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

CPRD and ALRC National Principles (Question 3)

In many ways, the ALRC Principles and the CRPD itself further articulate the right to equal recognition before the law, enshrined under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and s 8 of the ACT HR Act. It also been suggested that because s 31 of the HR Act allows rights to be interpreted with reference to International Law, many aspects of the CRPD may already be effective in the ACT, whether by virtue of the human rights obligations on Public Authorities, or in the application of rights in interpreting other laws under s 30.

We are generally supportive of the ALRC National Decision Making Principles, and their focus on reflecting the CRPD by ensuring people with disabilities are supported to make their own decisions consistent with their will and preferences, including choosing not to receive support. They also contemplate appropriate safeguards, and provide a sound basis from which the ACT should consider reforming guardianship law. One of the most unanimous areas of agreement in academic discussion about the CRPD and General Comment 1, appears to be that it requires states to positively act and invest in supports for people with a disability in order to fulfil their wishes and preferences, something the ALRC Principles also reflect.

However, the primary focus of the ALRC was on Commonwealth laws, which do not include guardianship, and it remains unclear how the principles would be ‘operationalised’ into State and Territory guardianship (and mental health) law and practice. It appears the ACT is amongst the first jurisdictions to review its guardianship legislation in light of the ALRC Report.

While disability and persons with disabilities are not defined in the CRPD, Article 1 states that such persons includes those with long-term physical, mental, intellectual or sensory impairments, which interact with various barriers that may hinder their full and effective participation in society on an equal basis with others.

We suggest that compliance with the CRPD in light of General Comment 1, suggests the ACT must at least reconsider the following elements of the guardianship system:

  • Substitute-decision making.
  • The ‘best interests test’
  • Assessment based on a finding of loss of legal capacity on a medical diagnosis.
  • While Article 12 is likely the most relevant Article for the purposes of this Review, other Articles should not be lost in the reform of ACT guardianship law.

An end to Substitute Decision Making?

The Australian Government made an interpretive declaration when ratifying UNCRPD to preserve its right to allow states and territories to retain guardianship as a ‘last resort’. McSherry and Wilson suggest that this means substituted decision-making arrangements will remain in place in Australia, at least in the short term.[7] They cite Kampf’s opinion that such a declaration contravenes the spirit of the CRPD, who also notes that the statement is a declaration not reservation. Reflecting this, the ALRC did suggest that this declaration is simply a record of the Australian Government’s understanding at a particular time.[8] McSherry and Wilson interpret the CRPD as implying that if an interpretative declaration is incompatible with interpretations set out in General Comments, ‘such declarations should not inform law reform endeavours’.[9]

Carney and others also argue that community pressure on governments to change the current substitute decision making regime is growing. [10] The CRPD began this movement, but arguably the release of General Comment 1 by the United Nations Committee on the Rights of Persons with Disabilities on Article 12 (Equality Recognition before the Law) in 2014 sparked this debate in earnest, and in particular paragraph 28:

‘States parties’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention.’

At any rate, Australia’s interpretative declaration may not be valid, and at any rate, it does not appear to prevent the ACT Government taking law reform measures consistent with the CRPD. The ALRC also suggested in its Final Report that the Declaration was not a barrier to domestic law reform.[11]

Best Interests Test

As the Principles and Guidelines suggest, states must reconsider the extent of the current model used in guardianship law based on the ‘best interests’ concept.  There is significant academic and community support for the approach of the CRPD to place new obligations on the state to no longer apply a ‘best interests’ substitute decision making test, but rather to ‘shore up’ legal capacity to assist the person to make and expression decisions for themselves. [12]

Assessing Capacity

Article 12(2) of the CRPD states that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. In the context of the Australian legal system, there are countless common law authorities on the definition and tests of legal capacity. Arguably, the Convention requires these concepts to be rethought, particularly as many turn on questions of ‘sound mind’, ‘competence’ and ‘impairment’.[13]

There is increasing recognition that legal capacity is not a binary concept, but rather a continuum of understanding, which must be assessed according to the specific decision in question. Nonetheless, Quinn questions if the current approach is appropriate, which presumes some government intervention if a person’s decision making capacity is reduced. The most common intervention, including under current guardianship law, is to appoint someone else to make that decision for the person ‘in their best interests’.

If so, the HR Act may already call into question some of the traditional common law concepts of capacity. In light of the CRPD, McSherry and Wilson distinguish legal capacity from mental capacity. They suggest that legal capacity is akin to legal agency, which is about the ability for an individual to act within the framework of the legal system. The CRPD Committee, in General Comment 1, defined mental capacity as the ‘decision making skills of a person’. McSherry and Wilson cite both UK and Australian laws to demonstrate that traditionally this has been assessed according to a person’s cognitive abilities, whether through tests based on status, function or outcome.[14]  General Comment 1 seeks to refute this approach:

‘In most of the State party reports that the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed. This is decided simply on the basis of the diagnosis of an impairment (status approach), or where a person makes a decision that is considered to have negative consequences (outcome approach), or where a person’s decision-making skills are considered to be deficient (functional approach). The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.’

