Parens Patriae To Will and Preference: The Evolution of the Guardianship Framework in NSW and Tasmania

A paper presented to the AAL/AIJA/ALJ “Enduring Courts in Changing Times” conference in Sydney on 9 September 2023 by Malcolm Schyvens, President, Tasmanian Civil and Administrative Tribunal (TASCAT)1 (The assistance of my associates, Mr Muhammad Fawwaz Bin Abdul Aziz and Ms Cassendra Pinto, in the preparation of this paper is acknowledged.)

Introduction

A person’s ability to determine their own future and to make choices about their personal life circumstances strikes at the very heart of what it means to be human. So what happens when a person’s capacity to make decisions for themselves about important issues affecting their everyday life and the management of their assets is impaired? How are questions like these answered? “Where should the person live?”, “What medical treatment and services should they receive?” and “How is their money to be managed?” Who should provide the assistance that a person needs and in what circumstances should that assistance be provided?

These are not new questions but have their origins in the time of the Chancery where the common law started to try to find ways to answer these questions through formal legal structures. In recent times, these questions have received a renewed attention and focus, propelled by the UN Convention on the Rights of Persons with Disabilities. In both NSW and Tasmania, specialist tribunals predominantly exercise the power to answer these questions, using the framework of substitute decision-making. Such matters are only dealt with by the courts in small numbers.

The existing substitute decision-making model or ‘best interests’ model has been criticised for being too paternalistic and for taking away the right to self-determination too easily. Significant reforms have been recommended in both NSW and Tasmania, and some are on the pathway to implementation. Such reforms will not be without their challenges.

Historical Overview: Parens Patriae and Capacity In NSW and Tasmania

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.2 (R v Gyngall (1893) 2 QB 232, 241 (Lord Esher MR).

Parens patriae translates to the ‘parent of the state’ which the High Court has referred to as the parental and administrative jurisdiction.3 (Hogan v Hinch (2011) 243 CLR 506, [21] (French CJ). The historical origins of the parens patriae jurisdiction in Tasmanian Courts was discussed in the case of Public Guardian v Guardianship Administration Board [2011] TASSC 31, as expounded upon by Blow CJ. His Honour noted the emergence of the initial legislative provisions pertaining to the guardianship of adults with disabilities within the Tasmanian jurisdiction only began after the 1920’s, despite the Supreme Court being established in 1824. Notably, Blow CJ makes reference to the Charter of Justice, a foundational document instrumental in bestowing jurisdiction over individuals deemed to be ‘natural fools’ and ‘lunatics’.4 (Public Guardian v Guardianship Administration Board [2011] TASSC 31, [19]). The tenets of the original Charter conferred upon the Supreme Court of Van Diemen’s Land the prerogative to:

appoint guardians and keepers of infants and their estates according to the order and course observed in that part of our United Kingdom called England and also guardians and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or ready by the act of God so as to be unable to govern themselves or their estates.

During this time, the Lord Chancellor exercised jurisdictional authority over individuals deemed as ‘idiots and lunatics’.5 (Ibid [20]). The authority conferred on the Lord Chancellor originated from the Crown’s parens patriae function, a jurisdictional domain that extended its purview to the Court of Chancery. Subsequent advancement in this area came following the Tasmanian Parliament’s enactment of the Mental Deficient Act. This legislative enactment is notable as Australia’s inaugural statute dedicated to individuals with intellectual disabilities, departing from the use of derogatory language of ‘lunatics’ and ‘insane’, as had previously been used. This legislative progression marked a transformative juncture, signifying a paradigm shift towards the need to employ mindful language when referring to individuals with intellectual disabilities. Chief Justice Blow made the following remarks:

Under s24(3) of that Act, if a “judicial authority” was satisfied that a person was a “defective”, he could, amongst other things, make an order “appointing a suitable person to be his guardian”. Under s28(2), such an order conferred on the guardian “such powers as would have been exercisable if he had been the father of the defective, and the defective had been under the age of fourteen years”. That subsection also empowered the guardian “to warn persons against supplying intoxicants” to the defective. Under s49, the powers and duties of the Mental Deficiency Board included the exercise of general supervision, protection and control over defectives, and the visiting of persons under guardianship, either by Board members or officers or persons authorised in that behalf. That Act contained no provision for the giving of directions or advice to guardians.6 (bid [21]).

