People With Disability Australia (PWDA) NSW Law Reform .

Overarching concerns14. We note that the introduction to the draft proposals outlines that the newframework reflects the CRPD.6 While the CRPD is referred to sporadicallythroughout the document,7 the new framework does not in its entirety complywith the fundamental human rights to which this important international humanrights document refers.15. Indeed, we are concerned that the review has missed the opportunity toprofoundly reconceptualise the legal capacity framework in NSW. Whilst weunderstand that ensuring CRPD compliance is a significant undertaking, thedraft proposals do not take bold enough steps to recognise legal capacity aswe describe below.816. Consequently, we urge the NSW Law Reform Commission to urgentlyaddress the following key divergences from the CRPD.Legal capacity17. PWDA is concerned that in some instances, references to decision-makingability do not reflect a CRPD compliant understanding of legal capacity. As wehave outlined in numerous submissions, everyone has the right to equalrecognition before the law. We have also previously advocated that ‘decisionmaking capacity’ should never be a term used to describe an individual.18. References to ‘decision-making ability’ throughout the submission are stillrooted in the framework of determining and assessing the individual, ratherthan assessing the quality and appropriateness of the supports with whichthey are provided. Changing the word ‘capacity’ to ‘ability’ does not meananything unless the measure of that ‘ability’ is clearly defined. This means thatthe question is not whether the person has decision-making ‘ability’, but ratherwhat supports does the person require to exercise decision-making.19. Under a CRPD compliant legal capacity framework all people are recognisedto equally have legal capacity. Similarly, it is recognised that all people requiredifferent support to make decisions at different times in their lives. Therefore,the measure of ‘capacity’ or ‘ability’ is dependent on the quality,appropriateness and availability of support. This must be clearly defined in thenew Act. The use of the term ‘decision-making ability’ must therefore be6NSW Law Reform Commission (NSWLRC), 2017. Review of the Guardianship Act 1987: Draft Proposals.Sydney Australia. p1.7Directly referenced in Proposal 1.8, and mentioned in passing in the explanatory statements of Chapters 6, 7and 11.8Nor as it is described in: Committee on the Rights of Persons with Disabilities 2014 op cit.; ALRC 2014 op cit.NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 20186 of 23

reconceptualised throughout the draft proposals to clearly articulate that anyassessment regarding decision-making is focused on assessing and critiquingthe adequacy of decision-making supports, as opposed to assessing theindividual’s ‘ability.’20. Likewise, references to whether someone is likely to ‘recover decision-makingability’9 must be reframed in relation to the supports they are provided. Forinstance, ‘recover decision-making ability’ could be changed to ‘adequate andappropriate supports are available for a particular decision.’21. Similarly, the use of the phrase ‘personal and social wellbeing’ appears tomerely replace the term ‘best interests’ in the current Act. This phase is usednumerous times throughout the draft proposals, for instance, referring tomaking decisions that promote or maintain the person’s personal and socialwellbeing. As this phrase is not defined in the draft proposals, any judgementsabout ‘personal and social wellbeing’ would be subjective (as are judgementsabout best interests).22. Instead, in line with the CRPD, the person’s will and preferences must beupheld, and if the supports are inadequate for their will and preferences to beknown, then subsequent decisions must be based on promoting ormaintaining the person’s human rights.1023. Under the CRPD, equality before the law is a civil and political right. Suchrights cannot be restricted, and are not subject to progressive realisation.There is no limit to the level of support that must be provided by the State toachieve equality before the law. However, the new framework does notexplicitly state this, and in numerous sections outlines that if less intrusive orrestrictive measures are unavailable or not suitable then representation will beappointed (with representation being equivalent to current guardianshiparrangements).24. However, according to the CRPD, the State is obliged to fill that servicedelivery gap to ensure that appropriate and quality supports are available toan individual. Indeed, the unavailability of adequate supports may beparticularly prevalent in regional or rural areas that do not have the samelevels of support or service infrastructure as metropolitan areas.Consequently, the NSW Government must perform significant service scopingahead of establishing this new supported decision-making regime, to ensureappropriate supports exist and are adequately resourced across the state.Moving forward, PWDA would hope that the identification of service or supportgaps would be readily addressed by the NSW Government to ensure that they9As outlined in draft proposal 7.2 for instance.Committee on the Rights of Persons with Disabilities, 2014 op cit.10NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 20187 of 23

