When Should Indemnity Costs Be Awarded in Relation to a Calderbank Offer?

In Western Australian litigation, indemnity costs may be awarded in certain circumstances when a Calderbank offer has not been accepted.

Calderbank offers are settlement offers made outside of court that, if rejected unreasonably, can lead to an order for indemnity costs.

This blog post explores the principles governing the exercise of the court's discretion to make such an award, drawing on the case of Middendorp v Lygina (No 2) [2021] WASC 431 (S).

Principles Governing Indemnity Costs in Relation to Calderbank Offers

As established in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 and summarized in Eccles v Koolan Iron Ore Pty Ltd (No 3) [2013] WASC 418 (S), there are several principles that apply when determining whether a Calderbank offer justifies an award of indemnity costs:

1. A Calderbank offer will not justify an award of indemnity costs unless its rejection was unreasonable.

2. All relevant facts and circumstances must be considered in determining whether a party's rejection of a Calderbank offer was unreasonable.

3. The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted does not mean its rejection was unreasonable.

4. Whether conduct is reasonable or unreasonable always involves matters of judgment and impression.

5. It is not possible nor desirable to enumerate exhaustively all circumstances which must be taken into account in deciding whether the rejection of a Calderbank offer was unreasonable, but ordinarily, regard should be had to factors such as:

• the stage of the proceeding in which the offer was received,

• the time allowed to the offeree to consider the offer,

• the extent of the compromise offered,

• the offeree's prospects of success,

• the clarity with which the terms of the offer were expressed, and

• whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.

6. The party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favor.

7. The standard for awarding indemnity costs should not be allowed to diminish to the extent that an unsuccessful party will be at risk of an order for costs assessed on an indemnity basis absent some blameworthy conduct on its part - a test of unreasonableness should not be upheld on other than clear grounds. (Put another way, the standard for awarding indemnity costs should be maintained at a level where an unsuccessful party is not at risk of being ordered to pay costs assessed on an indemnity basis without engaging in some form of blameworthy conduct. A finding of unreasonableness should only be based on clear and compelling grounds, rather than being applied too easily or casually).

Assessment of Calderbank Offers

As reiterated in Strzelecki Holdings Pty Ltd v Jorgensen, Calderbank offers must be assessed without the benefit of hindsight and having regard to the strength of the parties' cases as they then stood.

A party's erroneous prediction about the prospects of litigation, on the basis of which they reject a Calderbank offer, may not be regarded as unreasonable if that party was not, at the time, and for good reason, in possession of sufficient information to make a proper assessment of its prospects, or if the circumstances upon which the assessment was based later changed.

Additionally, the terms of a Calderbank offer must be unambiguous, and it will not be unreasonable to reject an offer if there is some reasonable doubt about the nature and extent of what was being offered.

Case Example: Middendorp v Lygina (No 2) [2021] WASC 431 (S)

In this case, the court found that an order for indemnity costs (for a part of the costs) was justified due to the unreasonable rejection of a Calderbank offer.

The court considered factors such as the late stage of the proceeding, the defendant's prospects of success, the short timeframe for acceptance, the extent of the compromise offered, the clarity of the offer's terms, and the fact that the offer foreshadowed an application for indemnity costs in the event of rejection.

The court also noted that the unsuccessful party had not provided a reason for not accepting the offer beyond the usual prospects of being successful in litigation, which further justified the indemnity costs order.

Key Take-Aways

• Indemnity costs may be awarded in relation to a Calderbank offer if the rejection of the offer is found to be unreasonable.

• The court will consider various factors to determine whether the rejection was unreasonable, such as the stage of the proceeding, the time allowed for consideration, the extent of the compromise offered, the offeree's prospects of success, the clarity of the terms, and whether the offer foreshadowed an application for indemnity costs in the event of rejection.

• It is essential for legal practitioners to carefully consider the principles outlined above when advising clients on the potential consequences of rejecting a Calderbank offer, as an unreasonable rejection may lead to an indemnity costs order against their client.

Evaluating the need for a Guardian: the Guardian's Ability to Effect Decisions Not Relevant

In Western Australia, guardianship matters are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).