Subsequent to its enactment, the Mental Deficient Act was repealed and succeeded by the Mental Health Act 1963. This revised statute established the Guardianship and Administration Board7 (The former Guardianship Board commenced operations in September 1997 and was subsequently abolished in November 2021 upon the formation of the Tasmanian Civil and Administration Tribunal (TASCAT) (the Board), a regulatory entity designed to facilitate the legal issues surrounding guardianship. The Board heard applications for guardianship by exercising its parens patriae jurisdiction. In 2021, the Board was amalgamated with other tribunals in Tasmania to form the Tasmanian Civil and Administrative Tribunal (TASCAT).8 (Enabling legislation being the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) (‘TASCAT Act’).

Similar to Tasmania’s historical origins, the guardianship jurisdiction observed in New South Wales (NSW) was transposed from the English law of the ‘mentally unfit’.9 (New South Wales Law Reform Commission, Review of the Guardianship Act 1987 (Report No 145, May 2018) 8 (‘NSW Law Reform Commission Report’). The NSW legislative framework employs an inherent protective prerogative, empowering the Court to undertake actions conducive to the welfare of an incapable person in need of safeguarding, given their inability to attend to themselves. This power was conferred on the NSW Supreme Court by imperial legislation under the New South Wales Act 1823 (UK). This jurisdictional sphere is guided by its overarching protective purpose10 (C v W (No 2) [2016] NSWSC 945, [26] (‘C v W’), with the foundational tenets of its authority found in s 39 of the New South Wales Trustee and Guardian Act. 11 (Ibid [27]). The Supreme Court of New South Wales was given specific jurisdiction by the Crown to:

Appoint…guardians, and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or reason by the act of God, so as to be unable to govern themselves and their estates…12 (The Third Charter of Justice for New South Wales, Letters Patent (13 October 1823).

This statutory provision explicitly states that the paramount consideration must be the welfare and interests of the individual under protective care. The Lunacy Act 1878 in NSW established the position of the Master in Lunacy which later evolved into the Master in Protective Division in 1972. The enduring influence of the Lunacy Act persisted until its repeal, being replaced by the Mental Health Act 1958, a legislative manoeuvre driven by the parliamentary objective of aligning NSW statutes with contemporary societal attitudes. The reformulation of language used within the Act was particularly salient, as it replaced antiquated language such as ‘lunacy’, ‘idiot’, and ‘hospital for the insane’ with more contemporary terminology like ‘mentally ill’ and ‘mental hospital’. A pivotal transformation was the shift from conceptualising mental hospitals as facilities of confinement and restraint to institutions of therapeutic intervention – a reflection of evolving societal attitudes towards mental health and the concurrent push for deinstitutionalisation.

Crucially, the Mental Health Act 1958 addressed matters pertaining exclusively to individuals with mental illness, and therefore did not address adults or children with cognitive impairments. Subsequent legislative reform was seen in the enactment of the Disability Services and Guardianship Act 1987, which was a response to perceived insufficiencies within the existing legal framework and a manifestation of society’s new conceptions regarding disability and guardianship. A foundational principle of this Act was substitute decision-making, wherein paramount consideration was given to the ‘welfare and interests’ of persons with disabilities during the decision-making process, which remains a core principle of the current legislation.

This protective function of the State has extended to fall within the purview of Tribunals, first the Guardianship Board of NSW, then the Guardianship Tribunal, and subsequently the New South Wales Civil and Administrative Tribunal (NCAT)13 (The former Guardianship Board commenced operations in August 1989 and was subsequently renamed the Guardianship Tribunal in 1997. The Guardianship Tribunal was abolished on 1 January 2014 upon the formation of the NSW Civil and Administration Tribunal (NCAT), by way of the Guardianship Act 1987 (NSW) which explicitly provides for the Tribunal’s jurisdiction to adjudicate on guardianship matters in conjunction with the Supreme Court. Lindsay J aptly defines this jurisdiction as the ‘parental and protective’ jurisdiction, signifying its fundamental function of making decision for the betterment of the protected person, which confers a broad assessment of what constitutes a ‘beneficial course of action’. 14 (C v W (n 10) [29])

The Rise Of The Tribunal And The Current Framework

Since the establishment of the former Guardianship and Administration Board in Tasmania and the Guardianship Board in NSW, there is no doubt that the vast majority of proceedings dealing with the appointment of substitute decision makers for those with a cognitive disability are dealt with in the respective Tribunals as opposed to the Courts. The workload of the Tribunals has increased exponentially over this time.

