New arrangements under the Medical treatment and Planning Decisions Act 2016

This was the third session at the Advocacy Sector Conversations forum held at the Queen Victoria Women’s Centre on 28 June 2018.


Overview

The updated Medical Treatment and Planning Decisions Act 2016 came into effect in March 2018, following on from the changes to the Powers Of Attorney Act 2014.  Guardianship and Administration Act is next in line to continue the transition of decision-making laws to bring them into line with international human rights law to protect the right of people with cognitive disability to make decisions about matters that effect them. Sharon Cutrale, a Medical Decision Support Officer at the Office of the Public Advocate, provides an overview of what the changes are, how to work with them and the impact they will have on people with limited decision-making capacity.

 

 

transcript

 

 

MELISSA HALE, DARU CO-ORDINATOR
Okay so we’ve got two more sessions to go for today.  Just before I hand over to the next speaker, I just want to let you know there are evaluation forms on your chairs and tables.  If you could please fill them out they’re really helpful for us when we organise these forums.  We want to make these forums as relevant as possible.  Please fill them out and leave them outside on the table before you leave.

I would like to introduce our next speaker Sharon Cutrale, Medical Decision Support Officer, Office of the Public Advocate.  She will be talking about changes to the Medical Treatment and Planning Decisions Act, Powers of Attorney Act and flag changes to the Guardianship and Administration Act.

SHARON CUTRALE, MEDICAL DECISION SUPPORT OFFICER, OFFICE OF THE PUBLIC ADVOCATE.
Thanks, everybody thanks Melissa.  Just to clarify what I’m going to be talking about today is the Medical Treatment Planning Decisions Act of 2016, The Powers of Attorney Act of 2014 and I will be talking about the Guardianship Administration Act of 1986.  I won’t be talking about the Guardianship Administration Bill; it’s currently before Parliament because it hasn’t been passed.  Until that gets passed there may be a lot of amendments, a lot of changes and it may go back for redrafting so it’s not appropriate to talk about that.

Today in my presentation, I’m going to talk about these three Acts of legislation in respect to decision-making capacity, supported decision making and substitute decision-making.  As we all know, Article 12 of the United Nations Convention of The Rights of Persons with Disability recognises the rights of people with disability to enjoy legal capacity on an equal basis with others in all aspects of life.  This is a recognition of a person’s right to make decisions.

Signatories of the United Nation Convention have agreed to move away from the regimes of substituted decision making towards regimes of supported decision-making.

First of all, I will cover decision-making capacity.   A person is said to have decision making capacity to make a decision if they are able to understand the information relevant to the decision and the effect of the decision, retain the information to the extent necessary to make that decision, use or weigh up that information as part of the process of making the decision, communicate their decision in some way including speech, gesture or other means.

These slides will be available and I’ve got some publications from the office out in the foyer as well.  Please don’t feel pressured to write things down.

Adults are presumed to have decision-making capacity unless there is evidence to the contrary.  We all have the right to make our own decisions free of undue influence.  A person who is assessing another person’s decision-making capacity should take reasonable steps to conduct the assessment at a time and in an environment in which the person’s decision-making capacity can be most accurately assessed.  I’m sure this isn’t new to any of you.

As I said, there’s a movement now away from substituted decision-making.  An individual decision making capacity should never be assumed based on their appearance or on a diagnosis.  Decision making capacity is decision specific.  In Victoria, we have two competing approaches as to how people who have difficulties, making decisions are treated.  There’s the substitute decision-making approach and the supported decision making approach.

Victoria has incorporated both substitute decision making and supported decision making into its legislation.  Substitute decision making includes the medical treatment decision maker, an enduring power of attorney appointment or guardianship and administration order.  Supported decision making currently includes a support person, a supportive attorney or a nominated person.  Decision making arrangements for persons with disabilities takes many forms; some are informal arrangements such as having family members or friends involved.

The formal arrangements can be divided into two groups.  One is a formal pre-emptive arrangement where an individual is anticipating future loss of capacity through the appointment of a proxy.  For example, this might be an enduring power of attorney or an advance care directive under the new Medical Treatment Planning Decisions Act legislation.  A more formal arrangement is where a tribunal such as VCAT appoints a person to make decisions on an individual’s behalf.  That’s where the guardianship and administration orders come into play.

