Supported decision-making at a Commonwealth level

4.5          In the ALRC’s view, it is desirable to introduce statutory mechanisms for formal supported decision-making at a Commonwealth level.

4.6          The ALRC recommends introducing mechanisms for the appointment of ‘supporters’ for adults who may require decision-making support, in some areas of Commonwealth law. The introduction of provisions relating to ‘representatives’ to address circumstances in which a person may desire, or require, someone else to make decisions for them, is also recommended.

4.7          A range of stakeholders expressed support for the legislative recognition of supported decision-making or gave ‘in principle’ support for the model proposed in the Discussion Paper.^[1]

4.8          The National Association of Community Legal Centres (NACLC), for example, submitted that the introduction of statutory mechanisms for formal supported decision-making at a Commonwealth level is an ‘important first step in the reform of laws and legal frameworks to ensure people with disability in Australia enjoy equal recognition before the law and recognition of their right to legal capacity on an equal basis with others’.^[2]

4.9          Pave the Way suggested that the decision-making model should be implemented through a single Commonwealth Act, so that ‘all relevant Commonwealth agencies recognise decisions that are made with support as well as recognising the role of supporters and representatives’.^[3]

4.10       The Commonwealth decision-making model represents a significant shift in approaches to decision-making. The question of how the ALRC’s model would interact with decision-making regimes under state and territory law also requires further consideration.

4.11       The ALRC considers that the model should be applied first to decision-making under the National Disability Insurance Scheme (NDIS) and in some other areas of Commonwealth responsibility—social security, aged care and eHealth records. It is intended that the Commonwealth decision-making model will also influence reform of state and territory laws.^[4]

Levels of support

4.12       Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD)^[5] and the Support Principle^[6] contain the central concept of decision-making support. The Commonwealth decision-making model is based on the idea that all adults, except in very limited circumstances, have some level of decision-making ability and should be entitled to make decisions expressing their will and preferences, but may require varying levels of support to do so. Supported decision-making

reflects efforts to provide better ways of recognising and meeting the needs of adults who have difficulty with certain areas of decision‐making but who could make their own decisions ‘with a little friendly help’.^[7]

4.13       Rather than starting by questioning whether a person has the capacity to make decisions—reflecting a binary view of capacity and decision-making^[8]—the preferable approach is to ask what level of support, or what mechanisms are necessary, to support people to express their will and preferences. This recognises that the ability of a person who needs decision-making support ‘to exercise legal agency is dependent on the integrity, quality and appropriateness of support available’.^[9]

4.14       A person may require varying levels of support to make a decision:

• Minimal support—for example, a person may require no support, or require some assistance obtaining information, but when provided with the information is then able to make the necessary decision. Similarly, the person may only require support to communicate to a third party a decision they have made.

• Low to medium support—for example, a person may require support to obtain information, have the information explained to them in an appropriate way, and receive advice about the possible decisions they might make.

• High support—for example, a person may require support to obtain information, have the information explained to them in an appropriate way, receive advice about the possible decisions they might make, communicate their decision, and follow through to ensure their decision is given effect.

4.15       At each of these levels of support, under the Commonwealth decision-making model, a person could appoint a supporter or supporters to assist them to make a decision in the particular area of Commonwealth law.

4.16       There is one other category of support—full support.^[10] In such circumstances a person may choose someone else to make decisions for them, or it may be necessary to appoint someone to do so. Under the Commonwealth decision-making model, a representative would first attempt to support the person to express their will and preferences in order to make a decision. Where it is not possible to determine the person’s will and preferences, the representative would make a decision based on what the person would likely want, or on the basis of the person’s human rights relevant to the situation. This is discussed further in Chapter 3 under the Will, Preferences and Rights Guidelines and is consistent with National Decision-Making Principle 3.

