There is increasing recognition that the adult guardianship system’s focus on substitute decision-making must shift to the supports that should be provided to enable people to make decisions for themselves and exercise their legal capacity.
In many respects, this shift has its origins in the Convention on the Rights of Persons with Disabilities. However, more recently the Australian Law Reform Commission’s report Equality, Capacity and Disability in Commonwealth Laws and contemporary discourse has continued to prompt advances on this topic.
In 2016, the Public Advocate tabled a report in the Queensland Parliament. This project examined how well Queensland’s guardianship system upholds people’s rights to make their own decisions.
The outcomes of this work are presented in the report Decision-making support and Queensland’s guardianship system.
In 2014, four documents underpinning this report were published by the Public Advocate:
- Decision-making support for Queenslanders with impaired capacity: A conceptual framework
- A journey towards autonomy? Supported decision-making in theory and practice: A review of literature
- Autonomy and decision-making support in Queensland: A targeted overview of guardianship legislation
- Autonomy and decision-making support in Australia: A targeted overview of guardianship legislation
In November 2020, amendments to the Guardianship and Administration Act 2000 were enacted. The amendments to the Act included:
- Redrafting the general principles and the health care principles to be more consistent with the United Nations Convention on the Rights of Persons with Disabilities;
- Relocating the general principles and the health care principles to the beginning of the Act to highlight the new principled approach and to encourage the exercise of functions and powers under the Act to be more consistent with human rights and contemporary practice;
- Clarifying that a person making a decision for an adult on an informal basis must apply the general principles; and,
- Clarifying that the general principles should be applied whenever a person or entity performs a function or power under the Act, not just in relation to an adult with impaired capacity
At a national level, the National Disability Insurance Scheme Act 2013 recognises supported decision-making. As part of the operationalisation of this recognition, the National Disability Insurance Agency (NDIA) developed a support for decision making policy framework, which it released for consultation in July 2021.
The Public Advocate prepared and submitted a response to this request which is available here.