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The Limits and the Social Legacy of Guardianship in Australia

Published online by Cambridge University Press:  24 January 2025

Terry Carney
Terry Carney*
Affiliation:
Monash University
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Extract

Guardianship laws either for intellectually disadvantaged people alone, or for anyone with diminished functional capacity (such as victims of brain trauma), are now popular in Australia (other than in Western Australia and the Australian Capital Territory) and New Zealand. These laws are based on North American experience, particularly that of the Dependent Adults Act 1976 (Alberta). The common thread is that it permits a guardian to be appointed to manage the property or the personal affairs of the disadvantaged person, or to make one or more of the multitude of decisions lying within these two broad areas of human living.

Contemporary legislation is notable for three things. First, partial orders are permitted (in place of only plenary orders). Indeed they are positively encouraged where any intervention at all is called for (the normalisation principle). Secondly, personal guardianships have been revived (having existed all along under cumbersome equity jurisdictions of – or associated with – superior courts).

Type
Research Article
Information
Federal Law Review , Volume 18 , Issue 4 , December 1989 , pp. 231 - 266
Copyright
Copyright © 1989 The Australian National University

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Footnotes

Mr K Akers B A (Mon) has worked as Senior Researcher on this project. The research reported in this paper has been supported by funds from the Australian Research Council.

References

1 The dominant reform model is the Guardianship and Administration Board Act 1986 (Vic) [cited subsequently as Vic Act]. The other legislation to be dealt with in this article is: Intellectually Handicapped Citizens Act 1985 (Qld) [cited subsequently as Qld Act]; Protected Estates Act 1983 (NSW); [cited subsequently as NSW (PE) Act 1983]; Disability Services and Guardianship Act 1987 (NSW) [cited subsequently as NSW (OS) Act 1987]; Mental Health Act 1963 (Tas) [cited subsequently as Tas Act]; Mental Health Act 1977 (SA) [cited subsequently as SA Act]; Mental Health Act 1962 (WA) [cited subsequently as WA Act]; Adult Guardianship Act 1988 (NT) [cited subsequently as NT Act]; Dependent Adults Act 1976 (Alberta) [cited subsequently as Alberta Act]; and Protection of Personal and Property Rights Act 1988 (NZ) [cited subsequently as NZ Act]. In relation to Western Australia, it is also necessary to refer to the Supreme Court Act 1935 (WA), for the Mental Health Act 1962 (WA) provides only for property management, leaving personal management to the power of the Supreme Court to appoint a committee. In the ACT the Lunacy Act 1898 (NSW) remains the main source of redress.

2 Protection of Personal and Property Rights Act 1988 (NZ). The New Zealand legislation is analysed in W Atkin, “The Courts, Family Control and Disability - Aspects of New Zealand's Protection of Personal and Property Rights Act 1988” (1988) 18 Vic Univ Wellington L Rev 345-365.

3 Carney, T and Singer, P, Ethical and Legal Issues in Guardianship Options for Intellectually Disadvantaged People (1986, Canberra AGPS)Google Scholar. Limited guardianship is provided in 34 of the states of the USA: B Galt, “A Critique and Revision of the Utah Guardianship Statute for Incapacitated Persons” [1986] Utah L Rev 629,630 nn 9, 12.

4 Alberta removed the distinction (and plenary orders) in 1985 (Dependant Adults Amendment Act 1985 esp ss 2, 11(1)), leaving plenary power to be built up by the court enumerating all of the listed possible powers (against a backdrop that only necessary powers be granted: s 10(1) (2)).

5 Carney, T, “Civil and Social Guardianship for Intellectually Handicapped People” (1982) 8 Monash L Rev 199, 205-207Google Scholar

6 Alberta, New Zealand, NSW and the Northern Territory, for example, retain the judicial' mode in whole, or part: Alberta Act s l(c) [the Surrogate Court of Alberta]; NZ Act s 2 [the Family Courts Division of the District Court]; NSW (DS) Act 1987 ss 8,14,31; NSW, (PE) Act 1983 s 68 [the Protective Division of the Supreme Court exercises certain paralleli and overriding powers to those of the Board]; NT Act ss 9(1), 1 I(2)(b) [the Local Court on advice from a Guardianship Panel].

7 Eg Vic Act s 19 [Guardianship and Administration Board]; SA Act s 20 [Guardianship Board]; Qld Acts 16(a)(i) [Intellectually Handicapped Citizens Council of Queensland].

