20.05.2014
4.32 The Commonwealth decision-making model proposed by the ALRC introduces the concept of formal supported decision-making at a Commonwealth level. At the core of supported decision-making is the idea that people, except in very limited circumstances, have some level of decision-making ability and that, with the appropriate support, they can be supported to make a decision. The nature and level of the support may vary, however the decision remains that of the person who requires the decision-making support.
4.33 A supporter under the model is an individual or organisation appointed by a person who may require decision-making support to enable them to make a decision. Ultimate decision-making power and responsibility remains with the person who requires decision-making support. Supporters should be entitled to support people to make any decision relevant to the area of Commonwealth responsibility in relation to which they have been appointed, including in relation to financial decisions.
4.34 A person may appoint whomever they wish as their supporter and may appoint more than one. For example, a person may appoint a family member, friend or carer. A supporter may play a range of roles, including in relation to information, advice or communication. The ALRC does not consider that there should be a requirement that a supporter be unpaid.[21] For example, there may be circumstances in which a paid carer may be appointed as a supporter, particularly where the person does not have family support or is socially isolated.[22] Advocacy organisations, which may not be directly paid by the person, but which receive funding from government or other sources, may in certain instances also be appropriately appointed as a supporter.[23] A person may also appoint, or revoke their appointment of, a supporter at any time.
4.35 There is currently no provision for a supporter, or supporter-type role, which reflects the ideas of supported decision-making, in Commonwealth legislation. The mechanisms closest to the role of a supporter are Centrelink correspondence nominees[24] and nominated representatives in relation to eHealth.[25] However, as outlined below, these roles differ significantly, particularly with respect to the duties owed to the person who may require decision-making support.[26]
What about informal supporters?
4.36 Informal supporters and support networks play a vital role in decision-making of people with disability. Support under art 12 of the CRPD ‘encompasses both informal and formal support arrangements, of varying types and intensity’.[27] As the VLRC stated:
supported decision making recognises the interdependent nature of most people’s lives. Most people make important decisions with personal support (such as advice from family, friends or mentors), or sometimes with professional support (for example, doctors or accountants).[28]
4.37 A number of stakeholders emphasised the important role informal supporters play in decision-making and that entitlement to support should include informal support.[29] The Multicultural Disability Advocacy Association of NSW highlighted the effect of culture on decision-making and noted ‘the differences in ways decisions are made in various cultures’:
in some cultures decisions are made by individuals, whereas in others, all important decisions may be made by the head of the family, or collectively by the local elders, or in consultation with other significant members of the family or community concerned.[30]
4.38 Consistent with these observations, some stakeholders have expressed concerns about the potential for over-formalising existing support mechanisms and support networks that assist people with disability to make decisions.[31] In the ALRC’s view, the introduction of Commonwealth supporters should not diminish the involvement of, or respect for, informal support, including in relation to decision-making.
4.39 A number of the elements of the Commonwealth decision-making model recognise the important role played by informal supporters. For example, the ALRC proposes that formal supporters have an obligation to support a person in consulting family members, carers and other significant people in their life in the process of making decisions. A similar duty is proposed for representatives. There are also specific mechanisms in some areas of Commonwealth law considered in following chapters.
4.40 Importantly, however, the ALRC also makes a number of proposals in relation to safeguards, as some informal arrangements are ‘in fact more restrictive … because decisions [are] made informally on a substitute basis by others’.[32] The formalisation of such arrangements and associated safeguards may ensure people are able to exert choice and control over decision-making in their lives.
Appointment and recognition
Proposal 4–3 Relevant Commonwealth laws and legal frameworks should include the concept of a ‘supporter’ and provide that an agency, body or organisation may establish supporter arrangements. In particular, laws and legal frameworks should reflect the National Decision-Making Principles and provide that:
(a) a person who requires decision-making support should be able to appoint a supporter or supporters at any time;
(b) where a supporter is appointed, ultimate decision-making authority remains with the person who requires decision-making support;
(c) any decision made with the assistance of a supporter should be recognised as the decision of the person who requires decision-making support; and
(d) a person should be able to revoke the appointment of a supporter at any time, for any reason.
4.41 To introduce the concept of formal supported decision-making at a Commonwealth level, the ALRC proposes that relevant laws and legal frameworks should include the concept of a supporter. The ALRC also proposes that such laws and legal frameworks should reflect the National Decision-Making Principles and specifies a number of key elements relating to the appointment and recognition of a supporter or supporters that should be incorporated into any supporter scheme.
