Draft Adult Decision Making Bill

The Law Society Northern Territory (The Society) welcomed the opportunity to respond to the draft Adult Decision Making Bill.

The Society represents approximately 600 lawyers in the Northern Territory including Government and private lawyers. Additionally the mission of the Society is to enhance access to justice, improve the law and maintain individual rights. In doing this the Society focuses on evidence based interventions and ensuring legal needs are addressed.

The Society has conducted consultations with its Social Justice Committee in developing this response to the draft Adult Decision Making Bill.

Summary

The Society seeks:

• Assessment of the funding implications of the legal needs created by this Bill and resources allocated accordingly.
• Definitions of significant terms such as ?health care provider? and ?medical practitioner? and adequate oversight mechanisms.
• Clarification about the process for making a life management document
• Clarification of the interaction with the Trustee Act where the ADM is making decisions with respect to money of the affected adult.
• Protection from liability for information holder when giving information to an ADM in good faith
• Facility to pay non-professional ADMs
• Clarification on the power of the Tribunal
  • Need for own motion
  • Requirement for the Tribunal to give written reasons for its decisions
• Clarification on the power of the Commissioner

Assessment of the funding implications of the legal needs created by this Bill and resources allocated accordingly.

The Society applauds the Bill for creating a new Tribunal that includes a facility for the Tribunal to appoint a legal representative for the affected adult in those proceedings, and meet the costs of that appointment.

The Society is generally concerned how legal assistance will be provided to the affected adults and their families. Importantly the Society is interested in ensuring that the legal need is quantified and legal service providers are adequately resourced to meet that need for those not able to afford legal representation.

The Society foreshadows that an affected adult may require legal assistance in other areas. The Society questions what mechanisms are in place to ensure affected adults are provided legal assistance in other fora. As an example if an affected adult is in the care of the Commissioner how would they negotiate the new secure care regimen, and particularly seek a review of their detention in secure care? What guidelines will the Commissioner have in place to ensure that the legal representatives are adequately skilled to represent the affected adult?

The Society is currently considering what assistance it can provide to the profession to ensure that they are best equipped to assist clients under a legal disability. The Society is considering formulating best practice principles that may assist practitioners in this area. The Society is keen to support agencies retaining legal practitioners in areas where clients are particularly vulnerable or disadvantaged.

Clarification about the process for making a life management document

The procedure outlined in s20 for making a life management document appears overly burdensome. In particular the witness must make an assessment as to the voluntariness of the maker. In the Society?s view the requirement of a witness should be on similar terms as contained in the Wills Act. In other words the document ought not be invalidated because the witness was unaware of what was being witnessed. Additionally the witness ought be obliged to see the person executing the document. Placing the burden upon the witness at the time of execution, may unwittingly expose the witness to similar duress. As a result where a document has a witnesses signature affixed it may become even harder to establish the existence of duress.

Definitions of significant terms such as ?health care provider? and ?medical practitioner?.

The Society is keen to ensure that people able to take urgent health care action without consent under section 99 are those with appropriate skills and expertise as well as appropriate oversight. In the view of the Society this includes regulatory oversight. The ability of a ?health care provider? to take such action should be limited to only being exercised under the direction of a medical practitioner, similar to the decision to withhold life sustaining treatment as in section 100.

The Society supports the differentiation contained in section 14 with respect to professional and non-professional decision makers. The regime creates two classes of decision makers those governed by professional codes of conduct (section 14(3)), and those that are not (section 14(1)). The Society urges that health care providers be as far as possible be regulated professionals for example under the Health Practitioner Regulation National Law or be members of the appropriate professional body, with articulated codes of conduct.

The Society recommends that existing oversight mechanisms be utilized where possible. For this reason the Society recommends that the definition of ?health care? be limited to ensure that the health care providers are subject to oversight.

The definition of health service in the Health Practitioner Regulation National Law section 5 is as follows:

health service includes the following services, whether provided as public or private services?

• (a) services provided by registered health practitioners;
• (b) hospital services;
• (c) mental health services;
• (d) pharmaceutical services;
• (e) ambulance services;
• (f) community health services;
• (g) health education services;
• (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g);
• (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists;
• (j) pathology services.

The Society recommends that the definition of health service in the Health & Community Services Complaints Commission Act be adopted and include community service. The definitions are extracted below:

community service means a service for aged people or a service for people with a disability.

health service means a service provided or to be provided in the Territory for, or purportedly for, the benefit of the health of a person and includes:

(a) a service specified by the Regulations as being a health service; and

(b) an administrative service directly related to a health service;

but does not include a service specified by the Regulations as not being a health service.

Clarification of the interaction with the Trustee Act where the ADM is making decisions with respect to money of the affected adult.

The Bill contemplates that an ADM (including an ADM Tribunal) may have control over an affected Adult?s financial affairs. In this regard the Bill notes that the property must be dealt with ?as if it were trust property.? The Society is thus unclear about the arrangement being created and as such would seek clarification as to the application of the Trustee Act and particularly would seek explanation what is intended to in fact occur. On one reading it would appear that the Trustee Act would apply except that a trust is expressly not created.

Protection from liability for information holder when giving information to an ADM in good faith (page 22, section 39(6))

The Society recommends that the protection from liability for those giving information to an ADM under compulsion of the Tribunal be broader and recommends that an information holder acting in good faith in providing information under section 39 is not civilly or criminally liable, or in breach of any professional code of conduct for providing or disclosing that information.

Facility to pay non-professional ADMs (page 26, section 48)

The Society considered that there may be situations where a non-professional ADM may seek payment for example where a family member (also the ADM) ceases employment and takes a role as carer for the affected adult.

Clarification on the power of the Tribunal

whether the Tribunal needs the power to make a direction of own motion (page 49, section 103)

The Society considered that there may be circumstances, say the absence of an interested party or a health care provider in which the Tribunal may wish to make a determination of its own motion.

Requirement for the Tribunal to give written reasons for its decisions (page 73, section 167)

In the Society?s view the Tribunal ought be required to give reasons for its decision, and not await a request. Failure to give reasons would undermine the appeal rights. Importantly in the absence of written reasons an interested person would be unable to determine if an error of law had been made. The limitation period of 28 days in section 170(c) may not commence until reasons have been given, additionally an extension would likely be granted where reasons are subsequently requested and a purported appeal point identified.

Clarification on the power of the Commissioner (pages 58+59, sections 121, 122, 123)

In the Society?s view it is unclear that the Commissioner has sufficient power to exercise the oversight role. The Society would recommend aligning the Commissioner?s role with other existing roles such as the community visitor program.