8 T Carney and P Singer, supra n 3, 48-49.

9 The Alberta legislation, for example, enables the guardian to be granted control over “norma day to day decisions ... including the diet and dress ... “: Alberta Acts 10(2)(h).

10 A common pre-requisite is the three-fold 'legal process' test of: (I) that the person falls1 into a defined category such as having a 'disability' (Vic Act s 22(l)(a); NSW (DS) Act, 1987 ss 3(2), 7; Tas Act s 22(1)(a); SA Act s 26(1)); NT Act s 15(1)(a)); (2) is unable by, reason of their disability to make reasonable judgements about aspects of their person 01 circumstances (Vic Act s 22(l)(b); NSW (DS) Act 1987 s 7 [defines “person in need” tc be inability to manage]); and (3) is in need of a guardian (Vic Act s22(l)(c); NT Act ! 15(1)(b)). Another kind of pre-requisite is illustrated by the more welfare oriented Albert2 test of: (I) that the person “would substantially benefit” from an order (Alberta Acts 4(l)(a] [introduced in 1985, replacing “need” in the 1976 Act]); (2) that an order is in the “bes1 interests” of the person (Alberta Acts 4(l)(b), cf Tas Acts 22(1)(b) [“necessary in the interest! of the patient"]); and NZ Acts 12(2)(b) [the “only satisfactory way to ensure that appropriat decisions are made'1; and (3) is both repeatedly or continuously “unable to care for”, an unable to “make reasonable judgements in respect of' themselves (Alberta Act s 6(l)(b) cf Qld Act ss 4 [definition of “functional competence'1, 16(2)(b) [“competent in law"]; S Acts 26( I); NZ Acts 12(2)(a)[lacks capacity to understand or to communicate an understandin of the nature and consequences of matters related to personal care and welfare]).

11 T Carney and P Singer supra n 3, 56-69, 113-117.

12 S Shah, “Legal and Mental Health System Interactions” (1981) 4 IntJo of Law and Psychiatry 219, 255.

13 Tas Act ss 14(3)(4),23(1) [a guardianship application “forwarded” to the Board and “accepted” by it].

14 G Morris, “The Use of Guardianships to Achieve - Or to Avoid - the Least Restrictive Alternative” (1980) 3 Int Jo of Law and Psychiatry 97.

15 R Allen, Legal Rights of the Disabled and Disadvantaged (1969, Washington DC, Social and Rehabilitation Service, US Department of Health Education and Welfare) 4-6; (published for the National Citizens Conference on Rehabilitation of the Disabled and Disadvantaged).

16 R Gordon and S Verdun-Jones, “The Right to Refuse Treatment: Commonwealth Developments and Issues” (1983) 6 Int Jo of Law and Psychiatry 57, 67.

17 Thus the Tasmanian legislation (Tas Act ss 26(l)(b)-(d), (3)(d)) allows for people under a guardianship order to be transferred to the care of another person, to the Board itself, or to a hospital (in which case their status is deemed to be that of a person who was compulsorily admitted under medical certification); though the regulations do insist on satisfaction of similar medical pre-requisites to those for compulsory admission: Mental Health (Hospital and Guardianship) Regulations I964 reg 10(2)).

18 Morris, supra n 14, passim.

19 American Bar Association, Committee on Legal Incapacity Probate and Trust Division, “Limited Guardianship: Survey of Implementation Considerations” (1980) 15 Real Property Probate and Trust Jo 544-554. The ABA study found that lawyers had only a very limited awareness of guardianship laws in many of the states surveyed (544). There was general support for the foundation concept that competence be presumed unless contradicted, and that only necessary, partial orders be made when limitations were established. However concerns were found on the issues of: cost; 'borderline' cases; stigma; and imposition of orders on a showing of only minimal incapacity: (546). Procedural protections were thought to be a possible impediment (553).

20 The common law jurisdiction crystallised in the thirteenth century in England when courts of Chancery (equity) accepted responsibility for what previously had been an administrative function of the Crown: one animated both by benevolent motives (caring for citizens unable to look after themselves, such as the young, the mentally ill and the intellectually disadvantaged) and by venal objects (to gain access to an important source of revenue): Carney, supra n 5, 205-207, and sources there cited.

