Northern Territory Second Reading Speeches

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GUARDIANSHIP OF ADULTS BILL 2016

Guardianship of adults bill
(Serial 160)
and
Advance Personal Planning Amendment Bill
(Serial 161)

Bills presented and read a first time.


Mr ELFERINK (Attorney-General and Justice):
Madam Speaker, I move that the bills be now read a second time.

The Guardianship of Adults Bill 2016 establishes a contemporary framework for adult guardianship in the Northern Territory and replaces the
Adult Guardianship Act of 1988. The Advance Personal Planning Amendment Bill 2016 makes complementary amendments to the Advance Personal Planning Act to ensure that the adult decision-making and adult guardianship frameworks are aligned.

The Guardianship of Adults Bill 2016 provides a new guardianship model that includes comprehensive guardianship principles, creates an independent office of the public guardian and allows for guardianship orders to made for a person from the age of 17 years of age, and transfers jurisdiction of all adult guardianship matters from the Local Court to the Northern Territory Civil and Administrative Tribunal, hereinafter called the tribunal.


The Advance Personal Planning Amendment Bill 2016 amends the Advance Personal Planning Act to transfer jurisdiction from the Local Court to the tribunal, and repeals the
Aged and Infirm Persons’ Property Act.

The Guardianship of Adults Bill and the
Advance Personal Planning Act both provide for the making of decisions after a person has lost decision-making capacity. The Guardianship of Adults Bill has been drafted to complement the Advance Personal Planning Act, and has resulted in some consequential amendments. These amendments are provided in the Advance Personal Planning Amendment Bill and are today being introduced cognate with the Guardianship of Adults Bill.

First I will discuss in relation to the Guardianship of Adults Bill 2016 which retains the primary purpose of ensuring that there is a legal mechanism for decisions to be made on behalf of adults whose capacity to make decisions for themselves is impaired.


Impaired decision-making capacity can affect an individual at any point in their life. It may be due to a pre-existing disability, an accident, illness or an age-related condition. This provides confidence to Territorians who may have impaired decision-making capacity now or into the future that their fundamental rights to continue to participate in everyday life and their own decision-making processes will be protected through the provisions of the Guardianship of Adults Bill.


I pause here to note that it is also possible for a person to gain and lose capacity on several occasions during the passage of their life.


The guardianship reform in the Northern Territory is long overdue and welcome by all stakeholders in the community. The Guardianship of Adults Bill 2016 has been informed by guardianship review recommendations, notably the WestWood Spice review undertaken in 2005. The recommendations of the review were for significant and wide-ranging reform and required the drafting of new legislation to bring the Northern Territory more closely into line with the national approach and contemporary best practice.


The Guardianship of Adults Bill that is being introduced today achieves these recommendations and also incorporates feedback from past and more recent consultations. Consultation on the draft Guardianship of Adults Bill 2016 occurred in February this year. Community briefings were held in Darwin, Katherine, Gove, Tennant Creek and Alice Springs. A further 23 briefings were held with key stakeholders including medical professionals, legal professions and peak bodies. The response from stakeholders in the community was overwhelmingly supportive of the proposed reforms.


The availability of detailed information explaining the Guardianship of Adults Bill 2016, combined with the multiple avenues to provide feedback, allowed for a broad cross-section of the community and key stakeholders the opportunity to be engaged in the reform process and in the finalisation of this legislation. Personal experiences and suggestions for improvement were shared by guardians and professionals, which will assist in the future development of required policies and procedures upon the commencement of the legislation.


The Guardianship of Adults Bill 2016 seeks to recognise the overall wellbeing, human rights and fundamental freedoms of persons with impaired decision-making capacity and align with the United Nations Convention on the Rights of Persons with Disabilities.


It is a contemporary piece of legislation drafted to maximise the participation of adults with impaired decision making capacity in decision affecting them and to provide guardians with more guidance and certainty about their role.


The current act is underpinned by the concept of adult guardianship being for adults under intellectual disability. The bill has broadened the user group for guardianship legislation to be any adult with an impaired decision-making capacity which has been clearly defined.


The bill defines that an adult does not have impaired decision making capacity only because the adult has a disability. Illness, other medical conditions or engages in unconventional behaviour or chooses a living environment or lifestyle with which other people do not agree. Additionally an adults decisions making capacity may be impaired even if the impairment is episodic. The impairment is subject and time specific.


