People Living with Dementia: What Difference Does Statutory Change Make? A Case Study from Australia
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Abstract
This paper examines the issue of supported decision-making as it applies to people living with dementia. It seeks to explain the importance of this mechanism as a concept which is central to promoting the human rights of persons with disabilities in Australia, within the context of broader global developments. The key aspects of the Australian guardianship system are outlined with a view to illustrating the way in which these legal frameworks have traditionally formally operated to exclude the participation of persons living with dementia from involvement in decision-making. The focus of the paper is the recent guardianship legislation in Victoria, which is currently the only Australian jurisdiction to adopt a formal supported decision-making model, and which explicitly privileges the ‘will and preferences’ of the person who is the subject of proceedings under the legislation. The author conducted desktop research analysis of 24 decisions of the Victorian Civil and Administrative Tribunal (VCAT) between 2021 and 2024 to ascertain the effect, if any, of these new provisions on the outcome of proceedings involving persons with dementia, building upon an earlier article which examined 27 decisions of VCAT between 2019 and 2020. Five key themes are identified, the most significant of which is the evident impact of the embedded statutory prioritising of the person’s will and preferences on VCAT’s decision-making processes.
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References
2. See, eg., the Guardianship and Administration Act 1990 (WA); Guardianship and Administration Act 2000 (Qld); Guardianship Act 1987 (NSW)
3. See the United Nations Convention on the Rights of Persons with Disabilities Article 12 - https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-12-equal-recognition-before-the-law.html
4. ALRC Report No. 124 (2014).
5. NSW, Victoria and one is currently underway in WA.
6. Note that the Guardianship and Administration Amendment Bill 2023 (Tas) has been introduced into Parliament, while several amendments were introduced into the Guardianship and Administration Act 2000 (Qld) to align the general and healthcare principles with human rights, particularly the CRPD.
7. Brightwater Care Group v Rossiter [2009] WASC 229
8. For example, the Guardianship and Administration Act 1990 (WA) s4(3), Guardianship and Administration Act 2019 (Vic) s592
9. Re C (Adult: Refusal of medical treatment) [1994] 1 WLR 290, Re MB [1997] 2 FLR 426
10. The guardianship legislation in Western Australia, New South Wales, Tasmania, and the Northern Territory prescribes this standard. The ALRC Report on Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, 2014) recommended replacing the best interests standard with one which reflects the person’s will and preferences – see National Decision-Making Principles 3 and 4.
11. See, eg., Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218 per Brennan J citing I Kennedy, ‘Patients, Doctors and Human Rights’ in Blackburn and Taylor (eds), Human Rights for the 1990s (1991), pp 90-91
12. ALRCR at para 3.54
13. The South Australian Guardianship and Administration Act 1993 s5 requires the decision-maker to make the decision which the incapacitated person would have made had they the capacity to do this. The Victorian legislation specifically requires the substituted decision-maker to ‘give effect as afar as practicable in the circumstances to what the person believes the represented person’s will and preferences are likely to be, based on all the information available.’ – Guardianship and Administration Act 2019 (Vic) s9(1)(b).
14. These are found, eg. in Part 9 of the Guardianship and Administration Act 2000 (WA), but in other Australian jurisdictions advance health care planning provisions are found in separate legislation – eg. see the Medical Treatment Planning and Decisions Act 2016 (Vic), and the Advance Care Directives Act 2013 (SA).