21 By the latter part of the nineteenth century the mental health ('lunacy) legislation provided a framework for regulating the personal and property affairs of both the mentally ill (lunatics) and intellectually disadvantaged people (natural fools, mental defectives, mentally retarded etc): Carney, supra n 5, 205-207. The statutory office of Public Trustee was commonly established to assume management of the property of such people, who, in the absence of such a service would have relied on the powers of the Supreme Court - specifically the inherent powers of a court with the jurisdiction of the English court of Chancery to appoint a committee (personal guardian/ administrator): H v H [1984] 1 NSWLR 694, 696, 703-706.

22 Initially the mentally ill and the intellectually disadvantaged: Carney, supra n 5, 205-207.

23 Carney, supra n 5, 209-2IO.

24 Thus in the 1930s only around 5% of married women aged under 55 were in the workforce, a figure which had risen to 57% by 1986: P McDonald, “Families in the Pursuit of Personal Autonomy” (1988) 22 Family Matters 40, 44. See also Social Security Review, Issues Paper No 1: Income Support for Families with Children (1986, Canberra AGPS), 18-19; Issues Paper No 5: Towards Enabling Policies: Income Support for People with Disabilities (1988, Canberra AGPS), 184-188.

25 In purely economic terms the introduction - and later the widening in the scope from spouses to relatives and then to any person - of the Commonwealth Carers Pension (in 1983, 1985 and 1988 respectively) did at least overcome the 'charity barrier' to people assuming the caring role: Social Security Act 1947 (Cth) s 39.

26 The community residential units (small houses for 6 or so residents and/ or a carer) operated in Victoria for intellectually disadvantaged people, are an example.

27 At common law a normal power of attorney lapses at the very point where it is needed: it ceases to be valid once the person who executed the document slips below the level of legal capacity required by law to validly execute such an instrument in the first place: Gibbon v Wright (1953) 91 CLR 423,445; Drew v Nunn (1879) 4 QB 661,666.

28 Conveyancing (Powers of Attorney) Amendment Act 1983 (NSW) adding s 163E to Conveyancing Act 1919 [the power is valid only to the extent to which the donor had the capacity to engage in the particular legal act at the outset, unless the court determines to validate it, acting in the “best interests” of the donor: s 163E(5)]; Instruments (Enduring Powers of Attorney) Act 1981 (Vic) s 114; Powers of Attorney Amendment Act 1987 (Tas) inserting s 11C in the Powers of Attorney Act 1934; Powers of Attorney and Agency Act 1984 (SA) ss 6, 9; Powers of Attorney Act 1980 (Nn ss 6-19; Powers of Attorney Act 1956 (ACT) s 7; [the Act provides for making a power irrevocable for two years from its execution; or for a longer period only where the attorney has given valuable consideration: s 6]. Queensland and Western Australia make no provision for an enduring power of attorney. See also: Protection of Personal and Property Rights Act 1988 (NZ) ss 95-106, Third Schedule; Enduring Powers of Attorney Act 1985 (UK); Australian Law Reform Commission, Community Law Reform for the Australian Capital Territory, Third Report, Enduring Powers of Attorney (1988, Canbera AGPS).

29 The New South Wales and Victorian view appears to be that the person must be of full capacity when the document is signed, that is they must, at that point, be capable of lawfully disposing or dealing with any property or other subject matter to which the power relates: Ranclaud v Cabban (1988) NSW Conv R (CCH) 55-385, 57-548 [cited and discussed in Enduring Powers of Attorney, supra n 28 para 17]; Re Barnes [1983] I VR 605, 609 (where the central issue however was whether a person who was already a protected person could execute an enduring power; Beach J concluded that they could not). In England a less restrictive view has been taken, based on a reading of the legislation as beneficial. Hoffman J, in the Court of Protection, citing In re Beaney dec'd [1978] I WLR 770, accepted that an enduring power of attorney is valid within the English legislation if the signatory grasps, with the assistance of an explanation, that they are executing a document which completely transfers to the attorney their own powers of decision over the property up to and beyond their own incapacity, even if they would at the time be incapable at law of validly dealing with the management of the property itself: In re K (Enduring Powers of Attorney) [1988]2WLR 781, 784-787. Hoffman J was influenced by the way the legislation was drawn, providing the Court of Protection with overall supervision (786).

