2.100 Throughout this Report a number of terms are frequently used. These are discussed here.
Supported and substitute decision making
2.101 Assistance in decision making occurs in many different ways and for people with all levels of decision-making ability, usually involving family members, friends or other supporters. ‘Supported’ and ‘substitute’ decision making reflect different ideas; and a ‘supporter’ is different from a ‘substitute’ decision maker.
2.102 The appointment of a person to make decisions on behalf of another, as a substitute, may be made through:
pre-emptive arrangements—anticipating future loss of legal capacity or decision-making impairment through appointment of a proxy, for example in enduring powers of attorney (financial/property), enduring guardianships (lifestyle) and advance care directives (health/medical); and
appointment—where a state or territory court or tribunal appoints a private manager or guardian, or a state-appointed trustee, guardian or advocate to make decisions on an individual’s behalf (guardians and administrators).
2.103 There has been a move to prefer the language and practice of supported rather than substitute decision making—described as a ‘paradigm shift’ in thinking about people with disability. Supported decision making emphasises the ability of a person to make decisions, provided they are supported to the extent necessary to make and communicate their decisions. In the Equality, Capacity and Disability Report, the ALRC concluded that this preference was best expressed through developing a new lexicon for the roles of supporters and substitutes. The ALRC also considered the standard that should guide the actions of the person appointed to act on behalf of another, as well as the accountability mechanisms that were needed particularly for substitute decision makers. The ALRC considered that the crucial issue was how to advance, to the extent possible, supported decision making in a federal system, recognising that the policy pressure is clearly towards establishing and reinforcing frameworks of support in law and legal frameworks. The momentum is also towards building the ability of those who may require support so that they may become more effective and independent decision makers.
‘Supporters’ and ‘representatives’
2.104 To encourage supported decision making at a Commonwealth level, the ALRC recommended a new model (the Commonwealth Decision-Making Model) based on the positions of ‘supporter’ and ‘representative’. These terms are also part of building a new lexicon for supported decision making. The ALRC was asked to acknowledge the role of family members and carers in supporting people with disability to make decisions and therefore built this recognition into the model in the category of ‘supporter’. A supporter is an individual or organisation that provides a person with the necessary support to make a decision. A representative’s role is to provide full support in decision making, by first seeking to support a person to express their will and preferences in relation to a decision, or where this is not possible, making a decision on that person’s behalf based on their will, preferences and rights. The role of both supporters and representatives is to assist persons who need decision-making support to make decisions in relevant areas of Commonwealth law.
2.105 A ‘supporter’ does not make decisions for a person who may need decision-making support; the decision remains that of the person. Some Commonwealth laws already make provision for support roles that are not decision-making ones, and the ALRC model would apply to these—such as the designation of a ‘correspondence nominee’ for Centrelink purposes. Banks may provide facilities for co-signing, allowing designated others to conduct banking along with the account holder.
2.106 A ‘representative’ does make decisions on behalf of a person and is a ‘substitute’ decision maker. Examples of substitute decision makers under state and territory law are donees of powers of attorney, guardians and financial administrators. In describing the donor of a power of attorney, this Report uses the term ‘principal’ for self-appointed substitute decision makers.
‘Will, preferences and rights’ standard
2.107 In the Commonwealth Decision-Making Model in the Equality, Capacity and Disability Report, the ALRC set out that the representative must act under a new standard, reflecting the paradigm shift away from ‘best interests’ models. The standard is embodied in the ‘Will, Preferences and Rights Guidelines’, which state that, where a representative is appointed to make decisions for a person who requires decision-making support:
(a) The person’s will and preferences must be given effect.
(b) Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.
(c) If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in a way least restrictive of those rights.
(d) A representative may override the person’s will and preferences only where necessary to prevent harm.
2.108 ‘Best interests’ language is still found in some laws considered in this Report. While the ALRC recommended that these laws should be amended in the light of the the Equality, Capacity and Disability Report, this will take time to implement. As the first recommendation in that Report, the ALRC recommended that reform of Commonwealth, state and territory laws and legal frameworks concerning individual decision making should be guided by National Decision-Making Principles and Guidelines. Where ‘best interests’ language is used in this Report it is by reference to particular legislative provisions as they stand at the time of writing.
