Lawrence laikind thesisthe application of article 12 of the convention on the rights of persons with Disabilities(CRPD) to decisions of australian tribunals and court administering guardianship legislation

The Application of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) to Decisions of Australian Tribunals and Courts Administering Guardianship Legislation Lawrence Alan Laikind BDSc, LLB (Hons), BCL (Oxon) Supervisors: Professor Ben White (Principal) Dr Loretta de Plevitz and Dr Shih-Ning Then (Associates) Faculty of Law Queensland University of Technology 2016 QUT Verified Signature Acknowledgements I wish to acknowledge and thank a few persons who have been of great assistance towards the efforts that have resulted in the completed thesis First and foremost I wish to express my gratitude to the tireless efforts of my supervisors, Professor Benjamin White, Dr Loretta de Plevitz and Dr Shih-Ning Then It is only through their direction, guidance and organisation that the thesis has reached the necessary standard of clarity and quality required of the project Further, I wish to acknowledge the valuable input of Emeritus Professor Terry Carney at the Final Seminar Professor Carney’s nearly 40 years of expertise in the field of Australian adult guardianship is unrivalled within Australia The time he gave to consider this thesis has improved the completed work Further, as a person with a visual disability, I wish to acknowledge the valuable assistance of the QUT Equity/Disability Support unit Within this team I would like to provide special thanks to Ms Kim Appleton who obtained specialised adaptive computer equipment for me as a person with a visual disability to enable the undertaking and completion of my thesis on campus at QUT Further, I wish to acknowledge the support of Adam McRae for his assistance in the formatting, footnoting, and assembly of the completed chapters into a finished document Adam’s drive and computer skills played a significant role in the success of this project to which I am most grateful Further, I wish to thank the administrative staff in the QUT Law research centre for their assistance I wish to specifically mention Ms Leana Sanders Ms Sanders has provided assistance from the commencement to the completion of this project Her positive attitude, skills and knowledge of the QUT post-graduate research stages were much appreciated Finally, I wish to thank Ms Karen Kline for her emotional support during this project Karen’s assistance with the care of my father who is 92 years of age and resides in his own home with Alzheimer’s disease has enabled me to undertake the research and writing of this thesis Abstract On the 17th of July 2008 Australia ratified the United Nations Convention on the Rights of Persons with Disabilities Article 12(2) of the Convention provides that parties to the Convention shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life Every state and territory of Australia has enacted adult guardianship legislation, one of the aims of which is to appoint guardians and administrators to assist or protect adults lacking decision-making capacity The question this thesis poses is to what extent Australian guardianship tribunals and courts comply with the Convention in relation to residential accommodation decisions In order to this, benchmark criteria were developed from Article 12: Was there compliance with the person’s will and preferences? Was the decision the least restrictive alternative available? Features which might affect the decision – the presence of a positive informal support network, and the negative issues of a conflict of interest with, or between, others, or undue influence on the person – were also used and applied All publicly available guardianship cases from Victoria, NSW and Queensland, jurisdictions representing approximately 80% of Australia’s population, were analysed from the date of application of the Convention to Australia up to July 2015 The results from over 300 cases showed that although there was significant compliance with the evaluation criteria ranging from almost one-third (Queensland and NSW) to nearly one-half (Victoria), the principle of protecting individuals by maintaining their welfare and best interests was given priority over the Convention right of a person to exercise their own legal capacity Table of Contents Chapter .12 Introduction and Literature Review 1.0 Introduction 12 1.1 Initial steps towards supported decision-making 21 1.2 Convention on the Rights of Persons with Disabilities (CRPD) 25 1.3 Supported Decision-Making Compared to Guardianship 29 1.4 Current Australian Guardianship: Autonomy versus Protection 32 1.5 The Human Rights Rationale for Supported Decision-Making 36 1.6 Article 12 of the CRPD: Can Guardianship Still Exist? 