15. Evidence derived from the Advance Care Planning Legal Subject Matter Expert Group 27/11/2024
16. Office of the Public Advocate (SA)< Annual Report 2016-2017 (2018)
17. K De Sabbata, “Dementia, Treatment Decisions and the UN Convention on the Rights of Persons with Disabilities: A New Framework for Old Problems’ (2020) 11 Frontiers in Psychiatry 2
18. De Sabbata, at 2 .
19. De Sabbata, at 8
20. SN Then, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133.
21. M Blake, C Stewart, P Castelli-Arnold and C Sinclair, ‘Supported Decision-Making for People Living with Dementia: An Examination of Four Australian Guardianship Laws’, (2021) 28 JLM 389
22. Committee in the Rights if Persons with Disabilities, General Comment No 1, 11th sess, UN Doc CRPD/C?GC/1 (20140 (General Comment No 1)
23. Australia, Convention on the Rights of Persons with Disabilities Declaration (2007)
24. ALRC Report No. 124 (2014).
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26. N Munro, ‘Taking Wishes and Feelings Seriously: The Views of People Lacking Capacity in Court of Protection Decision-Making’, (2014) 36(1) Journal of Social Welfare and Family Law 59
27. In the recommended Guiding Principles section
28. D Tait and T Carney, ‘Too Much Access: The Case for Intermediate Options for Guardianship’, (1995) 30(4) Australian Journal of Social Issues 445
29. See, eg., Re JH [2016] WASAT 20
30. Guardianship and Administration Act 2019 (Vic) s87
31. The Medical Treatment Planning and Decisions Act 2016 (Vic) s31 already provided for the possibility of an appointment of a support person to represent another person’s interests in connection with their medical treatment, including where the person lacks decisional capacity
32. (1)(a)(ii)
33. section 30(2)(b
34. M Blake, C Stewart, P Castelli-Arnold and C Sinclair, ‘Supported Decision-Making for People Living with Dementia: An Examination of Four Australian Guardianship Laws’, (2021) 28 JLM 389
35. The Victorian Guardianship and Administration WAC 2019 was enacted (came into effect) on the 1st of March 2020.
36. The provision was not referenced in XEX [2024] VCAT 26
37. WMO (Guardianship) [2023] VCAT 53; ALG (Guardianship) [2023] VCAT 344; VWT (Guardianship) [2023] VCAT 1151; BHP [2024] VCAT 276; QBZ (Guardianship) [2024] VCAT 687
38. BEZ (Guardianship) [2021] VCAT 314; RYZ (Guardianship) [2023] VCAT 295; BXE (Guardianship) [2023] VCAT 87; EIS [2024] VCAT 100; ONJ [2023] VCAT 48
39. BHP (Guardianship) [2024] VCAT 276 at para [36]
40. PVU (Guardianship) [2020] VCAT 1161
41. Also see ‘Reflections on Guardianship; The Law and Practice in Victoria’, Office of the Public Advocate (Feb 2023) at p32
42. S v SAT (2012) WASC 306 at 1991.
43. At para [52]
44. At para [53]
45. At para [75]
46. RCF (Guardianship) [2024] VCAT 748 at para [156]
47. LG v Melbourne Health [2019] VSC 183 at paras [49] and [51] per Richards J (a decision on the previous Vic GAA)
48. RCF (Guardianship) [2024] VCAT 748 at para [244]
49. NJA [2023] VCAT 572; ESU [2024] VCAT 340; XEX [2024] VCAT 26; UAC [2023] VCAT 101; OIC [2023] VCAT 144; RXO [2033] VCAT 872
50. ‘Reflections on Guardianship; The Law and Practice in Victoria’, Office of the Public Advocate (Feb 2023).
51. YXG (Guardianship) [2022] VCAT 900 at para [20]
52. NKT (Guardianship) [2022] VCAT 362 at para [34]
53. MBG (Guardianship) [2021] VCAT 206.
54. At para [41]. The tribunal also noted the wife’s denial of his diagnosis as a relevant factor to this being impracticable.
55. At para [36]
56. At para [40]
57. At paras [35]-[36]
58. At para [26]
59. At para [30]
60. At para [36]
61. At para [26]
62. At para [29]
63. At para [32]
64. At para [110]
65. BHP (Guardianship) [2024] VCAT 276 at para [46]
66. At para [54]
67. At para [59]
68. At para [60]
69. At para [55]
70. At para [62]
71. At para [64]
72. in QBZ (Guardianship) [2024] VCAT 687 at para [51]
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