Many have argued that this means an end to substitute decision making, at least based merely on a ‘diagnosis’ of disability.[15] Instead of substitute decision making, the CRPD Committee and the Mental Disability Advocacy Center (MDAC) [sic] based in Hungary, amongst others, contemplate ‘facilitated decision-making’ for those whose will or preferences cannot be ascertained, which would apply when:

  • supports have been exhausted (including creative communication techniques, building relationships, accessible information, etc.) and they have not led to a decision; and
  • the individual’s will and preferences cannot be clearly and unambiguously ascertained, or there appears to be substantial conflict between preferences as contemporaneously expressed and the best understanding/interpretation of the person’s long-term preferences; and
  • the individual has not previously expressed his/her will or preferences (for example, in planning documents).

According to MDAC, if ‘facilitated decision-making’ is used, it should only be used for the minimum period of time which is necessary in the circumstances, with an emphasis on transitioning the person to supported decision-making. Further, States should ‘encourage’ individuals to detail in advance their will and preferences with respect to key decisions, and to identify preferred supporters for the exercise of their legal capacity.[16]

The ALRC Report does not appear to provide a definitive answer on the future of substitute decision making in Australia. The Principles contemplate that where the representative cannot ascertain the person’s will and preferences, they should act to promote the person’s human rights and act in the least restrictive way. In this sense, these obligations are consistent with those of Public Authorities under the Human Rights Act 2004. A representative can only override a person’s preferences to prevent harm to the person or others. Similarly, in its discussion of the application of the national principles to State and Territory law, the ALRC did suggest ‘some room for fully supported decision making should remain’. This conclusion is, in part, dictated by the reality that some people will always need decisions made for them.’ This comment cites the suggestion by the Australian Guardianship and Administration Council (AGAC),[17] that supported decision making cannot ‘completely replace substitute decision-making’.

Whether that is both consistent with the CRPD and the ACT Human Rights Act we submit is a fundamental question for LRAC and ultimately the Government. As detailed further below, this is a growing area of academic and community debate, with no clear consensus on how law reform should proceed in light of General Comment 1.1 McSherry and Wilson suggest it is likely not consistent with the CRPD, but may be more ‘palatable’ for Australian governments not wishing to undertake more radical reform.[18]

The Rest of the CRPD

McSherry and Wilson, are concerned with the sharp focus on Article 12 of the CRPD, which they argue has lead to a lack of consideration of voluntary treatment, particular in relation to mental health, identifying the ALRC Report as one example where the CRPD as a whole should have been further considered.[19] For example, they argue ‘other rights, such as the right to health and to independent living, are critical for the realisation of legal capacity.’ Such an analysis is consistent with the interrelated, interdependent and indivisible relationship between rights contemplated by the Universal Declaration on Human Rights and confirmed in the Vienna Declaration emanating from the World Conference on Human Rights in 1990, and a message echoed in paragraph (c) of the Preamble to the CRPD.

They also suggest Articles 12 and 14 must be read in light of Article 25, which is essentially a ‘right to health’, and Article 19, the right to independent living. Their analysis extends from the consensus that Article 12 requires governments to take positive measures to support people with a disability to make decisions. In relation to the right health care, they contend that it extends the range of care and treatments on offer:

‘…so that care plans can be individually tailored and targeted with the participation of persons with mental impairments, may have more practical value than the recognition of legal capacity alone.’[20]

There is already some human rights jurisprudence regarding rights other than just equality in the application of guardianship law. In Stanev v Bulgaria, a man was placed in a social care institution in a remote village way from his home. Conditions were poor and the European Committee for the Prevention of Torture recommended the Government close the institution. Mr Stanev frequently attempted to leave over his eight years of residence, but this was presumed to be a symptom of his mental illness. The European Court of Human Rights found his living conditions amounted to degrading treatment and that his detention was unlawful. His fair trial rights were also infringed because he could not apply himself to have his guardianship order lifted. The Court also found that if Mr Stanev had retained his legal capacity, removed on the basis of his mental disorder, he would not have been deprived of his liberty. [21]

In Patrick’s Case, Justice Bell of the Victorian Supreme Court applied the CRPD to guardianship and financial decisions made about a person with a disability, and found a breach of a number of his rights, including to equality, and privacy, in the forced sale of his house.[22]