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Review of Draft Advanced Personal Planning Bill

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The Society has conducted consultations with its Social Justice Committee and the Commercial Law Committee in developing this response to the draft Advance Personal Planning Bill (the ?Bill?).

The Society supports the development of a legislative framework that provides a means for people in the Northern Territory to plan decisions in advance that concern their prospective health and welfare, in the event they may suffer from impaired decision making capacity when such decision are required to be made. Legislation to enable advanced decision making represents an important reform because it advances the recognition a person?s right to exercise self-determination over matters which affect them intimately, matters which affect their body.

Legislation supporting advanced decision making opportunities, in respect of health and welfare, is presently inadequate in the Northern Territory. Existing legislation is largely limited to certain types of treatments and care options which apply only in certain limited circumstances. The Society considers legislation expanding on the existing legislative framework as a necessary and overdue legislative reform and applauds the government for prioritising this issue.

In summary the Society?s comments are:

  • A suite of reforms across related legislation is required, and should be more fully considered by government;
  • Legal mechanisms for advanced planning in respect of health and welfare should be clearly delineated from legislation in respect of planning for financial and property matters;
  • Legislation concerning planning for a person?s health and welfare should be consolidated under one Act;
  • Additional laws concerning planning for financial and property affairs should be dealt with by way of amendments to the Powers of Attorneys Act;
  • Use of the best interest test should be replaced with the substituted judgment test;
  • There should be no ambiguity that directives provided pursuant to the common law are preserved;
  • removal of the option of appointing joint decision makers;
  • The title of the proposed Act should be amended to either the Advanced Health Care Directives Act or the Powers of Attorney (Medical) Act.

1.1 Are there any general issues or concerns that should be addressed in relation to the Advance Personal Planning Bill 2013?

Comprehensive Reform of Legislations

The Society is mindful the present Bill, although it represents an extremely important development in the recognition of a person?s rights, it also represents only one reform in a suite of reforms that are needed. The Society calls for the review of the existing legislative framework supporting services and for the recognition of rights of people with impaired decision-making capacity, with a view to:

  1. addressing current concerns regarding the workability of Adult Guardianship Act (AGA) and address issues of consistency in terminology across different legislation;
  2. reorganising legislation so that the provision of the Emergency Medical Operations Act, the Natural Death Act, the provisions under the existing Bill that deal with health and welfare, and any other legislation or provisions dealing with advanced planning be constituted in the one Act;
  3. bringing the Northern Territory more into line with other jurisdictions, such as Victoria which are considerably more advanced in recognising the rights of people who have impaired capacity; and
  4. bringing the Northern Territory closer to fulfilling its international legal obligations concerning the realisation of the rights and freedoms for persons with disabilities.

Substituted decision making

The Bill provides a set of decision making principles intended to guide a decision maker in the exercise of his/her authority under the Bill. The principles stipulate that the best interests must be paramount, and furthermore the Bill defines broadly the meaning of best interests. The Society recommends the replacement of the best interest test with a substituted judgment standard.

Substituted judgment is now the preferred basis of decision making in this context, and is promulgated as such under the National Framework for Advanced Care Directives. The Bill should be amended to reflect the principles set out in the Framework, particularly those principles described in section headed Best Practice Standards for Substituted Decision Making.

It may be preferable to limit ?defining? substituted judgment in the Bill to a set of guiding principles rather than actually defining this term in the way best interests is defined in the Bill.

Preservation of common law directives

Common law rights exist which recognise advanced decision making in some circumstances, including the provision of consent by others to the medical treatment of an individual in circumstances where that individual has suffered impaired capacity. These common law rights are utilised at present in the hospital system context via the use of Directions. Given this backdrop the Bill should clearly provide for the recognition of those Directions which are provided in accordance with existing common law rights. The Society recommends further consideration of the provision concerning common law entitlements to make it clear Directions are intended to be recognised.

