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Smith, Anita --- "Developments in Australian incapacity legislation" [2018] PrecedentAULA 16; (2018) 145 Precedent 4

DEVELOPMENTS IN AUSTRALIAN INCAPACITY LEGISLATION

By Anita Smith

INTRODUCTION

Because of some important influences in Australian common law and law reform ventures of the 1980s, Australian guardianship systems are flexible and responsive to human rights issues. However, with the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (the Convention) core concepts of guardianship in Australia are being revised. Unlike other nations, human rights have always been a touchstone for all guardianship legislation developed in Australia since the 1980s. This puts Australia in a better position to respond to the tenets of the Convention than other nations which have a different footing for such legislation.

BACKGROUND

The Convention entered into force on 3 May 2008 and was ratified by Australia on 30 March 2007 with the Optional Protocol also being ratified by Australia on 17 July 2008. The Convention has prompted worldwide reconsideration of guardianship laws and laws governing mental incapacity. Australia has, in various recent reviews, revisited existing laws and practices and widespread changes have been implemented or are likely to be introduced over the next five to ten years.

Article 12 of the Convention is considered the pivotal clause of the Convention and the prevailing international view is that it makes substitute decisions (that is, decisions by guardians or administrators/financial managers) unlawful under the terms of the Convention. The prevailing view is that ‘assisted decision-making’ is lawful and that decisions ought to be made on the basis of the ‘will and preference’ of the person with a disability as opposed to ‘in his or her best interests’. At present, all Australian guardianship legislation^[1] has as at least one of its principles that appointment of a decision-maker and specific substitute decisions ought to be made in the best interests of the person with a disability.

Article 12 also requires that where decision-making assistance or support is given that there be adequate monitoring and review, and that such assistance must be proportional in ambit and time of operation.

Under some laws – for instance in some states of the USA – the making of a guardianship order is akin to lifetime institutionalisation. In some European nations, the making of a guardianship order removes one’s right to legal personhood – or legal capacity – meaning that the person under guardianship loses the right to participate in their guardianship hearing, has no rights to appeal a decision and after the making of the order has no rights to vote or marry.^[2] With such devastating discrimination internationally, it is easy to see why guardianship laws were such a primary focus for a modern convention on disability.

Despite not having such a discriminatory impact on personal autonomy in Australia, at the time of ratification Australia issued a reservation to the effect that its guardianship and mental health laws were already compliant with the terms of the Convention.

Two factors distinguish existing Australian guardianship laws and practices^[3] from international laws and practices at the time of ratification. First, guardianship or administration orders since the 1980s did not completely remove a person’s decision-making rights but are limited in nature. Second, the making of guardianship and administration (or financial management) orders has been undertaken by tribunals, not only making the process of applying for and making orders easier but the review and revocation also easier – meaning that the monitoring and review of orders as required by Article 12 is already entrenched in Australian laws. In my view, these two factors arise from two important historical influences.

The earliest influence came from the decision of the High Court in Gibbons v Wright^[4] where the Court established that a person’s incapacity by reason of disability must be proven by the person who asserts it and also that incapacity is to be assessed only in respect of the specific decision under examination. The Court made it clear that a mere statement that a person has a disability is insufficient to prove incapacity. This decision established that a person’s incapacity for one area of decision-making does not infer incapacity for another area of decision-making. The modern expression for this is that incapacity is ‘domain-specific’: and the decision is an early expression of the proportionality of assistance and intervention now required by the Convention.

The second influence was a 1982 Committee^[5] (the Cocks Committee) established in Victoria to respond to the Declaration on the Rights of Mentally Retarded Persons by the UN General Assembly in 1971. The Committee identified the problem, common across Australian states and territories at that time, that contrary to the principles in the decision in Gibbons v Wright, incapacity orders were practically unreviewable, of global effect and based largely on medical diagnosis.^[6] In 1982, the Committee was also responding to the emerging movement towards deinstitutionalisation of people with disabilities.

The Cocks Committee, like the ACT Law Reform Commission shortly afterwards in 1989,^[7] recommended that personal decisions be treated separately to financial decisions and also that, for more efficiency and flexibility, the process be shifted from courts to specialist tribunals.^[8] Tribunals were preferred because of the absence of formal standing to make applications, the informality of processes and the ability to take evidence without the formal restriction of laws of evidence.^[9]

In separating financial (administration) from personal (guardianship) applications and orders and recommending that orders be as limited as possible, the reviewers not only ensured that substitute decision-making was domain-specific, but also that lifelong orders with plenary effect ceased.^[10] In 1986, Victoria passed guardianship legislation based on these recommendations and all states and territories followed suit over the next decade (except the Northern Territory, which finally passed similar legislation in 2016).

