Practice Matters Supported decision-making laws in Victoria

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. Australia as a signatory to the United Nations Convention on the Rights of Persons with Disabilities has agreed to move away from regimes of substituted decision-making (that take away a person’s legal decision making rights) towards regimes of supported decision-making. Historically people with cognitive disabilities have been denied the right to make all kinds of legal decisions such as signing contracts so they can own property, open a bank account, vote and enter into sexual relationships.

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. So when we define supported decision making we need to be thinking about the aims of supported decision making as well as the process of providing decision-making support.

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

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

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

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.

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.

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.

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

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 There can be many reasons why people may want to take up the opportunity to appoint someone to support them to make decisions. Some people may want support to make and act on their decisions because of a disability. Others may want this support if they have a serious illness or injury. Others may experience difficulties communicating, or have experienced trauma in the past, that means they value having the support of someone else communicating with organisations on their behalf.

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 Info power – access, collect or obtain info that is relevant to a decision and that can be lawfully obtained by the principal. Power to give effect – to take any reasonable action to give effect to a decision Appointments: can be for financial and personal matters can specify when the appointment begins can appoint alternative supportive attorney signing of the form must be witnessed (stat dec) supportive attorney(s) formally accepts the appointment appointment ends if the principal loses decision-making capacity Cannot be a care worker, health provider or accomm provider

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 .

Medical Treatment Planning and Decisions Act 2016 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. The new Medical Treatment Planning and Decisions Act 2016 makes a significant shift away from a best interests model of medical decision making in favour of promoting the values, preferences, and personal and social well-being of Victorians. This new legislation, expands the definition of medical treatment and the type of health professional covered. It also allows for the appointment of two authorised representatives: Medical treatment decision maker and support person. The MTPD legislation enables a person, including a child, who has decision making capacity to appoint another person, including a child, as their support person. The support person will support the person and has an advocacy role to represent the interests of the person in making medical treatment decisions. They cannot make medical treatment decisions on behalf of a patient

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) It is recognised in Victoria that people who are patients under the MHA should be involved in all decisions about their assessment, treatment and recovery and be supported to make, or participate in, those decisions, and their views and preferences should be respected. The Act promotes rights, dignity and autonomy The MHA 2014 presumes that all persons, regardless of age or legal status, have capacity to make or participate in decision making. Advance statements – a document that sets out a person’s preferences in relation to treatment in the event that the person becomes a patient under Act

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.

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 Any person can be nominated provided they are willing, available and able to fulfil the functions and responsibilities of the role. The nominated person is usually someone who is significant in the life of the person, such as a family member or carer. There is no age restriction on who may nominate a person or who may be nominated, so they can be under the age of 18. For example, a person may nominate a teenage child who provides them with care or support, as long as the child is willing, available and able to fulfil the role. Witnessing requirements for advance statements and nominated person is doctor, mental health practitioner or person who can witness a stat dec.

National Disability Insurance Scheme Act 2013 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 The NDIS Act incorporates a variety of decision-making arrangements, containing elements of supported and substitute decision making, as well as informal and formal d-m. It encourages autonomous decision making by participants. It is only in rare and exceptional cases that the CEO will find it necessary to appoint a nominee for a participant who has not requested that an appointment be made. Usually, a plan nominee is able to do any act that may be done by a participant under, or for the purposes of, the Act, that relates to:(a) the preparation, review or replacement of the participant’s plan; or(b) the management of funding for supports under the participant’s plan . In contrast, the role of a correspondence nominee is significantly narrower ... The acts that a correspondence nominee is able to do include making requests to the Agency (for example, requests for information), and receiving notices from the Agency, on behalf of the participant. Can OPA be appointed as an NDIS plan nominee? OPA’s powers and functions derive from Victorian legislation. The Vic Charter of HR only operates in Victoria – the NDIA is not a public authority within the meaning of the Charter. OPA has made the decision not to accept appointment as plan nominee unless OPA is already appointed as the person’s guardian. OPA needs an appointment in order to have d-m authority, and a guardian would only make a decision within the limits of the VCAT guardianship order. Can OPA be appointed as an NDIS plan nominee? Only if appointed the person’s guardian through a VCAT order

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

What does a legally appointed decision-supporter do? 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

What are will and preferences? 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

What do I do if I disagree with the person’s will and preferences? 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?

Is it okay to try and change the person’s will and preferences? 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

What if the person may be at risk? 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?

OPA resources

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