A recent decision, JL [2023] WASAT 20, provides an opportunity to examine how the Tribunal assesses the need for a guardian pursuant to s 43(1)(c) of the GA Act.

This article provide an overview of the relevant legislation and delve into the Tribunal's approach in determining whether a guardian is required.

Background

JL is a 34-year-old indigenous man who suffered a traumatic brain injury in a motor vehicle accident in 2006.

As a result, he developed a drug misuse problem, and he has been a patient of Mental Health Services since 2009.

JL's mother, BL, has been his primary carer for 16 years.

An application was made to appoint a guardian for JL, but the Public Advocate investigator did not support the appointment, arguing that JL's needs were met less restrictively through family support and existing services.

Section 43(1)(c) of the GA Act

According to s 43(1)(c) of the GA Act, the need for a guardian cannot be assessed against the ability of any guardian to give effect to the decisions made.

This principle was upheld in NCK [2004] WAGAB 6 at [64], where the workability or practicality of an order was deemed irrelevant to the statutory criteria for making a guardianship order.

Instead, the Tribunal must focus on whether there is a need for a guardian to intervene in a person's affairs.

In JL's case, the investigator submitted that there was no one more suited as a guardian than BL, as she had done more for her son than any independent guardian could hope to replicate.

The investigator argued that it was not in JL's best interests to appoint a guardian, as the least restrictive alternative was already in place through family support and existing services.

Best Interests of the Proposed or Represented Person

The primary consideration of the Tribunal must be the best interests of the proposed or represented person. In JL's case, the Tribunal considered the factors set out in s 51 of the GA Act, which include encouraging the person to live in the general community, taking their wishes into account, acting in a manner least restrictive of their rights, maintaining supportive relationships, and maintaining their familiar cultural, linguistic, and religious environment.

In weighing these factors, the Tribunal accepted the investigator's submissions that it was not in JL's best interests to appoint a guardian. The Tribunal noted that this was not a case where there was a lack of family involvement or support that would justify appointing the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family.

Key Take-Aways

• The JL [2023] WASAT 20 case demonstrates that the need for a guardian under s 43(1)(c) of the GA Act is assessed based on whether there is a need for a guardian to intervene in a person's affairs, rather than the guardian's ability to give effect to decisions made.

• In determining whether a guardian is required, the Tribunal must consider the best interests of the proposed or represented person, taking into account the factors listed in s 51 of the GA Act.

• In some cases, as in JL's, the least restrictive alternative may be found in the support and services already in place, negating the need for a guardian.

Principles for Costs Appeals

As a costs lawyer in Western Australia, I often come across situations where clients wish to appeal costs orders.

While the right to appeal is an essential part of the legal process, it is important to understand the principles that govern costs appeals.

In this blog post, I explore these principles, drawing from the case of Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96.

The Discretionary Nature of Costs Orders

Costs orders involve the exercise of discretion by the court. This means that the judge has the authority to decide on the appropriate costs order based on the specific circumstances of the case.

Consequently, the principles applicable to appeals against discretionary decisions also apply to costs appeals.

Limits of Appellate Intervention

An appellate court is not entitled to substitute its own decision for the decision under appeal simply because it would have reached a different conclusion, or because it considers that a different outcome would be more just and equitable.

Instead, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment before intervening.

Establishing Errors in the Primary Decision

To demonstrate that a costs order is outside the limits of a sound discretionary judgment, an appellant must establish either an express error or demonstrate that an error can be inferred.

An express error occurs when the primary judge:

1. Acted upon a wrong principle,

2. Mistook the facts,

3. Took into account an irrelevant consideration, or

4. Failed to take into account a relevant consideration.

An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.

Understanding the Apportionment of Costs in Western Australian Legal Cases

This blog post provides a general overview of the apportionment of costs, based on the Western Australian case of Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96.

1. The Importance of Success in Determining Costs

Success in legal proceedings is determined based on the reality of the circumstances involved in the case ([50]).

The court examines the overall outcome of the proceedings and the parties' success on individual issues.

The determination of success is not a mere mathematical calculation but rather an assessment of the parties' achievements on the substantive aspects of the case.