The legislation based on the recommendations from that Committee put Australia in a good position to respond to the 2008 Convention. While the Cocks Committee made recommendations primarily with regard to people with intellectual disabilities, the legislation developed with much broader application, having been recognised early on as being particularly applicable to issues associated with dementia and having the facilities to protect against elder abuse.^[11] Another important aspect of the legislation that emanated from the Cocks Committee report was the establishment of the roles of the public guardians or public advocates in each state and territory and the use of existing public trustee structures as independent appointees of last resort.^[12] While similar roles exist in the UK, Canada and some Commonwealth countries, none has quite the reach and availability of the publicly funded Australian models.

In the intervening decades, under the legislation that has been operating, Australian tribunals have been appointing guardians and administrators (financial managers) on the basic formula that a person with a disability is incapable of making reasonable personal or financial decisions by reason of his or her disability and is in need of a guardian or an administrator.

Evidence of a disability and the resultant incapacity is established mostly on the basis of written expert opinion evidence from medical practitioners and specialists or from psychologists. While much of the literature about guardianship in Australia concentrates on issues of establishing incapacity, my experience as a member of tribunals in two jurisdictions has been that applications to appoint a guardian or an administrator/financial manager fail more often for the lack of a proven need for an administrator/financial or guardian than for lack of evidence of incapacity.

This possibly reflects another of the fundamental principles of Australian law – which is often referred to as the principle of ‘least restrictive alternative’ – that is, that a guardian or administrator/financial manager ought not be appointed if some less restrictive approach can achieve the same ends in the interests of the person with a disability. This principle also exists in international law, often referred to as the autonomy principle.

Tribunals in all jurisdictions, however, have consistently reported exponential growth of caseload, associated particularly with an ageing population. As well as increasing levels of demand, the nature of guardianship issues has continually evolved, accommodating developments such as the NDIS and major changes in the funding and structure of aged care.

LEGISLATIVE REVIEWS AND CHANGES SINCE THE CONVENTION

Nationally, guardianship and administration legislation is the subject of numerous reviews and reports, mostly responding to the effects of the Convention.

The Equality, Capacity and Disability in Commonwealth Laws report issued by the Australian Law Reform Commission (ALRC) in 2014 recommended, in line with the Convention, that Commonwealth, state and territory laws should be consistent with the following national decision-making principles:

1. All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

2. Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

3. The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

4. Safeguards Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

If adopted and enacted, the recommendations would move legislation away from ‘best interests’ decision-making to decisions based on a person’s ‘will and preferences’ and also away from substitute decision-making towards support in decision-making. The ALRC report also recommends the removal of ‘disability’ as a qualifier for incapacity.

Victoria responded first to the Convention by providing a legislative facility for appointing assisted decision-makers, called supportive attorneys in the Powers of Attorney Act 2014 which commenced on 1 September 2015. This enactment was one of the results of the recommendations from the 2012 Victorian Law Reform Commission report on Guardianship.^[13]

In Victoria, the Medical Treatment Planning and Decisions Act 2016 came into force in March 2018. The Act allows Victorians to complete binding ‘instructional directives’ which will enable patients to refuse medical treatment, including future treatment. Patients can also complete ‘values directives’, which will guide their Medical Treatment Decision Maker (replacing the current concept of a ‘person responsible’) in making medical treatment decisions. The Act contains new mechanisms for appointing Medical Treatment Decision Makers and a restricted automatic decision-making hierarchy. The Act therefore reflects the Convention’s shift away from a ‘best interests’ model of medical decision making in favour of promoting the ‘values’ and ‘preferences’ of patients.

In its Review of the Guardianship Act 1987, the NSW Law Reform Commission has issued draft proposals which seek to establish a new framework for assisted decision-making laws in NSW.

‘The revisions intend to bring the general principles into line with contemporary human rights and disability rights principles. ...

Important changes include: removing the current requirement that people give “paramount consideration” to the person’s “welfare and interests”; introducing the requirement that a person’s will and preferences be respected and their personal and social wellbeing maintained; and requiring that a person’s existing informal supportive relationships are recognised.’

The NSW Commission will conclude its report in 2018. At this point, its recommendation is to remove the ‘disability’ qualifier from the test for appointing of a decision-maker and to make decisions about incapacity based on functional assessment. The Commission proposes that assessment of whether a person has decision-making ability for a particular decision requires evidence of whether the person can:

(a) understand the relevant information;

(b) understand the nature of the decision and the consequences of making or failing to make that decision;

(c) retain the information to the extent necessary to make the decision;

(d) use the information or weigh it as part of the decision-making process; and

(e) communicate the decision in some way.

This proposal reflects prevailing common law. However, the proposal does not require that incapacity results from a disability, which is a step away from common law and towards the principles of the Convention. It possibly also opens the door for findings of incapacity in areas such as compulsion, as opposed to disability, covering people who gamble or misuse alcohol or drugs but who would not meet the traditional definition of being a person with a disability.