30 The Australian Law Reform Commission has proposed for the ACT that a power of attorney extend to personal guardianship matters: Enduring Powers of Attorney, supra n 28 para 48. In New Zealand specific provision is now made for such private arrangements to be built into an enduring power, but it is subject to the restrictions which govern a personal guardianship order: NZ Acts 98(4).

31 Acting on the policy that a decision of the person should not lightly be set aside, the proposal for the ACT would allow the enduring power to continue, subject only to review by a court (not the Guardianship Tribunal) and to safeguards (including separate execution of this component) and limitations on powers of medical decision: Enduring Powers of Attorney, supra n 28 paras 49-52. In New Zealand, however, any personal guardianship order prevails over the enduring power where inconsistent: NZ Act s 100. Victoria preserves the validity of an enduring power after a guardianship, subject to giving full effect to any decisions taken by a personal guardian or administrator prior to becoming aware of the power, and to a power to terminate it, in the interests of the represented person, on application to the Board (by the Public Advocate, the attorney or other interested persons): Instruments Act 1958 (Vic) ss 117(3)(4) and 118.

32 Victoria, Annual Report 1987-1988: Guardianship and Administration Board, 35. This disturbing pattern may not be replicated in jurisdictions which impose more stringent formalities for execution, but it would be wise to assume that it is a widespread problem.

33 Supra n I.

34 Fennell, P, “Law and Psychiatry: The Legal Constitution of the Psychiatric System” (1986) 13 Jo of Law and Soc 35, 40-43CrossRefGoogle Scholar

35 Tay, A, “Law, the Citiz.en and the State”,in Kamenka, E, Brown, R, and Tay, A, (eds) Lawand Society: The Crisis in Legal Ideals (1978), 1-4Google Scholar; also Gray, J, Hayek on Liberty, (1984) 69-75Google Scholar; Burke, T, “Can there Be Positive Human Rights?” (1983) 28 ASLP Bulletin 44, 51-54.Google Scholar

36 Or what MacKay terms “positive freedom”: A MacKay, “Judging and Equality: For whom Does the Charter Toll?” (1986) 10 Dalhousie Law Jo 35, 65.

37 C Ten, Mill on Liberty (1980) 3, 110-115.

38 Qld Acts 16(2)(j); NSW (DS) Act 1987 s 4(f); Vic Acts 28(2)(c) [responsibility of guardian]; NT Acts 20(2)(c) [responsibilities of a guardianj; NZ Acts 8(a); Alberta Acts l l(b). Neither Tasmania, the ACT nor Western Australia subscribe to this principle.

39 Such as the principle of normalisation (encouragement to live, as far as possible, a normal life in the community: NSW (DS) Act 1987 s 4(c)); Vic Act s 28(2)(b); NT Act s 20(2)(b); NZ Act s 18(4)(b). Cf Qld Act s 16(2)(j) [“support ... [the person] exercising as much control as possible over [their] own lifej; SA Act s 25c(b) [“minimising interference with the rights and independence ... so far as is consistent with ... proper protection and care'1, The principle is not at present adopted in Tasmania, WA, or the ACT.

40 Qld Act ss 5, 16(2)(i); NSW (DS) Act 1987 ss 4(b), 14(d); Vic Act ss 4(2)(a), 22(2)(5); SA Act s 25c(b); NT Act s 4(a); NZ Act s 8(a); Alberta Act s l l(c). Once again the legislation in Tasmania, WA, and the ACT is silent in this area.

41 Qld Act ss 5, 16(2)(j); NSW (DS) Act 1987 s 5(b) [to ensure that such services are provided as to promote normalisation]; Vic Acts 28(2)(c).

42 C Ten, supra n 37, 114.

43 Ibid 110.

44 Plainly this justification is not valid in the case of permanent conditions.

45 In the nature of it no one can accurately judge how a person will react: past behaviour is only a partial guide (people change course without warning) and, in any event many intellectually disadvantaged people have never exercised the power in issue in the past.

46 The (unavoidable) consequence is that the values of the decision-maker are imposed on the person for whom they are acting.

47 C Lowy, “The Doctrine of Substituted Judgement: Deciding for the Incompetent” (1981) 21 ASLP Bulletin 55-71; R Young, “Autonomy and Paternalism” (1981) 21 ASPL Bulletin 32-54.

48 E Vallance, “Introduction: Some Problems Stated” in E Vallance (ed) The State, Society and Self-Destruction (1975) I6.

