Submission to NSW Law Reform Commission Review of the Guardianship Act 1987

CPSA's response to Question Papers 4 and 5 as part of the NSW Law Reform Commission Review of the Guardianship Act 1987.

CPSA welcomes the opportunity to comment on the NSW Law Reform Commission’s Review of the Guardianship Act 1987 (NSW). This submission responds specifically to:

  1. Advocacy and investigative functions (Chapter 7 of Question Paper 4), specifically the desirability of the creation of a public advocate;
  2. Capacity to consent to medical and dental treatment (Chapter 2 of Question Paper 5);
  3. Types of medical and dental treatment (Chapter 3 of Question Paper 5), specifically in relation to the withholding or stopping of life-sustaining treatment;
  4. Advance care directives (Chapter 4 of Question Paper 5);
  5. Search and removal powers (Chapter 8 of Question Paper 6).

Paper 4 – Questions 7.1 & 7.8

Question 7.1: Assisting people without guardianship orders. Should the Guardianship Act 1987 (NSW) empower the Public Guardian or a public advocate to assist people with disability who are not under guardianship?
Question 7.8: A new Public Advocate office. Should NSW establish a separate office of the “Public Advocate”? If so, what functions should be given to this office-holder?

In investigating a person’s circumstances, the remit of the investigation should not be whether or not a person needs a guardian, but what type of support the person needs. Clearly, one of the supports a person may need could be a guardian. However, by giving the Public Guardian the power to investigate what type of support a person needs, the Public Guardian may be predisposed to concluding that the type of support the person needs is best delivered under a guardianship arrangement. It would therefore be desirable that, separate and independent from the Public Guardian, the office of a Public Advocate be created. The Public Advocate should be the first point of contact to assess the individual needs of not only people with disability but also people without a disability.

Paper 4 – Question 7.3

Question 7.3: Investigating the need for a guardian. Should the Guardianship Act 1987 (NSW) empower the Public Guardian or a public advocate to investigate the need for a guardian?

Consistent with its response to question 7.1, CPSA supports the empowerment of a Public Advocate, but not the Public Guardian, to investigate the need for a guardian and other types of support.

Paper 4 – Question 7.4

Question 7.4: Investigating suspected abuse, exploitation or neglect. Should the Guardianship Act 1987 (NSW) empower the Public Guardian or a public advocate to investigate suspected cases of abuse, exploitation or neglect?

CPSA supports the empowerment of a Public Advocate to investigate suspected cases of abuse, exploitation and neglect. The issue of elder abuse has been the subject of a number of parliamentary inquiries in Australia. Recommendation 11 of the Elder Abuse in NSW inquiry by the Elder Abuse in NSW Committee of the NSW Legislative Council calls for the establishment of a Public Advocate’s Office with powers to investigate complaints and allegations about abuse, neglect and exploitation of vulnerable adults, to initiate its own investigations where it considers this warranted, and to promote and protect the rights of vulnerable adults at risk of abuse.

Paper 5 – Question 3.1 & 4.13

Question 3.1: Withholding or stopping life-sustaining treatment
(1) Should Part 5 of the Guardianship Act 1987 (NSW) state who, if anyone, can consent to withholding or stopping life-sustaining treatment for someone without decision-making capacity?
(2) If so, who should be able to consent and in what circumstances?

Question 4.13: Legislative recognition of advance care directives
(1) Should legislation explicitly recognise advance care directives?
(2) If so, is the Guardianship Act 1987 (NSW) the appropriate place to recognise advance care directives?

CPSA supports the legislative nomination of a decision-maker in the giving of consent to withhold or stop life-sustaining treatment for someone without decision-making capacity. The role of advance care directives in decisions to withhold which life-sustaining treatment should be paramount. However, where an advance care directive is non-existent or unclear on this issue, the guardian should make the decision on the basis of medical advice that further treatment is futile. Where no guardian exists, the decision should be made by a next-of-kin on the basis of medical advice that further treatment is futile. Where no guardian or next-of-kin exists and the medical advice is that further treatment is futile, the Public Guardian should make the decision.

