The Disability and Community Services Commissioner/ Health Services Commissioner regularly deals with complaints in relation to the functions and actions of guardians in both the disability and mental health spheres. The Human Rights and Discrimination Commissioner also recently held the additional role of ACT Public Advocate for 18 months, and in that capacity, gained direct experience of ACT guardianship law and practice, including as being the Territory’s guardian of last resort.
We submit that ACT law should have a presumption that a person has decision making capacity and, just because a person lacks one type of decision making capacity at a particular point in time, then that should not be determinative as to whether they lack decision making capacity in other aspects of their lives.
Issues of particular concern to the Commission are the unregulated use of restrictive practices in relation to people with a disability (see below) and a lack of clarity for guardians and carers regarding their responsibilities when an order is issued. While we welcome the approach of the ACT Civil and Administrative Tribunal (ACAT) not to grant plenary guardianship orders, complaints to the Disability and Community Services Commissioner indicate that some private guardians seek to control all aspects of the lives of people with disability, while others are concerningly absent from decision making for which they should be taking responsibility. For example, some private guardians interpret orders regarding ‘welfare’ or ‘living arrangements’ as providing for guardians to make all decisions regarding a person’s life, such as what they will eat for dinner and who their friends will be. Compounding this can be situations where multiple guardians are appointed, such as family members, and each has conflicting views on what decisions should be made, often at an inappropriate level of minutiae.
This Review provides an opportunity to not only reform guardianship law, but also the culture and practice that surrounds it, particularly in relation to private guardians in the community. Our suggestion is that, consistent with rights under the HRA and the CRPD, the traditional presumptions and assumptions about guardianship law need to change. Regardless of what form of decision-making orders are adopted, people with disabilities should be presumed to have capacity to make decisions for themselves, and any restrictions on that should be narrowly construed.
We note that the Discussion Paper does not cite the extent of existing guardianship orders in the ACT and comparative data from other jurisdictions. Data collection is a requirement of Article 23 of the CRPD, and such analysis seems critical to any law reform. We submit that an analysis of guardianship data is important to determine:
The Commission also has direct experience of the interaction between guardianship and mental health law gained from the Health Services Commissioner’s complaints jurisdiction, and through our extensive involvement in the ACT Government’s recent development of new mental health legislation. We also participated as an ‘interested party’ in an ACAT matter, still on foot, which seeks to address confusion about the interaction between mental health and guardianship law, and how capacity is assessed for guardianship purposes.
That experience highlighted several critical questions about how guardianship law interacts with other ACT laws:
We submit that consistent with relevant human rights and the CRPD, a person should be presumed to have capacity under existing ACT law until a relevant person can demonstrate otherwise with evidence, as determined by an independent court or tribunal. As detailed below, the CRPD arguably also creates new obligations on the governments to provide all necessary supports for a person to make decisions for themselves. On this basis, a finding that a person lacks capacity in one domain of their life, (if such assessments were to continue in any new guardianship legislation) should not be determine the assessment of their capacity in other areas.
Chan notes that people with a disability who display ‘behaviours of concern’ are often accommodated in closed environments, placing them at further risk of abuse and restrictive practices, even where such measures are non-therapeutic and increase such behaviour. The legality of any restrictive practice that limits an individual’s rights to liberty and other protected rights in the HR Act is questionable under current legislation. Arguably, only mental health legislation provides a lawful basis for involuntary treatment, and only in a narrow therapeutic sense. Outside this regime, we are particularly concerned that Public Authorities under the Human Rights Act are breaching their obligations if they engage in any form of restrictive practices. Such actions may also constitute a breach of applicable standards under the Human Rights Commission Act 2005 and disability discrimination under the Discrimination Act 1991.
The application of restrictive practices in relation to people with a disability and with mental illness, has been a feature of complaints to the Disability and Community Services Commissioner/Health Services Commissioner. The Commissioner has raised concerns on a number of occasions that restrictive practices have inadequate authority and that the human rights of individuals have potentially been breached.
The Commission is not advocating that guardianship law provide an authorising process for guardians to consent to restrictive practices. In her submission to the Consultation paper about the proposal for a National Disability Insurance Scheme Quality and Safeguarding framework, the Disability and Community Services Commissioner specifically noted that a proposal, that guardians could authorise restrictive practices, was not supported. The Commissioner noted that:
‘There are many guardians who, with the best of intentions, would agree to proposals put forward by service providers in the interests only of keeping their sons or daughters safe, and because they have not been informed about alternatives that might exist. They may agree without adequate appreciation for the harm that can accompany well-intentioned un-monitored restriction. Such restrictions may be more intrusive than those that might be duly authorised by a court/tribunal, or considered reasonable by an oversight body’.
The Commissioner argued for such practices to be more transparently reported with a view to minimising or removing their use in conjunction with adequate oversight. The Victorian Senior Practitioner model is one way in which care plans, including restrictive practices, can be recorded and assessed. The Commission submits this model, or another form of regulating and reducing restrictive practice, must be considered.