Proposal 4–1 Commonwealth laws and legal frameworks should encourage supported decision-making by adopting a model for individual decision-making consistent with the National Decision-Making Principles and Proposals 4–2 to 4–9 (the ‘Commonwealth decision-making model’).
4.5 In the ALRC’s view, it is desirable to introduce statutory mechanisms for formal supported decision-making at a Commonwealth level. A range of stakeholders expressed support for the introduction of supported decision-making and its introduction in statutory form.
4.6 The ALRC proposes introducing mechanisms for the appointment of ‘supporters’ for adults who may require decision-making support, in a number of areas of Commonwealth law. The introduction of provisions relating to ‘representatives’ to address circumstances in which a person may desire, or require, fully supported decision-making, is also proposed.
4.7 The proposed Commonwealth decision-making model represents a significant shift and would require reconfiguration of decision-making approaches. The question of how the ALRC’s model interacts with decision-making regimes under state and territory law is also discussed below.
Levels of support
4.8 Article 12 of the CRPD and National Decision-Making Principle 2 contain the key idea of decision-making support. The central idea underlying the Commonwealth decision-making model is, therefore, 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. The Office of the Public Advocate (Queensland) observed:
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’.
4.9 Rather than starting by questioning whether a person has the capacity to make decisions— reflecting a binary view of capacity and decision-making—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 may require decision-making support ‘to exercise legal agency is dependent on the integrity, quality and appropriateness of support available’.
4.10 There are a number of levels of support that a person may require to make a decision:
No or 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 to ensure their decision is given effect to.
4.11 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.
4.12 There is one other category of support—full support. In such circumstances a person may choose fully supported decision-making, or it may be necessary to appoint someone to provide that support. Under the Commonwealth decision-making model, a representative would 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 the person’s will and preferences as constructed using the information available, or on the basis of the 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.
4.13 Fully supported decision-making differs from substitute decision-making because it 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’. Importantly, representatives are not intended to replicate nominees under existing Commonwealth law. Stakeholders expressed concerns about the potential risks arising from a combination of supported and substitute decision-making. In particular, there was concern that substitute decision-making could become predominant—what Professor Terry Carney and Fleur Beaupert refer to as ‘net widening’. The concept of fully supported decision-making and its development is discussed in more detail in Chapter 2.
Operation and effect of the model
4.14 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 category of decisions. At the other is fully supported 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.
4.15 The development of the Commonwealth decision-making model differs from, but builds on, 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.
4.16 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 would ideally incorporate a number of key elements based on the model outlined below. 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’.
4.17 The ALRC focuses on a number of key elements of the model, rather than being overly 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.
4.18 The implementation of the Commonwealth decision-making model is likely to have a number of important outcomes. First, it would ensure that people with disability retain decision-making power in areas of Commonwealth law in order to express their will and preferences and exercise legal capacity on an equal basis with others.
4.19 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’.
4.20 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. This is likely to allow third parties to interact with supporters about decision-making with greater confidence.
4.21 A related point is that, 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, one of the key elements of the ALRC’s Support Guidelines. This may help address some of the difficulties and frustrations expressed by stakeholders in the course of this Inquiry. Such recognition 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 Commonwealth Government systems. As Pave the Way highlighted,
families are less likely to seek a guardianship or administration order in relation to their loved one when government agencies and other organisations recognise their role in their family member’s lives.
4.22 Finally, if implemented across a range of Commonwealth areas of law, support provided in accordance with the model may also facilitate navigation of the ‘labyrinth’ of Commonwealth systems by people who require decision-making support.
4.23 In order to guide the adoption of supported decision-making at a Commonwealth level, the ALRC makes a range of proposals below that, considered together, form the proposed Commonwealth decision-making model.
4.24 In outlining the model, there are a number of areas and issues in relation to which the ALRC seeks further stakeholder input prior to making final law reform recommendations. For example, the ALRC asks a question about the most appropriate approach to the complex interaction of Commonwealth decision-making structures and state and territory appointed decision-makers—an issue highlighted by a range of stakeholders in the course of the Inquiry.
Application of model
Question 4–1 In what areas of Commonwealth law, aside from the National Disability Insurance Scheme, social security, aged care, eHealth and privacy law, should the Commonwealth decision-making model apply?
4.25 It may be beneficial to have consistent decision-making structures across Commonwealth law for people who may require decision-making support. However, given the significant shift the proposed model represents, and the views of some stakeholders and commentators who have emphasised the need for a fuller analysis of supported decision-making before wholesale implementation, the ALRC limits its proposals to a number of key areas.