4.42 The most important elements of the proposal are recognition that, where a supporter is appointed, ultimate decision-making authority remains with the person who requires decision-making support, and that any decision made with the assistance of a supporter must be recognised as the decision of the person who requires that support.[33] These elements are intended to ensure that decisions are made by the people who require support, but also that support may be required to make or convey a decision, which in turn maximises autonomy, and allows for dignity of risk.
4.43 The other two elements of the proposal relate to ensuring that a person is able to exercise choice and control in relation to the appointment, or revocation of the appointment, of their supporter or supporters. There does not appear to be an equivalent power under existing Commonwealth decision-making regimes. For example, s 123E of the Social Security (Administration) Act 1999 (Cth), which relates to suspension and revocation of nominee appointments, does not make provision for the person who has a nominee appointed to request suspension or revocation.[34] The importance of this power was emphasised by stakeholders.[35]
Role and duties
Potential roles of a supporter
Proposal 4–4 A Commonwealth supporter may perform the following functions:
(a) assist the person who requires decision-making support to make decisions;
(b) handle the relevant personal information of the person;
(c) obtain or receive information on behalf of the person and assist the person to understand information;
(d) communicate, or assist the person to communicate, decisions to third parties;
(e) provide advice to the person about the decisions they might make; and
(f) endeavour to ensure the decisions of the person are given effect.
4.44 A supporter may perform a number of roles for a person who requires decision-making support. The ALRC proposes that relevant Commonwealth laws and legal frameworks should provide that supporters may exercise some or all of the roles outlined in Proposal 4–4.
4.45 For example, a supporter may need to obtain relevant information and explain it to the person they are supporting in a way that is easily understood, or provide advice to the person about the decisions the person might make. This role in the collection and explanation of information is provided for under a number of existing and proposed models of supported decision-making.[36]
4.46 A related role is the handling of relevant personal information of the person being supported. In view of stakeholder submissions highlighting the difficulties that family members and carers often face in attempting to access information, it is important that supporters are able to handle the relevant personal information of the person they are supporting. The operation of the Privacy Act 1998 (Cth) and the possible need for supporters under that Act is discussed in Chapter 6.
4.47 In circumstances where a person who may require decision-making support experiences difficulty communicating, the supporter may either assist them to communicate a decision, or in some circumstances may communicate the person’s decision to third parties. Where a supporter is purportedly communicating a person’s decision, it may be necessary for the relevant Commonwealth department or agency to include additional safeguards to ensure that there is no abuse of the supporter’s role or duties. This communication-related role is currently provided for under a number of models.[37]
4.48 A supporter may also play a role in endeavouring to ensure that the decision of the person is given effect. They may, for example, contact the relevant Commonwealth department or agency to follow up on the information provided, or the decision, or provide assistance for the person to seek review of a decision which they consider does not appropriately reflect their will and preferences. However, it would be a matter for individual supporters to determine the extent to which they are able to play this role, depending on the circumstances of the person who requires decision-making support and the particular decision. This role is also provided for currently under some decision-making models.[38]
Supporter duties
Proposal 4–5 Relevant Commonwealth laws and legal frameworks should provide that Commonwealth supporters must:
(a) support the person requiring decision-making support to make the decision or decisions in relation to which they were appointed;
(b) support the person requiring decision-making support to express their will and preferences in making a decision or decisions;
(c) act in a manner promoting the personal, social, financial, and cultural wellbeing of the person who requires decision-making support;
(d) act honestly, diligently and in good faith;
(e) support the person requiring decision-making support to consult with ‘existing appointees’, family members, carers and other significant people in their life in making a decision; and
(f) assist the person requiring support to develop their own decision-making ability.
For the purposes of paragraph (e), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person appointed formally with power to make decisions for the person.
4.49 The duties of supporters should be set out in the legislation relevant to the area of Commonwealth law.
4.50 The first duty should be to act only within the scope of their appointment. This does not preclude supporters acting informally, or a person appointing a supporter in relation to a broader range of decisions than initially envisaged.
4.51 Supporters should be required to act in a manner that promotes the personal, social, financial, and cultural wellbeing of the person who requires decision-making support.
4.52 This duty is similar to the duty imposed on nominees under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to act in a manner that promotes personal and social wellbeing,[39] but adds elements relating to financial and cultural wellbeing. Given the potential role of supporters in supporting people to make decisions which relate to finances, the ALRC considers financial wellbeing to be an important inclusion. In addition, the importance of cultural wellbeing and sensitivity was highlighted by a number of stakeholders.[40] The exact nature and content of this duty is likely to require further articulation, including in supporting material in specific areas of Commonwealth law.