An analysis of the workload growth of the respective Tribunals over the last 20 years illustrates a similar pattern in both jurisdictions. In 2002/2003 the former Guardianship Tribunal of NSW received 4200 applications15 (New South Wales Guardianship Tribunal, Guardianship Tribunal Annual Report 2002-2003 (Report, 2003) at which time the population of NSW was 6,599,441.16 (Australian Bureau of Statistics, National, State and Territory Tables: Dec 2022, Table 3 (31 December 2022). In the same period, the former Guardianship Board of Tasmania received 389 applications17 (Tasmanian Guardianship and Administration Board, Annual Report 2002-2003 (Report, 2003) when the population was 475,998.18 (Australian Bureau of Statistics (n 16). Move forward to the 2021/22 period and the Guardianship Division of NCAT received 14,876 applications19 (New South Wales Civil and Administrative Tribunal, NCAT Annual Report 2021-2022 (Report, 2022) and the NSW population had grown to 8,238,801.20 (Australian Bureau of Statistics (n 16). The Guardianship stream of TASCAT received 1603 applications21 (Tasmanian Civil and Administrative Tribunal, TASCAT Annual Report 2021-2022 (Report, 2022) over that same period and the population had grown to 571,596.22 (Australian Bureau of Statistics (n 16). Interestingly, these figures illustrate that whilst applications had grown over 20 years by 254% in NSW and 312% in Tasmania, the population growth rate in each state was only 25% and 20% respectively. In rough terms, the rate of applications to each Tribunal grew tenfold compared to population growth.

There are most likely a number of contributing factors to this exponential growth in applications relating to substitute decision-making. One factor is simply greater community awareness of the need for legal authority to make decisions on behalf of someone when they lack capacity and a move away from “defacto guardianship” that was prevalent when many people with decision-making were institutionalised.23 (New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1987). Another factor is likely the ageing demographic of Australian society and the resultant increase of people with dementia.24 (Deloitte Access Economics, Dementia Across Australia, (Report, 9 September 2011) 16. According to this study, NSW had 91,308 people with dementia in 2011, projected to increase to 303,673 by 2050). Whilst such workload growth has presented innumerable challenges to both the Tribunals in NSW and Tasmania, there are features inherent in both Tribunals which equip each to deal with such challenges. For example, both jurisdictions maintain a long standing practice of allocating multi-member panels to hear guardianship matters, consisting of relevant experts in addition to legal practitioners, such as geriatricians and psychologists. Further, both Tribunals have proactive and appropriately skilled registry staff who prepare matters prior to hearing, such as by triaging applications and engaging with the person at the centre of the application and their families. Both Tribunals also have the ability to appoint a separate representative to ensure the person with alleged disability has their views placed squarely before the Tribunal.25 (TASCAT Act (n 8) s 98(4)(c), 98(5)(b); Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) s 45(4), s 45(4A)(b).

The jurisdiction exercised today by both NCAT and TASCAT is often described as a “best interests” model of substitute decision-making, that is, those appointed to make decisions for others are required to make the decision which they subjectively believe is in the person’s best interests.26 (Guardianship and Administration Act 1995 (Tas) s 6(b) (‘GA Act Tas’); Guardianship Act 1987 (NSW) s 21A(2) (b) (‘Guardianship Act NSW’).

