The statutes concern formal arrangements available when an individual is unable to make independent decisions about important matters because of a disability, for example substitute decision making such as enduring power of attorney for financial decisions and enduring medical treatment agent for medical treatment decisions. They include powers regarding involuntary detention and treatment of people with mental illness and compulsory treatment of people with intellectual disabilities who are a serious risk to others.
The consultation paper follows an information paper released in February last year and features proposals for new guardianship laws that encompass appointment of substitute decision makers by a tribunal in addition to personal appointment of substitute decision makers (eg when an individual uses an enduring power of attorney). Responses to the consultation paper are expected to inform a report to the Attorney-General in late December 2011.
The Commission indicates that it is aiming to ensure that the state's guardianship statutes "respond to the current and future needs of people with impaired decision-making capacity and promote their rights". Terms of reference for the review require the Commission to consider changes that -
• promote respect for human dignity, individual autonomy and other important human rights principles;The Commission is to give particular attention to
• reflect developments in policies and practices for people with impaired decisionmaking capacity since 1986;
• respond to the needs of an ageing population.
• specific features of the Guardianship Act, including the role of guardians and administrators in advancing the rights of those represented and in assisting decisionmaking,The Victorian regime currently allows an adult with capacity to appoint one or more substitute decision makers and provides for appointments by a tribunal (and by the operation of an automatic legislative appointment scheme) when a person has not appointed a substitute decision maker. The Guardianship Act initially concerned appointment of guardians and administrators for people with intellectual disabilities moving from institutions into the community but has expanded to cover other groups, such as people with age-related impairments, with mental illness and with an acquired brain injury. It "draws a sharp line between capacity and incapacity to make decisions" and was not designed to respond to the needs of people whose capacity fluctuates over time or who can make their own decisions with some assistance. It thus offers only one mechanism: substitute decision making.
• whether the right balance is struck between the best interests of a represented person and rights in the UN Convention on the Rights of People with Disabilities,
• whether the powers and duties of guardians are "effective, appropriate and consistent" with Australia's obligations under that Convention and the Charter of Human Rights and Responsibilities Act 2006 (Vic),
• the validity and feasibility of informal decision making,
• potential extension of the Guardianship Act to people over 17 years of age,
• the functions, powers and duties of the Public Advocate and the Victorian Civil & Administrative Tribunal (VCAT),
• the tribunal process for appointing guardians and administrators
• whether there should be additional ways to review decisions made by guardians and administrators and new ways of dealing with inappropriate conduct by guardians and administrators
• whether existing laws concerning substitute consent for medical treatment and participation in research trials, including the 'person responsible' model, are appropriate, and whether the Guardianship Act interacts effectively with the Medical Treatment Act 1988 (Vic)
• whether ‘disability’ should continue to be a threshold requirement or should be replaced by concepts such as ‘capacity’ or ‘vulnerability’
• whether confidentiality provisions in the Guardianship Act adequately balance protection of private information and the need for transparency
VCAT is authorised to appoint a guardian/administrator for someone who due to a disability is unable to make reasonable judgments about important personal decisions. The Act also automatically appoints people to undertake many medical decisionmaking responsibilities for others if they wish to do so, with those people (typically a relative) for example making most medical treatment decisions for individuals who are unable to consent to their own medical treatment, without the need for a tribunal appointment.
There is obvious potential for abuse and the Act accordingly establishes the position of Public Advocate with functions such as acting as guardian of last resort, as an advocate for people with disabilities and investigating matters related to guardianship hearings.
The Consultation Paper highlights reasons to update the regime -
• maximising participation in decision-making - a greater emphasis on promoting the autonomy of and participation by people with disabilities,exemplified by the UN Disability ConventionThe Commission suggests retention of the current distinction between the personal decision-making responsibilities of a guardian and the financial decision-making responsibilities of an administrator ("fundamentally different skills"), the system of tribunal appointments (instance by instance substitute decision-making appointments), the link between impaired decision-making capacity and disability (the objective element as an important way of ensuring guardianship laws "are not used to manage people simply because they engage in harmful behaviour such as excessive gambling or drinking"), the current system of automatic appointment in connection with most medical treatment decisions for adults unable to make their own decisions, and the Public Advocate.
• a more realistic view of capacity - with recognition that the capacity of many people often fluctuates over time and circumstance
• changing attitudes to informal arrangements - a reconsideration of our reliance upon informal decision-making arrangements, the management of risk and concerns that some informal arrangements are highly restrictive with service providers becoming de facto guardians.
• more accessible laws and more efficient legal processes - concerns that the guardianship statutes are unnecessarily complex, difficult to understand and poorly integrated.
• the timeliness of reconsidering the roles and responsibilities of VCAT and the Public Advocate - with potential expansion of the latter's responsibilities.
In modernising the current regime it proposes new guardianship laws rather than amendments to the Guardianship Act, aiming for a protective safety net when required through "a coherent body of legal rules that responds to the needs of all people with impaired decisionmaking capacity because of disability ... in a way that respects their dignity and encourages them to be as autonomous as possible". New guardianship laws could seek to promote participation of people with impaired capacity, with substitute decision making be viewed "primarily as an enabling function, rather than as a restrictive one" and an integration of all relevant laws in one Act, offering more consistency in the responsibilities of substitute decision makers (regardless of how and by whom they are appointed).
Proposed changes include -
• new supported decision-making mechanisms - "mechanisms that have not been used before in Australia"
• a new decision-making continuum - inc clearer provisions by way of an advance directive and new supported decision-making orders made by VCAT
• modern principles to guide decision makers - eg the existing concept of ‘best interests’ decision making could be replaced by a 'substituted judgment' approach (with the substitute decision maker to make the decision that the person themselves would have made if that individual had the capacity to do so)
• improved safeguards and accountability - inc giving personally appointed substitute decision makers—enduring guardians and attorneys the same responsibilities and accountabilities as those appointed by VCAT, merits review of individual decisions and a civil penalty regime for substitute decision makers
• an expanded role for the Public Advocate - eg broader investigatory functions and powers for use in cases where there is an allegation of abuse, neglect or exploitation and the power to investigate possible breaches of new guardianship laws and to take civil penalty proceedings
• a more accessible and effective tribunal - inc changes regarding pre-hearing processes, confidentiality, procedural fairness
• lowering the age limit for some appointments - VCAT should be able to appoint a guardian or administrator for people who are aged 16 years or older, closing the current gap between child protection and adult guardianship laws
• expanded use of automatic appointments - changes to deal with complex issues that arise when a person with impaired decision-making capacity is admitted to, or detained in, a residential facility without consent but with their compliance (of significance as the population ages)
• interaction with other laws - it should be possible to use guardianship (personal and tribunal appointments) as a means of authorising psychiatric treatment and place of residence decisions for a person with a mental illness in some circumstances.