would be able to be provided in the future (thus rendering representationorders void where supports were subsequently adequate).25. Finally, all new terminology must be clearly defined in the new Act and anyrelated documentation. For instance, in the draft proposals the AssistedDecision-Making Division of the Tribunal, any representative, supporter,person responsible or witness to an agreement are considered to be the‘decision-maker’.11 This is inherently problematic. By referring to these entitiesand individuals as the ‘decision-maker’, this yet again implies that supportedand represented people are not the decision-makers in their lives. This isfundamentally untrue, and a denial of legal capacity as it reflects a substitutedecision-making arrangement.26. Similarly, the functions of supporters must also be reconsidered to reflect thatthe supported person remains the primary decision-maker. Functionsprovided in draft proposals 2.8 (4) and 3.9 (4) that allow supporters to signand do all things necessary to give effect to their functions on behalf of asupported person are inappropriate. Instead, the supported person mustconsent to this occurring.27. PWDA argues that support agreements instead outline that the supportedperson must consent to the supporter signing or acting on their behalf on eachand every occasion. Such an approach would be similar to the processperformed by independent advocates, whereby specific and restricted consentforms are required for them to assist in various elements of the individual’slife. These consent forms would offer a safeguard, and would also ensure thatsupporters are actively supporting and upholding their responsibilitiesappropriately (rather than simply acting on behalf of the supported person).Restrictive practices28. The use of restrictive practices and involuntary treatments, such as seclusion,solitary confinement, and physical, mechanical or chemical restraint, violatefundamental human rights.12 All people, including those requiring decisionmaking support, have an equal right to be free from torture or cruel, inhumanor degrading treatment or punishment. Nevertheless, people with disabilityand older people remain routinely subjected to restrictive practices that can11As outlined NSWLRC 2017 op cit., p5, and as used in draft proposals 1.1, 1.14 and 1.15As outlined in the CRPD and the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment. For more information see: CRPD Civil Society Parallel Report Project Group, 2012,Disability Rights Now: Civil Society Report to the United Nations Committee on the Rights of Persons withDisabilities, August 2012, p91. Available: adow-reportgroup.html; French, P., Dardel, J. and Price-Kelly, S. 2009. Op cit., pp 72, Error! Bookmark not defined.; Lea,M., & Sands, T., 2017, ‘Disabled People’s Organisations Australia (DPO Australia) Submission to the AustralianLaw Reform Commission Discussion Paper: Protecting the Rights of Older Australians from Abuse’, DPOAustralia, Sydney, Australia.12NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 20188 of 23

cause physical pain and discomfort, which deprive them of their liberty or altertheir thoughts or thought processes.1329. Currently, as the NSW Law Reform Commission will be aware, the use ofrestrictive practices is often justified through existing frameworks that fail torecognise and engage with the legal capacity of people with disability.1430. In order to fundamentally reform and improve the legal capacity framework inNSW, it is therefore vital that the new decision-making framework challengethe use of restrictive practices.31. There must be no opportunity for people with disability to voluntarily consentto practices that may amount to severe breaches of their basic humanrights.15 Indeed, ‘in general, the law does not provide for people (with orwithout disability) to consent to practices which may cause them physical orpsychological harm or deprive them of their liberty’.1632. Furthermore, all supporters and representatives (regardless of whether theyhave been personally selected through an agreement or appointed by anorder) must likewise be unable to support someone to make or otherwisemake a decision regarding the use of restrictive practices.33. Challenging the use of these discriminatory practices that fundamentallyviolate the human rights of those they are used upon is an important (andnecessary) move towards eliminating restrictive practices throughout NSW (inthe disability, aged care and mental health sectors, as well as in the broadercommunity).17 Consequently, the NSW Government must commit todeveloping an evidence-base around positive behaviour support to contributetowards the elimination of restrictive practices.34. Importantly, the NSW Government must establish an independent, regulatoryframework and office for the oversight of the reduction and elimination ofrestrictive practices and the promotion and development of evidence-basedpositive behaviour support. Such frameworks exist in other jurisdictions, suchas Queensland and Victoria, and provide greater protections of human rightsthan the current NSW policy approach to this issue.1813PWDA and The University of Sydney (USYD), 2014. Submission to the Australian Law Reform CommissionEquality, Capacity and Disability in Commonwealth Laws Inquiry. See also: PWDA and the Mental HealthCoordinating Council, 2009. Submission to the NSW Legislative Council: ‘Substitute Decision-Making for PeopleLacking Capacity.’14Lea and Sands 2017 op cit., p11.15PWDA and USYD 2014 op cit., p5.16Ibid.17PWDA, 2016. Submission to the NSW Law Reform Commission Review of the Guardianship Act 1987, p7,People with Disability Australia.18French, P., Dardel, J. and Price-Kelly, S. 2009 op cit., pp95-98.NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 20189 of 23

