The concept of supporting people to make their own decisions is not new. We all need assistance at times to make decisions, whether those decisions are about our health, where we live, or what we buy.
But there is now a much greater focus on the need to do more to support people, particularly people with cognitive disability, to make their own decisions. There is now an ever-stronger call for substitute decision making to be used only in situations of absolute necessity.
Substitute decision making occurs when someone makes a decision for another person. This can happen informally, when a person simply makes decisions for another person without being appointed to that role. Or it can happen through a formal legal process, when, for instance:
- a person is appointed to make decisions for another person under an adult guardianship or administration order; or
- a compulsory mental health treatment order is made; or
- an enduring power of attorney is activated; or
- a statutory health attorney makes a medical treatment decision for a patient.
While there have always been people with cognitive disability who have been supported by family members or friends to make their own decisions, over the last fifteen years Australia has implemented a range of legal, policy and practice developments and initiatives to see this happen more often.
Since Australia ratified the United Nations Convention on the Rights of Persons with Disabilities in 2008, there have been many reports, from authors including the Australian Law Reform Commission, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the National Disability Insurance Agency, all recommending that Australia implement legislative, policy and procedural reforms to facilitate a reduction in the use of substitute decision makers in favour of people being supported to make their own decisions.
The right to be supported to make your own decisions has become one of the most important human rights of people with cognitive disability. But how can supported decision making be implemented effectively to achieve greater autonomy for people with cognitive disability?
The Public Advocate has completed a variety of work to promote supported decision making for people with impaired decision making ability, including:
- A Supported Decision Making Demonstration Project conducted by Multicap, in partnership with the Public Advocate and Office of the Public Guardian, which engaged five guardianship clients in the process and practice of supported decision making.
- Expanding Horizons: Examples of Supported Decision Making in Queensland – a 2024 publication sharing how a number of Queensland agencies are bringing to life supported decision-making in practice.
- Promoting the rights of people with impaired decision making ability to be supported to make their own decisions in various submissions to government agencies considering reforms.
- In 2020, input into amendments to the Guardianship and Administration Act 2000, which now includes:
- Redrafting the general principles and the health care principles to be more consistent with the United Nations Convention on the Rights of Persons with Disabilities;
- Relocating the general principles and the health care principles to the beginning of the Act to highlight the new principled approach and to encourage the exercise of functions and powers under the Act to be more consistent with human rights and contemporary practice;
- Clarifying that a person making a decision for an adult on an informal basis must apply the general principles; and,
- Clarifying that the general principles should be applied whenever a person or entity performs a function or power under the Act, not just in relation to an adult with impaired capacity.
- A 2016 report, tabled in the Queensland Parliament, Decision-making support and Queensland’s guardianship system . This report was underpinned by four documents published by the Public Advocate which are available here .