Importantly, the Guardianship of Adults Bill 2016 states that a person is presumed to have decision making capacity until the contrary is shown and the cause of any impairment is immaterial. The legislation has been drafted to ensure guardianship orders are only made for matters in which an adult with impaired decision making capacity needs assistance for some or all personal financial matters and is in need of a guardian for some or all of those matters.


Before making a guardianship order it must be considered whether the adult’s needs could be adequately provided for in a way that is less restrictive of the adult’s freedoms of decision and action rather than appointed a guardian.


The bill includes a new provision to allow the tribunal to make an order in which a guardian or other specified person is authorised to take specific measures or action to ensure a represented adult complies with a guardian’s decision. For example, this will allow for a represented person to be removed from a setting where they may be subject to abuse, exploitation or neglect but refused otherwise to be removed.


The Guardianship of Adults Bill 2016 includes comprehensive guardianship principles to guide any person and the tribunal in the exercise of their authority and to ensure consistency and accountability in undertaking the important role of guardian. The guardianship principles include acting in the adult’s best interests, taking into account the adult’s wishes and views as far as possible, and taking into account a number of relevant considerations defined in the bill. Relevant considerations include the views and wishes of the adult and any interested persons for the adult.


The decision-maker’s authority must be exercised in a way that is least restrictive of the adult’s freedoms of decision and action and is practicable.


The guardianship principles aim to ensure maximum participation in decision-making and everyday life by adults with impaired decision-making capacity. They apply to any person exercising authority under the bill, including any member of a tribunal, the Public Guardian, and indeed the Public Trustee.


The Guardianship of Adults Bill 2016 creates an independent statutory officer as the public guardian which gives rise to the creation of the independent office of the Public Guardian. This is an essential element of the new legislation, and aligns the Northern Territory with guardianship models used in other jurisdictions and, frankly, relieves me of the duty of being the public guardian.


The creation of the independent public guardian will remove the current conflict of interest whereby the Minister for Health is responsible for the overall guardianship, health and disability policy and, as the Public Guardian, is also required to make decisions in the best interest of individual clients.


The independence of the public guardian is prescribed by the Guardianship of Adults Bill 2016. Importantly however, if the public guardian is a guardian for an adult this officer is subject to the supervision and direction of the tribunal to the same extent as any other guardian.


Staff of the independent office will perform the functions of the public guardian, which are much broader under this bill. Specific functions of the public guardian include but are not limited to: they act as a guardian for an adult when appointed by the tribunal; promote access to services for adults with impaired decision-making capacity, their guardians and families; advocate for adults with impaired decision-making capacity by promoting understanding and awareness of relevant issues; provide support and advice to guardians and persons making or proposing to apply for a guardianship order; undertake research; and provide and encourage the provision of education about the relevant issues.


The term ‘relevant issues’ is defined by the Guardianship of Adults Bill 2016 and means any issue relating to adults with impaired decision-making capacity. This may include the rights and interests of this group, supported services or the law relating to adults with impaired decision-making capacity and the role of guardians, the Public Guardian or the Public Trustee.


The advocacy and guardian support functions of the Public Guardian are not possible under the current model of guardianship in the Northern Territory. They are included in the bill so that individuals choosing to fulfil the important role of the guardian may feel confident and supported in the role.


The Guardianship of Adults Bill 2016 gives the Public Guardian a general power to do all things necessary to be done for the performance of the Public Guardian’s functions. Specific powers of the Public Guardian include an information gathering power, which enables the Public Guardian to require a document or information to be given to the Public Guardian or an information holder to answer questions asked by the Public Guardian; and the power to request an adult to obtain a health assessment report and provide it to the Public Guardian.


Including these specific powers in the legislation leaves no doubt as to the Public Guardian’s authority and also assures other parties that they are not in breach of any legal or professional duties by honouring the Public Guardian’s requests.


The Public Guardian will be appointed by the Administrator on the recommendation of the minister. This recommendation will be made on the basis that the person has qualifications or experience relating to the Public Guardian’s functions and is committed to advancing the interests of persons with impaired decision-making capacity and promoting the guardianship principles.


To ensure accountability and transparency, the Public Guardian must prepare an annual report detailing the performance of the Public Guardian’s functions during the previous financial year. The report must be given to the Minister for Health by 31 October each year.