49 H McCiosky,"Handicapped Persons and the Rights They Possess” in R Laura (ed) Problems of Handicap (1980) 86.

50 A MacKay, supra n 36, 38.

51 This is less true in jurisdictions such as South Australia or the Northern Territory, for example.Here the policy is skewed more towards the welfare than the autonomy goals.

52 NSW (DS) Act 1987 s 4(g). See also Vic Act s 28(2)(d); SA Act s 25c(b) [to minimise interferences with rights “so far as is consistent with . . . proper protection and care . . .'1; NZ Act s 8(a) [least restriction “having regard to the degree of the person's incapacity'} The legislation in Tasmania, WA, and the ACT is silent on this score.

53 NZ Act s 18(3) [the “first and paramount” consideration for a welfare guardian]. See also

NSW (DS) Act 1987 s 4(a) [a duty of every person exercising functions under the Act to see that the “welfare and interests of such persons should be given paramount consideration'1; Vic Act ss 4(2)(b), 22(3) [best interests a necessary consideration]; Tas Act s 22(l)(b) [an order rests on showing that it is “in the interests of the patient or for the protection of other persons” (emphasis added) that an order come into effect]; SA Acts 25c(c) [welfare of the person the “paramount consideration '1; NT Act s 4(b) [best interests to be promoted]; Alberta Act ss 4(l)(bb), 6(2)(a). WA and the ACT make no provision.

54 Qld Act s 16(2)(1).

55 Qld Act s l6(2)(i)(j) and (k).

56 NSW (DS) Act 1987 s 4(d) and (e) respectively.

57 Vic Act ss 4(2), 22(2)(3)(4)(5), 28(1)(2).

58 SA Acts 25c(a)-(c).

59 NT Acts 4(a)-(c).

60 NZ Acts 8.

61 Alberta adopts the 'best interests' and the 'substantial benefit' policies to guide whether or not to make an order: Alberta Act s 6(2).

62 See for example Tas Act s 4(1) [“mentally disorderedfl (mental illness, intellectual handicap and 'sub-normality)]; WA Act s 5(1) ['mentally disordered' (“any illness or intellectual defect that substantially impairs mental health j].

63 Vic Act s 3 [“disability” (intellectual impairment, mental illness, brain damage, physical disability or senility]; Qld Act ss 4, 27 [“intellectually handicappedfl (functional reduction in competence due to “intellectual impairmentfl of congenital or early childhood or “the result of illness, injury or organic deteriorationj]; NSW (DS) Act 1987 ss 3(1), 7, 9 [a person with a “disability” (which includes a person “intellectually, physically psychologically or sensorily disabledfl; advanced age; mental illness and people “otherwise disabled” and “restricted in one or more major life activities to such a degree as to require supervision or social habilitation”) who is “by virtue of that fact totally or partially incapable of managing his or her personj; SA Act ss 5, 26(2)(a) [“mental illness” (any illness or disorder of the mind) or “mental handicap” (“imperfect or retarded development or deterioration of mental faculties from whatever causej]; NT Act ss 3(1), 8 [persons under a “disabilityfl (which means “an intellectual disabilityfl, in turn defined as disabilities “resulting from an illness, injury, congenital disorder or organic deterioration or of unknown origin ... j; NZ Act s 6(1) [a person who lacks, or lacks the ability to communicate, “wholly or partly, the capacity to understand the nature, and to foresee the consequences of, decisions in respect of ... personal care or welfarej; Alberta Act s 6(1)(b) [repeated or continuous inability to care for or make reasonable judgements relating to the person].

64 At the time of writing New South Wales policy was thought to be unsettled on this point; opinion was divided in informed professional circles as to whether the Victorian policy would be followed of not making orders on speculative grounds, or in order to reassure applicants worried about the future: Ms J Woodruff, Disability Council of NSW, personal communication 30 January 1989.

65 Qld Act s 16(2)(i); NSW (OS) Act 1987 s 4(b); Vic Act s 4(2)(a); SA Act s 25c(b); NT Acts 4(a); NZ Acts 8(a). Tasmania, WA, and the ACT are the exceptions here.

66 Supra n 63.

67 NSW (OS) Act 1987 s 14(2)(d).

68 Vic Act s 22(2).

69 Vic Acts 22(1)(b) and (c) respectively.

70 NSW (DS) Act 1987 ss 7 [definition], 14(1) [building need in as a precondition to an order].

71 Sections 3(2) [definition of person with a “disability'1, 7 [person in “need” of guardian must have a disability], 14(1) [guardianship only if in need].

