NSW Guardianship Law to be Reviewed by NSWLRC

In early January 2016, the NSW Law Reform Commission (the Commission) announced on its website that it is seeking preliminary submissions for a review of the Guardianship Act 1987 (NSW) (the Guardianship Act) by 21 March 2016. Apart from the Guardianship Act the following NSW legislation and its relationship to the Guardianship Act will also be considered as part of the review:

• NSW Trustee and Guardian Act 2009 (NSW);
• Powers of Attorney Act 2003 (NSW);
• Mental Health Act 2007 (NSW); and
• Guardianship of Infants Act 1916 (NSW).

The Commission will publish submissions on its website and refer to them in publications unless confidentiality for all or part of the document is requested.

The Commissions Terms of Reference

On its website, pursuant the Law Reform Commission Act 1967 (NSW) section 10, the Commission has posted that it has been asked to: ". . . review and report on the desirability of changes to the Guardianship Act 1987 (NSW)" having regard to:

1. The relationship between the Guardianship Act 1987 (NSW) and the legislation already listed above;
2. Recent relevant developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia and overseas [for example, the National Disability Insurance Scheme and associated legislation];
3. The report of the 2014 Australian Law Reform Commission (the ALRC) "Equality, Capacity and Disability in Commonwealth Laws";
4. The United Nations Convention on the Rights of Persons with Disabilities (the UNCRPD); and
5. The demographics of NSW and in particular the increasing ageing population.

In particular, the Commission is to consider:

1. The model or models of decision making that should be employed for persons who cannot make decisions for themselves;
2. The basis and parameters for decisions made pursuant to a substitute decision making model, if such a model is retained;
3. The basis and parameters for decisions made under a supported decision making model, if adopted, and the relationship and boundaries between this and a substituted decision making model including the costs of implementation;
4. The appropriate relationship between guardianship law in NSW and legal and policy developments at the federal level, especially the National Disability Insurance Scheme Act 2013 (Cth), the Aged Care Act 1997(Cth) and related legislation;
5. Whether the language of "disability" is the appropriate conceptual language for the guardianship and financial management regime and to what extent "decision making capacity' is more appropriate;
6. Whether guardianship law in NSW should explicitly address the circumstances in which the use of restrictive practices will be lawful in relation to people with a decision making incapacity;
7. In the light of the requirement of the UNCRPD that there be regular reviews of any instrument that has the effect of removing or restricting autonomy, should the Guardianship Act provide for the regular review of financial management orders;
8. The provisions of Division 4A of Part 5 of the Guardianship Act relating to clinical trials and the approval and consent process for such trials; and
9. Any other matters the Commission considers relevant to its Terms of Reference.

Related to the Inquiry - Important Further Reading

The Commission's terms of reference in Item 3 (first appearing above) require reference to the ALRC 2014 report "Equality, Capacity and Disability in Commonwealth Laws" (ALRC - Report 124) for which the final report was published on 24 December 2014. A more broad ranging inquiry, it advocated the need for a national approach to such issues and examined the laws and legal frameworks within the Commonwealth that have the effect of denying or diminishing the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity. Following from that Report was also the ALRC's recommendations with respect to the review of state and territory legislation to achieve national consistency in laws relating to this area.

See the ALRC Reports Executive Summary at paras 1.29 and 1.30 where it indicates that its:

and further where it states:

It would also be important to closely consider Chapter 10, where the ALRC has discussed the conduct of a review and the regard should be given to the:

• interaction with any supporter and representative schemes under Commonwealth legislation;
• consistency between jurisdictions, including in terminology;
• maximising cross-jurisdictional recognition of arrangements; and
• mechanisms for consistent and national data collection.

For more on the ALRC report and what it covered see our article: New ALRC Consultation on Equality, Capacity and Disability in Commonwealth Laws.

Other References to Consider

The Law Commission of Ontario recently produced the interim results of a similar inquiry, Legal Capacity, Decision-making and Guardianship [Interim Report (Toronto: October 2015)] which looked at the following areas requiring reform:

• access to the law;
• promoting understanding of the law;
• strengthening the protection of rights under the Health Care Consent Act;
• reducing inappropriate intervention;
• increasing accountability and transparency for personal appointments; and
• enabling greater choice of substitute decision-makers.

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NSWLRC Commission Inquiry Website

Some other reference sources for consideration are:

• Scottish Law Commission, Report on Adults with Incapacity, Report 240 (2014)
• Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report 67 (2010)
• Victorian Law Reform Commission, Guardianship, Final Report 24 (2012)