Victorian Law Reform Commission Final Guardianship Report

For Victorian Legal Assistance Forum19 July 2012

John ChestermanActing Public Advocate, Manager Policy & Education

Substitute decision-making law reform in Victoria

Enduring Powers of Attorney

• Review by Victorian Parliament Law Reform Committee

• Final report 2010 (90 recommendations)

• Government response largely favourable

Mental Health

• Government review of Mental Health Act 1986

• Mental Health Bill Exposure Draft 2010

• Extended consultation phase following election of Baillieu government in November 2010

• New bill expected shortly

Guardianship

• Review by Victorian Law Reform Commission of Guardianship and Administration Act 1986

• Consultation Paper (159 questions) released in 2011

• Final report completed February 2012, made public April 2012.

Relevant human rights instruments

Charter of Human Rights and Responsibilities Act 2006 (Vic)

It is worth noting that the Victorian Parliament’s Scrutiny of Acts and Regulations Committee reviewed the Victorian Charter.

That review suggested the Charter be amended by:

• Limiting its applicability to public authorities

• Removing the Supreme Court’s power to make declarations of inconsistent interpretation

Government Response: awaiting further legal advice.

Relevant human rights instruments

Convention on the Rights of Persons with Disabilities

Three key themes:

1. Minimise state-directed substitute decision making

2. Supported decision making to be preferred

3. Prevention of abuse

The reform challenge

The VLRC final report contains two central themes, which draw on international developments (particularly human rights developments following the adoption of the Convention on the Rights of Persons with Disabilities):

• We can do more to assist people with cognitive impairments and mental illness to play key roles in the decisions that affect them

• We can do more to protect at-risk adults

The broad challenge in the reform process: what is the right balance between autonomy and protection?

Guardianship - background trends

• Increasing societal trend to require formal decision-making authority (risk transfer).

• Increasing guardianship numbers.

2008/09: 1394

2009/10: 1574 (749 new)

2010/11: 1730 (905 new)

• Rising numbers of clients with dementia (33%). 60% of our clients are over the age of 65.

• Over half of OPA’s guardianship clients are people who once had capacity (e.g. people with dementia and acquired brain injuries). The paradigmatic disability in the minds of the authors of the original legislation was lifelong intellectual disability.

VLRC Projections – Guardianship Final Report

Par. 4.30 ‘[The Centre for Population and Urban Research] suggests that the number of people under the guardianship of the Public Advocate is likely to increase to 1958 people in 2020 and to 2486 in 2030, an increase of 25 per cent from 2010 to 2020 and an increase of 27 per cent from 2020 to 2030.’

Victorian Law Reform CommissionGuardianship Final Report (2012)

Minimise state-directed substitute decision making

• Guardianship orders to be limited as far as possible to decisions that need to be made (with one exception)

Supported decision making to be preferred

• Several supported decision-making initiatives

• New supported decision-making volunteer program hosted by OPA

Prevention of, and response to, abuse

• Mandatory registration of personal appointments

• Broader investigation powers for OPA (where person with a disability is subject to abuse, neglect or exploitation)

• Civil penalties for breaches of guardianship legislation

Capacity

Recommendation 22. ‘The law should state that a person lacks capacity in relation to a matter if at the relevant time they are unable to make a decision in relation to the matter because of a disability’.

Recommendation 24. ‘A person is unable to make a decision if they are unable to:

(a) understand the information relevant to the decision and the effect of the decision

(b) retain that information to the extent necessary to make the decision

(c) use or weigh that information as part of the process of making the decision, or

(d) communicate the decision in some way.’

Recommendation 172. ‘New guardianship legislation should provide that, before appointing a substitute decision maker, the tribunal must be satisfied that the person:

(a) has decision‑making incapacity caused by that person’s disability

(b) has decision‑making incapacity in relation to the matters for which the appointment is sought.’

Minimise state-directed substitute decision making

The report recommends that guardianship orders be limited as far as possible to situations where decisions are needed. But there is one exception.

Recommendation 174. ‘New guardianship legislation should provide that the tribunal can appoint a personal guardian or a financial administrator only if it is satisfied that an appointment is needed.’