Substituted decision-making enables a proxy to make decisions on behalf of another person who is incapable for whatever reason to make that decision.  But there is a growing concern that this goes against the fundamental freedom and protections of human rights.  That’s why we’re strongly focusing more towards supported decision-making.

In Victoria, there’s a significant shift away from a best interest model decision making in favour of promoting the will, values and preferences of individuals and there are a number of laws that enable people with cognitive disabilities to appoint or nominate someone to assist them to make these decisions.  The laws that operate as I said is the Medical Treatment Planning Decisions Act of 2016, the Powers of Attorney Act of 2014 and the Mental Health Act of 2014.

Substituted decision making is traditionally been based on the best interest model while supportive decision making gives full consideration to the individuals wishes values and preferences.

The law says that a person is able to make a decision with support then they have decision-making capacity for that decision.  Decision making capacity as I said before is decision specific.  Support may include the additional time that it takes for an individual to make that decision.  It may include someone to help them in discussing that decision sometimes to assist them to communicate the decision, technology or modified language and visual aids.  Supporting an individual to exercise their legal capacity through practical assistance leads to self-determination and personhood.

The legal roles for decision supporters;  supported decision making is assisting the person with disability to make their own decisions, make choices about their lives and exercise control over things that are very important to them.  Roles for decision supporters are under these legislations would be a support person under the Medical Treatment Planning Decisions Act, a supportive attorney appointment under the Powers of Attorney Act and a nominated person under the Mental Health Act of 2014.

As a supporter, legal recognition gives authority to the support person to advocate alongside the individual who is making the decision by creating decision opportunities exploring their wills and preference and implementing their decisions where necessary.  It can also resolve problems where there’s concerns around privacy and information sharing.  These appointments have informal and legal authority can assist when an individual needs to interact with hospitals, banks, Centrelink, utility providers etc.  That’s the aim.

The first legislation I’m going to look at is the Medical Treatment Planning

Decisions Act of 2016, and this is my current role as the Support Officer for the new team at the Office of the Public Advocate.  We’ve got two decision officers and one support officer.

Under the new legislation as of the 12th of March, 2018 adults and children can make an advance care directive and they can appoint a support person for their medical treatment decisions.  Only adults can appoint a medical treatment decision maker.  Now the reason for that is anyone that has parental rights over a child is presumed to be their medical treatment decision maker.  In Victoria to make an advanced care directive or either of these two appointments, a person must have decision-making capacity to do so and the forms must be signed in front of two witnesses.

An advance care directive, now the terminology is very important.  Many people in the community would be thinking of advance care planning which is a commonly known phrase but in regards to this new legislation, the terminology is advance care directive.  An individual can only make an advance care directive according to what’s prescribed in the Medical Treatment Planning Decisions Act since the 12th of March this year.

So an advance care directive is a legal document that sets out a person’s, A, it could be their preferences and values in what’s called a values directive and or in a binding instructions document that’s called an instructional directive.  They’re specific to medical treatment decisions that the person in an event where they no longer have decision-making capacity would either consent to or refuse medical treatment that’s being offered.  Documents are only relevant to medical treatment you can’t put something in there about your financial affairs or your accommodation wishes, it’s solely around medical treatment.

Again, an advance care directive it’s a legally binding instruction for future medical treatment in which an individual either consents to or refuses treatment.  A values directive is a document that clarifies and indicates what an individual’s values and preference is about their medical treatment and health care wants are.  It’s to be considered by anyone that’s going to be making a medical treatment decision on their behalf in the future.

A values directive, so an individual under an advance care directive under this legislation, an individual could choose to make both of these documents or one or either.  They’re voluntary things so there’s no one has to do this, it’s only a choice.  Values directive is a statement of a person’s preferences and values on the basis on which they would like any medical treatment decisions to be made on their behalf at a future time.  It must be considered by their medical treatment decision maker and I’ll clarify that role a little bit further on.

An example of a values directive could be; In general, I prefer alternative therapies such as acupuncture and naturopathy to conventional medicine.  However, I’m not absolutely opposed to all Western medicine and on occasion, I have been known to take antibiotics to relieve unnecessary pain and suffering.  If I should lose decision-making capacity, I request my medical treatment decision maker in making decisions on my behalf take into account my preference for alternative therapies but also my desire not to unduly suffer.

