Medico Legal Investigation: client capacity and professional ethics in managing people with cognitive impairment (V)

Medico Legal Investigation: client capacity and professional ethics in managing people with cognitive impairment (V)

Michaela Okninski¹, Margaret Castles¹, Joel Grieger¹, Hilary Bowman-Smart², University Of Adelaide Adelaide, SA 5005², Adelaide South Australia

¹University Of Adelaide, Adelaide, SA 5005, South Australia, Australia
²Australian Centre of Precision Health, University of South Australia, Adelaide, South Australia, Australia

Abstract

The prevalence of cognitive impairment in Australia’s ageing population presents concerning issues for lawyers and medical practitioners alike, as interactions with clients and patients respectively depend upon the presence of decision-making capacity. From a legal perspective, this includes ‘mental capacity’ generally, and ‘testamentary capacity’ in the specialist area of Wills; a pertinent issue, as lack of testamentary capacity is a ground to have a Will treated as void and set aside by the court.

In the majority of cases, concerns about decision-making capacity are unlikely to pose an issue. However, in the minority where impaired decision-making capacity is suspected, significant issues can arise and, if not acted upon diligently, can have deleterious long-term legal consequences.

From a risk management perspective, solicitors’ ethical conduct rules require them to defer to the medical profession for expert opinion, with general practitioners ordinarily called upon to undertake capacity assessments. This in turn can create medico-legal issues for general practitioners due to the nature of the assessment being made, especially if the Will is subsequently challenged at a future point in time before a court, thus, placing both the legal and medical professional in harm’s way legally.

There currently exists a gap in the literature concerning how the two professions can work together to ensure that the rights of the client are paramount and future legal disputes are avoided. This paper forms part of a larger, ongoing empirical study into this issue.

This presentation will focus on our research to date on the prevalence of this issue, the inconsistency/ambiguity in nationwide conduct rules relevant to both disciplines, and judicial discussion on this point.

Biography

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