The ‘Human rights in practice: Decisions, capacity and options’ project is a community education training package. The aim of the project is to improve the capacity of target audiences to consider and promote the human rights of adults, especially older persons, in the context of Queensland’s guardianship and administration reforms and its human rights laws.
On 30 November 2020, a number of key reforms to Queensland’s guardianship system came into effect. These reforms include:
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- changes to the guardianship laws to strengthen the safeguards against abuse;
- production of capacity assessment guidelines;
- movement away from a best interest model to views and preferences model;
- clarification that an adult cannot be found to lack capacity until all practical steps have been taken to provide the adult with the support and information needed to make the decision.
This project focuses on these reforms with an emphasis on how to increase human rights practice. The modules have been specifically created to be informative and provide practical tools suitable for multiple disciplines, roles and sectors most likely to interact with older persons when decisions are being made about financial or personal issues.
The reforms were made in alignment with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to make the general principles and health care principle more consistent with human rights. The UNCRPD expects people to participate in all their decisions to the fullest extent possible. This approach fits well within the Queensland Human Rights Act 2019. However, in order to be achieved, there needs to be a stronger focus on assisted or supported decision-making including within a substituted decision-making framework.
The training modules will explore how assisted or supported decision making can be applied within a Queensland context, specifically for legal, health and aged care sectors when assisting people with or through the guardianship system.
Caxton Legal Centre has more than 30 years’ experience delivering tailored, multi-disciplinary services to older persons, in particular to those at risk of or experiencing elder abuse response. Caxton adopts a human rights focussed framework towards service delivery. Caxton has observed that there are opportunities to increase knowledge about how to support older people, including in the guardianship regime, in a way that meaningfully promotes their rights to autonomy, participation, independence, and dignity.
Older people are disproportionately affected by breaches of these rights. There is an overemphasis on the role and ‘powers’ of the substitute decision-maker, leading to the rights and voice of the older person being diminished. This can result in the intrusion of rights of older persons by substitute decision-makers including via:
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- overreaching guardianship and administration proceedings;
- the manner in which enduring documents are made or administered;
- the aged care sector’s overemphasis of an attorney’s rights;
- carers not promoting or protecting rights, views, wishes and preferences;
- health system failures.
It is this insight that underpins the training modules. The training program consists of the following modules:
1. Human Rights practice, older people and adults with disabilities – this module provides an overview introduction to human rights, addresses the ‘why now?’ aspect and unpacks what human rights are available but also how they might arise in practice.
2. Supported decision-making – this module focuses on how adults with some disability in relation to their decision-making may be assisted or supported to make their own decisions, with references to changes made in 2019.
3. Future planning and enduring documents – this module focuses on enabling adults to participate in choosing who may support them and how their health, financial or personal needs are managed if they lose capacity for a decision in the future. This module also covers the recent changes and impacts.
4. Assessing capacity for decision-making: Foundational – this module focuses on how, when and where capacity for decision-making assessments occur, key considerations and concepts and how to assess in a way that maximise human rights.
5. Assessing capacity for decision-making: Advanced – this module focuses on substituted decision-making as a last resort and how to refer, when to refer and to whom to refer. This module also covers issues around guardianship, administration and Queensland Civil and Administrative Tribunal referrals are also reviewed and discussed.