It’s giving directions to an individual that’s going to be making decisions on their behalf at a later stage on what they do value and what their preferences are in regards to their health care and their medical treatment.

On the other hand, an instructional directive is a statement of a person’s medical treatment decision in advanced.  It’s directed to the patient’s health practitioner.  It takes effect as if the person who’d made it had consented to or refused the commencement or continuation of the medication treatment themselves.  It’s something that people and again we’re not sure how many people will uptake any instructional directive but it’s something that people that have very strong definitive views on certain medical treatment may consider to do.

An example of an instructional directive;  I refuse any normal vaccinations for any purpose whatsoever regardless for the reason of the vaccination being recommended including if it was to mean that I could no longer travel.

It’s giving direction to a health practitioner that under no circumstances the individual would agree or consent to vaccinations.  It’s very important though that anyone that wants to undertake and make an instructional directive is very clear in their instructions and has a full understanding of how those instructions will be interpreted.

An individual for example may say that under no circumstances do I ever want to be put on a machine that helps me breathe.  Now that can be interpreted in many ways.  It may be that you don’t want to be put on long-term ventilation but it may also rule out the time when you need surgery for a curative treatment and you may need to have a full general anaesthetic during that procedure.  Someone that’s going to make such a statement in an instruction directive really needs to understand what the consequences of that statement is going to be for a health practitioner further down the track.

Medical treatment decision makers this is a new appointment under this legislation, a person and only an adult can appoint a medical treatment decision maker who has the authority to make medical treatment decisions on their behalf only when they do not have decision-making capacity to do so for themselves.  They must make the decision that they reasonably believe is the one that the patient would’ve made themselves.  Again, it’s that shift away from the best interest to actually putting yourself in the shoes of that individual and making a decision that you strongly believe they would have made themselves.

Any medical treatment decision maker must follow Section 61 of the legislation and must consider the patients values directive if there is one or any other values and preferences that the patient has expressed at any point in time.  They really have to look at it from the perspective of the individual that’s appointed them.

We’d always encourage someone if they’re going to make an appointment for a medical treatment decision maker not only do they inform that person that they’re going to be appointed but they have full discussions about what their health care preference is and what they value around medical treatment and health care are so that person has insight into what this individual does want.

Another appointment under this legislation and this is a very new appointment, is the support person role.  This may be of some interest.  This is the role where a person can be appointed to support a patient to make, communicate and give effect to their medical treatment decisions and they can represent the interests of the patient in respect to the patient’s medical treatment.  This role a support person, solely functions in their role when an individual still has decision making capacity to make their own medical treatment decisions, they’re not medical treatment decision makers so they can’t make a medical treatment decision on behalf of an individual.  Their role is solely to support.  If however, that individual loses capacity at some point in time, they still have a role in advocating for that individual.

Importantly the support person can access health information about the patient that is relevant to the current medical treatment decision.  They may be able to access the medical records they could call the GP after they’ve been to an appointment with the individual, and the person that’s appointed them has become a little bit overwhelmed by all the discussion during that appointment.  They would have legal authority to ring the GP at a later date and expand on those discussions so that they can help that individual to make their own decision.  It’s solely a supportive role.

Now accessing information and with privacy restrictions maybe something that someone really values, so this might be a role that someone considers appointing.  Health Records Act and the Privacy and Data Protection Act requires consent from an authorised representative.  The new Medical Treatment Planning Decisions Act would allow a medical treatment decision maker and a support person to be that authorised representative.

As with everything, there’s legal requirements so in making an advance care directive or appointing a medical decision maker or support person, forms haven’t been legislated but the Department of Health and OPA have developed some forms.  They’re freely available on our website, they’re in our publications.  There are formal requirements so if someone chooses not to use the forms that have been created then that’s okay but they need to make sure that they’ve done the formal requirements according to the legislation otherwise it won’t be a valid appointment or form.

The formal requirements are specific to witnessing an advance care directive, there are two witnesses required and one must be a registered medical practitioner.  We believe the understanding for that is as I was saying before an instructional directive when someone puts in such a clear definitive statement the registered medical practitioner will be able to unpack that with the individual before they sign off and witness it to make sure they have a full understanding of what the connotations of such a statement would be in the future.