The conceptual framework of legal capacity has experienced multiple changes, particularly in terms of the language used. In order to designate a guardian or an administrator, the Tribunal must be satisfied that the person in question, often referred to as the ‘protected person’ in New South Wales, and the ‘proposed represented person’ (PRP) in Tasmania, is rendered unable to independently make decisions for themselves. This includes the inability to make decisions on matters of accommodation, financial management, life style decisions, and medical treatment, amongst an array of other determinations. As articulated by Lindsay J, the word ‘guardianship’ extends beyond mere custodianship and encompasses a more comprehensive meaning that extends beyond financial management.27 (Justice Geoff Lindsay, ‘A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest’ (Conference Paper, Incapacity Conference, 26 October 2018).

In Tasmania, the present legislative framework to ascertain the necessity for a guardian is three-pronged. The Tribunal must be satisfied that the proposed represented person (1) has a present disability, (2) lacks decision-making ability due to the disability (this element is often referred to as capacity), and (3) is in need of a guardian or administrator.28 (GA Act Tas (n 26) s 20). In addition to these three elements, the legislation guides decision makers to ensure they are satisfied that the decision is guided by the principles espoused by ss 6, 20 and 21 of the Guardianship and Administration Act 1995 (Tas). These provisions require the Tribunal to adopt means which are least restrictive of a PRP’s freedom of decision in the given circumstances, promote the best interests of a person with disability, and carry the wishes, direction, preferences, and values of a person with a disability into effect.29 (Ibid s 20(2), 20(3).

In NSW, whilst some of the terminology used is different, such as the term financial management is used rather than administration, the legislative framework is largely the same. The only significant variations are that the presence of disability is not required in the test to appoint an administrator30 (Guardianship Act NSW (n 26) s 25G) and the principles are more expansive, requiring the Tribunal to take into consideration matters such as the preservation of a person’s family relationships and cultural and linguistic environment when determining applications.31 (Ibid s 4).

Once the Tribunal is satisfied that the PRP lacks capacity for decision-making due to their disability, there is a need to fill this void. The vehicles available in Tasmania are a private guardian or the Public Guardian to make lifestyle decisions, and a private administrator or the Public Trustee to manage the person’s estate. The instruments available in NSW are a private guardian or the NSW Trustee and Guardian, and a private financial manager or the NSW Trustee and Guardian. The respective statutory provisions governing the appointment of guardians in both NSW and Tasmania confers discretion upon the Tribunals to decide whether a full or limited guardian should be appointed, coupled with relevant conditions attached to their appointment as the Tribunal sees fit.32 (GA Act Tas (n 26) pt IIII div 3; Guardianship Act NSW (n 26) part III div 3).

Impetus and Proposals for Reform

The prevailing model of decision-making exercised in both NCAT and TASCAT is a substitute decision-making model, consistent with the foundational principle of parens patriae. This style of decision-making exercised by guardians and administrators is often criticised for its overly paternalistic nature, signifying the changing attitudes towards the concept of capacity and guardianship. Contemporary perspectives towards the appointment and function of guardians follows the rationale articulated in Article 12 of the United Nations’ Convention on the Rights of Persons with Disabilities (‘the Convention’):

Article 12 – Equal recognition before the law

1. […]
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. […]
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. (emphasis added).

The Australian Law Reform Commission (ALRC) has stated that reform to state guardianship laws is critical in order to implement the convention.33 (Australian Law Reform Commission (ALRC), Equality, Capacity and Disability in Commonwealth Laws (Report No 124, 24 November 2014) 27). Subsequent to this call, both the NSW Law Reform Commission (NSWLRC) and the Tasmanian Law Reform Institute (TLRI) have released final reports recommending wholesale changes to the regimes in each state.

The NSWLRC released their report in May 2018.34 (NSW Law Reform Commission Report (n 9). The Commission recommend that the current legislation, including both the Guardianship Act 1987 (NSW) and the Powers of Attorney Act 2003 (NSW), be replaced with a new Assisted Decision-Making Act35 (Ibid xxii.). The new Act would introduce formal supported decision-making whereby a person with “decision-making ability” could enter into a personal support agreement,36 (Ibid xxii.) or alternatively, NCAT could appoint a supporter to facilitate supported decision-making.37 (Ibid xxi to xxvii). Under further proposals, whilst NCAT could still appoint a substitute decision-maker, labelled a “representative”, it could only do so as a last resort if the person lacks “decision-making ability” to the extent that they cannot be supported to make certain decisions. The Act would prescribe that a person has “decision-making ability” for a particular decision if they can, when the decision needs to be made: (a) understand the relevant information (b) understand the nature of the decision and the consequences of making or failing to make that decision (c) retain the information to the extent necessary to make the decision (d) use the information or weigh it as part of the decision-making process, and (e) communicate the decision in some way.38 (Ibid xxv). A representative appointed by NCAT would be required when making substitute decisions to: be guided by the person’s expressed will and preferences; if the person cannot express same, then be guided by the person’s likely will and preferences; if these cannot be determined then the person should make decisions that promote the person’s personal and social well-being; and the person’s will and preferences would not need be put into effect if to do so would create and “unacceptable risk” to the person.39 (Ibid xxiv).