72 NZ Acts 8(a); SA Acts 25c(b).

73 NT Act s 9(3)(b).

74 Queensland goes no further than to direct the Council to apply the least restrictive principle: Qld Act s I6(2)(i).

75 See for example the discussion of the elevation of a helping welfare role over the strict application of legal criteria in the administration of Mental Health Review Tribunals in Britain: J Shapland and T Williams, “Legalism Revived: New Mental Health Legislation in England” (1983) 6 Int Jo of Law and Psychiatry 351 358-359.

76 Carney, T, Drug Users and the Law in Australia (1987) 53Google Scholar

77 Supra n 62 and accompanying text.

78 Qld Act s 27(d)(i); NSW (OS) Act 1987 s 9(l)(a); Vic Act s 19(1) [any person may apply]; SA Act s 26(2)(a); NT Act s 8(1) [there is the ability for the court to direct any person to apply, but this is likely to be of little import here]; NZ Act s 7(a). Compare Tas Act s 16(1) [“nearest relative” or “authorised officer” (a designated employee of the Mental Health Services Commission: s 11(2))]; WA Acts 64(1) [Public Trustee, corporate trustee or natural person other than the “patient'l

79 Qld Act s 27(d)(ii); NSW (OS) Act 1987 s 9(l)(b); Vic Act s 19(1); Tas Act s 16(1); SA Act s 26(2)(b); NT Acts 8(1); NZ Act s 7(b) [an “attorney” is also included with relatives],(e) [non-profit welfare agencies], (f) [managers of residential institutions]. New South Wales defines a “person responsible” to include a spouse, carer, or guardian: s 3(1); but it does not include carers of people who “reside in an institution (such as a hospital, nursing home, boarding house or hostel)”: s 3(5).

80 so NZ Acts 7(c)(d).

81 Qld Acts 27(d)(iii) [police], (iv) [an officer of any court], (v) [an officer of the Intellectually Handicapped Citizens Council]; NSW (OS) Act 1987 s 9(l)(c) [Public Guardian]; Vic Act s 19(1); Tas Acts 16(1) [authorised officer]; SA Acts 26(2)(c) [Public Trustee], (d) [police]; NZ Act ss 7(g) [a manager of property], 26(e) [trustee corporation]; Alberta Acts l(i) {Public Trustee and Public Guardian].

82 Qld Acts 27(d)(vi); NSW (OS) Act 1987 s 9(l)(d); SA Acts 26(2)(e); WA Acts 64(1)[in property matters any “natural person” may apply]; NT Acts 8(2); NZ Acts 7(h); Alberta Act ss 2(1),l(i) [definition of"interested party'l

83 Thus the Law Reform Commission of the ACT, in its 1973 report, rejected a tribunal because they felt “there are serious objections to a procedure whereby a person's relatives may obtain control of his property without a proper judicial hearing”: Report on the Management of the Property and Affairs of Mentally Infirm Persons (1973, Canberra AGPS) 12.

84 The Declaration has been ratified by Australia and adopted as one of the international instruments to which the Human Rights and Equal Opportunity Commission is to have regard in exercising its largely conciliation and education role in relation to Commonwealth administration; there is no such equivalent role in relation to state or territory law: T Carney and P Singer, supra n 3, 1-2.

85 It also requires that decisions be grounded in “an evaluation of . . . social capability ... by qualified experts”.

86 B Galt supra n 3, 645; the UN Declaration also blends procedural regularity with “an evaluation of the social capability ... by qualified experts”: Art 7.

87 Vic Acts 5, Schedule 1, item 2(2).

88 Qld Act s 8(2); NSW (OS) ACT 1987 s 49(3); Vic Act s 5(2), Schedule 1 item 2; SA Acts 20(2) [2 lawyers as chair and deputy; 2 psychiatrists and 2 psychologists; and 4 appropriately qualified “ordinary members'1-

89 Tas Act s 8(3), Schedule 3, item I.

90 NT Act s 9(2). The executive officer chairs the panel, which is constituted by the responsible Minister: s 9(1)(2)(a).

