VLRC research paper considers the confidentiality law for guardianship and administration matters

The VLRC has published its first in a new series of Spotlight papers: ‘I want to tell my story’: the guardianship and administration confidentiality law.

Spotlights are small research papers about topics drawn to our attention by members of the community.

Spotlights are stand-alone research publications, which do not include a list of recommendations for specific legal or policy changes as our reports do. Instead, they shed light on areas of potential law reform and encourage community discussion.

The idea for our first ever Spotlight was brought to us by members of the Victorian disability advocacy community.

This Spotlight paper examines a confidentiality law (clause 37 of Schedule 1 of the VCAT Act) that prohibits anyone from publishing any report of a proceeding that identifies a party to a proceeding under the Guardianship and Administration Act 2019 (Vic) without permission from VCAT.  In our consultations we were told that the impact of the law is that it stops people from talking publicly about any of their experiences of being on a guardianship or administration order. For this reason, the confidentiality law is sometimes described as a ‘gag law’.

There are currently more than 18,000 adults on guardianship and/or administration orders in Victoria. They include people with dementia, an intellectual disability, a mental health issue, an acquired brain injury, and/or a physical disability. Guardians and administrators have the legal power to make decisions for people on these orders about a range of lifestyle matters and financial affairs.

Disability advocates and others believe that people with disability should have the right to identify themselves and tell their stories about guardianship and administration if they choose to do so without first seeking VCAT’s permission. They told us people should not live in fear of breaching the law if they want to speak publicly about guardianship and administration.

The paper presents some possible options for reforming the confidentiality law, informed by different approaches in other Australian jurisdictions. We outline the potential risks and benefits of some of the different approaches that could be taken.

Download the Spotlight paper as well as an Easy Read summary of the paper from the VLRC website, www.lawreform.vic.gov.au/all-projects/spotlights