For the appointment of a medical treatment decision maker or support person again, there are two witnesses required.  One of them can either be a registered medical practitioner or else it could be someone that’s authorised to witness affidavits such as a justice of peace of practising lawyer.  Again, we have all that information on our website or please call the advice service and we can assist you.

Medical consent; as always a health practitioner needs a patient’s consent before providing medical treatment unless they are providing emergency treatment.  The new Act sets out the medical consent process for a patient who does not have decision-making capacity to make the medical treatment decision.  So from this point on in regards to this legislation it’s solely around individuals who no longer have decision-making capacity.  If an individual has decision-making capacity and again its decision specific, they should be given the right to make their own decision.  Some people may not have capacity to make a decision about extensive surgical procedure but they may have the ability to consent to a flu vaccination.  It’s specific to the decision that’s at hand.

The Act talks about health practitioners and it’s a much broader group of professionals than was previously under the old Medical Treatment Act.  Not only includes medical and dental professionals but it also includes physiotherapy, podiatry, nursing, midwifery, medical radiation practice.  Importantly it doesn’t include dieticians, sport pathologist or social workers.  In regards to a speech pathologist if what they’re proposing to do, the treatment they’re proposing to offer to a patient fits the definition of medical treatment under this legislation, even though they don’t fit the definition of a health practitioner, they should get a colleague that does fit the definition of a health practitioner to seek consent on behalf of that patient.  Any medical treatment needs consent unless it’s emergency treatment.

Again, this is a lot of information to take in in an hour session, please feel free to contact the advice service or look on our website.

The definition of medical treatment under this legislation there are two components.  Importantly it has to meet one part in each component.  It must be a purpose of treatment.  It must be either for diagnosing a physical or mental condition, preventing disease, restoring or replacing bodily function or improving comfort and quality of life.  Then it must also fit under the form of treatment.  So it must be under either the treatment for physical or surgical therapy, treatment for mental illness, treatment with prescription pharmaceuticals or an approved medicinal cannabis product, dental treatment and palliative care.

Under this new legislation, pharmaceuticals now fit as defined as medical treatment.  Anyone that can provide their own consent should obviously be doing so but an individual that doesn’t have decision-making capacity someone needs to give consent for prescription pharmaceuticals.  However, a compulsory patient under the Mental Health Act is a person who is on a compulsory treatment order.  They would fit under the Mental Health Act and not under the Medical Treatment Planning Decisions Act.

Emergency treatment; medical treatment or a medical research procedure that is necessary as a matter of urgency to save the patient’s life or prevent serious damage to the patient’s health or prevent the patient from suffering or continuing to suffer significant pain or distress.  The reason I’m emphasising the or is a lot of health practitioners stop at the first line and if they don’t feel that it’s to save their life immediately they would not deem it as emergency treatment.  Often we will get enquiries at the office; we just unpack that situation with them.  But it is a clinical determination if treatment that’s been offered is emergency treatment.

Now a health practitioner does not require consent to provide emergency treatment as long as they’re not aware that the individual has refused that treatment in either an advance care directive such as an instructional directive or in a previous made refusal of treatment certificate.  That would still be a valid certificate if it was made prior to the 12th of March.  If a patient has refused the treatment then the health practitioner wouldn’t proceed.

An instructional directive in emergency treatment; if emergency treatment is needed a health practitioner is not required to search for a directive that is not readily available.  That’s something that is very important for health practitioners.

Obtaining a medical treatment decision; the slides originally for this legislation are quite extensive but I’ve condensed this down so I hope this makes sense.  In obtaining the medical treatment decision, the legislation sets out three steps for health practitioners to follow.  It may be that you’re not actually a health practitioner but you’re advocating for an individual that has been offered some medical treatment or you’re involved with a client that needs medical treatment.  So just familiarising yourself with the fact that there are steps that health practitioners can follow so an individual who does not have decision making capacity should never miss out on receiving appropriate medical treatment.

