Decision making

11.247         Abuse of formal and informal decision-making powers was identified in submissions as a form of elder abuse in aged care. Stakeholders raised concerns about:

  • failures to respect or acknowledge the decision-making ability of an older person;[259]

  • abuse by informal and appointed decision makers, including misuse of powers of attorney, and abusive or prohibitive lifestyle decisions;[260]

  • a lack of understanding of the powers and duties of appointed decision makers, by both the decision maker and aged care workers;[261] and

  • in relation to consumer directed care, concern about family members inappropriately influencing the decisions made by older people about the design of a care package.[262]

11.248         In the Equality, Capacity and Disability Report, the ALRC recommended that aged care laws and legal frameworks should be amended consistently with its National Decision-Making Principles.[263] These Principles emphasise the equal rights of all adults to make decisions that affect their lives, and prescribe that the will, preferences and rights of a person who may require decision-making support must direct these decisions.[264] The ALRC also developed a ‘Commonwealth decision-making model’ that, among other things, makes provision for the appointment of a ‘supporter’ or a ‘representative’ for a person who requires decision-making support, and recommended that aged care legislation be amended consistently with this model.[265]

11.249         The ALRC considers that the implementation of these recommendations will assist in ensuring that decisions in aged care are made in accordance with an older person’s will, preferences and rights.

11.250         The Aged Care Act and associated Principles contain a number of provisions relating to decision making. For example, the Charters of Care Recipients’ Rights and Responsibilities include rights in relation to decision making in residential and home care.[266] There are also provisions in aged care legislation that allow for supported or representative decision making. However, the use of terminology across the legislation, and the powers and duties attached to persons who may act in these roles, are not consistent. As the Equality, Capacity and Disability Report noted, the

current legal framework provides for some elements of supported and representative decision-making in aged care. Section 96-5 of the Aged Care Act provides for a person, other than an approved provider, to represent an aged care recipient who, because of any ‘physical incapacity or mental impairment’ is unable to enter into agreements relating to residential care, home care, extra services, accommodation bonds and accommodation charges. Section 96-6 states that in making an application or giving information under the Act, a ‘person authorised to act on the care recipient’s behalf’ can do so.[267]

11.251         The Quality of Care Principles define ‘representative’ in a way that is ‘similar to both supporters and representatives in the Commonwealth decision-making model’.[268]

11.252         Implementation of the ALRC’s recommendation to amend aged care legislation in line with the Commonwealth decision-making model would provide a consistent approach to supported decision making, and offer an important safeguard against abuse for older people receiving aged care. It would provide clear statutory guidance for decision making, with the starting point that the older person’s will, preferences and rights should guide decisions made regarding their care.

11.253         Implementation of the ALRC’s recommendation would also require:

  • consideration of interaction with state and territory appointed decision makers;[269]

  • revision of guidelines and operational manuals across the aged care system, including for aged care assessment teams, approved providers, and advocacy services to ensure consistent guidance about decision making; and

  • training and education for aged care workers in principles for decision making for care recipients, including powers and duties of appointed decision makers, and avenues for reporting concerns about abuse of decision-making powers.[270]

11.254         The Office of the Public Advocate (Vic) supported the recommendations relating to aged care made in the Equality, Capacity and Disability Report, arguing that these will help ‘ensure older people with cognitive impairment are adequately supported to make and enact decisions according to their will and preferences, thereby protecting them from people making decisions for them that contravene their rights’.[271] The GLBTI Rights in Ageing Institute argued that an ‘individual’s rights and autonomy would be better protected by legal frameworks which emphasised the benefits of supported decision-making processes’.[272] The Australian College of Nursing noted that a person’s ability to make decisions may change, and that following a period of dependence, ‘processes must facilitate and protect an older person’s right to resume control in directing their care planning and resume independence in decision-making’.[273]

11.255         A revision of the decision-making provisions in aged care laws and legal frameworks is particularly timely given the move towards consumer directed care. As a number of submissions to this Inquiry noted, many recipients of aged care may need support to make decisions about care planning.[274] For example, Speech Pathology Australia noted that communication difficulties ‘are one of the greatest barriers to the execution of choice and active participation in decision making and care planning, including development of a support or care plan under a consumer directed care model’.[275] The importance of funded advocacy programs in providing decision-making support was also highlighted by stakeholders.[276]

11.256         Reforms proposed elsewhere in this Discussion Paper will also assist in providing safeguards against abuse of a person’s decision-making rights. These include proposals for reform of laws relating to enduring powers of attorney and guardianship (Chapter 5); guardianship and financial administration (Chapter 6) as well as the proposal to provide oversight of the use of restrictive practices in aged care (Proposal 11-7).

