Submission to ACT Law Reform Advisory Council Reform of guardianship arrangements for adult people

Conclusion

As our submission demonstrates, the application of International human rights and best practice to guardianship law and practice is a controversial and evolving area. It seems clear however that the current ACT Guardianship Act and accompanying service system is out of step with these standards, and in particular, has an over reliance on substitute decision making. At a minimum, new legislation that reduces substitute decision making to an absolute last resort, and enabling supported decision making to develop along a continuum, must be prioritised.

The challenge for the ACT is how far to strive in this law reform effort. As a human rights jurisdiction, the ACT has an opportunity to lead Australia in the implementation of the most significant reforms required under the CRPD. However, reforms such as moving to cease substitute decision making, would have a profound impact on people with a disability and their carers, and cannot be rushed or progressed without significant investment of resources. In particular, the situation of those whose wishes cannot be ascertained or supported needs to be given careful consideration.

Much planning and consultation with the community would be required before a gradual change to such a system were implemented. Part of this consultation must include the development of appropriate safeguards and transitional support.

The Commission welcomes the opportunity to work with the Government on such reform if there were a clear mandate from the community to do so, and the Government invested significantly in such efforts. Such measures truly would likely make the ACT’s guardianship law amongst the best, and improve the lives of people with disabilities. But to be the first to implement such change would also inevitably involve learning from mistakes. To rush such reform without adequate investment, would likely only further limit the rights of people with a disability.

That is the challenge for this Review, and the Government’s response to it – on the one hand, to attempt only incremental change, which fails to achieve the full spectrum of rights fulfilment contemplated by the CRPD, or on the other, strive for the most significant reform to the legal treatment of people with a disability possible.

