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

Proposed Guidelines for Decision-Making Support (Question 4) &
Will, Preferences and Rights (Question 5)

As with the National Principles, the Commission welcomes the Guidelines that underpin them. In some ways, they provide greater detail from which the ACT can draw in reviewing and reforming guardianship law. Their focus on CRPD, which as noted by the list in paragraph 3.67 of the Report, embodies many of the civil and political rights also found in the ACT Human Rights Act 2004, is particularly relevant for the ACT. Consistent with the CRPD, they strongly preference the role of supporters over the last resort appointment of representatives. Carney usefully summaries the Reports approach as follows:

‘Informed by the Australian Law Reform Commission’s five “framing” principles of dignity, equality, autonomy, inclusion and participation, and accountability (2014, para. 1.34), the Commission formulated (and further elaborates as guidelines) four decision- making principles: the right of all persons to make and have decisions respected; to be supported to make decisions; for supported decisions to be directed by the “will, preferences and rights” of the person; and for provision of appropriate safeguards. These principles would inform two kinds of possible appointments where autonomous decision making or informal assistance was inadequate: appointment of a “supporter” or, as a last resort, appointment of a “representative”.’

The role of ‘plan nominees’ under the NDIS was also considered by AHRC, and while perhaps outside the scope of this Review, the relationship between state guardianship schemes and the NDIS remains unclear. Carney notes that in NSW there have been 85 guardianship appointments requested in the NSW trial site by late 2014, likely due to the ‘considerable overlap and intersecting relationships between the NDIS and traditional guardianship’.[23] In contrast, the Victorian Office of the Public Advocate received just 7 such appointments, perhaps based on that office’s preference to utilise its advocacy role rather than formal guardianship.[24] The ALRC generally recommended that NDIS (and related) nominees under Commonwealth law be replaced, likely by supporters who Carney suggests would presumably be appointed and terminated by the person.[25] The Report also recommends that State and Territory tribunals be approached before the chief executive appoints a NDIS representative.

However, as Carney has noted, the Commonwealth has limited constitutional responsibility for guardianship and so the Report was not focussed on the practical implementation of the CRPD to State and Territory schemes. Further, the appointment of representatives by Commonwealth bureaucrats is ‘left hanging’ in the absence of an appropriate national tribunal to consider such appointments.[26] The remainder of this Submission refers to applicable literature and human rights standards to determine how such reform might take place in the ACT.

The ALRC Report was preceded by the Victorian Law Reform Commission’s 2012 Report, which also predated General Comment 1. Amongst its most critical and relevant recommendations were that the Victorian Civil and Administrative Tribunal make appointments of co-decision makers and supported decision makers, prior to utilising substitute decision making as a last resort.[27]

The Commission submits that while this review did not have the benefit of considering General Comment 1, it remains the most recent and relevant state-based review of current guardianship regimes in a human rights context and so must be seriously considered.

A move to Supported Decision Making?

We note that the term supported decision making is used throughout the LRAC Discussion Paper, but is not defined, although a broad definition is used in paragraph (1) of the ALRC Guidelines. It would be useful for LRAC’s Final Report to define what it means by ‘supported decision making’, including how this may fit into to other options in new capacity legislation, or other law reform that may arise from this process.

Blanck and Martinis suggest that while there is no single model of supported decision making, it ‘generally occurs when people use one or more trusted friends, family members, professionals, or advocates to help them understand the situations and choices they face so they may make their own informed decisions’.[28] In this way, it seeks to mirror how adults make daily decisions in all domains of their lives.

Browning, Bigby and Douglas have contrasted ‘supported decision-making’ from ‘support with decision-making’. Support with decision making constitutes broader measures to assist people make decisions outside the context of directly exercising legal capacity, which may indirectly assist a person exercise legal capacity, such as providing plain language information or self-advocacy training. [29] Davidson et al have undertaken a comprehensive analysis of SDM around the world, and provide an excellent analysis of the various models that could be considered.[30]

For the purposes of our submission, we will use this term generally as it is used in General Comment 1 of the CRPD Committee, which was to contrast alternatives to the substitute decision making model used in many jurisdictions including in the ACT. MDAC, drawing on Concluding Observations in relation to China and Austria by the CRPD Committee, suggests that a system of supported decision-making must include:

  • Recognition of everyone’s legal capacity and right to exercise it;
  • Accommodations (adjustments) and access to support where necessary to exercise legal capacity;
  • Regulations to ensure that support respects the person’s will and preferences, including the establishment of feedback mechanisms to ensure that support is meeting the person’s needs; and
  • Arrangements for the promotion and establishment of supported decision-making.

MDAC submits this means that governments should develop new legislation and structures that:

  • Recognise that supported decision-making is built on relationships of trust;
  • Assign clear roles to supporters to provide information to help people with a disability to make choices, and to assist them to communicate their choices to third parties (such as banks, doctors, employers, etc.); and
  • Prevent and remedy exploitation, violence and abuse, as detailed in Article 16 of the CRPD. [31]

Gooding also notes that the CRPD criteria would encompass pass SDM and ‘support with decision making’ and broader support to exercise legal capacity across a range of law, policy and practice.[32] It is worth noting, that for the purposes of the Victorian Law Reform Commission Report, supported decision making was a more defined category of decision making, along a spectrum which included co-decision making.

We welcome both the broader definition of SDM contemplated by the CRPD Committee, and the more nuanced spectrum of decision making options contemplated by the Victorian report. However, we are also cautiously supportive of SDM as this still requires some level of oversight. We are already concerned about restrictive practices not having a clear lawful basis. Even in the ACT, where Public Authorities have obligations in relation to human rights, there is still a lack of understanding that measures can only be taken with lawful basis. The National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector is welcome, but we submit to have a meaningful impact it, and applicable human rights, as well as the law reform of other jurisdictions, should inform the development of restrictive practice legislation in the ACT.