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Health Speeches | May 01, 2019

Second reading - Guardianship and administration

Victorian Parliament - 1 May 2019 - KEALY (Lowan) (18:15:03): It is a great privilege to rise to speak on the Guardianship and Administration Bill 2018. I would like to go into some elements to give a context of the pathway which has led to this bill being before the Parliament today. I would also like to talk about some of the main provisions, the areas of concern that the Liberal and Nationals have in relation to this bill, but also more broadly about some of my experiences around the importance of guardianship and how it is so important that we must assist and support people who are experiencing both mental and physical impairments and disabilities. While this bill does go some length towards strengthening that, there is still a long way to go, and as I said, I will discuss those matters later in my contribution. Firstly, I will give some context of the pathway for the passage of this bill before the Parliament today. This began back in May 2009 when the then Attorney-General, Rob Hulls, asked the Victorian Law Reform Commission to review the Guardianship and Administration Act 1986 and report on whether changes were needed. Two hundred and twenty recommendations arose out of that review. Some of those have been implemented. They were implemented by the Honourable Robert Clark, who was Attorney-General at the time, in August 2014. Then of course we had the bill, which this bill is reflective of, which was brought to the 58th Parliament. This bill before us today is essentially identical to that bill, apart from a few newly amended commencement provisions, but it is largely a lot of the work that was covered by former Attorney-General Robert Clark. I know there has been some debate and discussion already in the contributions today around why that bill did not pass in the last Parliament. However, it is the responsibility of the government to work with all parties, whether they are coalition members or whether they are members of minor parties or micro-parties or Independents. They have to be willing to make amendments when there are concerns raised around the content of bills. It is the responsibility of us as parliamentarians to ensure we have a bill that reflects community needs and one that has not got any flaws within it. There are steps that we all take, and we saw in that last term of Parliament when amendments were made and accepted and passed the upper house. To blame this on one individual and one party I think is incorrect. I think that it is highly political and is not relevant when it comes to talking about strengthening guardianship obligations and legislation for some of the most vulnerable people in our communities. Further to some of the recommendations, there is a concern that some of the recommendations put by the Victorian Law Reform Commission (VLRC) they have not been fully implemented in the changes we see in the bill before us today. This is a concern, and it was raised within the bill briefings to the Liberal-Nationals that not all of these recommendations have been adopted or supported. The reason given for this was that there was a feeling that a number of the recommendations may impinge upon other legislative and administrative areas which are subject to ongoing inquiry and assessment and which may require further future legislative amendment or additional resourcing, including the Royal Commission into Victoria’s Mental Health System. I will speak about the royal commission shortly, because it is closely related to this legislation before us today. An example of one of the recommendations that has not been implemented is in relation to extending the powers of the public advocate. This has not been implemented. It is important that we look at all of the recommendations from the VLRC and that we do look to implement them sooner rather than later to strengthen our legal system to protect those who are most vulnerable. In relation to the specific provisions, clause 5 defines 'decision-making capacity’ to mean the ability to understand, retain and use information relevant to a decision and its effect, the ability to make that decision and the ability to communicate the decision and the person’s relevant views and needs. Most importantly a person is presumed to have decision-making capacity unless there is evidence to the contrary. This, for me, harks back to my experience within the health sector and also my time working on the Family and Community Development Committee when we undertook an inquiry into abuse in disability services. There is certainly a very useful term which is used frequently amongst health professionals, health organisations and disability and mental health providers, and that is 'Nothing about me without me’. I think it is essential that wherever we possibly can, decision-making capacity is retained by the individual who is impacted by those decisions, and that should always be the first priority. Unfortunately we have seen decision-making powers taken away from individuals from time to time and people taken advantage of. That certainly came through quite strongly during that inquiry into abuse in disability services, where people were taken advantage of, treated cruelly and sometimes abused sexually, physically, mentally and financially. Any steps we can take to stop that abuse and to make sure we have appropriate protections in place for these people must be adhered to. Other provisions of this bill will basically involve VCAT. The bill provides for the appointment by VCAT of a guardian or an administrator for a person with a disability who does not have decision-making capacity, subject to appropriate limitations and safeguards; the appointment by VCAT of a supportive guardian or a supportive administrator to support a person with a disability to exercise decision-making capacity; the appointment by VCAT of an administrator for a missing person; and the retention of the public advocate as an independent statutory office to promote the rights and interests of persons with a disability. I note that this implication of guardianship is not limited to people with physical disability; it is also about mental impairments, mental disability and permanent mental illness. I would like to see further linkages to improve guardianship but also to make sure that we are better supporting people, particularly those with mental illness and mental health issues. We have seen recently the Victorian Auditor-General’s report Access to Mental Health Services, which was tabled on 21 March 2019, in which they raised significant concerns around access to Victoria’s mental health system. In particular, and I quote the Auditor-General’s report: DHHS has done too little to address the imbalance between demand for, and supply of, mental health services in Victoria. In summary, the Auditor-General states: The Royal Commission into Mental Health will undoubtedly highlight many areas for improvement across the system. However, the need for planning and investment to meet demand is already known and as such work to address this should not await the Commission’s recommendations. Further delay will only amplify the problems the Commission seeks to address. This is essential, particularly when we are looking at the budget, which has been moved from this week to later on in May. We need to see a serious investment and focus on mental health. We have people who are falling through the gaps in the system. We have people who have debility in their life and who are unable to support their families and support themselves and to hold down a job. There are people who are taking their lives when they are discharged too early from psychiatric services and mental health beds. We cannot afford to lose more lives before we start seeing some improvements in the mental health system and some serious investment in the mental health sector. It is not appropriate and it is not acceptable that we await the royal commission to hear those views. I do urge the government to take this very, very seriously, to consider the lives that are at risk in the meantime and to make sure that we do start to immediately address those known gaps within the supply of mental health services in Victoria. In relation to concerns regarding this bill, during consultation the Law Institute of Victoria raised particular concerns in relation to the power of guardians to make medical treatment decisions and the inconsistent use of the term 'estate’ in the bill. I do urge speakers from the government to address those concerns. I am sure that they have been raised with the government. It is important that we do see those concerns being addressed in some way through today’s debate so that that is clarified, and if there is an amendment required prior to the bill passing the Legislative Council, then I do urge that those preparations and discussions take place sooner rather than later. I do hope that the government listens to some of the concerns of the coalition. I do hope that there is an attempt to implement all 220 recommendations arising from the Victorian Law Reform Commission’s review of this legislation, but most importantly, if this Guardianship and Administration Bill is passed into legislation, I do hope that it means that we have got a safer and more protective system for the people who need it most.