Guardianship criteria

176. In determining the need for an appointment, the tribunal must be satisfied of one of the

following:

(a) There are decisions to be made now, or reasonably soon …

(b) There are ongoing decisions to be made in relation to the person’s lifestyle or

finances … or,

(c) The person’s decision‑making ability is so significantly impaired and enduring that they are unlikely at any time in the future to make their own decisions, even with significant support and:

(i) decisions are currently being made for the person by a decision maker who has been making those, or similar, decisions for a significant period of time and

(ii) there is broad consensus among carers and others with an interest in the person’s wellbeing that the decision maker is, and is likely to continue to be, appropriate for the role and

(iii) the person, if able to communicate their wishes, would not object to the appointment being made.

Guardianship criteria

Thus Recommendation 176 proposes that long-term informal decision makers ought to be able to be appointed as substitute decision makers for people with lifelong decision-making disabilities, even when there is no current ‘need’ for that appointment.

Is this consistent with the Disabilities Convention?

Powers of substitute decision makers

Recommendation 185. ‘When appointing a personal guardian or financial administrator, the tribunal should seek to give the personal guardian or financial administrator only those powers that are necessary to promote the personal and social wellbeing of the represented person.’

Recommendation 182. ‘New guardianship legislation should not provide for the appointment of a plenary guardian.’

Substitute decision makers

Recommendation 8. ‘A person appointed by the tribunal to make substitute decisions about another person’s lifestyle and personal matters should be known as that person’s “personal guardian”’.

Recommendation 9. ‘A person appointed by the tribunal to make substitute decisions about another person’s financial affairs should be known as that person’s “financial administrator”’.

Recommendation 10. ‘Enduring personal guardian’.

Recommendation 11. ‘Enduring financial administrator’.

Recommendation 204. ‘Health decision maker’ to replace ‘person responsible’.

Decision-making principles

Recommendation 284. ‘New guardianship legislation should require substitute decision makers to exercise their powers in a manner that promotes the personal and social wellbeing of the represented person’.

Recommendation 285. ‘Substitute decision makers promote the personal and social wellbeing of the person when, as far as possible, they:

(a) have paramount regard to making the judgments and decisions that the person would make themselves …

(b) act in consultation with the person, giving effect to their wishes

(c) support the person to make or participate in decisions …

(g) respect the person’s supportive relationships, friendships and connections with others …

(i) protect the person from abuse, neglect and exploitation.’

Supported decision making to be preferred

Recommendation 32. ‘A person should be able to appoint a personal supporter or financial supporter through a written ‘supported decision‑making appointment’ if they have the capacity to do so.’

Recommendation 35. ‘VCAT should be able to appoint a personal or financial supporter to assist a person …’

Recommendation 64. ‘VCAT should be able to appoint a co‑decision maker to assist a person in need of decision‑making support.’

Recommendation 62. OPA should host pilot a volunteer supported-decision making program.

Responding to abuse

Recommendation 328. ‘… the Public Advocate should have the function of receiving and investigating complaints in relation to:

(a) the abuse, neglect or exploitation of people with impaired decision‑making ability due to a disability.’

Recommendation 329. ‘ … where the Public Advocate believes that an investigation is warranted she should be able to conduct an investigation on her own motion …’

Enhanced powers for OPA would include the ability to obtain warrants to inspect private premises.

Restrictions on liberty

Recommendation 241. ‘The collaborative mechanism for authorising restrictions upon the liberty of people who are living in supported residential care and who lack the capacity to consent to restrictive living arrangements that are used to promote their health or safety should require the approval of three people, who are:

(a) the person in charge of the residential facility

(b) a medical practitioner or other health practitioner approved by regulation

(c) the person’s health decision maker.’

Recommendation 251. ‘The collaborative mechanism … should not be used in circumstances where the person concerned consistently resists and opposes restrictions upon their liberty.’

Recommendation 258. ‘The Public Advocate should issue guidelines to assist people involved in the collaborative authorisation process …’

Enduring Powers of Attorney

Recommendation 96. ‘The range of powers that can be given to an enduring personal guardian should include the power to consent to or refuse medical treatment on behalf of the principal [making the EPA (MT) redundant]’.

Recommendation 97. ‘It should be compulsory to register an enduring appointment of a personal guardian and an enduring appointment of a financial administrator for the appointment to be legally valid.’

Guardianship age

Recommendation 402. ‘The age jurisdiction for guardianship and administration should be lowered to 16 years and over in new guardianship legislation, and increased to 18 years in the Children, Youth and Families Act 2005 (Vic). The Children, Youth and Families Act 2005 (Vic) should be amended to enable a protection application to be made in relation to any person under the age of 18 years.’

Merits review

Recommendation 315. ‘It should be possible to apply to VCAT for review of a decision of the Public Advocate when acting as the personal guardian or health decision maker of a person.’