The court may depart from the general rule that costs follow the event and modify a costs order to take into account specific factors.

These factors can include unreasonable conduct by the successful party or the failure of that party on one or more particular issues ([50]).

The court's discretion in modifying costs orders is guided by the Rules of the Supreme Court, the established practice of the court, and legal authorities.

If the court is of the opinion that the successful party's conduct has resulted in costs being unnecessarily or unreasonably incurred, the court may deprive that party of costs, either wholly or in part ([50]).

The court may even order the successful party to pay the costs of the unsuccessful party, either wholly or in part, depending on the circumstances. This highlights the importance of maintaining reasonable conduct throughout the litigation process.

In cases where the successful party fails on specific issues, the court may exercise its discretion to apportion costs accordingly. This may involve ordering the successful party to pay the costs of those issues on which they have failed ([50]). However, it is essential to recognize that the court will only exercise this power when there are discrete and severable issues that have significantly added to the cost of the proceedings.

2. Discretion to Apportion Costs

The court has a wide discretion to apportion costs, which must be exercised judicially (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [48]).

Apportionment of costs should only be made where there are discrete and severable issues on which the successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [51]).

3. Modifying the Usual Costs Orders

When the court decides to modify the usual costs orders to reflect the limited success of the successful party, this power should be exercised broadly, as a matter of impression, without any attempt at mathematical precision (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [52]).

This approach acknowledges the complexities of separating different issues and the varying importance of different issues within a case.

4. Apportionment of Costs in Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

In this case, the court ultimately determined that a just apportionment of costs would require Strzelecki to pay two-thirds of the Jorgensens' costs of the action.

This conclusion was reached based on a broad analysis of the case, taking into account the various components of the action and their relative significance, and acknowledging the common factual substratum and legal issues in some components of the case (Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, [97]-[100]).

Aggravated Damages in Defamation Cases: An Overview

In defamation cases, aggravated damages can be awarded when the defendant's conduct is particularly harmful or egregious.

This blog post explores the grounds for awarding aggravated damages in defamation, with reference to a recent court decision, Hockings v Lynch & Adams [2022] QDC 127.

Grounds for Awarding Aggravated Damages

Aggravated damages can be awarded over and above the maximum general damages.

A court can award aggravated damages where a defendant acts improperly or unjustifiably, or in a way which demonstrates a lack of good faith, thereby improperly aggravating the injury done to a plaintiff.

In Hockings v Lynch & Adams [2022] QDC 127, the plaintiff sought aggravated damages against each defendant individually, pointing to several factors:

1. The number and persistent nature of the defamatory publications and the extended period over which they were made (para [356](a)).

2. The recklessness of the defendants as to the truth of the statements they made and the meanings conveyed (para [356](b)).

3. The pursuit of the justification defense at trial, as well as a plea of truth and a defense of triviality in an earlier version of the defense (para [356](c)).

4. The allegations going to the very heart of the plaintiff's personal and professional life (para [356](d)).

5. The defendants' persistent refusal to apologize (para [356](e)).

6. The failure to respond to the concerns notice in a timely way and, upon receiving particulars, failing to make an offer to make amends or give an apology (para [356](f)).

The court in Hockings v Lynch & Adams [2022] QDC 127 emphasized that the plaintiff bears a heavy onus to establish malice, as per the principles in Brigginshaw v Brigginshaw (1938) 60 CLR 336, where stupidity, bias, or carelessness are not enough (para [360]). Malice refers to the defendant's primary or predominant motive for publishing the remark and can be inferred from the acts, conduct, or expressions of the defendants (para [359]).

Factors to Consider

The court in Hockings v Lynch & Adams [2022] QDC 127 considered several factors in determining the award of aggravated damages, including:

- The number, frequency, and tenor of the defamatory posts (para [365]).

- Whether the defendants were motivated by a desire to attack or diminish the plaintiff (paras [365], [367], [368]).

- The seriousness of the allegations made, particularly when related to a person's professional life (para [365]).

- The defendants' refusal to apologize and their persistence in pursuing their defense (para [373]).

