Towards supported decision-making in Australia

1.1          This Inquiry is about ensuring people with disability have an equal right to make decisions for themselves. It is about respecting people’s dignity, autonomy and independence, while supporting them to make their own decisions, where such support is needed. This reflects an important movement away from

viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as ‘subjects’ with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.[1]

1.2          The Inquiry commenced in July 2013, the same month in which a pilot of the National Disability Insurance Scheme (NDIS) in Australia was initiated, representing ‘a new way of providing community linking and individualised support for people with permanent and significant disability, their families and carers’.[2] The objective of the NDIS is to provide persons with disability with greater choice and control over the disability services and support they receive.

1.3          The Terms of Reference required the Australian Law Reform Commission (ALRC) to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’.[3] The ALRC considers this can best be achieved by setting out principles and guidelines that can be used as a template for specific reforms. These principles and guidelines can be applied to Commonwealth and state and territory laws—in particular, guardianship and administration laws.

National Decision-Making Principles

1.4          The ALRC recommends that the reform of relevant Commonwealth, state and territory laws should be consistent with the following National Decision-Making Principles:

Principle 1: The equal right to make decisions

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

Principle 2: Support

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.

Principle 3: Will, preferences and rights

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

Principle 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.

1.5          These principles reflect the paradigm shift signalled in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) to recognise people with disabilities as persons before the law and their right to make choices for themselves. 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 make, and that others make on their behalf.

1.6          These four general principles reflect the key ideas and values upon which the ALRC’s approach is based. They are drawn from the CRPD, other international models, stakeholder submissions and the work of other bodies and individuals. They are not prescriptive, and are of general application.

1.7          The principles are supported by three sets of guidelines. The principles and guidelines are discussed in Chapter 3.

A Commonwealth decision-making model

1.8          To encourage supported decision-making at a Commonwealth level, the ALRC recommends 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 role of both supporters and representatives is to assist persons who need decision-making support to make decisions in relevant areas of Commonwealth law.

1.9          In Chapter 4, the ALRC makes recommendations about amending the objects or principles provisions in relevant Commonwealth legislation; the appointment, recognition, role and duties of supporters and representatives; and appropriate and effective safeguards.

The National Disability Insurance Scheme

1.10       The NDIS represents a significant new area of Commonwealth responsibility and expenditure with respect to persons with disability in Australia. In Chapter 5, the ALRC recommends that the Commonwealth decision-making model be applied to the NDIS, which already incorporates elements of supported decision-making. This will require some amendment of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and Rules to provide for legal recognition of supporters and representatives, including provisions for their appointment, removal and associated safeguards.

1.11       The Chief Executive Officer of the National Disability Insurance Agency should retain the power to appoint a ‘representative’ for a participant as a measure of last resort. There are circumstances where the exercise of this power is necessary—in the absence of a Commonwealth guardianship tribunal or equivalent body—to ensure that persons with disability are properly supported in the relation to the NDIS.

1.12       There should be a presumption that an existing state or territory appointed decision-maker with comparable powers and responsibilities should be appointed as an NDIS representative, and amendments to the legislation governing state and territory decision-makers may be necessary to facilitate this.

1.13       In the light of the shift towards a supported decision-making model, the ALRC also recommends that the Australian Government provide guidance and training in relation to decision-making and the NDIS.

Supporters and representatives in other areas of Commonwealth law

1.14       The Commonwealth decision-making model may also be applied to other existing legislative schemes in Commonwealth laws that already contain a decision-making mechanism or make some provision for supporters and representatives—however described.

1.15       As discussed in Chapter 6, these schemes concern individual decision-making in relation to social security, under the Social Security (Administration) Act 1999 (Cth); aged care, under the Aged Care Act 1997 (Cth); and eHealth records, under the Personally Controlled Electronic Health Records Act 2012 (Cth).

1.16       The model might also be applied to individual decision-making in relation to personal information under the Privacy Act 1988 (Cth) and the provision of banking services.

1.17       In some of these areas, legislation should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model. However, any reform needs to be proportionate to the situation, and to the role of the supporter or representative. In relation to privacy and banking, the ALRC recommends new guidelines to encourage supported decision-making, rather than legislation.

1.18       One overarching issue is the interaction between Commonwealth decision-making schemes and state and territory appointed decision-makers. In each area, the interaction of Commonwealth supporters and representatives with state and territory appointed decision-makers will have to be considered.

