Practitioner’s capacity central to disciplinary proceedings

In Legal Services and Complaints Committee v A Practitioner,¹ the tribunal was required to determine whether the practitioner’s mental health condition displaced the long‑standing presumption of capacity, such that a litigation guardian ought to be appointed under s 40(2) of the State Administrative Tribunal Act 2004 (WA).²

The disciplinary proceedings against the respondent practitioner had been ongoing since 2019, further complicated when the Legal Services and Complaints Committee received a medical certificate from the respondent’s treating psychiatrist.³

The certificate detailed a diagnosis of Major Depressive Disorder alongside several chronic physical health conditions, all of which resulted in the practitioner being an inpatient for about three months.⁴

Following a clinical review shortly before the scheduled disciplinary hearing, the psychiatrist expressed the opinion that the respondent was:

‘at present psychiatrically unfit to instruct counsel, give evidence, or be questioned before a tribunal, and is therefore … unfit to appear before the … Tribunal in the near future’.⁵

In light of the medical certificate, the committee did not positively submit that the practitioner lacked capacity, instead opting to bring the certificate to the tribunal’s attention as a basis for urgent directions.⁶

The central task before the tribunal was therefore construing and applying s 40(2) of the State Administrative Tribunal Act 2004 (WA) to assess whether the respondent practitioner was a person ‘not of full legal capacity’, and, if so, whether the appointment of a litigation guardian was required for the continuation of the disciplinary proceedings.⁷

Judge Jackson emphasised that the inquiry was not concerned with the practitioner’s general ability to manage his affairs, but his capacity to conduct the particular litigation in question,⁸ situating s 40(2) within the broader common law framework governing capacity for litigation.⁹

The tribunal reaffirmed that the long‑standing presumption of capacity may only be displaced by clear and cogent evidence, and is context specific, given a person may possess sufficient capacity for one form of litigation yet lack it for another depending upon the nature and complexity of the proceedings.¹⁰ In paragraph 16, the tribunal provided a summary of the relevant principles developed by the courts concerning capacity.

Importantly, the tribunal noted the threshold for capacity is generally lower when a party has professional legal representation, reflecting the fact that counsel can manage the technical and procedural burdens of litigation, provided they can receive and act upon instructions.¹¹

The critical question before the tribunal was whether the respondent’s condition rendered him unable to understand the nature of the proceedings, the relevant issues and the decisions required to conduct a defence.

In evaluating the medical opinions, the tribunal acknowledged the seriousness of the respondent’s psychiatric and physical conditions, as well as the treating psychiatrist’s ‘guarded’ assessment of the respondent’s ability to participate effectively in litigation¹² but noted that both psychiatrists accepted that his mental illness did not necessarily equate to a lack of legal capacity.¹³

The tribunal also considered its own observations of the respondent, including his written communications, his ability to understand questions and his apparent capacity to make considered forensic decisions, such as electing not to give evidence at that stage.¹⁴

Ultimately, the tribunal was not satisfied that the presumption of capacity had been displaced.¹⁵ While the respondent’s medical condition made participation in disciplinary proceedings challenging, the evidence did not establish a total or functional absence of legal capacity sufficient to justify the appointment of a litigation guardian.¹⁶

Judge Jackson emphasised that any risks posed by the respondent’s condition could be mitigated if the respondent retained legal counsel.¹⁷ It was emphasised that, should counsel subsequently form the view that the respondent lacked capacity, their professional obligations would require that concern be brought promptly to the tribunal’s attention.¹⁸

The tribunal ordered that the matter be listed for directions, and proceed to a full hearing should the respondent elect to continue without pro bono counsel.¹⁹

Footnotes
¹ [2026] WASAT 18.
² Ibid [7].
³ Ibid [4].
⁴ Ibid [5].
⁵ Ibid.
⁶ Ibid [6], [9].
⁷ Ibid [7].
⁸ Ibid [21].
⁹ Vishniakov v Lay [2019] VSC 403, [30]; W v S [2025] WASCA 21, [47], adopting the reasoning in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91, [89] (Seaward J).
¹⁰ Legal Services and Complaints Committee and A Practitioner (n 1) [16], [107].
¹¹ Ibid [34]–[35].
¹² Ibid [108]–[110], [128].
¹³ Ibid [87]–[89], [98], [113].
¹⁴ Ibid [55]–[61].
¹⁵ Ibid [124].
¹⁶ Ibid [127].
¹⁷ Ibid [129].
¹⁸ Ibid [130].

¹⁹ Ibid [132]–[134].