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Preface to the 2nd edition of Capacity and the Law (2017)

This second edition of Capacity and the Law offers a window into the rapid growth of knowledge regarding decision making capacity and the parallel developments of law in this area. Since the 2011 first edition of this book, there have been substantial developments in medicine, neuroscience and social sciences, as well as a commitment to human rights frameworks such as the United Nations Convention on the Rights of Persons with Disabilities, which have enhanced our understanding of decision-making capacity and its social and human rights context. The changes made to the first edition also reflect a rapidly developing and changing law in the area, with the legislation of most of the States and both the Territories having been amended or repealed and replaced or added to by new Acts. As well, the case law has been expanded significantly by the judgments of Supreme Courts and the decisions of tribunals.

Reflecting how rapidly the field of capacity is expanding, changes have been made to every chapter of the book with significant expansion of many chapters. Two chapters have been added to acknowledge two new and important areas of capacity, namely Capacity and the Right to Refuse Psychiatric Treatment and Professional Capacity. In these new chapters and in other chapters (e.g. Chapters 1 and 4), we have brought insights into the text from relevant experts in specific areas of capacity.

Our book has been expanded by the fact the modern Australian guardianship system continues to develop. Also, other parts of the legal system in which the question of decision-making capacity is relevant are also undergoing change and development. That is reflected in the updating of some of our chapters as well as in the two added ones.

The first stage of the development of the modern Australian guardianship system was to create an easily accessible way of appointing substitute decision-makers for persons unable to manage their personal and financial affairs due to impaired decision-making capacity and the manifest need for a substitute decision-maker to be appointed.

The second stage has been to put in place mechanisms for preserving a person’s autonomy by recognising, usually in legislation, but sometimes in the common law, a person’s right to appoint who they wish to make substitute personal or financial decisions for them when they have lost capacity to make those decisions for themselves. This concept of extended autonomy included the giving of directions generally in advance care directives as to how the maker of a directive wanted to be cared for when they could not make such decisions for themselves.

While both these stages are developing and maturing, a third stage is gathering momentum. This stage, given impetus by the Convention on the Rights of Persons with Disabilities, involves developing practices that are both ethical and effective to support persons who have impaired decision-making capacity to make decisions about their personal and financial affairs. While the second stage of development is useful for all who have decision-making capacity, but may lose it, the concept of supported decision-making offers the opportunity for those who have had impaired decision-making capacity all of their lives or whose decision-making capacity has been impaired by acquired brain injury, mental illness, the onset of a form of dementia or some other cause, to make their own personal and financial decisions with the support of others.

As to the writers of the chapters of the book, in relation to the first 16 chapters, the original lead writer of each chapter has remained the lead writer of its update. Chapter 17 has been written by Dr Christopher James Ryan MBBS FRANZCP, Consultation-Liaison Psychiatrist, Discipline of Psychiatry and the Centre for Values, Ethics and the Law in Medicine, University of Sydney and Dr Sascha Callaghan LLB PhD, Lecturer, Sydney Law School and the Centre for Values, Ethics and the Law in Medicine, University of Sydney. Chapter 18 has been written by Associate Professor Chanaka Wijeratne and Anne Harvey B.A. (UNE), Dip Law (SAB), Solicitor.

We also wish to thank Dr Sharon Reutens and Dr llana Hepner for their contributions to the content of Chapter 1, Section 1.8, Capacity to Give Evidence, as well as to Ian Davidson SC for his comments on an earlier draft of Chapter 4.

We are very proud of the fact that our book is first textbook published on the new AustLII Communities integrated legal publishing platform and that both editions of it are available free of charge to anyone who has access to the internet.

It was the idea of AustLII’s directors, Professors Graham Greenleaf and Andrew Mowray and Associate professor Philip Chung to develop the communities’ platform; and Chris Kenward and Jones Olatunji developed it.

The transferring our text to the platform was done by Hannah Figueroa of AustLII’s staff and the following AustLII interns for semester 1, 2017: Angelica Fazio, Katherine Le, Connor Mulholland, Isabella Pearson, Amber Smyth and Emily Truong.

Our thanks to all of the above for ensuring that Capacity and the Law is, and will remain, on the internet.

While our book will be updated as appropriate, at the time of publication, June 2017, it was up to date with material available to the authors as at 28 February 2017.

Nick O’Neill and Carmelle Peisah

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