Guardianship and Administration Bill 2018

Guardianship and Administration Bill 2018

29 March 2018

Second reading

Mr PESUTTO (Hawthorn) (12:55:34) — I understand and thank you for forewarning me of that fact, Acting Speaker.

I am very pleased this afternoon to be able to rise and speak on the Guardianship and Administration Bill 2018. It is a very significant bill, and it will essentially rewrite and replace the existing Guardianship and Administration Act 1986, an act which was a piece of legislation that brought in very significant changes to the way we assist and support people who are experiencing mental and physical impairments and disabilities.

We agree on this side of the house that it is timely that this bill come before the house and that it further the work that has been undertaken across a range of areas. I in particular note similar work that has been done with respect to the Powers of Attorney Act 2014, the Mental Health Act 2014 and the Medical Treatment Planning and Decisions Act 2016, which have essentially given effect to a principle which has been emerging over recent years that we should not look at decision-making capacity as binary or as absolute. There are gradations of impairment and disability, and there is no reason why any one of us should feel that if we experience even the slightest level of impairment or the most acute level of impairment that somehow that necessarily means we are deprived of any decision-making capacity.

That is an important principle which not only underlies this act but also the other acts I have mentioned and just generally the direction of public policy in this area, which is to give effect as far as possible to the wishes and capacity of those who come before, whether it is VCAT or other health services and support services, but also enable without imposing cumbersome or unwieldy processes on those who might be in a position to assist those who need supervision and support in making important decisions, whether those decisions are financial or personal in nature.

As the government notes in its supporting materials — in the second-reading speech, for example — it comes off the back of a range of work, including some of the legislation that I have mentioned and work by the Victorian Law Reform Commission, which reported in 2012 on this issue and continues that trend I mentioned. The bill itself largely gives effect to the existing framework but importantly adds in some very significant changes which give effect to the principle of decision-making capacity and recognising as far as possible those who are in a position to make decisions on their own behalf.

The bill, as I will say in a few moments, introduces the concept of supporting guardians and supporting administrators, which is similar to what has been done in the areas of power of attorney, for example, where we have supportive attorneys who are there not to assume complete control of the person’s affairs but to assist them in managing their own life, which in turn is so important to their own sense of dignity, self-worth and esteem. The introduction of the concept of supportive decision-makers to help them will go far, in our view, to assist those who might otherwise fall on either side of the current system, which does not really allow for the graduation of support that might be available. That is very important.

The bill clarifies and makes changes to the role of the public advocate, and I will say a bit about that shortly.

Sitting suspended 1.00 p.m. until 2.02 p.m.

Mr PESUTTO (Hawthorn) (14:02:34) — It is a pleasure to get up today and resume my speech on the Guardianship and Administration Bill 2018. As I was saying before lunch, this bill is an important piece of legislation which carries on some work in relation to recognising that impairment and disability is not an absolute concept. It is not one that we should look at in a binary sense. We are certainly not opposing the bill; it is consistent with changes that even the previous coalition government made. In my remarks today I want to focus on just a couple of things, some key sections and a couple of matters that I draw to the government’s attention which I think will need close monitoring as the system is bedded down.

Going to some key concepts to begin with, the first one I wish to note is how decision-making capacity will be defined in the new act. That is contained in clause 5 of the bill, which defines decision-making capacity as a person having capacity to make a decision in relation to a matter if the person is able:

(a)    to understand the information relevant to the decision and the effect of the decision …

(b)   to retain that information to the extent necessary to make the decision; and

(c)    to use or weigh that information as part of the process of making the decision; and

(d)   to communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gesture or other means.

That is appropriate because the types of impairment and disability are many and varied. There is no absolute definition or way that we should measure that. People with the same impairments may have different ways of communicating, so that definition of decision-making capacity is important to recognise the individual differences that we each have.

It is important to note that the bill does operate on the premise that a person is presumed to have decision-making capacity unless there is evidence to the contrary, and we certainly support that principle. It is appropriate and consistent with the object of the act. This object is primarily contained in clause 7 of the bill, which requires that regard be had to the Convention on the Rights of Persons with Disabilities and the need to ensure that VCAT sets safeguards and appropriate limitations on the powers of guardians and administrators when making orders and is required to regularly review such orders, because, as we know, the magnitude and scale of impairments and disabilities can change over time. The bill also requires that guidance be given to guardians and administrators when making decisions for represented persons as the case requires. They are really important parts of this bill that I just wanted to note.

