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.

3.92       The Terms of Reference require the ALRC to consider whether ‘the powers and duties of decision-making supporters and substituted decision-makers’ are ‘effective, appropriate and consistent with Australia’s international obligations’. The Terms of Reference also ask the ALRC to consider mechanisms to review decisions about the assessment of a person’s ability ‘to independently make decisions’.

3.93       Article 12(4) of the CRPD sets out safeguards obligations. The article requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards. In particular, it requires that such safeguards:

  • prevent abuse in accordance with international human rights law;
  • respect the rights, will and preferences of the person;
  • are free of conflict of interest and undue influence;
  • are proportional and tailored to the person’s circumstances;
  • apply for the shortest time possible;
  • are subject to regular review by a competent, independent and impartial authority or judicial body; and
  • are proportional to the degree to which such measures affect the person’s rights and interests.[91]

3.94       The Safeguards Principle and Guidelines reflect these requirements.

Safeguards Guidelines

Recommendation 3–4               Safeguards Guidelines

(1)           General

Safeguards should ensure that interventions for persons who require decision-making support are:

(a)           the least restrictive of the person’s human rights;

(b)           subject to appeal; and

(c)           subject to regular, independent and impartial monitoring and review.

(2)            Support in decision-making

(a)           Support in decision-making must be free of conflict of interest and undue influence.

(b)           Any appointment of a representative decision-maker should be:

          (i)      a last resort and not an alternative to appropriate support;

          (ii)     limited in scope, proportionate, and apply for the shortest time possible; and

          (iii)    subject to review.

3.95       These Guidelines capture the essential elements of safeguards that should be incorporated in laws and legal frameworks that deal with decision-making by people who need support to make decisions.

3.96       Stakeholders generally supported the ‘least restrictive’ intervention and ‘last resort’ appointment approaches. These are consistent with the position of the Australian Government as set out in the Interpretative Declaration on art 12 of the CRPD, discussed in Chapter 2.

3.97       The Law Council referred to some current good practice examples of requirements on guardians ‘to restrict as little as possible the freedom of decision making and action of a person in need of, or under, guardianship’[92] and of reluctance to make guardianship orders in the first place. The QDN, for example, emphasised that it is ‘critical that appointments of representatives and supporters be time and task specific’.[93]

3.98       Paragraph (2)(a) reflects the need for safeguards to be directed to the potential problem of conflict between a supporter or representative and the person being supported. Stakeholders identified this as an issue. For example, CDLP Galway submitted:

It is vital to recognize the role of the family as a natural support system, and the crucial role of carers and others in supporting persons who may require decision-making support. However, this principle must always be accompanied by safeguards in order to minimize conflicts of interest which inevitably arise. While the family should be recognized as a natural support system, they should only be assigned the role of the support in cases where the person gives consent to family members assuming such a role.[94]

3.99       Similarly, Justice Connect said that:

One concern with appointing a supported or substitute decision maker is the level to which that person is able to divorce themselves from their own bias and concerns, and act in accordance with the will and preferences of the supported person.[95]

3.100   The circumstances in which representative decision-makers are appointed need to be reviewed, and should be central to review of state and territory legislation in the light of the National Decision-Making Principles and the Commonwealth decision-making model. Implementing paragraph (2)(b) of the Safeguards Guidelines should result in more constraint in the appointment of representative decision-makers.

3.101   The ALRC recognises that this is an iterative process that will take some time. The goal is for supported decision-making to become the dominant model—not only in aspiration, but also in practice. The OPA (Qld) submitted:

Regardless of views about the compatibility of guardianship laws with the Convention, there is general recognition that the focus must now move from the challenges facing a person with disability to the supports that should be provided to enable them to make decisions and exercise their legal capacity. This means that the appointment of a substitute decision-maker should not preclude efforts to support a person to make their own decisions.[96]

3.102   CDLP Galway acknowledged that paragraph (2)(b) sets out an ‘important safeguard’, but said that ‘there should be something to distinguish it from the already existing safeguards in the antiquated substituted decision-making regimes’. As observed by the UNCRPD in its General Comment, the ‘most important safeguard for a decision-making regime is respect for the rights, will, and preferences of the relevant person’.[97]

3.103   In the National Decision-Making Principles, respect for the will and preferences of the person is embodied in the standard by which a representative is to act, as set out in Will, Preferences and Rights Guidelines. To distinguish the old approach from the new, it is also necessary to move away from status-based assessments of legal capacity and to emphasise the role of support, as reflected by the Support Guidelines.

3.104   Stakeholders acknowledged that access to appeal and review mechanisms is an important safeguard.

Safeguards should not just respect due process or judicial review of the interventions that restrict legal capacity. There is a need for checks and balances in order to respect the process as well as the autonomy of the relevant person. For example, monitors could be appointed in certain support agreements to ensure that significant decisions are made on the basis of the relevant person’s will and preference. Also, the infrastructure at Commonwealth and State or Territory levels established to oversee and implement new legislation in this arena will be crucial, and accessible complaints mechanisms must be established within the implementing bodies to ensure ease of access for those using support to exercise legal capacity, as well as the usual recourse to the courts … Additionally, there should be training and support for the supporters to ensure that they fully understand their role and the scope of their powers. Lastly, there should be an appeal process to an independent and impartial tribunal or court for instances when the relevant person is unable to choose his or her own representative and where an outside decision-maker is appointed to make particular decisions.[98]

3.105   This statement illustrates how safeguards need to considered at all relevant points along the spectrum of decision-making support, and in relation to all persons and organisations involved in the particular category of decision.