4.53 Should supporters have any personal liability for decisions made by the person being supported? The VLRC commented that the extent to which supporters should be liable in such circumstances is ‘challenging’. While it can be argued ‘that the supported person should be responsible for the consequences of any decisions made within a supported arrangement because they retain decision-making authority’, the VLRC concluded that the law the law should ‘recognise that the support relationship is one of special trust and confidence, and the supported person is likely to be in a position of vulnerability relative to their supporter’:
Therefore, to avoid doubt, the law should designate the relationship between a supporter and the supported person as fiduciary. Supporters who fail to comply with their fiduciary obligations will leave themselves open to the full range of equitable remedies that are available in these circumstances.[41]
4.54 The ALRC acknowledges that the issue of the potential liability of supporters (and representatives) is a difficult one. In the case of supporters, ultimate decision-making authority rests with the person who requires decision-making support, and therefore why should a supporter be held liable for any consequences arising from the decision or decisions? The ALRC is interested in stakeholder views on the question of the standard of the duty of supporters.
Question 4–3 In the Commonwealth decision-making model, should the relationship of supporter to the person who requires support be regarded as a fiduciary one?
4.55 The ALRC also proposes a duty to facilitate consultation. A number of stakeholders highlighted the importance of ensuring supporters (and representatives) consult family members, carers and other significant people in the life of the person who may require decision-making support.[42] However, these submissions were primarily responding to decision-making circumstances involving substitute decision-making. Rather than imposing a duty on supporters to consult, the ALRC considers it may be more appropriate to propose a duty to facilitate desired consultation, between a person requiring decision-making support and with family, carers and other significant people in the life of the person.
4.56 In order to facilitate the appropriate interaction of supporters with existing state and territory appointed decision-makers, discussed in more detail later in the chapter, a supporter should have a duty to facilitate consultation with existing appointees. The description of ‘existing appointee’ is similar to the one in the NDIS Act.[43] This duty may, in part, address concerns such as those expressed by the Financial Services Council about the need for ‘access to critical and relevant information, by a [state or territory] duly appointed decision-maker’.[44]
4.57 Finally, the ALRC is interested in stakeholder views on the appropriateness of imposing an obligation on supporters to develop the capacity of the person being supported to make their own decisions. This would mirror an obligation imposed on nominees under the National Disability Insurance Scheme (Nominee) Rules 2013 (Cth).[45] The nature and content of the obligation is likely to vary according to the circumstances of the appointment. For example, the identity of the supporter will affect their ability to develop the person’s capacity, as will resource constraints.
4.58 The ALRC welcomes stakeholder feedback on the duties contained in the proposal, and whether there should be any additional duties of supporters. The ALRC considers a high level of responsibility and the imposition of particular duties is important. However, there may be concerns about unintended consequences, including, for example, people being deterred from acting as supporters.
Safeguards
Question 4–4 What safeguards in relation to supporters should be incorporated into the Commonwealth decision-making model?
4.59 As outlined in Chapter 3, art 12(4) of the CRPD requires that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards. The balance between ensuring supporters and decisions made under support arrangements are subject to appropriate safeguards, and avoiding over-regulation of supporters is a delicate one. Excessive regulation may
discourage honest people from accepting an appointment as a supporter. Too much regulation would also have a tendency to undermine the important relationship of trust between a supporter and a supported person.[46]
4.60 There needs to be a number of safeguards and recognition of the different purposes of safeguards. For example, some are designed to protect the person who may require decision-making support from abuse, neglect or exploitation; others may be required to ‘ensure that a decision made under a supported decision making arrangement truly expresses and effects the wishes of the person with disability’.[47]
4.61 The Office of the Public Advocate (Vic) highlighted that ‘supported decision-making does open up the possibility of conflict, undue influence, abuse and exploitation’.[48] Similarly, Bruce Arnold and Dr Wendy Bonython submitted that
factors such as undue, or inappropriate, influence are not specific to decision-making by disabled people; nonetheless steps should be taken to ensure that their decision-making—particularly decision-making with serious consequences, such as extensive or potentially high risk medical treatment, or decisions about care—are not a consequence of inappropriate consideration of factors of this type.[49]
4.62 The Australian Guardianship and Administration Council (AGAC) observed that:
Supported decision making schemes must ‘value-add’ to informal decision making schemes by providing accountability structures and transparency. Like guardianship systems, supported decision making systems must also have clear systems for avoiding, so far as possible, the inclusion of supported decision makers who may use that position to abuse a person with a disability.[50]
4.63 While it is difficult to protect people who may require decision-making support from abuse and neglect in all instances, there are a number of potential safeguards with respect to supporters under the Commonwealth decision-making model. The key safeguards include:
the proposed duties of supporters;
the ability of the person who requires decision-making support to revoke the appointment at any time;
provision for appointment of more than one supporter; and
the provision of guidance and training to people who require decision-making support, supporters and Commonwealth departments and agencies interacting with supporters.