I did want to touch on, as I foreshadowed a few moments ago, just a couple of concerns. They are not grounds for opposition certainly, but I do encourage the government to look closely at the way these operate. The first matter that I want to touch upon is the powers, which are new to the public advocate, to delegate by instrument ‘to a public advocate employee, any one or more of the following’ functions contained in clause 19(1) of the bill:

(a)      a power, duty or function of the Public Advocate under this Act or any other Act, other than this power of delegation;

(b)      any or all of the Public Advocate’s powers or duties in the Public Advocate’s capacity as guardian;

(c)      despite section 25 of the Powers of Attorney Act 2014, any or all of the Public Advocate’s powers or duties in the Public Advocate’s capacity as an attorney under enduring power of attorney within the meaning of that Act.

The public advocate is a very responsible officer of course and an independent officer with very serious and profound responsibilities in relation to those who need representation. I do not imagine that the public advocate would ever delegate this to somebody who was less than qualified, but the bill does not appear to anticipate concerns around the experience or expertise of a person to whom the public advocate might delegate very important functions under this bill.

I hope and trust that this would never arise but our job sometimes is to search quite hard for even the most remote contingencies to ensure that legislation that passes through this Parliament does not produce injustice or, as far as we can comprehend, outcomes that we could have done something to avoid. I would suggest that this is something the government needs to monitor very closely, even trusting that the public advocate will exercise this power of delegation judiciously and responsibly. I have no doubt about that. But despite best efforts sometimes issues can arise, so I urge the government to look closely at how that operates over time.

The other matter I want to touch on is in relation to supportive guardians and supportive administrators. Again we recognise and support the concept of supportive guardians and administrators, consistent as it is with similar roles under other regimes, including the Powers of Attorney Act 2014. I guess though in relation to this act the introduction of supportive guardians and administrators is much broader, Acting Speaker Richardson, as you will know from your legal background. Guardianship which refers to the personal matters of a person can be extremely broad and the powers in relation to financial matters that an administration order entails can equally be very broad, and it will be really important to ensure that there is adequate guidance to support guardians and administrators.

I know there are references in parts of the bill to that, but in a practical sense that support needs to be available. It is quite foreseeable that supportive guardians and administrators could find themselves sometimes caught between on the one hand what might be an obvious need to support somebody whose decision-making capacity in certain circumstances might be more acute if those circumstances suggest that, but equally not trying to, if you like, innocently usurp the role of the person.

Whilst a guardian or administrator in the sense that we have now has very broad powers, it will be actually more difficult for supportive guardians and administrators in practice to navigate that, because they are not trying to displace the person’s decision-making capacity; that is why they are not a full guardian or a full administrator. Equally they are not there to let the person suffer because the level of impairment or disability is depriving the person who is there to be supported with the ability to make the right decision or to make it in the right circumstances.

So that practical support will be extremely important as this regime is rolled out over time. There is time for the government to do that. The default commencement date of the bill is 1 June next year, so there is plenty of time to do that. I imagine that agencies such as the public advocate, and even the Victorian Civil and Administrative Tribunal (VCAT) and others, will be able to draw on the lessons learned from the Powers of Attorney Act and the Mental Health Act 2014 in particular, where this has now been in place for some three to four years.

The rest of the bill is largely uncontroversial. I note in relation to special medical procedures that the powers of VCAT are retained. The Law Institute of Victoria raised a couple of concerns, particularly a concern that the powers in relation to special medical procedures should be contained in the Medical Treatment Planning and Decisions Act 2016. I did give consideration to the law institute’s concerns, and I thank the institute for getting in touch with me. With VCAT’s role being maintained as being central to the permission that is required before any special medical procedure can proceed, I am reasonably comfortable that there are not the risks that the law institute has raised. Again, I think it is something that we can monitor as we go along. But I do wish to place on record my thanks to the institute for getting in touch with me on that particular issue.

On that basis, we do not oppose this bill. We think it will do a great deal to give those who are suffering varying levels of impairment or disability the dignity, esteem and self-belief they deserve, and our system should do everything to support that. I conclude my remarks.

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