National Decision-Making Principles
2.109 In the Equality, Capacity and Disability Report, the ALRC’s Commonwealth Decision-Making Model was framed by the National Decision-Making Principles. The Principles identify four central ideas in all recent law reform work on capacity. These are that:
everyone has an equal right to make decisions and to have their decisions respected;
persons who need support should be given access to the support they need in decision making;
a person’s will and preferences must direct decisions that affect their lives; and
there must be appropriate and effective safeguards in relation to interventions for persons who may require decision-making support.
2.110 The emphasis is on the autonomy and independence of persons with disability who may require support in making decisions—their will and preferences must drive decisions that they are supported in making, and that others may make on their behalf. The National Decision-Making Principles provide a conceptual overlay, consistent with the CRPD, for the Commonwealth Decision-making Model.
2.111 Each Principle was accompanied by a set of guidelines to guide reform of Commonwealth laws and reviews of state and territory laws.
2.112 A recurrent theme in discussions of elder abuse is the issue of impairment or loss of ‘capacity’. As explained in the Equality, Capacity and Disability Report, capacity in a general sense refers to decision-making ability, which may cover a wide range of choices in everyday life, such as personal matters, financial and property matters, and health and medical decisions. ‘Legal capacity’ sets the threshold for individuals to take certain actions that have legal consequences and goes to the validity, in law, of choices and being accountable for the choices made. ‘Those who make the choice’, Emeritus Professor Terry Carney states, ‘should be able to provide valid consent, and make decisions for which they can be held accountable. They should, in short, be legally competent’.
2.113 ‘Capacity’ questions arise in both the legal and medical contexts. Professors Carmelle Peisah and Nick O’Neill observed that
[t]he field of capacity and decision-making is a truly ‘medico-legal’ field, representing an interface between the legal and medical (actually health professional) disciplines. Much major decision-making involves execution of legal documents and is regulated by the common law and legislation. It requires the involvement of legal professionals, while the relationship between decision-making and health and well-being often necessitates the involvement of health care professionals.
2.114 At common law there is a presumption of legal capacity, which is also embodied in some guardianship legislation. In the Commonwealth context, the National Disability Insurance Scheme Act 2013 (Cth) states:
People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
2.115 Tests of legal capacity—in terms of levels of understanding for particular legal transactions—have been developed through the common law, for example in relation to contracts and wills. Where a lack of the required level of understanding is proved in the particular circumstances, the transaction may be set aside. The focus of such tests is on a transaction and the circumstances surrounding it. They are decision-specific and involve assessments of understanding relevant to the transaction being challenged.
2.116 The recommendations in the Equality, Capacity and Disability Report addressed the issue of legal capacity in two principal ways. The first was to move away from the ‘presumption of capacity’; the second was to place the emphasis on support needs in decision making. The ALRC considered that it was not appropriate in the context of the CRPD to disqualify or limit the exercise of legal capacity because of a particular status, such as disability. As National Disability Services remarked in a submission to the Equality, Capacity and Disability Inquiry, ‘[t]he crux of the issue is seen in historic legal frameworks that place constraints on the exercise of legal capacity based solely on disability status’. The approach should therefore be on the support needed to exercise legal agency, rather than an assumption or conclusion that legal agency is lacking because of an impairment of some kind. Laws should be ‘disability neutral, yet disability responsive, with a firm focus on promoting, protecting and upholding the human rights of all older people’, as Disabled People’s Organisations Australia submitted.
2.117 However, there are clearly times when assessments of decision-making ability are required. Capacity assessments are the trigger for formal arrangements for decision-making support through, for example, the appointment of guardians and administrators, or the commencement of some enduring powers of attorney. They are also made in a range of health care decisions. In the Equality, Capacity and Disability Report, the ALRC recommended that the emphasis of such assessments should be on the support needed to exercise legal agency, rather than an assessment of ‘capacity’. It is an approach that is a functional one (focused on the ability to make the particular decision in question); it is not outcomes-based (that is, it does not consider the result or wisdom of the decision), nor status-based (that is, it does not determine that a person has ‘lost’ capacity because of a condition). A functional approach of this kind ‘seeks to maximise the circumstances in which the right of autonomy is protected’; and has been supported in other law reform inquiries.