In this case, the court found that the first defendant's conduct was substantially more egregious than the second defendant's conduct and awarded aggravated damages against the first defendant (para [374]). However, the court was not persuaded that an award of aggravated damages should be made against the second defendant (para [375]).

Key Take-Aways

• Aggravated damages in defamation cases can be awarded when the defendant's conduct is particularly harmful or egregious.

• Factors such as the number and nature of defamatory publications, the defendant's motive, the seriousness of the allegations, and the defendant's refusal to apologize may be considered by the court in determining the award of aggravated damages.

Understanding the Serious Harm Test in Defamation Law (yet to apply in WA)

In this blog post, I explore the serious harm test, drawing on the first Australian trial to consider it, Martin v Najem [2022] NSWDC 479, and other relevant cases.

The Serious Harm Test

The serious harm test, as adapted from Section 1 of the UK's Defamation Act 2013, requires plaintiffs to establish that serious harm has been or is likely to be caused by the defamatory statements in question.

As laid out in the case of Newman v Whittington [2022] NSWSC 249, this test aims to discourage cases where the legal costs are disproportionate to the potential damages.

Factors to Consider

In assessing whether serious harm has been or is likely to be caused, the following factors may be considered, as outlined in Martin v Najem [2022] NSWDC 479:

1. The meaning of the words and the gravity of any imputations.

2. The extent of publication.

3. The standing of the defendant.

4. The identity of the recipients and their relationship (if any) with the plaintiff.

5. The circumstances of the plaintiff.

6. The reaction of the recipients.

However, these factors should not be treated as evidence in themselves, but rather as headings under which relevant evidence may be presented.

Proving Serious Harm

Establishing serious harm requires a fact-rich proof of harm that is actually or likely to be serious, as opposed to mere inferences of serious harm. There must be causation between the publication and the serious harm, which may be established by inference, particularly when considering future matters such as the statement's impact on people who will come to know the plaintiff in the future (Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB)).

Martin v Najem [2022] NSWDC 479

Introduction

This was legal battle between two prominent food influencers.

The plaintiff, known by his social media handle "@Issac_eatsalot", and the defendant built their careers on blogging about food-related issues on Instagram. However, their rivalry took a dark turn, resulting in defamatory comments.

Background

@Issac_eatsalot, a former pastry chef, began his social media career by participating in competitive food eating contests and promoting the venues he visited. He had amassed a significant following on various social media platforms and frequently worked in paid partnerships with venues and businesses. His wife, who was also involved in his food blogging work, had been directly affected by the escalating situation.

The Feud

On April 22, 2022, @Issac_eatsalot was informed by one of his followers that the defendant had published a video about him on Instagram. In the video, the defendant called @Issac_eatsalot a paedophile and a racist. Concerned and offended by the content, @Issac_eatsalot discovered that the defendant had directed his followers to a second Instagram account, where he continued to post defamatory content.

The Impact

The plaintiff's anxiety and distress were exacerbated by the knowledge that the defendant was an Instagram business rival with a relatively substantial following.

The defendant's campaign of abuse continued with several more videos and a direct message threatening to destroy @Issac_eatsalot. This resulted in the plaintiff reporting the publications to the police and seeking medical assistance.

The Legal Battle

The plaintiff commenced legal proceedings in July 2022, seeking damages for the defamatory content posted by the defendant. Since then, @Issac_eatsalot continued to receive negative and derogatory comments on his own Instagram account.

The Findings

In Martin v Najem [2022] NSWDC 479, the court found that the publications in question caused serious harm due to factors such as the extreme nature of the allegations, the manner of publication, the extent of publication, and the ongoing impact on the plaintiff's health and security.

The court also considered the reactions of third parties and the plaintiff's own affidavit detailing the stress and anxiety caused by the publications.

Common Law Qualified Privilege in Defamation: Understanding the Reciprocity of Duty and Interest

Defamation law seeks to balance two competing interests: the protection of an individual's reputation and the freedom of speech.

One of the defences available to a defendant in a defamation case is common law qualified privilege, which arises when there is a reciprocity of duty and interest between the publisher and the recipient of the statement.

This blog post provides a better understanding of common law qualified privilege, focusing on the concept of “interest”, as highlighted in the case of Bolton v Stoltenberg [2018] NSWSC 1518.