At the time of writing, the NSWLRC recommendations had not been advanced in the NSW Parliament. Conversely, certain recommendations for reform made by the Tasmanian Law Reform Institute in a report released in December 201840 (Tasmanian Law Reform Institute, Review of the Guardianship and Administration Act 1995 (Tas) (Report No 25, 26 March 2018) have been enacted, and further reforms are currently before the Tasmanian Parliament. The recommendations of the TLRI were categorised by government into three tranches.

The first tranche of reforms were enacted in 2022 and introduced a legislative framework for the making and implementation of advance care directives. TASCAT has the role of maintaining the register,41 (GA Act Tas (n 26) s 35X) and can also make determinations upon application as to the validity and interpretation of directives42 (Ibid s 35ZK).

The second tranche of reforms are currently before the Tasmanian Parliament.43 (Guardianship and Administration Amendment Bill 2023 (Tas) (‘GA Bill 2023’). In the second reading speech for the relevant reform bill, the Tasmanian Attorney General, the Hon Elise Archer MP outlined the key features and intentions behind the reforms:44 (Tasmania, Parliamentary Debates, House of Assembly, 15 August 2023, 2-3).

I will now provide an overview of some of the Bill’s key reforms, namely:

• the Bill clearly establishes that the appointment of a guardian or administrator is to be considered once least restrictive alternatives are no longer considered sufficient. It requires the Tasmanian Civil and Administrative Tribunal (TASCAT) to consider the appointment of the Public Guardian or Public Trustee only in circumstances where another person is not available to undertake that role;
• the Bill establishes a decision-making framework which requires substitute decisionmakers to respect and promote a person’s decision-making ability, with support to help a person make decisions as far as practicable;
• a decision-maker is to give effect as far as practicable to the wishes, preferences and rights of the represented person, except in limited circumstances such as avoiding serious harm to the person;
• the Bill addresses issues raised by stakeholders, such as improving communication with proposed represented persons, particularly at the stage at which an application to the TASCAT is being considered;
• best-practice concepts are included in the definition of decision-making ability, including identifying circumstances or criteria which in and of themselves must not be used as the basis for determining that decision-making ability is lacking; and
• the Bill also improves arrangements for appeals to the Supreme Court in relation to decisions taken by the TASCAT.

The Bill respects the voice of persons under guardianship or administration. New objects and principles apply the principles of the Convention on the Rights of Persons with Disabilities, the principle of supporting persons with impaired decision-making to make their own decisions, and promotes a person’s views, wishes and preferences, and their personal and social wellbeing.
….
The Bill places the person with impaired decision-making ability back in the centre. It recognises that decision-making ability is something which may fluctuate according to the nature of the particular decision and the context in which it is being made. Provisions in the Bill encourage those who have authority to make substitute decisions to only do so where the ability of the person, to make the decision with the aid of appropriate supports, is absent. Importantly, it requires those who make substitute decisions to take into account the wishes and preferences of the person with impaired decision-making ability where they are unable to decide for themselves. This approach is a significant departure from the ‘best interests’ test that is embedded in the current Guardianship Act.

The proposed reforms in the main replicate the proposed reforms in NSW in relation to the concept of “decision-making ability”45 (GA Bill 2023 (n 43) s 11) and the requirement for substitute decision-makers to make decisions in accordance with the persons will and preference unless to do so would result in harm, or the risk of serious harm to the person or another person.46 (Ibid s 9).

