This article was produced by the Commission and appeared in the May 2011 issue of the Law Institute Journal.
The VLRC suggests increasing the powers of the Public Advocate.
The Victorian Law Reform Commission (VLRC)’s consultation paper on the review of the Guardianship and Administration Act1986 (Vic) (the Act) was released earlier this year.
The March LIJ column contained an overview of the reform proposals. This month’s column considers in some detail the suggestion to increase the regulatory functions and powers of the Public Advocate.
In the consultation paper, the VLRC proposes greater regulation of the guardianship system so that there is stronger, more accessible and more efficient oversight of both substitute and supported decision-making arrangements.
Two central features of Victoria’s guardianship laws – the Public Advocate and decision-making by a tribunal – are innovations that have been followed throughout Australia. The VLRC believes it is time to reconsider the roles and responsibilities of the Victorian Civil and Administrative Tribunal (VCAT) and the Public Advocate.
Shifting regulatory functions
The VLRC proposes that VCAT continue to decide whether a person should have a guardian or an administrator. However, it suggests that the Public Advocate should perform some of VCAT’s existing regulatory functions, as well as additional supervisory tasks.
This would include such things as receiving and monitoring annual reports from guardians and administrators, and undertaking random audits of guardians and administrators.
Changing the Public Advocate’s regulatory functions
The VLRC is proposing new functions for the Public Advocate, as well as stronger powers to enable it to perform its existing functions more effectively.
The Public Advocate could be empowered to investigate any allegations of abuse, neglect or exploitation of a person with a disability. Key changes could include:
- clarifying the Public Advocate’s investigatory powers, so they can require people and organisations to provide documents and answer questions;
- enabling the Public Advocate to enter private premises with a warrant issued by a judicial officer when there are reasonable grounds for suspecting that a person with a disability who has been neglected, exploited or abused is on those premises; and
- enabling the Public Advocate to initiate civil penalty proceedings against people who have allegedly breached guardianship legislation.
The VLRC’s proposal for a register of personal appointments and VCAT orders was described in the March LIJ. The VLRC believes that the Public Advocate has a major role to play in the development of the proposed register, and that privately-appointed decision-makers should notify the Public Advocate when their appointment is activated.
The VLRC also proposes the Public Advocate play a monitoring role in relation to supported decision-making arrangements, set up either personally or by VCAT order. This role could also include:
- training people appointed as supporters;
- linking people with community networks and volunteers if they don’t have family and friends who can support them; and
- providing advice to supporters.
Finally, the VLRC proposes that automatic appointments to consent to certain medical treatment decisions under the “person responsible” provisions in s37 of the Act could be further regulated by the Public Advocate, requiring medical practitioners to report any suspected misuse of the powers to the Public Advocate, and permitting her to investigate cases of concern.
The VLRC is asking for submissions in response to the consultation paper and is keen to hear from legal practitioners who work in this field. In particular, it would like submissions on questions raised by the additional functions proposed for the Office of the Public Advocate (OPA) such as:
- Will a greater regulatory function for the OPA complement or conflict with its current functions, such as its role as advocate and guardian of last resort?
- Should the OPA be able to initiate civil penalty proceedings against people who have breached their responsibilities under the Act?
The consultation paper contains additional reform options and questions to guide submissions. A summary paper, which contains a brief overview of the reform options as well as the questions in the consultation paper, is also available. These can be found on the VLRC’s website www.lawreform.vic.gov.au.
The VLRC has extended the date for submissions to give people more time to respond. Submissions are now due by 20 May 2011.
Submissions can be emailed to firstname.lastname@example.org or posted to GPO Box 4637, Melbourne 3001.