4.17       Representative decision-making is ‘based on facilitating access to the enjoyment of existing rights, rather than on making decisions on behalf of a person based on a subjective assessment of their best interest’.^[11] Importantly, the functions and duties of representatives differ from, and build on, those of nominees under existing Commonwealth laws, such as plan nominees appointed under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).^[12]

4.18       Stakeholders expressed concerns about the potential risks arising from a combination of supported decision-making and decision-making by a substitute. In particular, there was concern that substitute decision-making could become predominant—what Professor Terry Carney and Dr Fleur Beaupert refer to as ‘net widening’.^[13]

4.19       The Australian Guardianship and Administration Council (AGAC) stated that, while they agreed in principle with the application of the model to Commonwealth laws,

we are concerned about the details of implementing this in a practical sense and the very real risk of fragmentation, confusion and a potential for a lesser level of support being the functional outcome. In short it runs the risk of making everyday decision making more, not less complex, by adding an additional layer of formal decision making appointment.^[14]

4.20       The Offices of the Public Advocate (South Australia and Victoria) (OPA (SA and Vic)) stated that providing a legislative framework for supported decision-making is desirable for a number of important reasons, including

to respect the rights of people with cognitive impairment to participate in the decisions that affect their lives; to reflect the sometimes evolving or fluctuating nature of capacity noting that capacity is decision-specific; to ensure guardianship laws are compliant with the CRPD; and to reinforce the supremacy of the rights paradigm in laws that impact on people who require decision-making support.^[15]

4.21       However, they acknowledged that, in practice, ‘relationships of support currently operate informally, and often very effectively’ and there are risks in ‘formalising otherwise successful decision-making arrangements’.^[16] Advocacy for Inclusion also cautioned against ‘over-formalising’ supported decision-making. This risks ‘hindering the autonomy and decision-making rights of people with disabilities’ and takes away their control ‘by potentially setting out how decision-making arrangements should operate, who they could appoint as a supporter, and what the supporter might be obliged to do’. However,

there will be cases where a person with disability does not have access to respectful, trusting, natural relationships. In these cases, if the person with disability chooses they should be supported to establish relationships with formal supporters who have undergone the appropriate checks, and who have undertaken training in supported decision-making. Supported decision-making should be considered a mostly informal arrangement, while facilitated decision-making should be considered a formal arrangement.^[17]

4.22       Circumstances that can lead to the appointment of formal decision-makers include that supporters have difficulty dealing with third parties, such as telecommunications companies, hospitals and health services on behalf of persons with disability; and the need to fulfil administrative requirements demanded by government agencies.^[18] The Office of the Public Advocate (Qld) observed that

The legal recognition of ‘supporters’ potentially addresses many of these problems. It may mean that a person with disability can continue to receive informal support to make decisions and communicate with third parties, without the need for their legal decision‐making capacity to be revoked.^[19]

4.23       Justice Connect and Seniors Rights Victoria (Justice Connect) submitted that a ‘mechanism for the appointment of support decision-makers may act as a valuable (and less restrictive) alternative to … guardianship and administration orders’ for older people.^[20] Encouraging alternatives to guardianship and administration was considered desirable by many stakeholders.

Operation and effect of the model

Operation

4.24       The Commonwealth decision-making model provides for formal supported decision-making along a spectrum. At one end is a supporter appointed by a person who requires decision-making support to assist them to make a decision or a category of decisions. At the other is representative decision-making, which involves the appointment of a representative, either by the person who requires decision-making support or a court, tribunal or other body.

4.25       The development of the Commonwealth decision-making model was influenced by the examination and articulation of approaches to supported decision-making by bodies such as the Victorian Law Reform Commission (VLRC), the Office of the Public Advocate (SA), as well as a number of international models.^[21]

4.26       The ALRC intends that a supporter and representative scheme would be provided for in particular areas of Commonwealth law, tailored to suit the legislative context. However, it should incorporate a number of key elements based on the model outlined below.

4.27       This approach was supported in submissions which suggested, for example, that the ALRC ‘explore the idea of consolidating Commonwealth … decision systems or at least having one consistent structure that each system hangs off’.^[22]

4.28       The ALRC focuses on a number of key elements of the model, rather than being prescriptive about the mechanics of its application. For example, the ALRC does not intend to outline the formal requirements that may be necessary to facilitate the appointment of a supporter, or the way in which a particular Commonwealth department or agency might record the appointment, other than to highlight the need for information sharing between Commonwealth departments and agencies.

