Hansard debates

Mr McGUIRE (Broadmeadows) (14:27:25) — The purpose of this bill is to replace the more than 30-year-old Guardianship and Administration Act 1986 underpinned by outdated policy with a legislative framework that is based on a more contemporary understanding of decision-making capacity and disability. This is an important piece of legislation in moving from what used to be seen as 'protecting' people with disability in a paternalistic sense to recognising their individual rights and then helping their participation in community life. They are the key themes that underwrite this bill.

Central to this strategy has been the approach developed under the United Nations Convention on the Rights of Persons with Disabilities, which Australia ratified in 2008. The following year the Victorian Law Reform Commission (VLRC) was referred broad terms of reference to review Victoria's guardianship and administration laws, along with other Victorian laws that provide for 'substitute decision-making'. By that it means the making of decisions on behalf of someone else. The purpose of the review was to ensure that guardianship and administration law was responsive to the needs of people with impaired decision-making capacity and promoted and protected the rights of people with impaired decision-making capacity. They are the critical balances that are trying to be achieved by this piece of legislation.

Just to continue with how the bill has evolved, the VLRC's guardianship report was tabled in Parliament in April 2012 and recommended a range of reforms to respond to changes to the social environment in which the laws operate and the range of people who use these laws. That is the basic chronology of events, the changing attitudes and the reforms that have been put in place.

I now want to go to a couple of the general principles and decision-making principles that underscore the bill. The bill reflects a more contemporary understanding of decision-making capacity and disability, and enables VCAT to set limits on appointments and to provide guidance to guardians and administrators so that the will and preferences of the represented person direct the making of decisions as far as possible. This is about empowerment, but doing it in a way that can be reflective of changed circumstances. I think what is also in this bill is the proposition of scrutiny, accountability and compliance. There are some penalties for non-compliance as well, which again are basically there to act as safeguards for vulnerable people.

To go to some of the detail in the bill, what it is trying to do is to look at a new definition for 'decision-making capacity'. Under the current Guardianship and Administration Act it does not define decision-making capacity, which is a key concept in the operation of these laws. The bill introduces a new definition and provides guidance on how it should be assessed. Just by way of example, the bill recognises that a person may have decision-making capacity for some matters and not for others, so I think that is an emotionally intelligent response to trying to address specific circumstances. It should not be assumed that a person does not have decision-making capacity simply because of their appearance or because they make decisions that others think are unwise. A person has decision-making capacity if they can make decisions with practicable and appropriate support, which could include different tailored information or using technology that alleviates the effects of a particular disability. That again is trying to put the right tools and skills around people so that they are still empowered to give their view and not have one imposed on them unnecessarily.

The assessment of a person's decision-making capacity should factor in the time and the environment in which the assessment takes place. That again is looking at phase of life, ability, competence and also what is happening in the environment around the person. The definition of decision-making capacity is consistent with the definition used in the Powers of Attorney Act 2014 and the Medical Treatment Planning Decisions Act 2016. That means there is continuity in how these issues are addressed.

While historically the Guardianship and Administration Act was a response to the deinstitutionalisation of people with an intellectual disability, it is now used by people with varying impaired decision-making capacity due to a range of disabilities. It is anticipated that the major user groups of guardianship laws over the next 20 to 30 years will be people with an age-related disability, such as an acquired brain injury or a mental illness. Ageing is the main factor affecting the incidence of disability in the community, with dementia being the leading cause of disability in people aged over 65. Access Economics has projected that the number of Victorians with dementia is likely to increase from the present figure of about 65 000 to more than 140 000 in 2040 and more than 246 000 by 2050. This goes to the imperative of having these changes in the ageing of the population, the influence of issues or illnesses such as dementia and how we have a more contemporary response to actually dealing with the best interest of individuals who are particularly vulnerable.

Importantly, the guardianship report recognises that a person with an age-related disability such as dementia is likely to experience gradual loss of decision-making capacity over time. This is an issue that is difficult at an emotional level to deal with, particularly for the loved ones seeing a parent or their grandparents slowly losing their cognition and their ability to make decisions. So this becomes a very difficult personal and family issue to grapple with for numbers of different people in the community. The decision-making capacity of a person with an acquired brain injury might return over time, so that is taken into account, while the capacity of another person with a mental illness is likely to fluctuate. This is a nuanced approach to try to address these issues as best we can in an evidence-based way and to adapt and adopt to time, place and circumstance.

The other thing that the bill does is provide scrutiny, accountability and compliance, and I think that is an important proposition as well, to make sure that people are not taken advantage of, as best you can cover that under the law, and that there are penalties to address that set of circumstances as well. The bill acknowledges and responds to these factors identified in the Guardianship report by providing mechanisms for supported decision-making, requiring VCAT to make guardianship and administration orders that are tailored to a person's individual circumstances and are regularly reviewed, and requiring a guardian or administrator to give effect to a person's will and preferences as far as possible but allowing will and preferences to be overridden to avoid serious harm.

I think this is a difficult, challenging area in which to get the balance right. I would like to commend the Attorney-General for being able to work through the difficulties and the challenges that are presented, and I commend this bill to the house.