4.64 The ALRC would be interested in stakeholder feedback about what other safeguards may be appropriate for supporters. For example, in British Columbia to safeguard against financial abuse a monitor must be appointed to oversee the person providing support except in certain circumstances.[51] Other suggestions made to the VLRC in its guardianship inquiry included: registration of arrangements; police checks on appointments; and appointment of monitors.[52]
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[21]
Compare Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 38; Office of the Public Advocate (SA), Submission 17 Attachment 1.
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[22]
See, eg, MHCA, Submission 77; Caxton Legal Centre, Submission 67; ADACAS, Submission 29. See also Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) recs 62, 63.
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[23]
See, eg, discussion of importance of advocates in decision-making regimes: Disability Advocacy Network Australia, Submission 36. See also MDAA, Submission 43 in relation to advocates’ authority to engage with Centrelink.
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[24]
Social Security (Administration) Act 1999 (Cth) ss 123C, 123H. See, also, Department of Social Services, Guide to Social Security Law (2014) [8.5.1], [8.5.2].
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[25]
Personally Controlled Electronic Health Records Act 2012 (Cth) s 7.
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[26]
See the discussion of social security and eHealth in Ch 6.
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[27]
United Nations Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014) on Article 12 of the Convention—Equal Recognition before the Law [15].
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[28]
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [8.5].
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[29]
See, eg, Carers NSW, Submission 23; Office of the Public Advocate (Qld), Submission 05.
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[30]
MDAA, Submission 43.
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[31]
See, eg, Law Council of Australia, Submission 83; Queensland Advocacy Incorporated, Submission 45. See also in relation to ‘net widening’: Carney and Beaupert, above n 6.
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[32]
Office of the Public Advocate (SA), Submission 17 attachment 1, 31. See, also, Australian Guardianship and Administration Council, Submission 51.
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[33]
The VLRC made a similar recommendation: Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 46.
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[34]
Social Security (Administration) Act 1999 (Cth) s 123E.
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[35]
See, eg Physical Disability Council of NSW, Submission 32. See also Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 54.
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[36]
See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 43; Adult Guardianship and Trusteeship Act SA 2008 cA4.2 div 1, s 4(2); Decision Making, Support and Protection to Adults Act SY 2003 c21 sch A, pt 1, s 5(1).
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[37]
See, eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 43; Adult Guardianship and Trusteeship Act SA 2008 cA4.2 div 1, s 4(2); Decision Making, Support and Protection to Adults Act SY 2003 c21 sch A, pt 1, s 5(1).
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[38]
Decision Making, Support and Protection to Adults Act SY 2003 c21 sch A, pt 1, s 5(1); Mental Capacity Act 2005 (UK) s 36(3).
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[39]
National Disability Insurance Scheme Act 2013 (Cth) s 80(1).
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[40]
See, eg, MDAA, Submission 43.
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[41]
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [8.128]–[8.130]. See Ibid recs 59–61.
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[42]
See, eg, Carers Queensland Australia, Submission 14.
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[43]
National Disability Insurance Scheme Act 2013 (Cth) s 88(4).
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[44]
Financial Services Council, Submission 35.
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[45]
National Disability Insurance Scheme (Nominee) Rules 2013 (Cth) r 5.10. See also Mental Capacity Act 2005 (UK) s 4(4).
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[46]
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012). [8.120]
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[47]
Caxton Legal Centre, Submission 67.
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[48]
Office of the Public Advocate Victoria, Supported Decision-Making: Background and Discussion Paper (2009) 25.
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[49]
B Arnold and Dr W Bonython, Submission 38.
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[50]
Australian Guardianship and Administration Council, Submission 51.
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[51]
Representation Agreement Act RSBC 1996 c405 1996 ss 12(1), (2).
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[52]
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012), [8.57].