The three steps I’ll go through those in a moment.  The definition of a medical treatment decision is either to consent to the proposed commencement or continuation of the medical treatment or refuse the commencement or continuation of medical treatment.  Under this legislation, a medical treatment decision maker can be appointed but anyone that’s appointed previously an enduring power of attorney for personal matters under the Powers of Attorney Act or an enduring guardian under the Guardianship and Administration Act, if they had health authority they would now be deemed the medical treatment decision maker for the individual.  They have legal authority to either consent to medical treatment or refuse medical treatment when a person no longer has decision-making capacity themselves.

This is the shortened version, the flowchart on what a health practitioner needs to follow.  The first thing a health practitioner needs to do when they’ve got an individual in front of them that does not have decision making capacity to consent to their own treatment is to find out whether that individual has made an advance care directive.  Now again, it’s about the terminology it’s not an advance care plan it’s an advance care directive that can only have been made as of the 12th of March of this year.

If there is an advance care directive with a relevant instructional directive and the individual has refused the treatment that’s being proposed in that document then the health practitioner withholds or withdraws that medical treatment.  Again, we’re not talking about emergency situations.

If the patient has consented to that particular medical treatment in their instructional directive then the health practitioner would proceed to administer the medical treatment if they were of the opinion that it was clinically appropriate to do so.  Nothing an individual can document in an advance care directive can compel a health practitioner to offer medical treatment.  It’s a clinical determination and that’s for them to make.

If the health practitioner at any stage has any concerns or questions the validity or the meaning of a directive then VCAT is the appropriate body for them to seek advice from.  Again, refusal of treatment certificates are valid.

The next step, so if there is no advance care directive then the health practitioner moves on to Step 2, is there a medical treatment decision maker for this individual.  There is a hierarchical list, I’m not sure if you’re familiar with the old Section 42K or the person responsible list that was in the guardianship administration.  It’s a new hierarchical list that’s been condensed and narrowed.  It’s the first person on the list; again, this information is on our website, is the person’s appointed medical treatment decision maker.  That’s not only a person that’s been appointed under this legislation as the medical decision maker it could be an enduring power of attorney for personal matters if they had health care authority and or an enduring guardian or the old enduring power of attorney for medical treatment, which has been repealed since the implementation of this legislation.

Secondly, on that list is a guardian appointed through VCAT who has the authority to make medical treatment decisions.  If no one fits those categories, the health practitioner moves down to number 3, which is the first person in the following who is in a close and continuing relation.  Now again the terminology of close and continuing relation has been added to this legislation specifically to weed out families and relatives that have not had anything to do with the individual for decades and to step in and make decisions when they’re needed.

First, it’s a spouse, domestic partner then it moves down to a primary carer of the patients, then it moves down to an adult child of the patient, a parent of the patient, or an adult sibling of the patient.  Again, they’ve removed aunt’s uncles and nieces and nephews just to try and narrow that category and make sure it’s an individual that does have a close and continuing relation.

If there is a medical treatment decision maker then the health practitioner goes to the medical treatment decision maker for that medical treatment decision.  That medical treatment decision maker can either consent to that treatment or they can refuse that treatment.  If there is no medical treatment decision maker then the health practitioner would proceed to Step 3, which is where they need to make the distinguishing clarification on whether the treatment they’re offering is routine treatment or significant treatment.

Up until that point, it doesn’t matter.  If they’re offering medical treatment then they need consent unless it’s an emergency.  If the treatment they’re offering is routine treatment then a health practitioner can undertake that treatment without consent as long as they meet their recording obligations in the patient’s clinical records.  In the legislation, routine treatment is defined as anything that’s not significant treatment but significant treatment has been clearly defined as anything that has a significant degree of bodily intrusion a significant risk to the patient, causes significant side effects and or causes significant distress to patients.

This is where it might be quite relevant to everyone in the audience what’s routine treatment to me or to you may not be routine treatment to an individual that’s got complex mental health needs or a cognitive disability.  A health practitioner needs to look at the individual and look at the circumstances that are presenting.  They can’t just say this is routine to me I offer it all the time, I’m used to taking out teeth say if it’s a dentist.  They have to look at who is in front of them who they’re offering the treatment to and it may be that it’s significant treatment to that individual because it may cause them significant distress.  It’s based on each presenting circumstance.

I’ve bored you enough with the Medical Treatment Planning Decisions Act so we will move on to the Powers of Attorney Act.

