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May 9 2013

 

ADVOCACY FOR INCLUSION OPENING STATEMENT: ACAT RULING TRIBUNAL ON A MATTER OF LAW

 

Advocacy for Inclusion appreciates the opportunity to participate in this ruling tribunal and to make this statement.

We are a community based independent disability advocacy organisation. Our consumers are people with disabilities in the Canberra community who require advocacy support in order to be heard and have their wishes understood. We are particularly familiar with many people with disabilities in similar circumstances to the person about whom this Tribunal is deliberating.

We also train people in self advocacy who are very similar to the person described in the various documents provided to us.

We make this statement based on our experience and expertise working alongside people with disabilities:

People with disabilities living in institutional care are at high risk of being de-skilled over a period of time. The reality of living in such environments is that individual needs are less likely to be supported, personal items are few and often removed for "safekeeping", and the individual's capacity to express themselves is minimally supported.

We speak in the general sense rather than making specific judgements about the person in this case, but acknowledge that she lives in such an environment.

People who may have skills in day to day living and personal care lose them over time as they are de-skilled by the institutional need for a generic style of support. Over time this results in a higher level of dependency and reliance on support workers. What may have been possible some years ago becomes lost, including the capacity for self-care and personal initiative.

Institutionalisation also results in a higher level of compliance and compliant behaviour. People learn to agree with most suggestions made to them, are easily led into accepting conditions and expectations placed upon them, and readily admit to being okay with what is happening in their lives.

Our consumers who live in such circumstances also tell us privately that they are never asked what they want about matters ranging from major life decisions to whether to have tea or coffee. Additionally, they express a level of frustration and anger at knowing that they are not being consulted about their lives and their wishes. They know that their rights are not being supported yet have no way of addressing this.

Our self-advocacy training has supported many people with disabilities to recover from such environments, to increase their self-confidence, learn to speak up and manage their own relationships.

Our training has also shown that there is no person who is "beyond assistance" with the rights supports around them.

Without regular reinforcement of their knowledge people with memory barriers struggle to retain vital self-identity information, awareness of their personal history, including relationships with family and friends, community interaction, and understanding of treatments and processes. Supporting people to remember is an ongoing daily task which is not afforded to most people in institutional care.

It is almost impossible under these circumstances to ascertain whether a person has decision making capacity from time to time as they can become so de-skilled that their real capacity is buried. It is clear though, that anyone who displays self-identity, personal history, and who is able to express an opinion is capable of developing self-advocacy skills. It is likely that their current situation is therefore temporary and should be addressed with appropriate support and training not only for the person, but for those around them.

Rather than assuming incapacity, we must pursue the least restrictive option while providing supports for decision making and expressing choice, in order to restore the person to the greatest capacity possible.

Advocacy for Inclusion suggests that the Tribunal might find precedent in attaching certain conditions to orders should it be deemed necessary in these cases:

1. That support workers regularly inform the person (on each occasion) of the purpose of interactions with their doctors, and other key personnel, including when appointments are made

2. That support workers regularly inform the person (on each occasion) of the type of medication being administered and its role in their treatment

3. That the person be given the opportunity and support to undergo training in their human rights should they wish to do so, and that support workers are also encouraged to attend training

These mechanisms might assist someone to have greater understanding of their treatment with supports in an appropriate format (ie regular reminders to overcome memory barriers) to retain necessary information.

Should the Tribunal attach such conditions to orders it is possible that such mechanisms may provide for less restrictive orders in the future.

All people with disabilities have the capacity to engage in decision making to some extent, and under Article 12 of the Convention on the Rights of Persons with Disabilities have the right to be supported to do so, yet many are not afforded this right. All people with disabilities, therefore, have some capacity to give consent, if they are supported with information and supported to participate meaningfully in matters regarding them.

Advocacy for Inclusion respectfully suggests that the Guardianship and Management of Property Act 1991, alongside the Mental Health Treatment and Care Act, require review with a view to aligning them to Australia's obligations under the Convention on the Rights of Persons with Disabilities.

References:

  1. CRPD http://www.un.org/disabilities/default.asp?id=259
  2. Guardianship and Management of Property Act 1991  http://www.legislation.act.gov.au/a/1991-62/default.asp
  3. Mental Health (Treatment and Care) Act http://www.legislation.act.gov.au/a/1994-44/default.asp