The current proposed reforms would not establish a legislative framework for the appointment of formal supporters. If this were to proceed, this would form part of a third tranche of reforms stemming from the TLRI report. Of interest in this regard, in the recent second reading speech for the reform bill, the Attorney-General provided the following commentary on considerations relevant to the introduction of formalised supported decision-making in Tasmania:

The proposal to establish a formal supported-decision making framework was recommended by the Australian Law Reform Commission (ALRC) in its 2014 report Equality, Capacity and Disability in Commonwealth Laws. It was also recommended by the TLRI Report. The TLRI recommended that the scheme extend to personal matters and consent to health care and treatment.

Since that time, supported decision-making as a concept has been given consideration across a number of areas where decisions may need to be made for or on behalf of persons with impaired decision-making ability – this includes aged care, disability support, Centrelink services, and the NDIS.
Most recently, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability has commenced, examining best practice frameworks for supported decision-making.

The work that the Royal Commission is undertaking is comprehensive. Importantly, the Royal Commission acknowledges that there is currently no shared understanding of supported-decision making across Australia and no agreed approach to reform at this time.

A core principle underlining the current amendments to the Guardianship Act is the prioritisation of supported decision-making as a framework for decision-making. The Bill makes clear that when a guardian or administrator is appointed, the right to legal agency is not extinguished. The represented person has the right to continue to make decisions where they have the capacity to do so and, where this is not the case, decisions made by substitute decision-makers are to be based on the will and preference of the represented person in all but limited circumstances. This approach is what the Disability Royal Commission refers to as ‘will and preference substitute decision-making’. It is a principled approach to substitute decision-making that recognises supported decision-making as a continuum of decision support. It includes people being supported to make their own decisions, as well as decisions being made by decision-makers based on an interpretation of the will and preference of the person to whom the decision relates.

Mr Speaker, there are various ways in which supported-decision making can be operational. Victoria, for example, has opted to enable the formal appointment of a supporter as an alternative to the appointment of a guardian or administrators. Whilst this approach embeds a legal framework for supported decision-making in their Guardianship Act, the option of officially appointing a supporters has had little take up in that jurisdiction. In fact, the Royal Commission reports indicate they may have had the perverse effect of deterring the more informal networks of support that surround individuals in many circumstances. The option that our Government has selected, at this stage, is to embed a requirement that all practical support should be given to a person to assist them maintain their decision making ability whilst under a guardianship or administration order. That support may come in various forms, from the provision of communication aids, to support that enables the person to continue to be in control of tasks associated with their day-to-day living.

As discussions mature at a national level, our Government will then give consideration to whether the Act should include a more formal legal framework for the appointment of a supporter. We also intend to consider options to embed supported decision-making into enduring instruments in a way that encourages the power of attorney or guardian to assist the person prior to the need for substitute decision-making. Consideration is also being given to how supported decision-making can be embedded in disability law and my Department of Justice is working with the Department of Premier and Cabinet for this purpose.

The proposed reforms are not without controversy. Some quarters have been critical of the reforms, labelling them as inadequate, particularly in relation to not introducing legislated supported decision-making. 47 (Advocacy Tasmania, Submission to Tasmanian Parliament, Guardianship and Administration Amendment Bill 2022 (October 2022).

The Challenges of Enduring Change

The manner in which the various Australian jurisdictional frameworks operate in attending to the decision-making needs of people with cognitive disability is perhaps under more scrutiny now than at any time in the last 200 odd years since the concept of parens patriae took root in Australia. There has been significant media attention in recent times on what are perceived by many to be the failings of the current guardianship systems48 (Anne Connolly, Ali Russell and Stephanie Zillman, ‘Trapped, stripped of assets, and silenced. And it’s all perfectly legal’, ABC News (online, 14 March 2022) https://www.abc.net.au/news/2022-03-14/public- trustee-four-corners-investigation/100883884.

There is no doubt that future reforms, such as those proposed by the TLRI and the NWSLRC, will focus upon the centrality of a person’s will and preferences, and optimising support mechanisms to allow the person in question to make their own decision whenever possible. It is hard to categorise this shift as anything but a welcome progression. However, like many reforms, the devil will be in the detail, and their success will be contingent on adequate resourcing being made available.

