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Practice Matters Supported decision-making laws in Victoria

Practice Matters Supported decision-making laws in Victoria. Human rights. Supported decision-making is an important human rights concept for people with disability.

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Practice Matters Supported decision-making laws in Victoria

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  1. Practice Matters Supported decision-making laws in Victoria

  2. Human rights Supported decision-making is an important human rights concept for people with disability. The United Nations Convention on the Rights of Persons with Disabilities recognises that people with disability should have the support they need to make decisions.

  3. Supported decision-making • Supported decision-making is the provision of decision-making support which enables people with cognitive disabilities to exercise their legal decision-making rights (also called legal capacity). • Is a framework within which a person with disability can be assisted to make decisions.

  4. Cognitive disabilities A range of medical conditions affecting a person’s thinking and decision-making; • Intellectual disability • Acquired brain injury • Neurodegenerative disease – dementia • Mental illness

  5. Legal decision-making rights We do this every day! • Consenting to a medical procedure • Opening a bank account • Signing a contract

  6. Principles of supported decision-making • All adults have an equal right to make decisions and to have those decisions respected. • Decision making support should be provided where needed for people to make, communicate & participate in decisions that affect their lives. • Will, preferences and rights of person should direct decision-making • Decisions, arrangements & interventions must respect their human rights

  7. Aims of supported decision-making • Based on premise that everyone has a right to make their own decisions and to receive support if they require it • Alternative to substitute decision-making • New laws in Victoria to appoint – person appointed is called a decision-supporter.

  8. Laws in Victoria Four laws operate in Victoria which allow people with cognitive disabilities to appoint someone to assist them to make decisions. • National Disability Insurance Scheme Act 2013 • Powers of Attorney Act 2014 • Mental Health Act 2014 • Medical Treatment Planning and Decisions Act 2016.

  9. Benefits of legal roles • Formal recognition can provide a clear, authoritative role in specific situations. • Can resolve problems created by concerns about privacy of information when interacting with hospitals, banks, service providers, utility providers and government agencies.

  10. Four legal roles • Supportive Attorney (POA Act 2014) • Support Person(MTPD Act 2016) • Nominated Person (Mental Health Act 2014) • Plan Nominee (NDIS Act 2013)

  11. Supportive attorney appointments Powers of Attorney Act 2014 • Designed to promote the rights of people with disability to be supported to make their own decisions about things that affect them • Can be made by any adult who has the capacity to make the appointment, including adults with disability • It allows the appointment of someone to support decisions made by the principal rather than make substitute decisions as occurs under an enduring power of attorney • The formal arrangement of a supportive attorney appointment can help to recognise the authority of the person in the support role

  12. Supportive attorney appointments The principal can give the supportive attorney all or any of three powers to support them to make decisions about financial and personal matters. The three powers are: • Information power • Communication power • Power to give effect to decisions

  13. Can you think of an example? John, has a brain injury, buys a new mobile and signs a contract. Accrues significant debt, exceeds data usage of his plan. Dad, John Senior, tries to help, rings the phone company .

  14. Support Persons Medical Treatment Planning and Decisions Act 2016 • Support the patient to make, communicate, and give effect to their medical treatment decisions • Represent the interests of the patient in respect of their medical treatment, including when the patient does not have capacity to make medical treatment decisions. • They can also access health information about the patient that is relevant to a medical treatment decision. They cannot make medical treatment decisions on behalf of a patient

  15. Nominated Person Mental Health Act 2014 Presumed capacity to make or participate in decision making. Two legal mechanisms: • Advance Statements (s.19) • Nominated person (s.23)

  16. Can you think of an example? Ben, 20, admitted as an involuntary patient. Appointed Sally, his sister to be his Nominated Person. Together, they wrote an ‘advance statement’ when Ben was well – documents his preferences in regards to particular medication and ECT.

  17. Nominated Person Formal requirements: • Nomination must be dated, signed and witnessed by authorised witness to be valid; • Same process applies to revocation of a nomination Importantly a nominated person: • must be willing, available and able • must be consulted with • must be informed at critical points • can decline to act as nominated person at any time

  18. Plan Nominee National Disability Insurance Scheme Act 2013 NDIS has a consumer choice and consumer control philosophy. Two types of nominees: • plan nominee • correspondence nominee

  19. Can you think of an example? Jenny, 43, has a severe intellectual disability, non verbal. Ruby, a former group home staff member, has developed a friendship over the years and is very familiar with how Jenny communicates. Ruby is appointed Plan Nominee by CEO

  20. FAQ What does a legally appointed decision-supporter do? • Creating and identifying opportunities • Helping the person to access info & identify their options • Supporting the person to express their will & preferences • Interpreting and helping the person to clarify their will & preferences • Interpreting the person to implement or act on their decision

  21. FAQ What are will and preferences? • Will is what motivates and initiates actions • Preferences reflect priorities, things we like and dislike, developed from life experiences and knowledge

  22. FAQ What do I do if I disagree with the person’s will and preferences? • Reflect on own values and beliefs and become aware of how they impact on your perception • Greater self awareness – what are your biases?

  23. FAQ Is it okay to try and change the person’s will and preferences? • What is the intention behind the support? • You take control away from the person in the decision-making process

  24. FAQ What if the person may be at risk? • Taking risks is part of life • We all make mistakes and learn from them • Support the person to explore the risk • Limit the risk if possible • Do potential benefits outweigh the risk of harm?

  25. OPA resources

  26. For more information The Office of the Public Advocate www.publicadvocate.vic.gov.au Advice Service 1300 309 337

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