Effect

4.29       The implementation of the Commonwealth decision-making model is likely to have a number of important outcomes. First, it would ensure that persons with disability retain decision-making power in areas of Commonwealth law. It allows them to express their will and preferences and exercise their legal capacity on an equal basis with others.

4.30       Secondly, formalisation of support relationships would, as emphasised by the VLRC in its guardianship report, ‘provide important legal acknowledgment of the fact that mechanisms other than substitute decision making can be used to help people engage in activities requiring legal capacity’.^[23]

4.31       Thirdly, formalisation of support arrangements in the way envisaged by the model is likely to create greater certainty for third parties about the role of supporters and facilitate the provision of decision-making support to persons who may require it.^[24] It would allow third parties to interact with supporters about decision-making with greater confidence.

4.32       By formalising support relationships, the model also provides a mechanism for acknowledging and respecting the role of family, carers and other supporters in the lives of people with disability, which is one of the key elements of the Support Guidelines.^[25] This may help address some of the difficulties and frustrations expressed by stakeholders in the course of this Inquiry about insufficient recognition of ‘natural’ supporters.^[26] Recognition of supporters may also have the added effect of decreasing applications for state and territory guardianship and administration orders initiated primarily for the purposes of engaging with Australian Government systems.^[27]

4.33       To guide the adoption of supported decision-making at a Commonwealth level, the ALRC makes a range of recommendations that form a Commonwealth decision-making model.

Terminology

4.34       In the Discussion Paper, the ALRC asked whether the terms ‘supporter’ and ‘representative’ were the most appropriate to use in the Commonwealth decision-making model.^[28]

4.35       As discussed in Chapter 2, the terminology relating to capacity and decision-making is often a contested area, but the development of a new lexicon of terms may help to signal the ‘paradigm shift’ in attitudes to decision-making reflected in the CRPD. The ALRC concludes that retaining the terminology proposed in the Discussion Paper is the best option to effect this.

4.36       The term ‘supporter’ is used in the ALRC’s model to reflect the role played by an individual or organisation that provides a person with the necessary support to make a decision or decisions. The term reflects the nature of the role, and indicates that ultimate decision-making power and responsibility remains with the person, with support being provided to assist them in making the decision themselves.

4.37       The term supporter is used by the VLRC in its guardianship report.^[29] The VLRC described a supporter as a ‘new legal mechanism’. A supporter

could assist some people with impaired decision-making ability to continue to exercise legal capacity. Unlike substitute decision makers, supporters would not have the power to make decisions on behalf of a person, but they would be authorised to do certain things to assist the person to make their own decision.^[30]

4.38       The term ‘representative’ is used in the Commonwealth decision-making model to signal that the role of a representative is to support and represent the will, preferences and rights of the person who requires decision-making support.^[31] ‘Representative’ was preferred over ‘nominee’ to signal the shift from existing decision-making arrangements in areas of Commonwealth law, including the NDIS and social security, both of which use the term nominee. Further, in circumstances where a person who may require decision-making support has not chosen or ‘nominated’ the person, the term nominee does not appropriately reflect the nature of the appointment.

4.39       In general, stakeholders agreed with the chosen terminology,^[32] although there were some divergent views. The Office of the Public Advocate (Vic) observed that ‘representative’ connotes an appointment that is ‘less permanent’ in nature than a substitute decision-maker, and that the representative is there ‘with the will of the person’, even though sometimes a representative may be appointed by a court or tribunal.^[33]

4.40       However, AGAC pointed to a difference of opinion among its members about the potential for confusion concerning the use of the term ‘representative’:

Some members have raised concerns that the use of the term is potentially too broad and may lead to duplication of appointments under state legislation, and also possible conflict between multiple decision makers appointed under different regimes. Other members argued that ‘representative’ is closely aligned with concepts of agency, where principals have the capacity to instruct. Conversely, other members felt that it is appropriate.^[34]

4.41       KinCare Services objected to the use of the term ‘supporter’ to identify individuals or organisations with formal support relationships because ‘exclusively informal networks have long been identified as “support” groups, and to attach this term to formal partnerships may bring about confusion’.^[35]