The Defence of Qualified Privilege

A communication is protected by common law qualified privilege when the publisher has a legal, social, or moral interest or duty to make a statement on a particular occasion, and the recipient has a corresponding interest or duty to receive it (Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470).

The question of whether common law qualified privilege applies depends on a close scrutiny of the circumstances of each case, the situation of the parties, the relations of all concerned, and the events leading up to and surrounding the publication (Bashford).

As a result, determining whether qualified privilege applies can be challenging and requires a careful analysis of the specific facts of the case.

Reciprocity of Duty and Interest

The concept of reciprocity of duty and interest is essential to the defence of qualified privilege.

To establish this reciprocity, the publisher must demonstrate that they had an interest or duty in making the statement and that the recipient had a corresponding interest or duty in receiving it.

In the case of Visscher v Maritime Union of Australia (No 6), Beech-Jones J rejected a submission that readers of a website operated by the Maritime Union of Australia had a direct or indirect interest in the maritime industry simply because of the nature of the forum. Beech-Jones J emphasized that the defence of common law qualified privilege could not apply to unrestricted publications available to the general public.

Excessive Publication

Even when there is a reciprocity of duty and interest, excessive publication may still defeat the defence of qualified privilege.

Excessive publication occurs when a statement is made available to a broader audience than necessary to satisfy the interest or duty.

In Vakras v Cripps, the Victorian Court of Appeal held that publication to the world at large on general websites could be evidence of excessive publication and thus, not protected by qualified privilege.

Bolton v Stoltenberg [2018] NSWSC 1518

In Bolton v Stoltenberg [2018] NSWSC 1518 the defense of common law qualified privilege was considered by the court.

The case involved a Facebook page called Narri Leaks, which was claimed to be dedicated to dealing with issues of interest to persons within the Narrabri Shire. The defendant, Mr. Stoltenberg, argued that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire and had a reciprocal interest in issues relating to the Narrabri Shire Council.

The court, however, found that the readership of Narri Leaks extended far beyond the residents of the Narrabri Shire Council who were interested in the finances of the Council. The judge cited evidence such as interrogatories provided by Mr. Stoltenberg, Facebook posts made by him, and Facebook activity logs, among other things. The posts themselves contained references to the wide readership of Narri Leaks, and the defendant admitted to having spent money on "boosting" posts all over the state.

As a result, the court concluded that Mr. Stoltenberg had failed to establish that the readers of the Narri Leaks Facebook page were residents of the Narrabri Shire with a reciprocal interest in a limited subject matter.

Furthermore, even if the matters complained of were only downloaded and viewed by a limited class of persons with an interest in a limited subject matter, the evidence of publication of the Narri Leaks Facebook page was evidence of excessive publication.

The court also rejected the argument that the matters complained of fell within the special and reciprocal interest identified by Mr. Stoltenberg. While the finances of the Narrabri Shire Council and the appointment of General Managers were important topics in the Narrabri area, the defendant had no duty to attack the plaintiff's reputation. The court concluded that the defense of common law qualified privilege was not applicable in this case.

This case demonstrates that in the digital age, establishing a limited audience for defamatory publications can be challenging, especially when social media platforms are involved. Courts will carefully scrutinize the facts to determine whether a defense of qualified privilege can be upheld. In this case, the court concluded that the readership of the Narri Leaks Facebook page was not limited to residents of the Narrabri Shire with a reciprocal interest in a limited subject matter, and therefore, the defense of qualified privilege was rejected.

Key Take-Aways

• Establishing the defence of qualified privilege in defamation cases requires a close examination of the circumstances surrounding the publication and the interests or duties of the publisher and recipient.

• It is essential to demonstrate a reciprocity of duty and interest and to avoid excessive publication.

• Ultimately, whether qualified privilege applies will depend on the specific facts and context of each case.

Navigating Palliative Care and Hastened Death: A Guide to the Guardianship and Administration Act in Western Australia

In Western Australia, the Guardianship and Administration Act (the GA Act) provides guidance for health professionals when making treatment decisions, particularly in relation to palliative care.

