In Australia there are heightened concerns regarding high levels of family conflict and disputes. This is clearly evident in wasteful litigation between family members over wills and estates, and evidence of elder abuse in many quarters. Less appreciated is progress for a wider spectrum of people in need, deploying legal and related support.
Australia has more people over 65 than under 15. And so does the world on analysis of UN data by Deutsche Bank. A specific and growing concern in an ageing society is people’s decision making capacity and capability when it is impaired by cognitive decline over time. In Australia 8% of 60 year olds have mild cognitive impairment and 37% of persons aged between 70-90 have mild cognitive impairment. In the legal arena these facts require attention to what is termed legal capacity.
Australia-wide recognition of problems resulted in the establishment on 1 July 2019 of the NSW Ageing and Disability Commission. Its role is stated to:
“better protect older people and adults with disability from abuse, neglect and exploitation from someone they know living in their home or community, and to promote their fundamental human rights.”
Human rights and disability law supporting Australians
To support disadvantaged or impaired people, an arc of law reform has progressively over a century introduced into civil societies legal rights for people irrespective of their age, race, sex, religion, sexual orientation or other differences.
The arc’s journey continues extending to apply people-centred and rights-based solutions to problems. The journey involves a shift in Australia to a formal rights-based society. That accelerated after the Australian Capital Territory (ACT) passed its Human Rights Act in 2004.
Joining with the ACT and Victoria which already have one, on 1 January 2020 the Human Rights Act 2019 (Qld) came into operation in Queensland. Its purpose of the Act is to:
- protect and promote human rights;
- help build a culture in the Queensland public sector that respects and promotes human rights; and
- help promote a dialogue about the nature, meaning and scope of human rights.
These developments are a counterpart to the Commonwealth Government’s ratification of the Convention on the Rights of Persons with Disabilities (“CRPD“). That followed Australia signing the convention on 30 March 2007. The CRPD entered into force for Australia on 16 August 2008 and the Optional protocol in 2009.
Commonwealth Government activity since ratification of the CRPD focuses on implementation in the federal health care system and implementation of the National Disability Insurance Scheme.
Current position in New South Wales
New South Wales has not passed human rights legislation to date. The NSW Law Reform Commission (“NSWLRC“) has recommended changes to the Guardianship Act 1987 (NSW) that would implement a model of supported decision making as a supplement to the operation of the substitute decision making roles of attorney and guardian. This NSWLRC proposal advances the compliance of NSW with CRPD and aligns NSW generally with the administration of supported decision making in Canada. Much can be learned from Canadian experience to date.
New South Wales has the opportunity to lead in the implementation of supported decision making as a person and strengths-based approach to empowering participation in civil society and build constructively on the foundations already laid by the journey outlined below.
Recognition in all jurisdictions in Australia of the right of a person to direct their medical and health care has led to supported decision making being adopted as a methodology of health and medical care.
The implementation of supported decision making has accelerated as a method of care delivery and social operation in New South Wales without legislative intervention. This is thanks to the operation of projects such as the Cognitive Decline Partnership Centre, the Supported Decision Making project at the NSW Public Guardian, and adoption of the Human Services Outcome Framework by the NSW Government,.
From presumed capacity to to being person-centred and rights-based
Anecdotal research of currently active supported decision making legislation shows that its implementation is primarily based on a model of assumed capacity augmented by legislation.
A person-centred, rights-based method of decision making support strengthens and safeguards the operation of a person’s will and preference. It moves away from taking the traditional approach of assuming capacity and thereby leaving unsupported or unprotected a substantial percentage of the population.
The arc or journey of change is proposed in the National Decision Making Principles of the Australian Law Reform Commission (“ALRC“). The principles recognise the right to make a decision as a fundamental human right in the operation of civil society in Australia. The principles on adoption would move Australian law and decision making practice away from a presumption of capacity and toward decision making ability being a competence for participation in Australian civil society.
The ALRC observes that the traditional approach of assuming legal capacity results in a binary or black and white classification of a population that has capacity or does not have it.
A policy with a binary classification of disability, including dementia, ignores the gradation for some people with declining ability to defend their interests without support. In a society of increasing longevity the fact is that many people who age have declining decision making capacity. Current research indicates that around 28% of the population between the ages of 55 and 85 may be affected by a form of cognitive impairment. Cognitive decline for this 28% impairs their ability to defend their rights as they age.
Establishment of the Capacity and Capability Clinic
Moving on the same journey as the legislation and policy directions in Australia, a practical step taken by Autonomy First is its establishment of the Capacity and Capability Clinic operated by Autonomy First Lawyers at MQ Health premises at Macquarie University Hospital in Sydney. The Clinic opened for appointments in April 2020.
Allied with that clinical service Autonomy First operates platforms for professional training and education as well as education and advocacy for the general community.
The Clinic engages a clinical neuropsychologist, Dr Jane Lonie, and myself as a trusts and estates lawyer, to deliver a blended service, an early evaluation and report about a person’s capacity and capability in the context of a particular decision, document, situation or concern.
In the context of the social and legal need surveyed in this article, the Autonomy First Group and its Clinic are designed to serve the set of goals below.
- To help people age well.
- To empower the economic and social participation of people in society as they age.
- To strengthen the ability of people to assert their will and preference as they age.
- To implement supported decision making as a method of asserting and protecting the interests of people as they age while also respecting the assumption of capacity as necessary, given the lack of uniformity in Australia of implementing rights-based decision making.
- To deploy multidisciplinary, relational practice professional services approaches for decision support and strengthening services in the community.
- To advocate and apply supported decision making as a methodology of normal professional, commercial and family governance practice when dealing with the interests of people as they age.
- To advocate and support the implementation of the National Decision-Making Principles in its operation.
- To advocate the reconciliation of “special disadvantage” under Australian Consumer law with the National Decision-Making Principles and the legal assumption of capacity.
- To use multidisciplinary care models in deploying these services that implement the ethics of care and respect the ethics of ageing.
To achieve those goals Autonomy First serves clients through its Capacity and Capability Clinic. For Australia a work in progress remains to transition to a rights-based society implementing the United Nations human rights principles to which Australia is a signatory.
Photo credit: Paolo Bendandi, Unsplash.
 At para 3.10 at https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/3-national-decision-making-principles/the-right-to-make-decisions/
 See http://cepar.edu.au/resources-videos/research-briefs/cognitive-ageing-and-decline-insights-recent-research