[1] Piers Gooding, ‘Navigating the ‘Flashing Amber Lights’ of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns’ (2015) 15 (1) Human Rights Law Review 45, 47.
[2] Gerard Quinn, ‘Personhood and Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD’ (Concept Paper presented at HPOD Conference, Harvard Law School, 20 February 2010), 3.
[3] Gooding, above n 1, 48.
[4] ACT Government Discussion Paper: Designing a model for the effective protection of human rights.
[5] See in particular s10(2) (right to consent to treatment), s8 (right to equality), s17 (right to liberty) in ACT HR Act.
[6] Jeffrey Chan, ‘Challenges to Realizing the Convention on the Rights of Persons with Disabilities (CRPD) in Australia for People with Intellectual Disability and Behaviors of Concern’, [2015] Psychiatry, Psychology and Law, 2.
[7] McSherry and Wilson, above n 7, 2.
[8] ALRC, 57.
[9] McSherry and Wilson, above n 7, 2.
[10] Terry Carney, ‘Supporting People with Cognitive Disabilities with Decision-Making: Any Australian Law Reform Contributions?’, (2015) 2(1) Research and Practice in Intellectual and Development Disabilities 6, 2
[11] ALRC, 57
[12] See for example Quinn, above n 2, 13.
[13] For example, Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290, Marion’s Case [1992] 66 ALJR 300, Hunter and New England Area Health Service v A [2009] NSWSC 761
[14] Bernadette McSherry and Kay Wilson, ‘The concept of capacity in Australian mental health law reform: Going in the wrong direction?’ (2015) 40 International Journal of Law and Psychology, 5.
[15] See for example Flynn and Arstein-Kerslake, above n 11, 128
[16] Mental Disability Advocacy Center, Legal Capacity in Europe: A Call to Action to Governments and to the EU, 2013, 17-18.
[17] AGAC brings together Public Guardians and Trustees from Australian jurisdictions
[18] McSherry and Wilson, above n 7, 6
[19] McSherry and Wilson, above n 7, 1
[20] McSherry and Wilson, above n 7, 8.
[21] See also decisions about standing to engage judicial system such as Winterwerp v Netherlands 2 ECHR Rep 387.
[22] PJB v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327
[23] Carney, above n 10, 9.
[24] Ibid.
[25] Ibid, 10
[26] Ibid, 10.
[27] Victorian Law Reform Commission, Guardianship: Final Report, 18 April 2012.
[28] Blanck and Martinis, above n 10, 26.
[29] Cited in Gooding, above n 1, 51.
[30] Gavin Davidson, Berni Kelly, Geraldine Macdonald, Maria Rizzo, Louise Lombard, Oluwaseye Abogunrin, Victoria Clift-Mathews and Alison Martin, ‘Supported decision making: A review of the International literature’, (2015) 38 International Journal of Law and Psychiatry, 61 , 62
[31] MDAC, Above n 16, 13
[32] Gooding, above n 1, 52.
[33] Davidson et all, above n 30, 64.
[34] Ibid, 66.
[35] Blanck and Martinis, above n 10, 27
[36] Gooding, above n 1, 55 – 57.
[37] Para 22.
[38] Nina A Kohn, Jeremy A Blumenthal and Amy T Campbell, ‘Supported Decision Making: A Viable Alternative to Guardianship?’, 117(4) Penn State Law Review 1111, 1138.
[39] Gooding, above n 1, 54-57.
[40] MDAC, Above n 16, 17-19. .
[41] Para 25.
[42] Carney, above n 12, 15.
[43] Gooding, above n 1, 48.
[44] Flynn and Arstein-Kerslake, above n 11, 137.
[45] Carney, above n 10, 9.
[46] Bach and Kerzner cited in Gooding, above n 1, 58.
[47] See for example the Canadian Association of Community Living, and Bach and Kerzner, who both suggest that functional assessment of mental capacity are necessary to identify how individuals exercise their legal capacity.
[48] Gooding, above n 1, 60.
[49] Gooding, above n 1, 60 citing Discussion Paper Submission from People with Disabilities Australia, The Australian Centre for Disability Law and the Australian Human Rights Centre
[50] Flynn and Arstein-Kerslake, above n 11, 131.
[51] Gooding, above n 1, 60.
[52] Ibid, 66.
[53] Inclusion International, Independent but Not Alone: A Global Report on the Right to Decide,2014, xiii.
[54] Citing Articles 12(4) and 16
[55] South Australian Office of the Public Advocate’s Annual Report, cited in Gooding, above n 1, 63.
[56] ALRC, Page 80.
[57] Autistic Self Advocacy Network, Model Legislation: An Act Relating to the Recognition of a Supported Health Care Decision-Making Agreement for Adults With Disabilities, 9.
[58] Gooding, above n 1, 63.
[59] Gooding, above n 1, 65.
[60] Quinn, above n 2, 16
[61] Gooding, above n 1, 51.
[62] Quinn, above n 2, 16
[63] Above n 2, 15.
[64] As summarised in Gooding, above n 1, 54.
[65] General Comment 1, para 21.
[66] Flynn and Arstein-Kerslake, above n 11, 8-9.
[67] Gooding, above n 1, 54 citing VLRC at 398.
[68] Ibid.
[69] Rec 3-3(2)(d)
[70] Gooding, above n 1, 54-63.
[71] Gooding, above n 1, 57.
[72] Ibid, 67.
[73] Ibid, 68.
[74] Davidson et al, above n 30, 66.
[75] Kohn et all, above n 38, 1142-1144.
[76] Ibid.
[77] See discussion in Gooding, above n 1, 68
[78]  Blanck and Martinis, above n 10,25.
[79] Gooding, above n 1, 68.
[80] Quinn, above n 2, 8
[81] Quinn, above n 2, 14.
[82] Davidson et al, above n 30, 1.
[83] Flynn and Arstein-Kerslake, above n 11, 135-136.
[84] Flynn and Arstein-Kerslake, above n 11, 135
[85] Representation Agreement Act of 1996.
[86] Kohn et al, above n 38.
[87] As discussion in Kristin Booth Glen, ‘Supported Decision-Making and the Human Right of Legal Capacity’, (2015) 3 Inclusion 2, 7-8.
[88] Ibid, 8.
[89] Kohn et al, above n 38.
[90] Carney, above n 10, 2
[91] MDAC, Above n 16, 13.
[92] Carney, above n 10, 3
[93] Ibid, 2
[94] Carney, above n 10, 7.
[95] Carney, above n 10, 6.
[96] Flynn and Arstein-Kerslake, above n 11, 143.