42 1.7 How does the Concept of ‘Legal Capacity’ Contained in Article 12 of the CRPD Compare with Concepts of ‘Capacity’ in the general law of Australia? 50 1.8 Models of Supported Decision-Making: Risks and Safeguards 59 1.9 Conclusion 68 Chapter .71 Development of Benchmark Criteria and important features for assessing Compliance with Supported Decision-Making in the CRPD for Australian Guardianship Cases 2.1 Introduction 71 2.2 Possible Sources of the Evaluation Criteria 73 2.2.1 The Canadian Association for Community Living (CACL) 1992 Task Force Report 73 2.2.2 Human Rights Principles in the CRPD 75 2.2.3 Article 12 of the CRPD 78 2.3 Content of the Evaluation Criteria 81 2.3.1 Article 12(1) of the CRPD 81 2.3.2 Article 12(2) of the CRPD 82 2.3.2.1 Least Restrictive Alternative Representing Universal Legal Capacity as an evaluation criterion………………………………………………………………………………………………… 87 2.3.3 Article 12(3) of the CRPD 89 2.3.3.1 2.3.3.2 2.3.3.3 What is meant by ‘supports to exercise legal capacity’? 90 Support models 91 Risks associated with Private and Public Models of Supported Decision-Making 92 2.3.3.4 2.3.4 Article 12(4) of the CRPD 96 2.3.4.1 2.3.4.2 2.3.4.3 2.3.5 The use of Article 12(3) to derive a support-based important facilitating feature 94 Respect the rights, will and preferences 97 Conflict of interest and undue influence 99 Least Restriction 102 Article 12(5) of the CRPD 104 2.4 Identification of the Benchmark of two Evaluation Criteria and two important features 105 2.4.1 Tribunal’s Implementation of the Evaluation Criteria 105 2.4.2 Use and Application of the Benchmark to Guardianship Cases Involving Accommodation for the Following Chapters 106 2.5 Conclusion 109 Chapter 110 Methodology 3.1 Introduction 110 3.2 Selection of the Jurisdictions 110 3.2.1 Victoria 111 3.2.2 New South Wales 113 3.2.3 Queensland 114 3.3 How the cases were obtained 115 3.4 How the cases were analysed 120 3.4.1 3.5 How is compliance with the evaluation criteria to be measured? 122 Methodological research limitations 123 3.5.1 Other factors not covered in this thesis that may affect tribunal compliance with the evaluation criteria 124 3.6 Conclusion 125 Chapter 126 Application of the Benchmark Criteria and important features to Guardianship Cases involving accommodation in Victoria 4.1 Introduction 126 4.2 Issues Specific to Victoria 126 4.2.1 Availability of Relevant Cases 126 4.2.2 The Charter of Human Rights and Responsibilities 2006 (VIC) 127 4.2.3 Interrelationship between the Victorian Charter and the CRPD 130 4.2.4 Victorian Guardianship Cases 134 4.3 Will and Preferences 135 4.3.1 Patrick’s Case 136 4.3.2 Cases illustrating the tension between best interests and will and preferences 139 4.3.3 Medical Best Interests Affected by Knowledge and Understanding of Accommodation Needs 140 4.3.4 Compliance with will and preferences 141 4.3.5 Disagreements involving support networks may override a person’s will and preferences 142 4.3.6 A lack of accommodation options can override the person’s will and preferences in their medical best interests 142 4.3.7 Medical Best Interests 143 4.3.8 Summary of Will and Preferences 144 4.4 Least Restrictive Alternative 145 4.4.1 Introduction 145 4.4.2 Patrick’s case 145 4.4.3 The LMB Case 145 4.4.4 Least restriction where there is no need for a decision or no decision to be made ………………………………………………………………………………………… 146 4.4.5 The exceptional case; where an appointment can be the ‘least restrictive alternative’ 147 4.4.6 4.5 Summary of applying the least restrictive alternative 148 The Presence of a Positive Informal Support Network 149 4.5.1 The LMB Case 149 4.5.2 The VTH case 150 4.5.3 Summary 150 4.6 Conflict of