Access to justice

1.19       Chapter 7 deals with issues concerning decision-making and access to justice. There are a range of Commonwealth laws and legal frameworks affecting persons with disability involved in court proceedings, including as:

  • defendants in criminal proceedings—the concept of unfitness to stand trial;

  • parties to civil proceedings—the appointment and role of litigation representatives;

  • witnesses in criminal or civil proceedings—giving evidence as a witness, and consenting to the taking of forensic samples; and

  • potential jurors—qualification for jury service.

1.20       In each of these areas there are existing tests of a person’s capacity to exercise legal rights or to participate in legal processes. The ALRC recommends that these tests be reformed consistently with the National Decision-Making Principles. By providing models in Commonwealth laws, the ALRC seeks to inform and provide a catalyst for reform of state and territory laws.

1.21       An important theme is the tension between laws that are intended to operate in a ‘protective’ manner—for example, in order to ensure a fair trial—and increasing demands for equal participation, in legal processes, of persons who require decision-making support.

Restrictive practices

1.22       The term ‘restrictive practices’ refers to the use of interventions that have the effect of restricting the rights or freedom of movement of a person in order to protect them. Serious concerns have been expressed about inappropriate and under-regulated use of restrictive practices in a range of settings in Australia.

1.23       Current regulation of restrictive practices occurs mainly at a state and territory level. However, the Commonwealth, state and territory disability ministers endorsed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (National Framework) in March 2014 to forge a consistent national approach.

1.24       As discussed in Chapter 8, the National Framework is intended to reduce the use of restrictive practices, including by informing the development of the NDIS quality assurance and safeguards system. The ALRC recommends that the Australian Government and the Council of Australian Governments (COAG) incorporate aspects of the National Decision-Making Principles in developing the NDIS system.

1.25       The ALRC also recommends that the Australian Government and COAG adopt a similar, national approach to the regulation of restrictive practices in other relevant sectors such as aged care and health care.

Electoral matters

1.26       Australia is obliged, under the CRPD, to guarantee that persons with disability can ‘effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives’, including the right and opportunity to vote and be elected.[4]

1.27       In Chapter 9, the ALRC recommends that the ‘unsound mind’ provisions of the Commonwealth Electoral Act 1918 (Cth) (the Electoral Act), which relate to disqualification for enrolment and voting, be repealed. A new exemption to compulsory voting based on a functional test consistent with the National Decision-Making Principles should be enacted, so that a person who lacks decision-making ability relating to voting is exempt from penalties arising from a failure to vote.

1.28       Where a person with disability requires assistance to vote, they should be supported by all available means. The ALRC recommends that current provisions of the Electoral Act concerning permissible support be broadened, and that the Australian Electoral Commission (AEC) provide its officers with guidance and training to improve support in enrolment and voting for persons with disability. As the right to a secret vote is fundamental to the right to vote, but may be compromised by some forms of support, the AEC should also investigate methods of maintaining the secrecy of voting.

Review of state and territory legislation

1.29       This new approach to individual decision-making at the Commonwealth level can also be used to guide law reform at the state and territory level. Reform at the state and territory level is critical to the implementation of the CRPD because many important areas of decision-making are governed by state and territory law—including in relation to guardianship and administration, consent to medical treatment, mental health and disability services.

1.30       The ALRC recommends that state and territory governments review their legislation that deals with decision-making to ensure laws are consistent with the National Decision-Making Principles and the Commonwealth decision-making model. In Chapter 10, the ALRC discusses how, in conducting such a review, regard should be given to:

  • interaction with any supporter and representative schemes under Commonwealth legislation;

  • consistency between jurisdictions, including in terminology;

  • maximising cross-jurisdictional recognition of arrangements; and

  • mechanisms for consistent and national data collection.

Other issues

1.31       Chapter 11 deals with a number of other issues raised that are relevant to Commonwealth laws and legal frameworks that concern the exercise of legal capacity, including in relation to:

  • the common law relating to incapacity to contract;

  • consumer protection laws;

  • consent to marriage;

  • the nomination of superannuation beneficiaries;

  • acting in the role of a board member and in other corporate roles; and

  • holding public office.

1.32       The ALRC recommends amendments to the Marriage Act 1961 (Cth) and associated guidelines for marriage celebrants, and some provisions of the Corporations Act 2001 (Cth) to better reflect the National Decision-Making Principles. It also recommends that the Australian Government should review and replace provisions in Commonwealth legislation that require the termination of statutory appointments by reason of a person’s ‘unsound mind’ or ‘mental incapacity’.