2.118 As Peisah and O’Neill have explained, ‘operational definitions of the cognitive elements of capacity usually comprise combinations of the following abilities’:
1. To understand the specific situation, relevant facts or basic information about choices
2. To evaluate reasonable implications or consequences of making choices
3. To use reasoned processes to weigh the risks and benefits of the choices
4. To communicate relatively consistent or stable choices.
2.119 In this Report there are threshold moments where a consideration of decision-making ability may arise, for example: where the appointment of a guardian or financial administrator is being considered by a tribunal; where a person is seeking to make a will or enter a range of financial transactions; where a person is in residential aged care and health and financial decisions may need to be made. The consideration of questions of decision-making ability continues the ALRC’s emphasis on the importance of embedding the principles and practices of supported decision making from the Equality, Capacity and Disability Report. For example, this Elder Abuse Report considers the need for frontline staff and professionals to understand the dynamics of elder abuse and the pressures that might be brought to bear upon older people; as well as the need to ensure that those in the role of substitute decision makers understand their roles as ‘representatives’ of the person.
Sometimes referred to collectively as ‘living wills’. See, eg, Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (LexisNexis Butterworths, 4th ed, 2013) [4.3].
In some cases, such as emergency medical decisions, there are statutory hierarchies of those who may authorise certain actions—‘generic lists of suitable proxies in the legislation’: Terry Carney and David Tait, The Adult Guardianship Experiment—Tribunals and Popular Justice (Federation Press, 1997) 4.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) ch 2.
Ibid Terms of Reference.
See, eg, Aged Care Act 1997 (Cth); Social Security (Administration) Act 1999 (Cth); Personally Controlled Electronic Health Records Act 2012 (Cth). See, also, Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) ch 6.
This is partly to avoid the linguistic confusion that is regularly seen in this context of referring to abuse ‘by the power of attorney’, rather than referring to abuse of the power of attorney by the donee of the power.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 3–3.
Ibid rec 3–1.
See the discussion of legal capacity in Ibid [2.37]–[2.50].
Carney and Tait, above n 140, 3.
Carmelle Peisah and Nick O’Neill, Capacity and the Law (Australasian Legal Information Institute (Austlii) Communities, 2nd ed, 2017) [1.1].
See, eg, Guardianship and Administration Act 2000 (Qld) sch 1 cl 1; Guardianship and Administration Act 1990 (WA) s 4(3).
National Disability Insurance Scheme Act 2013 (Cth) s 17A(1). See also Mental Capacity Act 2005 (UK) s 1, which addresses this explicitly by providing that individuals are assumed to have capacity to make decisions unless otherwise established.
See, in relation to contracts: Blomley v Ryan (1954) 99 CLR 362. In relation to wills, see: Banks v Goodfellow (1870) LR 5 QB 549, and see ch 8. See also the common law approach to capacity in Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) ch 7.
National Disability Services, Submission 49. See also PWDA, ACDL and AHR Centre, Submission 66.
Disabled People’s Organisations Australia, Submission 360.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 3–2(2). The approach set out in the Support Guidelines is a functional one.
Mary Donnelly, Healthcare Decision-Making and the Law—Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press, 2010) 92. In recommending such an approach that was subsequently incorporated in the Mental Capacity Act 2005 (UK), the Law Commission of England and Wales deliberately rejected status-based assessments: Law Commission, Mental Incapacity, Report No 231 (1995) [3.5]–[3.6]. In that inquiry, the Law Commission received a ‘ringing endorsement’ of the functional approach: [3.6].
See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 27(a); Legislative Council Standing Committee on Social Issues, Parliament of NSW, Substitute Decision-Making for People Lacking Capacity (2010) [4.56]. With respect to para (f), compare, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 27(b); Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010) rec 7-14(d). See also Legislative Council Standing Committee on Social Issues, Parliament of NSW, Substitute Decision-Making for People Lacking Capacity (2010) rec 1.
Peisah and O’Neill, above n 153, [1.3].