Interest and Undue Influence 151 4.6.1 The LMB case 151 4.6.2 Summary 152 4.7 Discussion 152 4.8 Conclusion 153 4.8.1 Significant compliance 153 4.8.2 Co-incidental compliance 154 4.8.3 The hierarchy of the evaluation criteria and important features 155 Chapter 158 Application of the Benchmark Criteria and important features to Guardianship Cases involving accommodation in New South Wales 5.1 Introduction 158 5.2 Issues Specific to NSW 158 5.2.1 The status of the principle promoting protection, welfare and best interests of the person in the NSW general principles 159 5.2.2 The absence of a charter protecting the human rights of a person with disabilities 160 5.2.3 The formulation of the Guardianship Act 1987 (NSW) 160 5.3 NSW case analysis applying the evaluation criterion of following the individual’s will and preferences 161 5.3.1 Medical Best Interests 162 5.3.2 Resolution of Disagreements 165 5.3.3 Financial Considerations that affect Welfare and Interests 168 5.3.4 Medical Best interests Affected by Knowledge and understanding of the individual’s Needs 170 5.3.5 The Presence of Enduring documents 170 5.3.6 Summary of Will and Preferences 172 5.4 The evaluation criterion of applying the least restrictive alternative 173 5.4.1 Introduction 173 5.4.2 Criterion met where there is no need for a decision or no decision to be made … 173 5.4.3 Least restriction where an accommodation decision cannot be implemented against the individual 175 5.4.4 5.5 Summary 176 The presence of a positive informal support network 176 5.5.1 Introduction 176 5.5.2 Lack of a support network creating a need for a decision/ NDIS cases 177 5.5.3 Positive and negative support networks 178 5.5.4 Summary 180 5.6 Conflict of interest or undue influence 181 5.6.1 Introduction 181 5.6.2 Financial exploitation by the support network 182 5.6.3 Conflict of Interest 183 5.6.4 Undue influence 183 5.6.5 Summary 184 5.7 Discussion 184 5.8 Conclusion, trends and findings from the NSW guardianship cases 185 5.8.1 Significant compliance 186 5.8.2 Coincidental compliance 186 5.8.3 Welfare and interests may be compatible with will and preferences 187 5.8.4 Role of the support network 187 5.8.5 Conflict of interest and undue influence 188 5.8.6 Summary 188 Chapter 189 Application of the Benchmark Criteria and important features to Queensland's Guardianship Regime involving accommodation 6.1 Introduction 189 6.1.1 Brief Historical Background to the Guardianship Regime in Queensland 189 6.2 Issues Specific to Queensland: Legislative features that may or may not promote compliance with the evaluation criteria 191 6.2.1 Application of the benchmark criteria and features 191 6.2.2 Legislative provisions 191 6.2.2.1 Same Human Rights and respect for Dignity and Self-Worth 192 6.2.2.2 Presumption of Capacity and Functional test of Capacity 194 6.2.2.3 Provisions in the Act that recognise the importance of the adult’s informal support network and require support to be provided 196 6.2.3 Summary of Queensland’s legislative provisions 197 6.3 Application of the evaluation criterion of obeying the adult’s will and preferences to Queensland guardianship cases involving accommodation 197 6.3.1 Disagreements between the Adult’s Support Network and the Service Provider 199 6.3.2 Medical Best Interests 200 6.3.3 Disagreements between members of an adult’s existing support network 203 6.3.4 Enduring Powers of Attorney 209 6.3.5 Summary of factors militating against following will and preferences 212 6.4 Applying the Least Restrictive Alternative 215 6.4.1 Introduction 215 6.4.2 Where there is no need for an order as the adult’s informal support network is meeting the needs of the adult 215 6.4.3 Where there were disagreements in the past but these no longer exist 216 6.4.4 Where there are no accommodation decisions to be made even though disagreements remain within the adult’s support network 216 6.4.5 Where a previous concern of health and safety for the adult no longer exists ………………………………………………………………………………………… 217 6.4.6 Where an informal substituted decision can be made by the adult’s positive support network 217 6.4.7 Where a positive support network may assist in finding the presumption of capacity is not rebutted 218 6.4.8 Where it is futile