Proposal 3–8 National Decision-Making Principle 4

Decisions, arrangements and interventions for persons who may require decision-making support must respect their human rights.

3.79 The Terms of Reference require the ALRC to consider safeguards in asking: ‘are the powers and duties of decision-making supporters and substituted decision-makers 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’.[58] Both these matters are included within the Safeguards Guidelines.

3.80 The Safeguards Guidelines build upon the requirements of art 12(4) of the CRPD and reflects the Inquiry’s framing principle of ‘accountability’. As the Caxton Legal Centre submitted,

Key factors in considering models should include monitoring of arrangements, provisions for accountability and regular and unscheduled review as safeguards against exploitation and abuse.[59]

Safeguards Guidelines

Proposal 3–9 Safeguards Guidelines

Laws and legal frameworks must contain appropriate safeguards in relation to decisions and interventions in relation to persons who may require decision-making support to ensure that such decisions and interventions 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.

3.81 These Guidelines are expressed in very general terms. They capture the essential elements of safeguards that should be incorporated in Commonwealth laws and legal frameworks about decision-making support.

3.82 Paragraph (a) reflects the fact that some decisions and interventions may be made contrary to what a person wants—particularly if the wishes and preferences of a person may cause harm to themselves or to others. A limitation based on harm puts a ‘hard edge’ on giving effect to a person’s wishes and preferences. It also tests the limits of autonomy, where the limitation concerns harm to oneself. Examples of limitations of this kind are seen usually in the context of mental health legislation: to save a patient’s life, or to prevent a patient from seriously injuring themselves or others.[60] Safeguards may be included in terms of ensuring that the course of action proposed is the ‘least restrictive’ option.[61]

3.83 Whenever a limit is included, considerable care will be needed in translating it into practice. A provision that a person’s will and preferences may be overridden, based on the outcome of that decision—in this case, harm—runs contrary to a focus on ability that is not outcomes-based.[62] But it is not necessarily inconsistent with a principle of autonomy.

3.84 Autonomy is not an absolute. The classical conceptualisation of autonomy, by John Stuart Mill, recognised some limit—that it may be limited in order ‘to prevent harm to others’.[63] He gave the example of a wayfarer, summarised by Donnelly as follows:

Mill describes a wayfarer approaching a dangerous bridge in circumstances in which it is uncertain whether she is aware of the danger. He states that it is permissible to stop the wayfarer and warn her of the dangers ahead but if, following the warning, the wayfarer still wishes to proceed, she should be permitted to do so. Mill also recognised that interference with individual freedom could be justified in order ‘to prevent harm to others’. However, this justification does not allow a wholesale overriding of individual freedom. While acknowledging that ‘no person is an entirely isolated being’, Mill argued that a person can be stopped from doing something only if, in doing that thing, she would ‘violate a distinct and assignable obligation’ to others.[64]

3.85 Arnold and Bonython defended the need to make decisions on behalf of people in some contexts and suggested that this is consistent with human rights law and with ‘accepted bioethical standards and with the practicalities of both health care and social activity’:

It is axiomatic that all Australians, with or without disabilities, may experience life-threatening circumstances in which a decision should be made by a medical practitioner or other recognised decision-maker within a coherent and transparent legal framework to preserve the life of the individual. From a human rights perspective it is also axiomatic that interventions that are contrary to the will of some individuals will be necessary in order to both preserve the life of those individuals and the lives of the intimates or other associates of those individuals.[65]

3.86 One of the challenging areas in practice, for applying a limitation based on harm, is in the context of restrictive practices, particularly for people with mental disorders. Restrictive practices are discussed in Chapter 8. At a principle-based level, some limitation is appropriate, and is broadly consistent with the framing principles for this Inquiry. The challenge in practice, however, is the development of appropriate assessment and monitoring tools that are also consistent with the principles on an ongoing basis.[66]

3.87 The ALRC is interested in hearing how best to express the ‘least restrictive’ Safeguard Guideline, consistent with a human rights approach and the supported decision-making model proposed in this Discussion Paper.