1. Ethical Issues when mediating family disputes when the older person has impaired decision – making capacity: a rights based approach to family disputes about Advance Care Directives Elly Nitschke Senior Project Officer, Advance Care Directives Office of the Public Advocate nitschke.elly@agd.sa.gov.au 1

2. Advance Care Directive An advance care directive is a legally binding document where a person is able to write down instructions, wishes and preferences for future health care, accommodation and personal matters and/or appoint one or more substitute decision- makers to make decisions on their behalf in any period of impaired decision making capacity or as determined by the person. 2

3. Advance Care Directives ACT 2013 Rights Based Legislation where people can direct in advance: What quality of life means to them How they wish to live How they want decisions made for them in the future (in the event they are not able to make their own decisions Enabling substitute decision –makers, health professionals and others to make decisions based on knowledge of a persons preferences and values 3

4. OPA Mediation Model The mediation model developed for the OPA Service takes a rights - based approach adhering to the principles of: the Advance Care Directives Act the principles underpinning mediation Charter for Rights for Older People the Convention on the Rights of Persons with Disabilities. 4

5. Mediation Definition Mediation is a collaborative, voluntary, non – coercive problem solving process where an independent mediator, who is non – judgemental and does not have authority to impose a solution, assists the parties to come together, discuss the issues in dispute and find acceptable solutions to those issues. 5

6. Ethical Issues How to include a person with impaired decision-making capacity in the mediation process 6

7. Decision – Making Capacity All people have the right to make decisions about their lives for as long as they are able to and to have support if they have difficulty doing so. Substitute decision making – as opposed to best interest decision-making. If a person is not able to make decisions, even with support, then their authorised substitute – decision maker must stand in the shoes of the person and make decisions as she/he would have done. 7

8. Decision-making Capacity Advance Care Directives Act 2013 Section 7 (2) (a) a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and (b) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and (c) a person may fluctuate between having impaired decision making capacity and full decision making capacity; and (d) a person's decision making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person. 8

9. Empowerment / Self Determination Rights based approach adheres to the principles of empowerment and self determination Mediator must assess the most appropriate way for the person to take part in the mediation process Assessment begins upon receipt of an application 9

10. Involvement of Older Persons Enable older person to take part in mediation as far as reasonably practicable. Does not mean direct involvement necessary Assessment - how to involve 10

11. Involvement of Older Persons Direct involvement in mediation minimise conflict support person individual meetings breaks written statements 11

12. Involvement of Older Persons Represented by the substitute decision-makers If one appointed If dispute is not between the person who made the ACD and the substitute decision-maker 12

13. Inclusion of the Older Person Represented by an Advocate Professional Advocate Private Advocate Nominated by the person Nominated by other participants 13

14. Mediator Neutrality/ Impartiality Where do these principles when mediating disputes involving people with impaired decision-making capacity? Guided by the principles of the ACD Act Positive focus on the older person Transparent process Clear explanations 14

15. Mediated Agreements Inappropriate agreements Coercion not fully understanding the agreement Referral to the Guardianship Board Provisional agreements Interim agreements Review date for agreements 15

16. OPA Dispute Resolution Service Office of the Public Advocate 08 8342 8200 Nitschke.elly@agd.sa.gov.au 16