Interaction with mental health legislation35. People with psychosocial disability and people subject to mental healthlegislation must be guaranteed the same rights to the new supporteddecision-making framework as others. To suggest otherwise is inherentlyunfair and discriminatory.36. Put simply, in their current form the draft proposals in relation to mental healthlegislation directly contravene Articles 5, 12 and 25 of the CRPD, and woulddirectly contribute to a range of forced treatments and deprivation of liberty incontravention of Articles 14, 15, 16, 17 of the CRPD.19 The CRPD does notdifferentiate between psychosocial disability and other types of disability, andthus the proposed legal capacity framework must apply equally and beinclusive of all people with disability without discrimination.General comments37. PWDA is working from the assumption that all documentation and formsassociated with this new framework will be available in fully accessibleformats, including but not limited to Easy English, large print, Braille, Auslanand video. Supported and represented people must have a clearunderstanding of the agreement they are making or the order to which theyare subject. Similarly, they must be provided with clear and accessibleinformation about how to end or suspend agreements or orders. This mayinclude decision-making support.38. PWDA also asks for clarification regarding the eligibility requirements forsupporters and representatives. For instance, the draft proposals appear toindicate that a person is eligible to be an enduring representative withfinancial functions even if they have been bankrupt or convicted of adishonesty offence, provided they have disclosed this prior to theirappointment. While we understand that requiring disclosure of such offencesallows individuals to make informed choices about who is supporting orrepresenting them, PWDA is keen to ensure that such representatives (orpersonally selected supporters, as they are subject to similar eligibilityrequirements) would be subject to appropriate levels of oversight with regardsto the financial decisions being made.39. In relation to oversight mechanisms, it is pertinent to state that PWDA hasserious concerns with the proposal that the Public Advocate sit alongside thePublic Representative. We are troubled by the potential conflict of interestinherent in this proposed arrangement, and offer our specific concerns below.19Committee on the Rights of Persons with Disabilities, 2014 op cit.NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 201810 of 23

While we do see the merit in having a Public Advocate in NSW, this bodymust be thoroughly independent, and must have robust investigative andadvocacy functions that are rooted within a CRPD compliant supporteddecision-making framework.40. Even with an independent Public Advocate, there remains an ongoing needfor independent individual and systemic advocacy from DPOs such as PWDA.Resourcing DPOs to build the capacity of people with disability who mayrequire decision-making support is a vital aspect of this. Mentioned throughoutthe draft proposals is the importance of building the ‘decision-making ability’ ofindividuals. This must be understood as ensuring the person has appropriatesupports. It is vital that DPOs and/or Disability Support Organisations(DSOs)20 are involved in not only the provision of these supports, but alsoassessing whether existing supports are adequate. DPOs and DSOs shouldalso be funded to train supporters and representatives on how they can assistin this process.41. Furthermore, DPOs and independent advocacy organisations are importantsafeguards, with significant expertise working not only to prevent violence, butalso to improve responses to violence and abuse.21 PWDA is concerned bythe general inattention to proper oversight mechanisms throughout these draftproposals. For instance, what tangible safeguards will be implemented toensure that all supporters and representatives are adhering to theirresponsibilities as outlined in the new Act? Inadequate oversight (includingthrough independent means) could place supported or represented people atsignificant risk.42. This leads us to raise concerns with the Tribunal review mechanisms ofagreements and orders that are proposed in Chapters 2-5. We are troubledthat the Tribunal is not bound to review support or representation agreementsor orders if the request does not disclose grounds that warrant a review, or ifthey have previously reviewed the agreement or order. We believe that arequest for review from a supported or represented person must always beupheld. Circumstances change, and there are many reasons (often relating toviolence, abuse, neglect and exploitation) that could contribute to a supportedor represented person not disclosing the exact reason why a review has beenrequested.20DSOs foster peer support networks of people with disability, and often develop information and capacitybuilding resources for participants. Furthermore, DPOs, of and for people with disability, are essentially peersupport organisations that may also undertake independent advocacy.21For further information about the safeguarding role of independent advocacy organisations, see: Parliament ofVictoria, Family and Community Development Committee, 2016. Inquiry into abuse in disability services: FinalReport, Victorian Government Printer.NSW Law Reform Commission Review of the Guardianship Act 1987 – Draft Proposals – February 201811 of 23

Response to Draft Proposals43. We preface these responses by reiterating our above concerns. We arefundamentally opposed to the continuation of substitute decision-makingregimes in NSW that do not uphold the human rights of people with disability.44. Bearing in mind these overarching concerns, PWDA would like to offer somespecific comments on each of the chapters of the draft proposals document.We note that these comments are not exhaustive, as it would be impractical toreference every instance in which the draft proposals depart from the CRPDand from previous recommendations about supported decision-making.22Chapter 1 – A new framework45. PWDA urges the NSW Law Reform Commission to consider the newframework in light of our abovementioned concerns. As we have previouslyoutlined, best practice regarding supported decision-making is still evolving,23yet starting from a completely CRPD compliant framework must be prioritised.However, if our overarching concerns are not addressed and substitutedecision-making is to be performed by a representative as outlined in thislegislation, we offer the following comments.46. The definition of decision-making ability provided in draft proposal 1.12 mustinclude scope for the person to be able to access support (such as anindependent advocate) to assist them with making sense of potentially quitecomplex information. The new Act must clearly provide that appropriate andadequate support must be provided to ensure that a person can exercise theirlegal capacity and decision-making ability.47. Draft proposal 1.14, outlining the assessment of decision-making ability, mustbe founded upon the provision of support in the first instance, and theassessment must therefore be of the supports and the quality of supportsavailable that enable a person to exercise their legal agency.48. PWDA is unclear what changes will occur to the existing guardianshipinfrastructure (other than the name changes outlined in draft proposal 1.3).Extensive work must b

3 About People with Disability Australia 1. People with Disability Australia (PWDA) is a leading disability rights, advocacy and representative organisation of and for all people with disability.