Requiring appointed decision makers

Proposal 11–8          Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

11.257         Some submissions observed that it was the practice of some approved residential aged care providers to require, as part of an agreement with the provider, that a person has appointed a financial and/or a lifestyle decision maker as a condition of entry into residential aged care.[277]

11.258         The Office of the Public Advocate (Qld) observed that the ‘rationale for this policy is likely to be a financial and legal safeguard for the facility by ensuring that all people seeking placement have a mechanism in place to ensure continuity of decision-making in respect of the person’s placement should they cease to have capacity’.[278]

11.259         Other submissions outlined the complexities that aged care providers can face in relation to decision making. The Australian College of Nursing noted that ‘aged care providers can be significantly challenged by situations when an older person does not have advance care directives about the appointment of guardians and there is no suitable substitute decision maker to work with’.[279] Resthaven stated that providers ‘face a real challenge for the older person who has not made any Advance Directives about the appointment of guardians prior to their loss of competency and where it is not evident there is a suitable substitute decision maker to work with’.[280]

11.260         While recognising these challenges, the ALRC considers that appointing a representative decision maker should not be required as a condition of receipt of aged care. Advance planning for decision-making support in aged care should be encouraged.[281] However, requiring that a person has appointed a decision maker before entry into aged care is an inappropriate encroachment on the decision-making rights of older people.

11.261         In keeping with an emphasis on respecting a person’s decision-making ability, the ALRC proposes that aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

11.262         As Seniors Rights Service argued, ‘a resident should have the right to choose whether or not they will appoint a substitute decision maker. The provider may wish to take steps to ensure that their fees are paid but this should not encroach on the fundamental rights of the resident to make their own decisions’.[282]

[259]       A number of submissions raised concerns about decision making in relation to admission to residential aged care: Justice Connect, Submission 182; Office of the Public Advocate (Qld), Submission 149; Townsville Community Legal Service Inc, Submission 141; Office of the Public Advocate (Vic), Submission 95. See also the example of June, in a case study provided in ADA Australia, Submission 150.

[260]       For example, the NSW Nurses and Midwives Association submitted that one third of members responding to a survey about elder abuse  had either witnessed, or were unsure about witnessing financial abuse of a person by relatives who held Power of Attorney: NSW Nurses and Midwives’ Association, Submission 29.  See also Justice Connect, Submission 182; ADA Australia, Submission 150; Townsville Community Legal Service Inc, Submission 141; GLBTI Rights in Ageing Institute, Submission 132; Leading Age Services Australia, Submission 104; Office of the Public Advocate (Vic), Submission 95; Alice’s Garage, Submission 36

[261]       ADA Australia, Submission 150; Advocare Inc (WA), Submission 86.

[262]       Office of the Public Advocate (SA), Submission 170; UnitingCare Australia, Submission 162; National Seniors Australia, Submission 154; Australian College of Nursing, Submission 147; Aged and Community Services Australia, Submission 102; Advocare Inc (WA), Submission 86. There are existing safeguards against inappropriate care packages being developed through a CDC model. These include providers’ responsibilities in relation to providing ongoing review of a person’s home care package: Aged Care Act 1997 (Cth) s 56-2(k); User Rights Principles 2014 (Cth) sch 2 cl 3(d); Department of Health (Cth), above n 43, 36. There are also limits on what home care package  funds can be spent on: Quality of Care Principles 2014 (Cth) sch 3 pt 2.

[263]       Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 6-2.

[264]       Ibid rec 3-1. The National Decision-Making Principles, and the ALRC’s approach to supported decision making, are discussed further in Chapter 1. 

[265]       Ibid rec 6-2. For a discussion of how the ALRC’s recommended terminology of ‘representative’ maps on to the existing use of ‘representative’ in the Aged Care Act, see Ibid 168–73.

[266]       User Rights Principles 2014 (Cth) sch 1 cl 1(n), sch2 cls 2(c)–(d), 5(d).

[267]       Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) 168.

[268]       Ibid 169; Quality of Care Principles 2014 (Cth) s 5.

[269]       The ALRC considered this in the context of decision making in the NDIS in Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) ch 5.

[270]       This was supported by Justice Connect, Submission 182; ADA Australia, Submission 150; NSW Nurses and Midwives’ Association, Submission 29.

[271]       Office of the Public Advocate (Vic), Submission 95.

[272]       GLBTI Rights in Ageing Institute, Submission 132.  See also Speech Pathology Australia, Submission 168; Australian College of Nursing, Submission 147; TASC National, Submission 91; Law Council of Australia, Submission 61.

[273]       Australian College of Nursing, Submission 147.

[274]       See, eg, Speech Pathology Australia, Submission 168; Australian Association of Social Workers, Submission 153; Office of the Public Advocate (Vic), Submission 95.

[275]       Speech Pathology Australia, Submission 168.

[276]       See, eg, Australian Nursing & Midwifery Federation, Submission 163; Advocare Inc (WA), Submission 86.

[277]       See, eg, Seniors Rights Service, Submission 169; Office of the Public Advocate (Qld), Submission 149; Townsville Community Legal Service Inc, Submission 141. Agreements entered into between an approved provider and a residential care recipient include accommodation agreements and  resident agreements. The Act specifies a number of requirements for those agreements: Aged Care Act 1997 (Cth) ss 52F-3, 59-1, 61-1. 

[278]       Office of the Public Advocate (Qld), Submission 149.

[279]       Australian College of Nursing, Submission 147.

[280]       Resthaven, Submission 114.

[281]       Information and education about the utility for older people of putting in place arrangements for a person to make financial and/or lifestyle decisions on their behalf would form part of the proposed National Plan to reduce elder abuse (see prop 2-1). National Seniors Australia supported an ‘ongoing public campaign’ in relation to this: National Seniors Australia, Submission 154.

[282]       Seniors Rights Service, Submission 169.. See also Office of the Public Advocate (Qld), Submission 149