This paradigm shift is not without some risk. The move away from formalised substitute decision-making to supported decision-making requires scrutiny to ensure the framework that is implemented genuinely enables a person to make their own decision, with support, rather than de facto substitute decision-making whilst standing in the shoes of a supporter. Put simply, true supported decision-making is key, not just a change in nomenclature. A particular challenge to achieve this will be adequate resourcing to ensure all those who require support receive it. In the current climate, this challenge is not solely a financial one, but also a challenge due to their being a lack of skilled workers.

Another possible outcome associated with the formalisation of supported decision-making may be the perverse outcome whereby many people with cognitive disability are drawn into the Tribunals for orders to appoint a substitute decision-maker where such needs have previously been avoided. The vast majority of Australians living with a cognitive disability have never had a need to enter the “guardianship system”. Their family, friends and carers support them informally to attend to the necessities of day to day life, whether that be to lodge a claim with Medicare, make payment for utilities, or open a bank account. Prudent organisations will understandably wish to be satisfied that such family members, friends or carers are formal supporters once such a concept is legislated. This in turn will shine a spotlight as to whether the person can indeed be supported to make their own decisions. There is the potential that this spotlight, rightly or wrongly, may force many families to seek formal substitute decision-making orders to attend to the usual support activities that they have attended to for years without question.

Finally, there are some areas of proposed reform where the focus on supported decision-making arguably seems incongruous with fundamental legal principles. A prime example of such is the use of “restrictive practices” by those providing care and support for people with disabilities. A restrictive practice is any practice or intervention that has the effect of restricting the rights of freedom of movement of a person with disability49 (S 9 of the National Disability Insurance Scheme (NDIS) Act 2013 (Cth). Practices may include the use of medication to control behaviour amounting to chemical restraint, or physical restraint or seclusion. The practices need to be employed when a person if engaging in behaviours of concern which may harm themselves or others, such as the need to lock the doors of a group home to prevent a person with significant cognitive disability from being harmed by passing vehicles. At their core, such practices, without appropriate authorisation, would otherwise amount to assault or false imprisonment. The Tribunals in both NSW and Tasmania are regularly called upon to adjudicate as to whether substitute consent should be provided for these practices to occur50 (S 9 of the National Disability Insurance Scheme (NDIS) Act 2013 (Cth) For example, see HZC [2019] NSWCATGD 8 and CBE (Application for Guardianship) [2021] TASCAT 5 (19 November 2021).

There are proposed reforms in the arena of restrictive practices in Tasmania which call for people with disability to be supported to provide their own consent for the use of restrictive practices when they are engaging in behaviours of concern. In a summary report issued by the Department of Communities Tasmania in 2022, outlining the findings of a consultant organisation, the recommendation is made “that the Tasmanian Government implements supported decision making frameworks within its restrictive practices authorisation processes and lead a national conversation relating to this approach.”51 (Department of Communities Tasmania, Review of state-based authorisation processes for use of restrictive interventions: A consultation for the Government of Tasmania, February 2022). Whilst the obvious starting point is that a person with disability is presumed to have capacity to consent to such practices until the presumption is rebutted, the practical reality is that the majority of people who exhibit behaviours of concern in the context of the use of restrictive practices often have profound intellectual disability. Many are unable to communicate their most basic wishes. It is questionable as to the proportion of people who require the use of restrictive practices who could genuinely be supported to provide their own consent to the use of such practices. There is also the quandary as to whether any such consent provided is withdrawn by the person’s actions at the time of exhibiting the behaviours of concern.

No matter what reforms are ultimately enacted in both NSW and Tasmania in the years ahead, there is no doubt that the adjudication task of the respective Tribunals will remain as it is now, a complex balancing act, characterised by Lindsay J as the “struggle for perfection in an imperfect world”.52 Justice Geoff Lindsay, ‘A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest’ (Conference Paper, Incapacity Conference, 26 October 2018).

Malcolm Schyvens
President, Tasmanian Civil and Administrative Tribunal

The amendments made by the Guardianship and Administration Amendment Bill 2023 came into force on 27 August 2024.