Report from the Guardianship Tribunals Guidelines Working Party*

A set of guidelines have recently been developed for the preparation of neuropsychological reports for the Guardian List of the Victorian Civil and Administrative Tribunal (VCAT). Although this was a Victorian project, there is a high degree of similarity across the different State and Territory systems in Australia despite many differences in State legislative environments. The guidelines are therefore intended to be practically useful throughout Australia. They were developed by a Working Party of neuropsychologists in conjunction with representatives from the Office of the Public Advocate, and are now being disseminated under the auspices of the APS. The guidelines aim to raise the standard of quality and usefulness of neuropsychological reports submitted to guardianship tribunals and are expected to be integrated into postgraduate training programs for neuropsychologists. The guidelines are intended to be especially useful for newly qualified clinicians as they begin to work in this challenging area of clinical practice.

Determination of decision-making capacity

Adults in Australia are presumed competent to make their own decisions about healthcare, finances, accommodation and legal issues. However, situations arise when individuals make what appear to be risky decisions and in some circumstances questions arise about legal competence. In most States of Australia there are formal legal avenues for determination of decision-making capacity and for appointment of substitute decision-makers (Bennett & Hallen, 2005). Healthcare settings are also required to follow legal process when determining whether patients have the capacity to consent to medical procedures.

While determination of decision-making capacity is a legal process, courts often rely partly on evidence from experts, such as medical practitioners and psychologists. In Victoria, the Guardianship List of VCAT is required to have medical or psychological opinion in order to establish whether the person in question has a "disability" as defined in amendments to the Guardianship and Administration Act (1986). The Tribunal also looks to expert opinion as well as other opinion when attempting to reach an understanding of the person's cognitive capacity to make relevant decisions, and when considering if there is a demonstrated need for a substitute decision-maker and whether appointment of a substitute will be in the person's best interests.

Guardianship tribunals throughout Australia have recorded a steady rise in applications and this has led to an increase in requests to psychologists to prepare reports that address these issues. Psychologists in healthcare settings frequently receive referrals for assessment of decision-making capacity, and community and private referrals are also increasing (Mullaly et al., 2007). In some aged care facilities and acute hospitals neuropsychologists receive more referrals for assessment of decision-making capacity than for any other purpose.

Training for assessment of decision-making capacity is now occurring in postgraduate psychology courses, but many practising psychologists have limited knowledge of the relevant legislation and the requirements of courts when making their determinations (Mullaly et al., 2007).

Development of the guidelines

A Working Party was formed in Victoria to examine matters of professional practice in this area. The group consisted of neuropsychologists who had broad experience in assessment of decision-making capacity in different settings, including APS College of Clinical Neuropsychologists representatives. The Office of the Public Advocate was represented by a lawyer whose role included liaison with VCAT and preliminary consideration of the reports of expert witnesses. The Working Party undertook to prepare a set of guidelines to be used by neuropsychologists when preparing reports for the Tribunal. Consultation with practitioners took place at a number of key forums, including several relevant national conferences and an education session organised by the APS College of Clinical Neuropsychologists. The Deputy President of VCAT and Head of the Victorian Guardianship List also provided vital input from the Tribunal's perspective.

The resulting guidelines describe key elements of the legislation in Victoria and provide a set of criteria to guide the preparation of neuropsychological reports that are to be used in the context of legal guardianship and administration proceedings. They also summarise the main elements of guardianship legislation in other States and Territories and it is hoped that the general guidelines will provide useful information to psychologists practising outside Victoria.

It is planned that these guidelines will be a ‘living document' that will be reviewed on a regular basis and updated. For that reason the Working Party welcomes any feedback from practising clinicians and consumers of neuropsychological reports.

The guidelines can be found in the ‘Practitioner Resources' section of the APS website at www.psychology.org.au/practitioner/resources/vcat-guidelines.

References

Bennett, H., & Hallen, P. (2005). Guardianship and financial management legislation: What doctors in aged care need to know. Internal Medicine Journal, 35, 482-487.

Mullaly, E., Kinsella, G., et al. (2007). Assessment of capacity to make decisions: An exploration of common practices among Australian neuropsychologists. Australian Psychologist, 42(3), 178-186.


* Members of the Working Party are Luke Delaney MAPS, Martin Jackson MAPS, Elizabeth Mullaly MAPS, David Stokes MAPS, Dr Lindsay Vowels FAPS, and Brendan Hoysted and Fred Wright of the Office of Public Advocate.

InPsych October 2009