Proposal 3–3 National Decision-Making Principle 2
Persons who may require support in decision-making must be provided with the support necessary for them to make, communicate and participate in decisions that affect their lives.
3.14 Support is the central theme in the CRPD. The Terms of Reference require the ALRC to consider:
‘how decision making by people with impairment that affects their decision making can be validly and effectively supported’; and
‘the role of family members and carers and paid supports … in supporting people with disability … and how this role should be recognised by law and legal frameworks’.
3.15 There are two elements: how a person can be supported in his or her decision-making; and how the law can give recognition to those who are providing the support. The ALRC’s approach is to place the person who may require decision-making support at the forefront—as the decision-maker—and to include recognition in law for the position of ‘supporters’, both through a mechanism of appointment set out in relevant Commonwealth laws, and through including supporters in ‘information loops’ in certain situations. The ‘supporter’ model is considered in Chapter 4.
3.16 National Decision-Making Principle 2 and the Support Guidelines, set out in Proposal 3–4, reflect the ALRC’s model of a spectrum of decision-making, from fully independent to supported decision-making, including where a person needs to be fully supported. They are underpinned by a conceptualisation of autonomy as empowerment, as noted in Chapter 1.
3.17 This Principle expresses the concept of support at a high level. The ALRC seeks to place the emphasis on the person as decision-maker not as a person with an impairment affecting their decision-making, but rather as a person who may require support in making decisions. Such language reflects art 12(3) of the CRPD:
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
3.18 The ALRC considers that the emphasis on support should be strong, so the word ‘must’ is used in National Decision-Making Principle 2. It is not prescriptive by whom, and how, the support may be given. The Principle reflects, as remarked by the Office of the Public Advocate (Qld),
a 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.
3.19 National Decision-Making Principle 2 includes the recognition of communication support. It also reflects some of the general principles contained in the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), that ‘[p]eople with disability should be supported to participate in and contribute to social and economic life to the extent of their ability’.
Proposal 3–4 Support Guidelines
(a) Persons who may require decision-making support should be supported to participate in and contribute to all aspects of life.
(b) Persons who may require decision-making support should be supported in making decisions.
(c) The role of families, carers and other significant persons in supporting persons who may require decision-making support should be acknowledged and respected.
3.20 The purpose of support is to enhance the ability of people to make decisions and exercise choice and control—as the decision-maker. The Support Guidelines concern the support that should be provided to persons with disability, who may need support in making decisions.
3.21 The ALRC’s model includes provision for formal recognition of supporters in Commonwealth laws and legal frameworks. This is considered in relation to Commonwealth supporters and representatives, discussed separately in Chapter 4.
3.22 The ALRC’s approach is to provide recognition of supported decision-making. This goes beyond general statements about the importance of support in the lives of people with disability, to the proposal for a model for individual decision-making at Commonwealth level in which supporters can be nominated and recognised. As discussed in Chapter 2, there is very strong support for models that reflect supported decision-making norms and aspirations.
3.23 The Support Guidelines reflect the Inquiry’s framing principles of dignity, autonomy, and inclusion and participation. They are consistent with the general principles of the NDIS Act, that people with disability should be supported to:
exercise choice, including in relation to taking reasonable risks; and
receive reasonable and necessary supports, including early intervention supports.
3.24 The Support Guidelines reflects the ALRC’s approach that assumptions about ability—and the extent of support—should not be based on a person’s disability. As one stakeholder commented, ‘[a]ssumptions should … not be made that a person with physical disability will require supported decision-making or substitute decision making assistance’.
3.25 Stakeholders endorsed the recognition of family as supporters. For example, the Mental Health Coordinating Council submitted:
The role of family members and carers should be recognised in Commonwealth laws. The supporting policy frameworks must reflect that those assessing capacity and supporting decision-making must listen to, learn from and act upon communications from the individual and their carers about what is important to each individual. This involves acknowledging each individual is an expert on their own life and that their ‘recovery’ and care involves working in partnership with individuals and their carers to provide support in a way that makes sense to them and that assists them realise their own hopes, goals and aspirations.
3.26 Paragraph (c) of the Support Guidelines is consistent with the NDIS Act principle that: ‘The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected’.
Compare the formulation by the VLRC that people ‘with impaired decision-making ability should be provided with the support necessary for them to make, participate in and implement decisions that affect their lives’: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 21(c). See also the QLRC formulation, ‘the adult’s right to be given any necessary support and access to information to enable the adult to make or participate in decisions affecting the adult’s life’: Queensland Law Reform Commission, Queensland Law Reform Commission, Review of Qld Guardianship Laws, Final Report (2010) rec 7–14(d).
Office of the Public Advocate (Qld), Submission 05.
Compare, eg, Adult Guardianship and Trusteeship Act SA 2008 cA4.2 s 2(b); Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 21(g).
National Disability Insurance Scheme Act 2013 (Cth) s 4(2).
Ibid s 4(4). The principle is focused on choice ‘in the pursuit of their goals and the planning and delivery of their supports’, which are the focus of the NDIS.
Ibid s 4(5).
Physical Disability Council of NSW, Submission 32.
Mental Health Coordinating Council, Submission 07.
National Disability Insurance Scheme Act 2013 (Cth) s 4(12).