Recommendation 316 [same re state trustees and other paid financial administrators]

Medical treatment

Recommendation 214. ‘New guardianship legislation should provide that if a person is unable to consent to “significant treatment”, the registered practitioner may undertake that procedure only with the consent of:

(a) a personal guardian … or …

(b) a health decision maker… or …

(c) the Public Advocate.’

Recommendation 215. ‘New guardianship legislation should provide that if a person is unable to consent to a “routine procedure”, the registered practitioner may undertake that procedure:

(a) with the consent of a personal guardian … or …

(b) with the consent of a health decision maker … or …

(c) in the absence of consent if the registered practitioner has taken reasonable steps to locate a personal guardian or a health decision maker and the registered practitioner believes the treatment will promote the personal and social wellbeing of the person

concerned.’

Medical research

Recommendation 221. [When a ‘medical research procedure’ is an adjunct to ‘medical treatment’, the authorisation process matches that for substitute consent to ‘medical treatment’].

Recommendation 225. ‘New guardianship legislation should permit a health decision maker to make decisions about participation in a “medical research procedure” for a person who lacks the capacity to make their own decisions and who does not have an enduring personal guardian or a personal guardian with the power to make those decisions for them.’

Recommendation 227. ‘The Public Advocate should be permitted to authorise participation in a “medical research procedure” which is a “significant procedure” [where there is no other decision maker]’.

Recommendation 228. [Same process for medical research ‘routine procedure’ as for medical treatment].

Recommendation 229. The Public Advocate should develop and publish guidelines in consultation with relevant professional bodies and other interested organisations to assist registered practitioners when determining whether a particular medical research procedure is ‘significant’ or ‘routine’.

Instructional directives

Recommendation 134. ‘An instructional directive should be able to provide:

(a) binding instructions or advisory instructions about health matters

(b) advisory instructions about personal and lifestyle matters …’

Recommendation 135. [Instructional directives would replace the refusal of treatment certificate].

Recommendation 139. ‘The principal should be able to make instructional health care directives about future as well as current conditions.’

Register

Recommendation 259. ‘New guardianship legislation should establish an online register for the following appointments and directives:

(a) enduring personal guardians

(b) enduring financial administrators

(c) supporters for personal matters

(d) supporters for financial matters

(e) personal guardians appointed by VCAT

(f) financial administrators appointed by VCAT

(g) co‑decision makers appointed by VCAT

(h) instructional health directives and other instructional or advance directives

(i) personal appointments and VCAT appointments made under earlier laws.’

Recommendation 261 [compulsory to register personal appointments, optional for directives]

Recommendation 277, 280 [OPA has role as gatekeeper]

Civil penalties

Recommendation 305. ‘New guardianship legislation should provide that it is unlawful for a person with responsibility to care for a person with impaired decision‑making ability because of a disability to abuse, neglect or exploit that person.’

Recommendation 312 [A new statutory officer (not OPA) will be the prosecutor.]

Mental health

A series of proposals (Recommendations 416ff) recommend that people should be able to appoint others (or have them appointed by a tribunal) ‘to make decisions about psychiatric treatment for the principal when they are unable to do so because of impaired decision‑making capacity, including when the principal is an involuntary patient or a person subject to an involuntary treatment order’.

[Note: people appointed would be individuals known to the person, not OPA.]

Such decisions would override those of the authorised psychiatrist unless there was a danger to others (a danger to self would not be sufficient).

Mental health

Recommendation 429. ‘The role of guardians should not include substitute decision making about legal proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).’

Litigation guardians

Recommendation 432. ‘New guardianship legislation should provide that VCAT may give a personal guardian and/or a financial administrator the power to conduct legal proceedings on behalf of the represented person’.

Financial administrator – where the matter relates to the person’s financial or property interests.

Personal guardian – where the matter does not relate to the person’s financial or property interests.

VCAT reforms

• Improved pre-hearing processes (Rec. 348)

• Notification of proceedings (Recs 349-352)

• Informing parties about the hearing (Recs 355-356)

• Gathering information about the application (Recs 357-358)

• Triaging (Rec. 359)

• Planning conferences (Recs 361-367)

• Participation in hearings (Recs 370-371)

‘New guardianship legislation should provide that all initial applications in Guardianship List matters should be conducted in the presence of the proposed represented person unless VCAT is satisfied that the represented person does not wish to attend or that there is some other justifiable reason for the hearing to proceed in their absence.’

• Multi-member panels (discretionary power to use, Rec. 380)