This blog post explores the circumstances under which a health professional may lawfully act in relation to palliative care, despite it hastening the death of the patient, under the GA Act.

I rely on extracts from the legislation and provide references to the relevant sections throughout the article.

Valid Treatment Decisions: Palliative Care and Hastening Death

Section 110ZL of the GA Act provides guidance on the validity of certain treatment decisions made by health professionals.

According to this section, if a health professional:

(a) commences or continues palliative care in relation to a patient; or

(b) does not commence or discontinues any treatment of a patient,

in accordance with a treatment decision that is:

(c) in an advance health directive made by the patient; or

(d) made by the patient’s guardian or enduring guardian or the person responsible for the patient under section 110ZD,

the health professional is considered to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.

Palliative Care Defined

To better understand the context of Section 110ZL, it is important to know what palliative care entails.

According to Section 3(1) of the GA Act, palliative care is defined as a medical, surgical, or nursing procedure directed at relieving a person's pain, discomfort, or distress, but does not include a life-sustaining measure.

Treatment Decisions and Advance Health Directives

Section 110ZL of the GA Act provides that the health professional's actions are considered valid when they act according to a treatment decision:

• specified in an advance health directive or

• made by the patient's guardian or enduring guardian or

• made by the person responsible for the patient under section 110ZD.

An advance health directive, as defined in Section 3(1), refers to a directive made under Part 9B of the GA Act or an instrument recognised as such under section 110ZA.

An enduring guardian, as mentioned in Section 3(1), is the person appointed under an enduring power of guardianship or the persons who are joint enduring guardians under an enduring power of guardianship, including a substitute enduring guardian.

A person responsible for a patient under section 110ZD is explained here.

Key Take-Aways

• In summary, under the GA Act, a health professional in Western Australia may lawfully act in relation to palliative care, even if it hastens the death of the patient, as long as the health professional acts in accordance with a valid treatment decision.

• This decision must be either specified in an advance health directive made by the patient or made by the patient's guardian or enduring guardian.

Treatment Decisions Under the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I frequently come across questions related to treatment decisions for patients who are unable to make reasonable judgments in respect of their treatment.

In this blog post, I discuss the circumstances in which a “person responsible” may make treatment decisions under the Guardianship and Administration Act 1990 (WA) (GA Act). We will focus on sections 110ZD, 110ZE, 110ZJ, 110ZI, 110ZIA, and the definition of "nearest relative" as per section 3 of the GA Act.

1. Circumstances in which a person responsible may make treatment decisions (Section 110ZD)

According to Section 110ZD of the GA Act, if a patient is unable to make reasonable judgments regarding a proposed treatment, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The person responsible for the patient is the first in order of the persons listed in subsection (3) who:

(a) is of full legal capacity;

(b) is reasonably available; and

(c) is willing to make a treatment decision in respect of the treatment.

The persons listed in subsection (3) include:

(a) the patient’s spouse or de facto partner, subject to specific age and living arrangements;

(b) the patient’s nearest relative who maintains a close personal relationship with the patient;

(c) the primary provider of care and support (including emotional support) to the patient, who is not remunerated for providing that care and support; and

(d) any other person who maintains a close personal relationship with the patient, subject to certain age requirements.

Section 110ZD also provides guidance on determining the patient's nearest relative and what constitutes a close personal relationship.

2. Section 110ZD: Determining the Patient's Nearest Relative and Close Personal Relationship

Section 110ZD of the GA Act provides detailed guidance on determining the patient's nearest relative and the criteria for establishing a close personal relationship. This information is crucial for identifying the appropriate person responsible for making treatment decisions on behalf of the patient.

A. Nearest Relative

Subsection (4) of Section 110ZD outlines the order of priority for the patient's nearest relative:

1. The spouse or de facto partner;

2. A child;

3. A parent;

4. A sibling.

For the purpose of this determination, Section 3 of the GA Act provides an extended definition of "nearest relative," which includes additional relatives such as stepchildren, foster parents, grandparents, uncles, aunts, nephews, and nieces. Furthermore, the definition considers brothers and sisters of half-blood and adopted siblings as equal to full-blood siblings.

