Changing of the guard

This article was produced by the Commission and appeared in the November 2009 issue of the Law Institute Journal.

 

Work is underway on the Victorian Law Reform Commission’s latest reference—a review of guardianship and administration laws.

A team has been appointed to the project and they are in the process of preparing an information paper which is expected to be released in the coming months.

This initial publication will outline the history to the current regime in Victoria which has been in place for over twenty years. It will outline three main areas: guardianship, administration and decision making around medical treatment.

The aims of the information paper are to provide a plain English description of the body of law being considered by the Commission and to act as a starting point for discussion and consultation.

The community will have a number of opportunities to contribute to the review. The information paper will contain a series of questions designed to elicit information about issues related to this area of law and practice.

The Commission will use the information gathered, along with findings from extensive research, to create a detailed consultation paper which will serve as the basis for wide-ranging consultation.

As with previous Commission reports we will seek submissions and conduct face-to-face consultations with as many people possible in the time available.

The Commission is aware of the need to consult those people directly affected by this body of law, such as represented people, their carers and family members.

We are also keen to hear from those people who work with these laws such as doctors, lawyers and service providers.

Once this process is complete, the Commission will deliver a final report with recommendations to the Attorney-General by June 30 2011.

Victoria was the first state to introduce a Guardianship and Administration Act in 1986.  This legislation followed the release of the Cocks Report in 1982 which was established to look at a number of issues relating to the protection of people with intellectual disabilities and the preservation of their rights.

At the time intellectual disability and mental illness were accommodated in the same service system and all within the legislative framework of theMental Health Act 1959.

The Cocks Committee immediately identified two major problems with this state of affairs. First, it used a medical model to deal with something that was no longer seen as a medical issue and, secondly, it resulted in a global loss of liberties for a person with an intellectual disability who might need legal assistance in only some aspects of their daily lives, such as the management of their health care, their accommodation or their finances.

The Cocks Committee recommended the establishment of an entirely new regime to enable the appointment of substitute decision makers, in the form of guardians (for lifestyle and medical decisions) and administrators (for financial and legal decisions), for people with intellectual disabilities and others who, through disability, lacked capacity to make their own decisions.

The Guardianship and Administration Act 1986 has been amended over time with major changes in 1999.  Provisions for 'enduring guardians' were introduced under which a person with capacity can assign decision making powers to another person that come into effect only when they lose capacity in the future.

The amendments also allowed a 'person responsible' to consent to medical and dental procedures on behalf of a person who is not able to consent themselves, even if a guardian has not been appointed by VCAT or an Enduring Power of Attorney (Medical Treatment) made by the person.

The 'person responsible', in the absence of a guardian or attorney, can be the person’s spouse or domestic partner, their primary carer or their nearest relative.

The 2002 amendments to the Act broadened the definition of 'patient' for the purposes of substituted consent to medical and dental treatment, removing the need for the patient’s disability to be 'permanent or long term'. These changes were introduced in recognition of the indeterminate or episodic nature of some disabilities.

In this way, a patient who is unable to consent to medical or dental treatment because of any disability can still undergo that medical treatment through the consent of a 'person responsible'.

Despite these amendments it is appropriate that a comprehensive review of the law be undertaken by the Commission. New approaches to regulating guardianship have developed and it is important to consider these contemporary views.

Any changes proposed by the Commission must be consistent with Australia’s human rights obligations, particularly those in the recently ratified United Nations Convention on the Rights of Persons with Disabilities and the Victorian Charter of Human Rights and Responsibilities.

For the terms of reference for the project please visit: www.lawreform.vic.gov.au

Related Project: 
Date published: 
01 Nov 2009

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