As CPSA supports the statutory nomination of a decision-maker the giving of consent to withhold or stop life-sustaining treatment for someone without decision-making capacity, it follows that CPSA also supports legislative recognition of advance care directives. However, CPSA has no view as to which statute is best suited to such an inclusion.

Paper 5 – Question 4.14

Question 4.14: Who can make an advance care directive; Who should be able to make an advance care directive?

While it appears generally accepted that an adult who has the mental capacity for decision-making should be able to make an advance care directive, CPSA considers, given its support for legislative decision-making provisions in relation to the withholding or ceasing of life-sustaining treatment, that legislation should provide the age and capacity criteria a person must meet to make an advance care directive.

CPSA notes that age is not a valid criterion in deciding who can or cannot make an advance care directive. Requiring majority rests on the assumption that an adult will generally have the mental capacity. However, if mental capacity can be accurately defined, the age criterion becomes superfluous.

In CPSA’s response to Paper 1, the point was made that the definition of capacity adopted by the Australian Law Reform Commission[1] should be used in the Guardianship Act 1987. This definition is a negative one, i.e. a person does not have mental capacity for decision-making if they cannot be supported to:

  1. Understand the information relevant to the decision
  2. Retain the information to the extent necessary to make the decision
  3. Use or weigh that information as part of the process of making the decision
  4. Communicate the decision in some way.

CPSA’s position on who can make an advance care directive is that anyone who has mental capacity according to the above definition should be able to make an advance care directive with support if need be, i.e. without regard to age and without regard to the constancy of mental capacity.

Paper 5 – Question 4.15

Question 4.15: Form of an advance care directive. What form should an advance care directive take?

CPSA is of the view that an advance care directive should be recognised if it is in an intelligible form and complies with minimum content requirements. This means that the medium in which the advance care directive is recorded should not be prescribed, nor should the language. This means that advance care directives should be able to be recorded in writing (in hard copy or electronically), in the form of a sound or video recording or mix of these media.

Paper 5 – Question 4.16

Question 4.16: Matters an advance care directive can cover. What matters should an advance care directive be able to cover?

CPSA’s view on what an advance care directive should cover is that this should be determined by the person making the advance care directive. An advance care directive is not a matter of one size fits all.

The important thing is that people make an advance care directive with which they feel comfortable than that people make an advance care directive should feel compelled to direct any future care according to a long list of possible health scenarios, contingencies and complications that may arise. At the same time, people who do want the directive to be exhaustive should be given the opportunity to make a directive accordingly.

It could be argued that encouraging people to limit the inclusions in their advance care directive to their main concern or concerns is more valuable than to effectively pressure people into directing their future care to a level of detail they may not fully comprehend. Pro forma, tick-the-box advance care directives may pressure people into directing their future care to a level of detail they have never contemplated.

This does not mean that people should not be encouraged to inform themselves as to the complexity of contingencies covered by advance care directives. However, the overriding concern of people who make advance care directives is to ensure they die with dignity and as little suffering as possible.

Paper 5 – Question 4.17

Question 4.17: When an advance care directive should be invalid. In what circumstances should an advance care directive be invalid? 

An advance care directive should not be adhered to if the effect of adherence would compromise the main aim of the advance care directive, which is to ensure that the person who made the directive has a dignified death with minimum suffering.

The directive should also be abandoned if it was made while a person (1) did not have the mental capacity to make it or (2) based their decision on incorrect, misunderstood or since disproven information (3) was manipulated, or (4) changed their mind after making the directive.

References

[1] Recs 7.1, 7.3, 7.12, 11.3: Australian Law Reform Commission (2014) ‘Equality, Capacity and Disability in Commonwealth Laws’ ALRC Report 124. [Accessed 11/10/2016] Available at: https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_124_whole_pdf_file.pdf