While the Commission is strongly supportive of reform to the current substitute decision making paradigm, we also recognise there are challenges and barriers to this transition. One critical question is what safeguards are necessary to overcome such challenges. The ALRC Report attempted to deal with these issues in its proposed Safeguards Guidelines.
In reviewing a range of international studies, Davidson et al note that implementing SDM ‘takes time and resources, and may require a shift in attitudes of some care providers and in some service users themselves’. Their analysis includes issues of informed consent (often impeded by staff attitudes), communication limitations, methodology used by supporters, law reform not leading to cultural change in institutions, and the consistent application of good practice SDM across all settings.
Blanck and Martinis cite a 2012 meeting of stakeholders in New York, including representatives from the American Bar Association, United States Department of Justice and National Guardianship Association. The meeting sought to discuss how to move away from the substitute decision making model. It identified a number of issues that had to be considered and addressed:
The first issue may very well be the easiest to change in the ACT context, through legislative reform, while the other matters are likely to be more difficult.
Article 12(4) of the CRPD contemplates certain safeguards applying generally to protect people with disabilities, which the ALRC emphasised including:
The ALRC’s Safeguards Guidelines reflect these requirements, and provide useful principles for how the issues should be approached at the Territory level.
Nonetheless, Gooding and others have noted that a common ‘critique’ of SDM proposals are that they ‘open the possibility of manipulation and unchecked abuse’, including where SDM strays into the area of de facto substitute decision-making. In this context, it is worth noting that the draft General Comment 1 was criticised for not including enough discussion on ‘undue influence’ and this was expanded in the final, including a definition of undue influence as being ‘where the quality of the interaction’ between the individual and a supporter includes ‘signs of fear, aggression, threat, deception or manipulation’. 
Similarly, there are suggestions that SDM might lead to supporters acting in a differential manner to those that support them, effectively deferring their will to that of the supporter. Kohn et al cite the research showing older adults tend to prefer trusting a surrogate decision-maker, rather than expressing treatment preference themselves, and note the lack of research into how SDM relationships would influence such deference.
Gooding rebuts some of this critique on the basis that all adults are subject to influence and pressure from those around them, and may at times defer to the opinions of those circles of support. He questions why those standards should change when the state is intruding into the decision making of a person with disability. He also notes that safeguarding in the current substitute decision making framework has also been challenging. Nonetheless, he suggests that states must clarify this definition and design measures to ensure interactions between supporter and supported are not subject to undue influence, and points to existing thresholds in contract and probate law as worthy of consideration.
MDAC, in its Call to European Governments document, highlights some of these requirements in suggesting that a supported decision making system would safeguard and structures which:
One safeguard may be to legislate supported decision making in reformed guardianship law, as was contemplated by the Victorian Law Reform Commission. General Comment 1 by the CRPD Committee does contemplate giving support to exercising legal capacity as encompassing a broad spectrum, some of which may engage legal mechanisms.
Carney questions if legislating a ‘supported decision making’ system is indeed the right step:
‘Supported decision-making may or may not require engaging the law at all. Circles of support, micro-boards, or friendship networks may better be cultivated purely within civil society, overseen simply by the advocacy, service protocols, health and welfare professional standards, and other processes of the myriad of informal community, self-help, non-government, and government human services agencies. However inadequate due to cost and other barriers, accountability of informal supporters may better be left to education and information strategies, or the abuse mandate of Offices of the Public Advocate (Chesterman, 2013; Feigan, 2011), in order to avoid the more egregious social policy cost of formalisation having a chilling effect on willingness to offer support, or of rendering the work of supporters less “visible”.’
The Commission finds it difficult to contemplate how the cultural change demanded by the CRPD, with corresponding safeguards, is possible without significant law reform. Gooding for example questions if the benefits of using the law for social change will be ‘overwhelmed by other powerful sources in society’, but nonetheless notes:
‘…it is generally agreed that the law authoritatively creates the power structures, institutions and incentives of disability service ‘systems’, which directly shape the lives of people with disabilities, their families and others.’
Similarly, Flynn and Arstein-Kerslake suggest that it is ‘difficult to imagine how supported decision-making could be implemented and formally recognised without statutory language’. Therefore, we tend to favour this approach in contrast to that of Carney, although we do appreciate Sir Anthony’s Mason words regarding the perils of rushing into law reform without a sound evidence base:
‘…[a]s things currently stand, [current] proposals seem to reflect little more than ideals that have not been carefully thought through, with the risk that they will result in experimental law-making.’
Bach and Kerzner suggest that such a legislative basis would include three categories of decision making, each with corresponding levels of legal oversight and supports:
Supports would include mechanisms to help a person develop decision-making capabilities, and facilitation whereby a supporter is appointed to make decisions based on the best interpretation of will and preference. This model echoes the spectrum of supports envisaged by the VLRC, although Gooding notes there are questions as to how criteria for determining which category a person falls into will be determined, without falling into the discriminatory diagnosis or functional testing that is currently contrary to the CRPD and General Comment 1.
There has been criticism of General Comment 1 in this respect, on the basis it is unclear how states should proceed. As Gooding notes, ‘only a very small number of commentators have explored this possibility beyond the abstract.’
In order to avoid the current models of assessing capacity, which is criticised in General Comment 1, a coalition of Australian non-government organisations have proposed that the law should focus on the supports provided to a person to meet their requirements to make and communicate a decision. In doing so, the question would become if a person cannot currently communicate their views, what changes are needed to supports to ensure that they can.
As Gooding notes, the Centre for Disability Policy and Law have proposed similar legislative amendments, which would focus on the point at which a person’s will and preference is unknown or unclear. Flynn and Arstein-Kerslake suggest a paradigm of support should be provided by the state that adapts to a sliding scale of abilities. However, Gooding submits that such proposals are ‘in the early stages of conceptual development and their practical application to legislation would constitute a profound shift away from centuries of capacity jurisprudence’.
Similarly, Carney notes that a consequence of new non-discriminatory capacity tests could be so-called ‘net-widening’, where persons not currently judged to lack capacity, including those with disabilities, are determined to require decision making support under new assessments. Such an outcome could be perceived as both a benefit and risk in a new system.
The cessation of capacity testing therefore appears to be a critical area for further consideration and research. It is far from settled as to how state parties will implement General Comment 1 and provide a spectrum of supports and protections without undertaking discriminatory capacity testing. As noted elsewhere in our Paper, this is therefore an exciting and challenging time for the ACT to be considering new guardianship law.