Substitute decision making for people lacking legal capacity

From i:D, March 2010 .... the bulletin of the Disability Council of NSW

The NSW Parliament’s Standing Committee on Social Issues has published its report on the Parliamentary Inquiry into “Substitute decision-making for people lacking capacity”. The report is available in PDF at the Committee’s web site.

The Report makes the following general observations (which are broadly consistent with the Disability Council’s submission to the Inquiry):

“Any provisions for substitute decision-making must strike a delicate balance between two competing duties of government towards people with disabilities – to respect and maximise their autonomy while at the same time protecting them from abuse. The manner in which these competing duties have been weighed throughout history reflects the dominant paradigm of the era in relation to the treatment of people with disabilities.”

“The current paradigm, which emphasis principles such as the presumption of capacity, the principle of least restriction and the promotion of assisted decision-making – as opposed to substitute decision-making – is largely enshrined in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The way in which the UNCRPD can inform and be incorporated into NSW legislation formed one of the major themes of this report.”

The Committee makes 35 Recommendations including the following matters:

• Introducing a legal definition of capacity;
• Creating a presumption of capacity;
• Support for assisted decision-making;
• Further recognition of the concept of ‘best interest’;
• Reviews of Guardianship automatically triggered by evidence of re-gained capacity;
• Automatic review of Financial Management Orders;
• Consideration of legislation to enshrine least restriction in practice;
• Assisted decision-making powers for the Public Guardian to allow it to assist people not under Guardianship;
• Creation of an Office of the Public Advocate;
• An inquiry into end of life decision-making.

For further information" www.disabilitycouncil.nsw.gov.au