to continue with a guardianship order as it cannot be implemented against the adult 218 6.4.9 6.5 Summary 218 The Presence of a Positive Informal Support Network 219 6.5.1 Introduction 219 6.5.2 Presence of a positive informal support network 219 6.5.3 Lack of a support network 219 6.5.4 Dysfunctional support network 220 6.5.5 Summary 222 6.6 Conflict of Interest and Undue Influence between the Adult and their Support Network 222 6.6.1 Introduction 222 6.6.2 Conflict of interest 223 6.6.3 Undue Influence 224 6.6.4 Summary 225 6.7 Discussion: Comments and Findings from the Queensland Cases 225 6.7.1 Findings 225 6.7.2 Possible explanations for the findings 226 6.7.3 Deficiencies with the Queensland Guardianship Regime 228 6.8 Conclusion 228 6.8.1 Coincidental compliance 230 6.8.2 Significant compliance 230 6.8.3 Factors militating against obeying will and preferences 230 6.8.4 Least restrictive alternative 231 6.8.5 Positive informal support network 231 6.8.6 Conflict of interest and undue influence 231 Chapter 233 United Nations, 'Comments, proposals and amendments submitted electronically for the 4th Ad Hoc Committee Meeting on Article 12 Equal recognition as a person before the law' (UN, 2005) United Nations, 'Daily summary of discussion at the fifth session of the Ad Hoc Committee of the Convention of the Human Rights of People with Disabilities' (UN, 2005) United Nations, 'Fifth Session of the Ad Hoc Committee Report' (2005) United Nations, 'Comments, proposals and amendments submitted electronically by govenments and the international disability caucas to Article 9' (UN, 2006) United Nations, 'Comments, proposals and amendments submitted electronically to the 7th 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QGAAT 58 (3 July 2009) PAG, Re [2009] QGAAT 59 (10 July 2009) PC [2009] QCAT 17 (4 December 2009) PJB (Guardianship) [2010] VCAT 643 (17 May 2010) PJB v Melbourne Health and the State Trustees of Victoria [2011] VSC 327 PK [2010] QCAT 75 (12 February 2010) PLC v Adult Guardian [2013] QCATA (14 January 2013) 325 PNQ [2013] NSWGT 39 (12 December 2013) PP [2013] QCAT 247 (28 May 2013) PR [2012] QCAT 610 (10 October 2012) PRH [2010] QCAT 529 (29 October 2010) PSB [2013] QCAT 17 (17 January 2013) PV v NSW Trustee and Guardian [2011] NSWADT 89 (4 May 2011) PVJ [2014] QCAT 205 (14 February 2014) PXC [2011] NSWGT (13 January 2011) PZ v NSW Trustee and Guardian [2010] NSWADTAP 14 (15 March 2010) QAI [2010] NSWGT (25 January 2010) QBZ [2010] NSWGT (28 January 2010) QDI [2013] NSWGT 26 (26 August 2013) QNE [2014] NSWCATGD 10 (3 April 2014) RAE, Re [2008] QGAAT 89 (27 November 2008) RB (Guardianship) [2010] VCAT532 (12 May 2010) Re AAE [2009] QGAAT 29 (29 April 2009) Re B (No 1) [2011] NSWSC 1075 (15 September 2011) Re B (No.2) [2011] NSWSC 1264 (11 October 2011) Re BAA [2009] QGAAT (15 January 2009) Re C [2012] NSWSC 1097 (14 September 2012) Re CAA [2009] QGAAT (19 February 2009) Re CAB [2009] QGAAT 20 (27 March 2009) Re F [2013] NSWCA 239 (26 July 2013) Re HAB [2008] QGAAT 82 (5 November 2008) Re HAC [2009] QGAAT 55 (7 July 2009) Re HAD [2008] QGAAT 96 (24 December 2008) Re HAD [2009] QGAAT 75 (1 October 2009) Re JAB [2009] QGAAT 42 (27 May 2009) 326 Re JD [2003] QGAAT 14 (19 September 2003) Re KAF [2008] QGAAT 91 (16 December 2008) Re Kavanagh's Application [2003] HCA 76 Re MAD [2009] QGAAT 22 (8 April 2009) Re MAH [2008] QGAAT 53 (20 June 2008) Re MAM [2008] QGAAT 92 (17 December 2008) Re MAN [2008] QGAAT 97 (24 December 2008) Re PAA [2009] QGAAT 18 (20 March 2009) Re PAP [2008] QGAAT 70 (8 October 2008) Re RAA [2009] QGAAT 66 (31 August 2009) Re RAB [2009] QGAAT 72 (28 September 2009) Re SAD [2009] QGAAT 28 (19 May 2009) Re SAF [2008] QGAAT 73 (24 October 2008) Re SAF [2009] QGAAT 62 (27 July 2009) Re TAA [2009] QGAAT 39 (19 May 2009) Re WAA [2009] QGAAT 32 (27 April 2009) Re WAB [2009] QGAAT 48 (12 June 2009) ReC (no2) [2012] NSWSC 1351 (2 November 2012) ReF [2013] NSWSC 54 (31 January 2013) ReH [2013] NSWSC 1384 (13 September 2013) RFM [2012] NSWGT 20 (8 August 2012) RHH [2012] NSWGT 25 (3 December 2012) RMR [2011] QCAT 636 (23 November 2011) RWD [2012] QCAT 597 (1 November 2012) SA [2014] QCAT 635 (7 November 2014) SAA [2012] QCAT 707 (26 November 2012) SAB v SEM & Ors [2013] NSWSC 253 (21 March 2013) SAB, Re [2009] QGAAT 16 (18 March 2009) 327 SAG, Re [2009] QGAAT 67 (16 September 2009) SAL [2013] QCAT 31 (11 January 2013) SAM [2015] QCAT 93 (4 March 2015) Sarah White v The Local Health Authority & Anor [2015] NSWSC 417 (13 April 2015) SAS [2014] QCAT 26 (15 January 2014) SBA [2015] QCAT 28 (20 January 2015) SDF [2013] NSWGT (17 January 2013) SGA [2015] QCAT 15 (15 January 2015) SI [2012] QCAT 577 (17 October 2012) SJWN [2013] QCAT 136 (6 March 2013) SM [2014] QCAT 596 (28 October 2014) SNC (No1) [2014] NSWCATGD 17 (27 February 2014) SNE (Guardianship) [2014] VCAT 124 (20 August 2014) SP [2010] QCAT 361 (29 July 2010) ST [2012] QCAT 12 (23 January 2012) Su v Public Guardian [2014] NSWCATAP 32 (10 July 2014) TAM [2010] NSWGT 21 (5 March 2010) TAT [2011] NSWGT (7 April 2011) TBT [2013] NSWGT 17 (20 February 2013) TF v PZ (GD) [2011] NSWADTAP 33 (25 July 2011) TJR [2011] QCAT 527 (20 October 2011) TKX [2009] NSWGT (2 September 2009) TL [2011] QCAT 253 (2 June 2011) TP [2015] QCAT 35 (15 January 2015) TS [2011] QCAT 684 (14 November 2011) TS [2014] QCAT 598 (10 November 2014) TWG [2010] QCAT 618 (11 November 2010) UUU [2013] NSWGT 24 (22 August 2013) 328 VTH (Guardianship) [2012] VCAT 1649 (8 October 2012) WBC [2014] QCAT 502 (8 October 2014) WBN [2009] NSWGT (2 November 2009) WD (Guardianship) [2011] VCAT 2442 (20 September 2011) WED [2009] QCAT (14 December 2009) WIV [2012] QCAT 608 (23 October 2012) WJP [2012] QCAT 714 (28 November 2012) WMJ [2012] QCAT 595 (24 October 2012) WS v NSW Trustee and Guardian [2011] NSWADT 138 (8 June 2011) WSF [2010] QCAT 12 (22 January 1010) WSU [2013] NSWGT 37 (4 December 2013) WT [2009] QCAT 27 (22 December 2009) WT [2010] QCAT 633 (24 November 2010) WTA [2012] NSWGT 23 (27 November 2012) WWB [2012] QCAT 175 (2 February 2012) XAD [2013] NSWGT 10 (12 July 2013) XJ v Guardianship Tribunal [2010] NSWADTAP 63 (20 September 2010) XKJ (Guardianship) [2015] VCAT 875 (14 April 2015) XNP [2011] NSWGT 24 (10 February 2011) YLS [2012] NSWGT 13 (9 May 2012) YYN [2013] NSWGT 36 (29 October 2013) ZGH [2013] NSWGT (15 January 2013) ZUS Guardianship List [2014] VCAT 1621 (9 December 2014) C Legislation Adult Guardianship Act 1988 (NT) Charter of Human Rights and Responsibilities Act 2006 (VIC) Civil and Administration Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (CTH) 329 Guardianship Act 1987 (NSW) Guardianship and Administration Act 1986 (VIC) Guardianship and Administration Act 1990 (WA) Guardianship and Administration Act 1993 (SA) Guardianship and Administration Act 1995 (TAS) Guardianship and Administration Act 2000 (QLD) Guardianship and Administration Bill 2014 (VIC) Guardianship and Management of Property Act 1991 (ACT) Powers of Attorney Act 1998 (QLD) Powers of Attorney Act 2014 (VIC) Queensland Civil and Administration Act 2009 (QLD) Queensland Civil and Administrative Tribunal Act 2009 (QLD) Representation Agreement Act, 1996 RSBC c 405 Succession Act 1974 (QLD) Victorian Civil and Administrative Tribunal Act 1998 (VIC) Yukon Decision-Making Support and Protection to Adults Act, 2003 SY c 21 D Treaties Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature March 1981 UNTS (entered into force by Australia on 28 July 1983) Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS (came into force May 2008) International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993 UNTS (came into force January 1976) International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS (entered into force November 1976) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, UNTS (entered into force 27 January 1980) 330 ... under the Convention on the Rights of Persons with Disabilities'' (2 012) 20 Journal of Law and Medicine 22; Penelope Weller, ''The Convention on the Rights of Persons with Disabilities and the Social... research and writing of this thesis Abstract On the 17th of July 2008 Australia ratified the United Nations Convention on the Rights of Persons with Disabilities Article 12( 2) of the Convention provides... section will examine the background to the CRPD, the effect of its ratification for Australia, the justifications for a new convention and an introduction to Article 12 of the convention The Convention