Report
Description

This report is a policy contribution relating to a number of matters that could enable Australia to better recognise and enliven the rights of people who, at times, need support with making decisions.

The issues addressed in the report focus on matters relevant to people with cognitive disabilities, including mental health and neurological disabilities, which may affect their ability to make decisions without support.

Recommendations:

1.1 : OPA recommends that state and territory governments ensure that people with cognitive disability receive support in order that they can understand and participate in criminal justice processes, including procedures in police stations and in courts.

1.2 : OPA recommends that state and territory governments ensure that all people entering correctional facilities are screened for cognitive disability.

1.3 : OPA recommends that state and territory governments adequately fund disability support services in correctional facilities and work with the National Disability Insurance Agency (NDIA) to ensure that access to NDIS-funded services is available when such services are necessary.

1.4 : OPA recommends that state and territory governments ensure that there are sufficient forensic disability services to meet the demand for these services.

1.5 : OPA recommends that state and territory governments ensure that there is a sufficient number of supportive residential settings available for people who are unfit to stand trial or who are deemed not guilty by reason of mental impairment.

1.6 : OPA recommends that the Australian Government implement a comprehensive regulatory framework for the use of restrictive practices in residential aged care. The framework should have all the characteristics and protections recommended by the ALRC in its 2017 report entitled Elder Abuse—a national legal response

1.7 : OPA recommends that state and territory governments fund proven programs that embody a wraparound approach to housing and service provision for people with disability.

2.1 : OPA recommends that the Australian Government fund a volunteer program that would allow isolated NDIS participants to receive support with their NDIS-related decision-making.

2.2 : OPA recommends that all governments—federal, state and territory—acknowledge the essential role independent advocacy plays for people with cognitive impairment in promoting positive outcomes in consumer choice–driven social care settings and provide increased advocacy funding through the National Disability Advocacy Program and state and territory government programs.

2.3 : OPA recommends that all governments—federal, state and territory—ensure that, where relevant, laws mandate a ‘will and preferences’ approach to substitute decision-making.

2.4 : OPA recommends that the NDIA have a transparent and effective ‘provider of last resort’ system (with a framework established as soon as possible)

2.5 : OPA recommends that the Australian Government ensure that the NDIS’s national safeguarding regime includes an onsite monitoring component, ideally modelled on the Victorian Community Visitors Program.

3.1 : OPA recommends that, where necessary, state and territory governments amend their guardianship legislation to include the possibility of appointing decision supporters.

3.2 : OPA recommends that state and territory governments amend their guardianship legislation to include an automatic and rebuttable role for parents of adult children with significant cognitive disability as their legal ‘supporter’.

3.3 : OPA recommends that state and territory governments amend their guardianship legislation in order to give public advocates and public guardians the broad power ‘to investigate, via complaints or on their own motion, the abuse, neglect and exploitation of adults with apparent impaired decision-making ability, where this apparent impaired ability is likely to be more than temporary’.

3.4 : OPA recommends that, to reduce the need to appoint a guardian, state and territory governments reform their guardianship laws so as to enable tribunals to issue a wide array of protective orders.

3.5 : OPA recommends that, where relevant, state and territory governments reform their guardianship laws by removing all references to ‘disability’ and by limiting tribunal appointments of guardians to situations where the person in question does not have the capacity to make the particular decision in relation to which the order has been sought.

3.6 : OPA recommends that, with one exception, state and territory governments amend their guardianship laws to require guardians to use a substituted judgment approach wherever possible in their decision-making. The exception to this is in circumstances that would produce a risk of serious harm to the person concerned.

5.1 : OPA recommends that the Australian Government and state and territory governments ensure that health professionals are educated about any relevant laws governing consent in their jurisdiction; this includes people working in primary care and the aged-care, disability and mental health sectors.

5.2 : OPA recommends that state and territory governments in jurisdictions without such provisions amend their laws to enable the appointment of ‘supporters’ to help people with decision-making in relation to their medical treatment.

5.3 : OPA recommends that state and territory governments in jurisdictions without such provisions amend their medical treatment laws to ensure that substitute decision-makers are required to adopt a ‘will and preferences’ approach to decision-making.

6.1 : OPA recommends that state and territory governments conduct public education campaigns to promote the value of advance planning for medical, financial and lifestyle decisions— including in relation to the use of enduring powers of attorney and advance directives.

6.2 : OPA recommends that state and territory governments in jurisdictions without such provisions legislate to enable people to make binding advance directives in medical and non-medical areas. These should be applicable in all but two circumstances: if implementing the directive would cause serious financial or personal harm to the person concerned and if the circumstances suggest that the person would have made a different decision.

6.3 : OPA recommends that state and territory governments in jurisdictions without such provisions amend their advance planning laws to ensure that substitute decision-makers are required to act on a substituted judgment (‘will and preference’) basis unless this would cause serious financial or personal harm to the person concerned.

6.4 : OPA recommends that state and territory governments enable tribunals to make compensation orders and apply penalties when substitute decision-makers abuse or misuse their powers.

Publication Details
ISBN:

978-0-6484797-7-2

License type:
CC BY
Access Rights Type:
open