Under the GA Act, being the eldest child carries specific importance when determining the patient's nearest relative for making treatment decisions. According to the definition of "nearest relative" in Section 3 of the GA Act, if there are two or more relatives of the same degree of relationship (e.g., siblings), the elder or eldest of those relatives shall be preferred regardless of their sex.

B. Close Personal Relationship

Section 110ZD(5) defines a close personal relationship by the following criteria:

1. The person has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and

2. The person takes a genuine interest in the patient's welfare.

By meeting these criteria, a person can be considered to maintain a close personal relationship with the patient, which is a requirement for certain categories of persons listed in subsection (3) (b) and (d)(ii) of Section 110ZD.

3. Priority of treatment decision of the person responsible (Section 110ZE)

The priority to be given to a treatment decision of a person responsible for a patient under Section 110ZD is determined in accordance with Section 110ZJ.

4. Order of priority of persons who may make treatment decisions in relation to a patient (Section 110ZJ)

Section 110ZJ outlines the order of priority for persons who may make treatment decisions in relation to a patient. The priority order is as follows:

(a) a treatment decision made by the patient through an advance health directive;

(b) a treatment decision made by an enduring guardian authorized to make the decision;

(c) a treatment decision made by a guardian authorized to make the decision;

(d) a treatment decision made by the person responsible for the patient under Section 110ZD.

5. Urgent treatment provisions (Sections 110ZI and 110ZIA)

In cases where a patient requires urgent treatment and is unable to make reasonable judgments, Sections 110ZI and 110ZIA provide guidance on when a health professional may provide treatment in the absence of a treatment decision or despite a treatment decision that is inconsistent with providing the treatment.

Urgent Treatment Under the GA Act After Attempted Suicide in Western Australia

As a guardianship lawyer in Western Australia, I frequently deal with cases involving urgent treatment decisions for patients who are unable to make reasonable judgments about their healthcare.

One such situation that requires particular attention is urgent treatment after an attempted suicide.

In this blog post, I discuss the provisions in the Guardianship and Administration Act 1990 (the GA Act) that apply to these circumstances, specifically sections 110ZIA and 110ZD.

Urgent Treatment After Attempted Suicide: Section 110ZIA

Section 110ZIA of the GA Act specifically addresses the situation where a patient requires urgent treatment following an attempted suicide. Under subsection (1), this section applies if:

(a) a patient needs urgent treatment;

(b) the patient is unable to make reasonable judgments in respect of the treatment; and

(c) the health professional who proposes to provide the treatment reasonably suspects that the patient has attempted to commit suicide and needs the treatment as a consequence.

If these conditions are met, subsection (2) allows the health professional to provide the necessary treatment to the patient, despite any:

• advance health directive or

• treatment decision (even if such directive or decision is inconsistent with providing the treatment) made by the patient's:

  • guardian,

  • enduring guardian, or

  • person responsible for the patient under section 110ZD (who such a person is, is explained below).

Circumstances in Which a Person Responsible May Make Treatment Decisions: Section 110ZD

Section 110ZD of the GA Act outlines the circumstances in which a person responsible for a patient may make treatment decisions on their behalf if the patient is unable to make reasonable judgments concerning the proposed treatment.

Subsection (2) sets forth the order of priority for determining the person responsible for the patient, with the first person in the order being the patient's spouse or de facto partner (who has reached 18 years of age and is living with the patient), followed by the patient's nearest relative who maintains a close personal relationship with the patient, the primary provider of care and support to the patient (who is not remunerated for providing such care and support), and any other person who maintains a close personal relationship with the patient.

When making a treatment decision for the patient, the person responsible must act according to their opinion of the best interests of the patient (subsection (8)). A treatment decision made by the person responsible for the patient has the same effect as if the patient had made the decision and were of full legal capacity (subsection (9)).

Key Take-Aways

• In urgent treatment situations following an attempted suicide, the provisions under sections 110ZIA and 110ZD of the GA Act are crucial to ensuring that the patient receives the necessary care while respecting the patient's autonomy to the extent possible.

• Health professionals and those responsible for the patient should be aware of these provisions and their implications in order to make informed decisions about the patient's treatment and care.