The Guardianship of Adults Bill 2016 also deals with other essential administrative matters relating to position of the Public Guardian, including the term and conditions of appointment and delegation of the Public Guardian’s functions and powers.


All adult guardianship matters transferred of jurisdiction to the tribunal will allow guardianship proceedings to be determined more quickly and straightforwardly than through the court system. It is anticipated that this approach will reduce delays in hearing and determining guardianship applications. Many procedural matters related to guardianship will be determined be the provisions already in the
Northern Territory Civil and Administrative Tribunal Act.

The tribunal has a flexible approach to determining applications. The tribunal may determine its own procedures subject to the provisions of the bill and may inform itself in any way it considers appropriated. The use of a tribunal for guardianship matters is consistent with other states and territories.


The current act creates a nexus between personal and financial matters which prevents orders being made for only financial matters. This is not appropriate as decision-making impairment may be decision specific while the adult may need a guardian with authority for financial matters, they may not need a guardian for personal matters. This nexus is broken by the Guardianship of Adults Bill 2016.


The provisions of the Guardianship of Adults Bill 2016 accommodate different levels of decision-making capacity and the tribunal has increased flexibility to make individualised guardianship orders. The terms of any guardianship order will specify the personal or financial matters, or both matters, for which the guardian has authority.


Under the current act, a guardian with authority for health care cannot provide consent for major medical procedures which include procedures relating to contraception and those requiring general anaesthetic. These procedures require an application to the Local Court for a consent decision, which can result in treatment delays.


Healthcare has been widely defined in the Guardianship of Adults Bill 2016, and subject to the specific terms of the guardianship order, guardians will have greater authority for healthcare matters and be able to consent to a broader spectrum of healthcare actions. The authority of guardians for healthcare actions will also be subject to relevant provisions of the
Advance Personal Planning Act.

Importantly, restrictions will apply to guardians providing consent for healthcare action that is defined as restricted healthcare under the Guardianship of Adults Bill 2016. This includes sterilisation of the represented adult, termination of a pregnancy of an adult, removal from the adult of non-regenerative tissue for transplantation to another person and healthcare provided for medical research purposes. Consent for these matters is governed by Part 4 of the
Advance Personal Planning Act.

The Guardianship of Adults Bill 2016 includes a new provision to allow the tribunal to make a guardianship order for a young person who has attained the age of 17 years, with the order coming into effect when the person turns 18. The tribunal must be satisfied that it is reasonably likely that when the young person turns 18, the person will have impaired decision-making capacity. This provision overcomes any gap in decision-making authority for a person turning 18 and thereby ensures a smooth transition of decision-making authority from childhood to adulthood.


Guardianship orders are not presumed to be permanent or ongoing and all orders under the new Guardianship of Adults Bill 2016 must specify a reassessment date. The term reassessment replaces the term review, which is used in the current act. Reassessments are an important inclusion in the Guardianship of Adults Bill
as an impaired decision-making capacity may be temporary, episodic or limited only to certain matters. A reassessment allows the tribunal to consider all of the circumstances relevant to the represented adults and decide if there should be any variations of the guardianship order or if the order should be revoked.

A new provision in the Guardianship of Adults Bill 2016 allows the tribunal to make an interim guardianship order pending the determination of the application. The tribunal must reasonably believe the adult has impaired decision-making capacity and is in urgent need of a guardian for some or all personal financial matters. An interim order remains in force until it is revoked. It expires or the tribunal decides the application for a guardianship order. In any even the interim order expires 90 days after the order is made.


The
Guardianship of Adults Bill 2016 introduces the registration of interstate guardianship orders by the tribunal. This is legislation that will align the Northern Territory with other jurisdictions and minimise the administrative processes for people affected by adult guardianship legislation who may move between jurisdictions.

The Guardianship of Adults Bill 2016 creates specific offenses in relation to a guardian’s conduct and the use of information under the Guardianship of Adults Bill 2016 and confirms the penalty attached to each offense. The inclusion of offenses recognises the need for guardians to act in the best interests of the adult to whom the guardianship order relates and in accordance with provisions of the
Guardianship of Adults Act.

There will continue to be interaction between the new guardianship legislation and the
Advanced Personal Planning Act. These two items of legislation complement each other so that event if a person is found to have impaired decision making capacity any decision they made or directions they gave, prior to their impairment, would be appropriately recognised.

