisions and consequential amendments 

20.1 Review of guardianship and financial management orders made under the Guardianship Act 1987 (NSW) The new Act should provide: (1) On or after the commencement of the Assisted Decision-Making Act, the Tribunal may review a guardianship order or financial management order on its own motion. (2) On or after the commencement of the Assisted Decision-Making Act, the Tribunal must review a guardianship order or financial management order if requested to do so by: (a) the represented person (b) a person with a proper interest in the proceedings (c) a person with a genuine interest in the personal and social wellbeing of the represented person (d) the guardian or financial manager, or (e) the Public Representative, the NSW Trustee or the Public Advocate unless the request does not disclose grounds that warrant a review. (3) A guardianship order made before the commencement of the Assisted Decision-Making Act remains in force until: (a) the order reaches its review date (b) the order reaches the expiry of its term, or (c) the Tribunal reviews the order on its own motion or upon request. (4) The Tribunal must review all financial management orders made before the commencement of the Assisted Decision-Making Act that have not otherwise expired within a prescribed period. The prescribed period should be determined after consultation with the Tribunal. 

20.2 Tribunal action on review of orders 

The new Act should provide: (1) When reviewing a guardianship or financial management order made under the Guardianship Act 1987 (NSW), the Tribunal should consider where relevant: (a) whether there is still a need for the order (b) whether the eligibility and suitability criteria for a representative are met, and (c) whether the guardian or financial manager is likely to meet the responsibilities and carry out the functions of a representative under the Assisted Decision-Making Act. (2) Upon reviewing a guardianship or financial management order, the Tribunal must: (a) allow the order to lapse (b) make a representation order in the same terms as the original order or in different terms (c) revoke the order and make a support order, or (d) revoke the order. 

20.3 Review of enduring appointments 

The new Act should provide: (1) On or after the commencement of the Assisted Decision-Making Act, the Tribunal may review the appointment (or purported appointment) of an attorney under an enduring power of attorney, or an enduring guardian, on its own motion, or if requested to do so by: (a) the person making the appointment (b) a person with a proper interest in the proceedings (c) a person with a genuine interest in the personal and social wellbeing of the appointor (d) the guardian or attorney, or (e) the Public Representative, the NSW Trustee or the Public Advocate, unless the request does not disclose grounds that warrant a review. (2) The appointment of an enduring guardian or the appointment of an attorney under an enduring power of attorney, made before the commencement of the Assisted Decision-Making Act, remains in force unless the Tribunal decides it should not remain in force (in whole or in part) after such a review. 

20.4 Tribunal action on review of an enduring appointment 

The new Act should provide: (1) When reviewing the appointment or purported appointment of an enduring guardian under the Guardianship Act 1987 (NSW), or an attorney under an enduring power of attorney, the Tribunal should consider where relevant: (a) whether the appointor met the eligibility criteria for entering into the arrangement, and (b) if the appointor did not meet the eligibility criteria for entering into the arrangement: (i) the fact that the enduring guardian or attorney was chosen by the appointor (ii) whether the eligibility and suitability criteria for an enduring representative are met, and (iii) whether the enduring guardian or attorney is likely to meet the responsibilities and carry out the functions of a representative under the Assisted Decision-Making Act. (2) Upon reviewing an enduring appointment, the Tribunal may confirm it, vary it, suspend it or revoke it, in whole or in part. (3) The Tribunal may make a representation order or support order in accordance with the new Act to supersede an enduring appointment that has been suspended or revoked, in whole or in part. 

20.5 Responsibilities of past appointees 

The new Act should provide that all guardians, enduring guardians, attorneys under enduring powers of attorney and financial managers must observe the new general principles (Recommendation 5.2) from the commencement of the new Act. 

20.6 Consequential amendments to other statutes 

Amendments should be made to NSW statutes that reference guardianship law and guardianship arrangements, to ensure that the terminology and intent of those references is consistent with the new Act.