The Powers of Attorney; a legal document where an adult who has decision making capacity and they’re called the principal gives another adult with capacity the attorney, the power to make decisions for them or support them to make their own decisions.  Powers of Attorney operate while the principal is alive and wants or needs someone else to assist them with decision making.  When the principal dies, the authority ceases.  Every State and Territory in Australia has its own laws in regards to Powers of Attorney.

An Enduring Power of Attorney is a legal document that lets someone appoint someone else to make decisions on their behalf and it endures so it continues after that individual has lost decision-making capacity.  Now a principal, so the person that’s making the appointment, can appoint whoever they choose the attorney and they can appoint them to make decisions around whatever matters of their choosing and they can commence at whatever time of their choosing under the Powers of Attorney legislation.

You can make a Powers of Attorney if you’re over the age of 18 in Victoria and you have decision-making capacity to do so.  You can only make an Enduring Power of Attorney appointment for yourself and not on behalf of anyone else.  I’m staggered at the number of calls we get on the advice service asking whether individuals can make Power of Attorney appointment for their parents who no longer have decision-making capacity to do so.

If a principal is able to make their own decisions and they’ve made an Enduring Power of Attorney appointment, then the principal oversees the use of that power and the person they’ve appointed, the Attorney, acts at their direction.  When the principal loses decision-making capacity that’s when the Attorney needs to act and make decisions in the best interest of the principal.

An Attorney importantly prior to the 12th of March, an Enduring Power of Attorney for personal matters did include health care matters but post 12th of March there’s no longer health care matters that can be included.  If someone wants to appoint someone to have authority to make medical treatment decisions, they need to appoint them as a medical treatment decision maker under the Medical Treatment Planning Decisions Act.

Other than Enduring Powers of Attorney, there’s Non Enduring Powers of Attorney, the general Non Enduring Power of Attorney and that becomes invalid the minute the principal loses capacity.  It’s often something that an individual might decide to do if they just need someone to make a financial transaction on their behalf whilst they’re overseas or undertake short-term banking for them when they can’t actually access that themselves.

Another appointment that can be made under the Powers of Attorney Act is the Supportive Attorney appointment, and this promotes the rights and autonomy and dignity of an individual and allows an individual to appoint another person to assist them in making decisions around personal matters, financial matters or both or any matter that they specify.  It’s about the individual the principal making their own decisions and just having formal support by their supportive attorney.  There are three powers that a supportive attorney can undertake and that can be all or any of information power, communication power or power to give effect to decisions.

A Supportive Attorney appointment has no affect during a time when the principal has not got decision-making capacity.  Some people will undertake these appointments because of a disability or others may undertake it because they know they’re hitting a time in their life where they’ve got a severe illness or a severe injury has occurred and they just want that additional support and they want it to be formalised.

I’ll just clarify this.  A Supportive Attorney gives authority not only to undertake the information power, the communication power and to give effect to a decision but they can also get involved in collecting information that’s relevant to that decision.  Again, it could be an appointment that’s assistive if someone gets very distressed or confused in appointments or doesn’t like communicating with banks or Centrelink.  If they appoint someone to be the Supportive Attorney, they’ve actually got that legal authority to access that information that’s relevant to the issue at hand.  Again, it can assist with privacy issues.

Now we will move on to the Guardianship Administration Act.  The Victorian Civil and Administrative Tribunal, VCAT is the authority that has the jurisdiction over the Guardianship Administration Act and they have what’s called a guardianship list.  The mission of the guardianship list is to protect the personal and financial affairs for adults with disability who are unable to make reasonable decisions about their person, circumstances or affairs.  The role of a guardian or administrator is to protect people aged over 18 as a result of their disability who are unable to make reasonable decisions about themselves and their circumstances as I said.

Guardianship is deemed to be last resort as should be administration.  If there is no less restrictive alternative to safeguard the interests of the individual with a disability then that’s where guardianship and or administration would come into play.    As I said earlier all adults have the right to make their own decisions and people with disability should be encouraged and supported to make their own decisions.  However, if a person is unable to make reasonable judgements because of their disability and there are concerns about the decisions they are making or that others are making for them then VCAT can appoint a guardian or an administrator to make decisions on their behalf.  VCAT need to be satisfied that it’s the right thing for the individual.