In July 2016, the ACT Law Reform Advisory Council published a report on its review of the terms and operation of ACT’s Guardianship and Management of Property Act 1991. The Council made 16 recommendations for ‘changing the basis for decision-making in the ACT to comply with’ the Convention. Most of the recommendations are premised on a recommendation that ‘the ACT Government adopt a decision-making paradigm for people in the ACT with impaired decision-making ability that replaces a “best interests”-based substitute decision-making model with a “will, preferences and rights”-based supported decision-making model and that this model be reflected in legislation’.

In Tasmania, the Law Reform Institute based at the University of Tasmania is reviewing the Guardianship and Administration Act 1995, also reflecting issues arising from the Convention.

In Queensland in September 2017, the Guardianship and Administration and Other Legislation Amendment Bill 2017 (Qld) was introduced into the Queensland Parliament. The Bill introduces reforms recommended by the Queensland Law Reform Commission in its report, A Review of Queensland’s Guardianship Laws (September 2010). The objectives of the Bill include: a focus on contemporary practice and human rights for adults with impaired capacity, enhanced safeguards for adults with impaired capacity in the guardianship system, and improved efficiency of Queensland’s guardianship legislation.

In Western Australia, a statutory review was completed in 2015. Amendments based on that review are aimed at enhancing the operation of the Act and safeguards for adults with decision-making disabilities.

In the Northern Territory, new guardianship legislation commenced on 12 April 2017 which brings it more into line with current guardianship practices in other state and territories, but it remains a ‘best interests’ model with primarily substitute decision-making facilities.

Guardianship legislation in South Australia is not currently under review.

None of the reviews of guardianship legislation has suggested that the jurisdiction ought not to be dealt with by tribunals. In general it is considered that tribunals, because of their flexibility in procedures and taking evidence, are the most suitable forum for guardianship matters.

Although a number of reviews and reforms consider the roles of enduring instruments and advance directives, such instruments are less likely to attract change in line with that envisaged by the Convention because they are considered to be instruments of self-determination. This is somewhat curious because the effect of an enduring power of attorney or appointment of an enduring decision-maker with guardianship or medical decision-making powers can have plenary effect and is reviewed only on application. The extent of such powers can mean that, if used incorrectly, they can be used in a plenary and restrictive way unless the use of the power is brought to the attention of a tribunal.

CONCLUSION

Having undergone major transformations in the 1980s and 1990s, Australian guardianship laws are likely to undergo further major changes in the next five to ten years as the effects of the Convention are fully understood. These are important steps that will hopefully affirm the rights of persons with disabilities while continuing to ensure that abuse of people with disabilities is prevented or redressed.

Anita Smith is a non-sessional member of the VCAT Human Rights Division. She is the Immediate Past Chair of the Australian Guardianship and Administration Council and former President of the Tasmanian Guardianship and Administration Board. PHONE (03) 9032 1156 EMAIL anita.smith@justice.vic.gov.au.

^[1] Guardianship and Management of Property Act 1991 (ACT), s4; Guardianship Act 1987 (NSW), s4; Guardianship of Adults Act (NT), s4; Guardianship and Administration Act 2000 (Qld), ss5 and 6; Guardianship and Administration Act 1993 (SA), s5; Guardianship and Administration Act 1995 (Tas), s6; Guardianship and Administration Act 1986 (Vic), s4(2); Guardianship and Administration Act 1990 (WA), s4.

^[2] See for example: Stanev v Bulgaria [2012] ECHR 46 (Application no. 36760/06).

^[3] Excluding Northern Territory until it passed the Guardianship of Adults Bill 2016.

^[4] [1954] HCA 17; (1954) 91 CLR 423.

^[5] Report of the Minister’s Committee on Rights and Protective Legislation for Intellectually Handicapped Persons (1982), Melbourne, Vic Gov Pr (Cocks Committee Report).

^[6] T Carney and D Tait, The Adult Guardianship Experiment, Tribunals and Popular Justice New South Wales, The Federation Press, (1997) at 11.

^[7] Australian Capital Territory Law Reform Commission Guardianship and Management of Property Report No. 52 (1989).

^[8] Since the late 1990s, those specialist tribunals (with the exception of Tasmania) have merged into single tribunal structures, such as the Victorian Civil and Administrative Tribunal, but guardianship applications are still administered in specialist guardianship lists or divisions within those tribunals.

^[9] At that stage South Australia, Tasmania and Alberta, Canada used tribunals (boards) to appoint guardians but using UK lunacy-based law.

^[10] With the exception of Financial Management Orders made in NSW where the NSW Trustee and Guardian is appointed. These orders are not routinely reviewed.

^[11] C Ronalds, Residents’ Rights in Nursing Homes and Hostels, Final Report Department of Health, Housing and Community Services, AGPS Canberra (1989).

^[12] Again, the Northern Territory has been an exception to this until 2016, when legislation recently commenced, although other arrangements existed within government agencies.

^[13] Victorian Law Reform Law Commission, Guardianship: Final Report (2012) <http://www.lawreform.vic.gov.au/projects/guardianship/guardianship-final-report> .