Resolution of Disputes

The Bill provides for the appointment of two or more persons to act as decision makers, and who can be appointed to act either jointly or severally. The Society is concerned decision making may be stalled where joint decision makers cannot agree.

The Society?s preference is the removal from the Bill of the option of appointing decision makers to act on a joint basis. Alternatively if the option of appointing joint decision makers remains in the Bill, the Bill should further provide that the only obligation on a health care professional is to contact and consult with the first available decision maker. It would then be the function of that first decision maker to contact and confer with the second decision maker. In the event agreement cannot be achieved, the BiIl should provide that the first decision maker contacted may exercise his/her authority severally.

Title of the Act

The title of the proposed Act, in the view of the Society, is not sufficiently informative, and recommends an alternative title is considered.

The Society notes the title may be easier to formulate if financial and property matters were excluded from the Act, and it instead dealt solely with planning for health and welfare matters. If this was the case the following titles may be more appropriate:

  • Advanced Health Directives Ac; or
  • Powers of Attorney (Medical) Act.

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1.2 Is the requirement for the decision maker to sign the plan and have it witnessed too onerous?

A decision maker appointed and who acts in accordance with an individual?s advance care statement may have the power to act in respect of the appointer?s property and financial affairs as well as their care and welfare.

The Wills Act and the Powers of Attorney Act each deal with the execution of documents purporting to deal with a person property and financial affairs, albeit in differing circumstances. The provisions concerning the signing of an advance personal plan are similar to the execution requirements for the creation of a power of attorney. That is, both are required to be in writing and executed in the presence of a person authorised under the Oaths, Affidavits and Declaration Act.

The Society considers it appropriate and indeed important that documents purporting to deal with a person?s property and financial affairs be properly witnessed by a person authorised under the Oaths, Affidavits and Declaration Act. The Society supports the procedures set out in section 10 of the Bill to the extent a personal plan deals with a person?s property and financial affairs.

The Society however views the execution requirements in respect of decision making concerning a person?s health care and decision making in respect of financial and property affairs differently. The Society considers the requirements set out in section 10 of the Bill to be too onerous in the context of a personal plan concerning the health and welfare of the individual.

It may not always be practicable for person to access or locate an authorised person to act as a witness in order to ensure a personal plan is validly created. The process of creating the plan should, as far as possible, be a straightforward and accessible exercise to as many people as possible. The Society views the creation a personal plan as analogous to the creation of will, and suggests an execution process similar to that required under section 8 of the Wills Act. The Wills Act provides a will is valid when it is signed by the testator in the presence of two witnesses and no requirements exists that those witnesses be authorised under the under the Oaths, Affidavits and Declaration Act.

1.3 Should a decision maker have to consent to their appointment as a decision maker?

Yes. It is appropriate that the appointed person consent prior to confirmation of an appointment under a personal plan. The requirement for prior consent will minimise any concerns that may arise regarding non acceptance of the role at the earliest possible stage.

1.4 Should decision makers be able to make decisions relating to major medical procedures on behalf of a person?

Yes. Enabling the decision maker to make such decision on behalf of another person will address a gap in existing legislation and is consistent with the notion that a person should be able to give directions and make decisions regarding their own health care requirements, major medical procedures included.

1.5 Is the proposed provision purporting to recognise interstate plans appropriate?

Yes.

1.6 Are the roles and responsibilities set out in the Bill appropriate?

No. the Society envisages there is potential for competing decision makers as a result of overlap between appointments under this proposed Act on one hand, and appointments under the Powers of Attorney Act on the other. For this reason the Society, as discussed elsewhere in this submission, is of the view the provisions enabling a person to plan for their financial and property affairs be removed from this Bill. The recommendation of the Society is for the Bill to deal only with the issue of personal planning for health and welfare.

The Society holds the view that it is neither necessary nor convenient to co-locate in the one Act, planning mechanisms that relate to a person?s financial and property affairs together with planning mechanisms that relate to a person?s health and welfare.