The Guardianship of Adults Bill
provides that if an adult has an advanced personal plan and an application is made for a guardianship order, the tribunal must take the existence and terms of the plan, including any appointment of a decision-maker, into account when deciding whether the person needs a guardian and, if so, who to appoint as a guardian and the terms of the guardianship order.

The tribunal cannot make a guardianship order that gives a guardian authority for a matter for which a decision-maker already has authority under the
Advance Personal Planning Act unless specific conditions exists which are defined by the legislation.

To ensure that relevant provisions of the
Advance Personal Planning Act are consistent with provisions in the Guardianship of Adults Bill 2016, there will be some consequential amendments to the Advance Personal Planning Act with the commencement of the Guardianship of Adults Bill in 2016. A specific consequential amendment to the Advance Personal Planning Act is the insertion of proposed section 39A into the act. This provides that if a healthcare provider proposes to provide health care for an adult there is a guardian with decision-making authority for healthcare matters, this is prima facie evidence for the purposes of Part 4 of the Advance Personal Planning Act that the person has impaired decision-making capacity and may be relied upon by the healthcare provider.

The
Advance Personal Planning Act commenced on 1 March 2014 to provide Territorians with modern legislation for the making of advance consent decisions, advance care statements, and the appointment of decision-makers. Part 5 of the Advance Personal Planning Act gives the Local Court jurisdiction to hear and determine all matters arising in relation to the act.

As mentioned earlier, the Guardianship of Adults Bill transfers jurisdiction of all adult guardianship matters from the Local Court to the tribunal. The Advance Personal Planning Amendment Bill amends the
Advance Personal Planning Act to transfer jurisdiction from the Local Court to the tribunal. The simultaneous transfer of jurisdiction to the tribunal is necessary to ensure that decisions in relation to health consent matters and responsibility of decision-makers appointed under the Advance Personal Planning Act and the Guardianship of Adults Bill 2016 are dealt with by the same body. For example, under the Advance Personal Planning Act an adult may, in an advance personal plan, jointly appoint decision-makers which could include both the public guardian and the public trustee. Decision-makers may also be appointed in relation to care, welfare or other property or financial matters.

If there is a disagreement between decision-makers in the making of a decision, an application may be made to the tribunal as the body to hear and determine all those matters together. Matters coming before the tribunal under the
Advance Personal Planning Act are new decisions; therefore the jurisdiction given to the tribunal to deal with matters comes within the tribunal’s original jurisdiction. Accordingly, section 56 of the Advance Personal Planning Act has been amended to give the tribunal jurisdiction, and specifies what falls within the original jurisdictional functions.

Currently the
Advance Personal Planning Act relies on procedure of the Local Court, except for some specific requirements set out in Division 2 of Part IV which relate to parties to proceedings, closed proceedings and the reporting of proceedings. Similarly, when jurisdiction is transferred to the tribunal, the procedure of the tribunal will also be relied upon; however, there will be no requirement for the tribunal to give reasons for decisions, as the majority of decisions and orders sought will be straightforward; however, if a person would like to obtain reasons they can apply for them within 28 days after the proceeding of an application. The same provision has been included in the Guardianship of Adults Bill.

I now turn to the repeal of the
Aged and Infirm Persons’ Property Act, which has become redundant because of the Guardianship of Adults Bill.

The Guardianship of Adults Bill provides for the power to appoint to appoint guardians with powers to deal with a representative of adults’ financial affairs. This includes appointing the Public Trustee as the sole guardian if decision-making is limited to financial matters. The majority of other provisions in the
Aged and Infirm Persons’ Property Act are also out of date or no longer used by the Office of the Public Trustee, with any provisions still used to have been transferred to the Guardianship of Adults Bill. For example, section 23 of the Aged and Infirm Persons’ Property Act, which deems a guardianship order dealing with financial matters to be an instrument under the Land Title Act has been transferred to section 35A of the Guardianship of Adults Bill.

Transitional provisions are also provided to protect any existing protection orders made under the
Aged and Infirm Persons’ Property Act when the Guardianship of Adults Bill commences. On the commencement, existing protection orders are taken to have become a guardianship order. Existing protected persons are taken to be representative guardians, and an existing manager a guardian under the Guardianship of Adults Bill.

Madam Speaker, after that long explanation, I commend this bill to honourable members and table a copy of the explanatory statement.

 


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