4.26 The following chapters of this Discussion Paper discuss the potential application of the model in a number of areas of Commonwealth law. Chapter 5 discusses the application of the model in the context of the NDIS. Chapter 6 discusses its possible application in other areas of Commonwealth law, including those that have existing decision-making provisions which will require amendment.
4.27 There are other areas of Commonwealth law to which the Commonwealth decision-making model could apply, including for example, Medicare and tax. The ALRC is interested in stakeholder comment in relation to these, or other areas of Commonwealth law.
Question 4–2 Are the terms ‘supporter’ and ‘representative’ the most appropriate to use in the Commonwealth decision-making model? If not, what are the most appropriate terms?
4.28 As outlined in Chapter 2, in light of the often contested nature of terminology, and the potential need for a new lexicon in the context of capacity and decision-making, the ALRC is asking a number of questions about the appropriateness of particular terminology. In the context of this chapter, the ALRC is interested in stakeholder views on the appropriateness of the terms ‘supporter’ and ‘representative’, and suggestions for alternative terms.
4.29 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 that ultimate decision-making power and responsibility remains with the person, with support being provided to assist them to make the decision themselves. The term supporter is used in a number of jurisdictions, including in a model recommended by the VLRC in its guardianship inquiry.
4.30 The term ‘representative’ is used 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. Representative is preferred over nominee in order to signal the shift from existing decision-making arrangements in a number of 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.
See, eg, MHCA, Submission 77; Office of the Public Advocate (SA), Submission 17; Office of the Public Advocate (Vic), Submission 06. See also, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [7.73]–[7.82], which adopted the view that formalisation of supported decision-making arrangements would be desirable.
Office of the Public Advocate (Qld), Submission 05. The OPA (Qld) referred toRobert M Gordon, ‘The Emergence of Assisted (supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making’ (2000) 23 International Journal of Law and Psychiatry 61, 71.
See Ch 2.
PWDA, ACDL and AHRC, Submission 66.
Terry Carney and Fleur Beaupert, ‘Public and Private Bricolage—Challenges Balancing Law, Services and Civil Society in Advancing CRPD Supported Decision-Making’ (2013) 36 University of New South Wales Law Journal 175.
See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012); Office of the Public Advocate (SA), Submission 17, attachment 1 ‘Stepped Model of Supported and Substitute Decision-Making’. See, also, Mental Capacity Act 2005 (UK); Michael Bach and Lana Kerzner, ‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity’ (Law Commission of Ontario, October 2010); Amnesty International and the Centre for Disability Law and Policy, National University of Ireland, Galway, Essential Principles: Irish Legal Capacity Law, 2001.
NSW Council for Intellectual Disability, Submission 33.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012), [8.62]. See also: UN Convention on the Rights of Persons with Disabilities, Opened for Signature 30 March 2007, 999 UNTS 3 (entered into Force 3 May 2008).
See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012); Disability Services Commissioner Victoria, Submission to the Victorian Law Reform Commission, Guardianship Inquiry, May 2011 5. In a state and territory context see, eg, Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67, 2010.
See Ch 3.
See, eg, Carer’s Alliance, Submission 84; Carers NSW, Submission 23; Centre for Rural Regional Law and Justice and the National Rural Law and Justice Alliance, Submission 20; Office of the Public Advocate (SA), Submission 17; Carers Queensland Australia, Submission 14. See also more generally in relation to family and carers: G Llewellyn, Submission 82; NMHCCF and MHCA, Submission 81; Children with Disability Australia, Submission 68; B Arnold and Dr W Bonython, Submission 38; Office of the Public Advocate (SA), Submission 17; Mental Health Coordinating Council, Submission 07.
See, eg, Australian Guardianship and Administration Council, Submission 51.
Pave the Way, Submission 09.
Youngcare, Submission 34.
See, eg, Financial Services Council, Submission 35; Australian Guardianship and Administration Council, Submission 51.
See, eg, Carney and Beaupert, above n 6; Nina Kohn, Jeremy Blumenthal and Amy Campbell, ‘Supported Decision-Making: A Viable Alternative to Guardianship’ (2013) 117 Penn State Law Review 1111.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 30.
A formulation currently used under the Personally Controlled Electronic Health Records Act 2012 (Cth).The term representative is also used in other jurisdictions: eg Representation Agreement Act RSBC 1996 c405 1996.