1.7 Should the existing enduring powers of attorney provisions in the Powers of Attorney Act be repealed or closed off to new appointments? If so, what approach should be taken to the treatment of existing enduring power of attorney appointments?

The Society is concerned difficulties will arise if there are two separate mechanisms, under two Acts, both dealing with the appointment of a person to act on behalf of another in respect of that person?s financial and property affairs. The Society appreciates the reasoning that supports the amalgamation under legislation of financial and property affairs and health and welfare care, but the Society remains concerned that this approach may contribute to confusion around the application of the laws.

The Society?s preference is for the removal from the existing Bill of those provisions which deal with a person?s financial and property affairs, and instead those provisions would be better located and incorporated into the existing Powers of Attorney Act.

1.8 In what circumstances, if any, could an adult, subject to an order under the Adult Guardianship Act, be able to make an advance personal plan?

The Convention on the Rights of Persons with Disabilities provides that persons with disabilities should be afforded full enjoyment of their human rights and freedoms without discrimination. Amongst other rights the Convention recognises and promotes the right of disabled persons to be empowered though mechanisms which enable their autonomy. This can be advanced by broadening opportunities for disabled people to be included in decision making processes in respect of matters which directly affect them (Article 3(a)). Enabling a represented person to make an advanced personal plan will further promote recognition of a disabled person?s right to equal protection and equal benefit of the law (Article 5.1).

To give effect to the rights envisaged under the Convention, it would be appropriate for there to be a mechanism enabling an assessment of a person?s capacity to make a personal plan in respect of certain matters. Such a mechanism would recognise the reality that some individuals, although subject to the AGA may at times have capacity to engage in certain decisions pertaining to their own personal plan.

The Society has not considered fully in what circumstances such an individual should be able to make a personal plan, but will consider proposals from Department of the Attorney General?s concerning different circumstances.

1.9 Should a guardian or manager be able to be appointed under the Adult Guardianship Act or Aged and Infirm Persons? Property Act where a decision maker is also appointed under the Advance Personal Planning Bill? If so, how should inconsistencies be managed?

Yes a guardian or manger should be able to be appointed under the AGA or the AIPPA, despite a prior appointment under the proposed Act. The decision making functions of a person appointed under the proposed Act may not always overlap, and may deal with very different matters to those decisions available to another decision maker appointed for that same individual under the AGA or the AIPPA.

Where decision making functions do however overlap between two or more decision makers, then it would seem appropriate that either decision maker could be utilised. This is similar to the situation where joint decision makers are appointed, and a approach along the lines of that set out under question 1.1 above could also prevail in this circumstance. That is the obligation should be to contact and consult with the first available decision maker, who is then obliged to contact and confer with the second decision maker, and if agreement cannot be achieved, the first decision maker contacted may exercise his/her authority severally.

It would be necessary to ensure amendments to the AGA recognise decision makers under the proposed Act in order to give effect to this suggested approach.

1.10 Should the jurisdiction for the making of property orders etc be changed from the Supreme Court to the Local Court to avoid the need for persons to make applications in separate courts that may relate to the same matter?

The Society supports the view that alternative dispute resolution and mediation mechanisms should be encouraged under legislation as a means of avoiding if possible hearings. The Society also strongly supports the use and establishment of a Tribunal to assist in resolving matters in dispute in this jurisdiction.

On the matter of an appropriate however the Society agrees one Court should be nominated for the making of applications across similar legislations. The Society considers the Supreme Court to be the preferred Court for the making of applications. Consistency would mean the court under the Adult Guardianship Act should be defined as the Supreme Court instead of the Local Court.

It would be entirely appropriate that an exemption from the payment of filing fees be extended to applicants under this Bill. Filings fees should not be imposed on applicants, as their role is not based on reward but rather ensuring another person?s rights are properly regarded.

1.11 Are there consequential amendments to other legislation that should be made to reduce inconsistencies and ensure the draft Advance Personal Planning Bill 2013 operates effectively?

Additional consequential amendments are referred to throughout this submission.

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