Guardianship may also be needed if there are differing views that can’t be resolved in a less restrictive manner.  It may be that the individual has a severe cognitive disability they are unable to make their own decisions and there’s a person that’s been appointed as an Enduring Power of Attorney for personal matters and they have authority to be making accommodation decisions on mum or dad’s behalf and there is massive conflict amongst family members in regards to that.

VCAT have the authority they can review that Power of Attorney appointment but they can also decide if they feel it’s in the best interest of the individual to appoint a guardian to have that authority.  It may be that they appoint the family member or it may be they appoint an independent guardian who would come from our office so they would appoint the Public Advocate.

Administration solely around financial affairs, the role of the guardian; VCAT can hear applications and make orders in regards to appointing guardians and administrators for up to three years.  It safeguards the operation of enduring powers of attorneys also and supportive attorney appointments.  VCAT also have the authority to consent to special procedures.  Anyone with a special interest in an individual or concern about their welfare can make an application to VCAT and can express their concerns regarding decisions that are needing to be made for that individual that has a disability.

The Guardianship Administration legislation specifically talks about an individual with a disability.  The Powers of Attorney Act and the Medical Treatment Planning Decisions Act talks about decision-making capacity.  VCAT also have the authority to make orders in regards to the Medical Treatment Planning Decisions Act.

Under the guardianship list, VCAT protects a person 18 years or over as a result of disability who’s unable to make the decision.  The definition of disability in the Guardianship and Administration Act is an intellectual impairment, a mental disorder, brain injury, physical disability or dementia.  It’s a broad range.  VCAT also have the jurisdiction for special procedures.  These are procedures, medical treatment that would possibly cause permanent infertility, the termination of a pregnancy or the removal of tissue for transplant.

This is the process if someone was concerned about an individual and they put forward, we would always encourage anyone that has concerns about an individual not having the ability to make reasonable decisions for themselves to contact the advice service and to unpack the concerns and the issues so that we could try to direct you whether guardianship would be appropriate or administration or whether there are less restrictive options available for that individual.  Guardianship and administration should always be seen as last resort.

An application would put forward a VCAT Application and then there may well be a need for an investigation, VCAT would determine that and that would come from our office.  If there is no need for that then VCAT would set a hearing date.  The individual and all interested parties would attend that hearing and then it would be up to VCAT to determine whether it’s in the interest of that individual and there is no less restrictive means to appoint a guardian or administrator.

If they choose to appoint a guardian, they can appoint a private guardian.  As I said before that could be a family member, it could be a close friend or if there’s no one that’s appropriate that fits that then they could appoint the public advocate.  Now a guardianship order can be limited to decision making authority for health care, and or accommodation and or access to persons and or access to services or it can be a preliminary order that encompasses all of those.

An administration order is solely around financial and legal decisions.

Again, when is a guardian or administrator needed; it’s going to come down to the person has to be over the age of 18 and they must have a disability, they cannot make reasonable judgements because of that disability, they need to make a decision.  So it needs to be relevant to the decision at hand it can’t be made pre-emptively for future use and there needs to be someone that can act in their best interest.

VCAT also have the authority to make temporary urgent orders and they do try to hear these applications as soon as possible.  We would always encourage people again, during business hours if you feel that someone requires an urgent or emergency order please if there is time ring our office first to unpack the situation.  It’s very restrictive and it really should be seen as last resort and only in emergency situations because there’s no hearing for a temporary urgent order and it can be only made for 21 days and it can be extended again.

A guardian if one is appointed will be an advocate will protect an individual from abuse and exploitation and neglect, will respect family relationships culture and confidentiality.  Will always try to consider the wishes and the least restrictive options for that individual and will consult with anyone who has a real interest in the well-being of the individual.  Now a guardian can be someone that’s been appointed who is a family or friend or as I said before, as a last resort it’s from the Public Advocate is appointed and one of the delegates will undertake that role.

VCAT have the disability jurisdiction for all these legislative acts so for the Guardianship and Administration Act, the Powers of Attorney Act, the Medical Treatment Act of 1988 which has since been repealed, the Instruments Act of 1958 which again is being repealed, the Disability Act, the Medical Treatment Planning Decisions Act and their own Victorian Civil and Administrative Act.

