Setting the Scene 18 October 2013

1. Setting the Scene18 October 2013 John Chesterman Acting Public Advocate Manager Policy and Education

3. Supported Decision Making: A matter of human rights • A central theme in the Convention on the Rights of Persons with Disabilities • Supported decision making must be preferred to substitute decision making

4. Convention on the Rights of Persons with Disabilities • Disco Article 12 (2) ‘… persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’ • There is agreement that the Convention requires substitute decision making to be minimised to situations of absolute necessity, not just convenience. • Disco Article 12 (4) ‘… all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse … Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, … apply for the shortest time possible and are subject to regular review …’

5. Convention on the Rights of Persons with Disabilities • Supported decision making must be preferred • ‘Supported decision making’ is a term used to refer to a range of practices whereby people with disabilities are assisted to make or implement their own decisions. • United Nations Enable • ‘The Convention recognizes that some persons with disabilities require assistance to exercise [legal] capacity, so States must do what they can to support those individuals and introduce safeguards against abuse of that support. Support could take the form of one trusted person or a network of people; it might be necessary occasionally or all the time …’ • ‘Supported decision-making can take many forms.’ 

6. Convention on the Rights of Persons with Disabilities • UN Committee on the Rights of Persons with Disabilities, advance unedited concluding observations on Australia, 4 October 2013 (par. 25): • ‘The Committee recommends that [Australia] uses effectively the current [Australian Law Reform Commission] inquiry process to take immediate steps to replace substitute decision-making with supported decision-making and provides a wide range of measures which respect the person’s autonomy, will and preferences and is in full conformity with article 12 of the Convention …’

7. Convention on the Rights of Persons with Disabilities • This is influencing developments around the world in substitute decision-making laws in fields including: • Guardianship • Enduring powers of attorney • Mental health

8. Australian developments • South Australian Supported Decision-Making Trial (from 2010) • A range of other state/territory initiatives: • ACT • NSW • Academic work • inc. Jo Watson, Lucy Knox, Chris Bigby, Paul Ramcharan, Michelle Browning • DHS Supporting Decision Making guide (2012) • Victorian Law Reform Commission Guardianship Final Report (2012) • Australian Supported Decision-Making Network (March 2013) • Queensland Advocacy Inc conference (June 2013)

9. Victorian Law Reform CommissionGuardianship Final Report (2012) • Supported decision making • Recommendation 32. ‘A person should be able to appoint a personal supporter or financial supporter through a written “supported decision‑making appointment” if they have the capacity to do so.’ • Recommendation 35. ‘VCAT should be able to appoint a personal or financial supporter to assist a person …’ • Recommendation 64. ‘VCAT should be able to appoint a co‑decision maker to assist a person in need of decision‑making support.’ • Recommendation 62. OPA should host a pilot volunteer supported-decision making program.

10. Some key supported decision-making principles (with thanks to ADACAS) • People have the right to make their own decisions • Everyone at times needs support when making important decisions • A person’s capacity to make their own decisions should be assumed • Capacity is decision specific and can vary over time • Every reasonable effort should be made to support a person to make their own decisions • See further Lois Bedson, ‘Review of selected resources on supported decision making’, http://www.publicadvocate.vic.gov.au/research/132/

11. Some key principles • Other important considerations • There is dignity in being able to take risks • An inability to make bad decisions effectively amounts to an inability to make decisions • Should supporters be obliged to assist with decisions they consider to be harmful? • What documents should be developed? • e.g. supported decision-making agreement • What should be their legal effect? • How should supported decision-making arrangements be monitored?

12. OPA (Vic)’s new project • OPA won a grant from the Victoria Law Foundation to run a pilot volunteer Supported Decision-Making program. • The program (from February 2014): • will connect isolated people with cognitive impairments with volunteer supporters • will involve non-financial decision making • Valid will be a project partner. • Brenda Burgen is the inaugural Supported Decision-Making Coordinator.

13. Plan for today • Aim: we know ‘why’ we need to implement supported decision making, but we need to share experiences on ‘how’ this should and can happen. • Key question: How do we put the theory into practice? • This conference will explore: • what supported decision-making initiatives are happening around Australia • what the United Nations Convention on the Rights of Persons with Disabilities and the Committee on the Rights of Persons with Disabilities requires • whether supported decision making can, or should, entirely replace substitute decision making • supported decision-making models for people with: • a mental illness • an acquired brain injury • an intellectual disability • what safeguards should there be?

15. Let’s get going