For more information as I said before I’d strongly recommend that not only do you ring our advice service but you look on our website and navigate through it or the publications.  I’ve got many publications out in the foyer.  I have raced through that and I do apologise but three legislative acts in an hour is a big ask.

Any questions?

QUESTION:
Hi, I’m actually a parent of a young man who is 21 with reduced capacity and was born that way.  You actually didn’t touch on this group, which is very problematic when they turn 18.  I am his nominee under several jurisdictions as in Centrelink, the NDIS and Medicare have just bought out nominee forms only in the last couple of months which I’ve submitted and I’m still waiting.

The problem is with the banking sector still and I’ve had a big problem with them.  I had to go to the financial ombudsmen to get something.  They’re claiming they will only accept administrative orders, which I’m not prepared to do because I don’t see –

SHARON CUTRALE:
Powers of Attorney.

QUESTION:
They don’t give Powers of Attorney and this is a real problem.  To me it’s discriminatory.  The State doesn’t look after yours and my money why should it look after David’s.  They’ve admitted I’ve been looking after his money properly.  I’ve since changed banks and it all has to now be put in my name.  It shouldn’t be like that because it’s not my money it’s his.

What are you doing for this group who have never got – he can decide what he wants to eat what he wants to wear every day but he can’t make these big issues.

SHARON CUTRALE:
It’s not an uncommon issue, I’m sorry to hear it.  On the advice service, we would always encourage parents in your situation to push back on the bank and say you can’t discriminate.  If they stand their ground then really it is the financial ombudsman.  But the office does work to advocate systemically and try to make change.  At this point in time, I haven’t heard of anything that fits that category.

QUESTION:
No, it hasn’t and even the financial ombudsman it wasn’t about – they are limited, it wasn’t about making them pick their act up and behave properly, and non-discriminatory it was purely to get the accounts closed when I emptied them.  That’s what I had to go to the ombudsman to get done because Westpac Bank and I will name them, actually wouldn’t even do that.  Within 24 hours, oh, we’ve changed it, yes, we will do it.  How ridiculous.

SHARON CUTRALE:
I agree and like I said, it’s not uncommon and I’m really sorry that you’ve experienced that.  But until –

QUESTION:
In relation to this group we can’t keep going down this road, we’re in 2018.

SHARON CUTRALE:
I’ll take it back to the office and certainly express –

QUESTION:
I rang your office about it and they talked about making them accountable – they won’t go there.

SHARON CUTRALE:
That’s what we hope but some people do have success with that.  I have had a few callers come back to me where as soon as I mentioned the word discrimination they opened a few doors but they were the lucky ones.  We are very aware it’s an issue and I will certainly take it back to the office.  I do apologise I don’t have an answer for you today but I will take it back.

Anyone else, surely there must be a question and Jimmy you’re not allowed to ask.  No one.

QUESTION:
Is there money still coming through to help people who are needing it who have a disability?  I know a lot of people are still saying that the money is not coming through and they do need it.

SHARON CUTRALE:
I’m sorry money from where though.  I work at the Office of the Public Advocate we don’t deal with anyone’s financial affairs.  If you’re talking about it, it would be an administration order and it would be determining based on who VCAT have appointed to be the administrator.

So if someone is having difficulties and they’re under an administration order and VCAT have appointed someone then I would suggest that those enquiries go directly to them.  Unfortunately, I can’t answer that question.

If VCAT make an order and appoint our office, appoint the Public Advocate it’s solely for guardianship matters.  We can certainly give advice on the advice service if you want to ring, the advice and education officer could talk to you about your specific issue and try to help you unpack it and give you a pathway forward but I can’t at this point, sorry.

QUESTION:
It is interesting to know these things and I know a lot of people are complaining about the NDIS and not getting that money through and still there were many people who are not receiving that package.

SHARON CUTRALE:
Again, it’s not an uncommon circumstance.  I’m sorry to hear that.  By all means please ring the advice service and we can try to help you specifically to your individual circumstances.

QUESTION:
Maybe I will ask a few people from the Office of Disability because I know some of them are here.

MELISSA HALE:
Are there any more questions – no.  Okay thank you very much Sharon.

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Author:
Sharon Cutrale

Source:
Office of the Public Advocate

Date published:
Thu 28th Jun, 2018