91 NSW (DS) ACT 1987 s 56; Vic Acts 7; NT Acts 25.

92 Qld Act s 29(3)(7); SA Act s 25b(2); NZ Act s 79. Tasmania allows the Board to determine its own procedure but neither requires hearings nor makes provision for the attendance of affected parties.

93 NZ Act s 74.

94 SA Act s 25b(I); Qld Act s 29(1)(i),(2),(4); Alberta Act ss3(2) [notice], 5(a) [attendance], 4(2) [report], respectively.

95 NT Act s 13(1)(b); NSW (DS) Act 1987 ss 58(1)-(3); Vic Act ss 12(1)(3): Alberta Act s 5.

96 Note 91 above. For their part WA, and the ACT, in dealing with Supreme Court applications for appointment of committees, rely on the discretion of the court, which will usually wish to see, or be informed about, the person affected by the application.

97 Vic Act ss 20( I), 44, 61; Alberta Act ss 3(2).

98 Tas Act ss 16(4)(5).

99 SA Act s 25b(l)(2); NT Act s 13 [the form for giving notice, however, is dealt with in s7].

100 Qld Acts 29(l)(a)(i)-(iv); NSW (DS) Act 1987 s 10(1); NZ Acts 63.

101 B Galt supra n 3, 640-645. Morris agrees, but places even greater emphasis on how conscientiously the lawyer prepares the case: G Morris, “Conservatorship for the “Gravely Disabled”: California's Non Declaration of Non Independence” (1978) 1 Int Jo of Law and Psychiatry 395, 425-426.

102 NSW (DS) Act 1987 s 55(1). See also: Vic Act s 10(3) [rules or practice]; NT Act s 12(2) [not bound by rules or practice]; NZ Act s 77 [may receive any evidence that it thinks fit, whether or not otherwise admissible]. South Australia is more obscure, allowing the Board to conduct proceedings “as it thinks fit”, without adverting expressly to reception of evidence: SA Act s 24(7). In Tasmania the board may regulate its own proceedings, but the system seems to be designed simply to ratify the medical judgements in the certificates where these are formally correct: ss 23(1), Schedule 3, item 12.

103 NSW (DS) Act 1987 Acts 55(2). See also Qld Acts 17(l)[conductits business and proceedings in such manner as it determines]; Vic Act s IO(l)(a) [act according to equity and good conscience without regard to technicalities or legal forms], (c) [not bound to adopt a formal approach]; SA Acts 24(7); NT Acts 12(1) [regulate its own procedure]. The New Zealand Act, except where the legislation provides to the contrary, assumes that ordinary practices apply.

104 Vic Acts IO(l)(b).

105 NZ Act ss 66-73, 13, and 15 respectively. Consent orders may cover personal guardianship areas, the administration of property, the appointment of a welfare guardian, and interim orders.

106 NZ Acts 66(1).

107 NZ Act ss 68(4) [private except for the affected party and/or a lawyer], 72 [only any record of agreement may be referred to]; NSW (DS) Act 1987 ss 66(2) [private], (3) [not admissible]. New Zealand also authorises the same judge to preside at a hearing as chaired a pre-hearing conference, and for parties to be directed to attend: NZ Act ss 73, 71.

108 NZ Acts 65(1). There is provision for a contribution to costs: s 65(8), but otherwise appointed counsel are at state expense: s 65(5).

109 NT Act s 13(2). The Executive officer to the panel shall “ensure” that the person affected is legally represented before the court.

110 NZ Act ss 65(2)(a), (b) respectively.

111 Ibid s 65(3).

112 Ibid s 65(4).

113 SA Act s 25b(l). The Mental Health Review Tribunal, by contrast, effectively provides for mandatory legal representation: s 39; Alberta Act s 5 (though costs may be re-imbursed: s 48).

114 Qld Acts 29(4).

115 Vic Acts 12(1).

116 Ibid s 12(2).

117 The Public Advocate may intervene and make representations on behalf of, or “act for” the person affected by an application for an order: Vic Acts 16(l)(c) and (f).

118 This is explicitly provided for when parties nominate a representative directly: Vic Act ss 12( I)(b),(2)(a)(ii).

119 Vic Acts 11(1).

120 NSW (OS) Act ss 58(1) [the “parties'1, 3(1) [definition of party].

121 NSW (DS) Act ss 58(2) [guardian ad litem], (3) (separate representation for the “prescribed person” (s 58(5))]. Legal aid is not, however, automatically attracted on the making of such an order: s 58(4).

122 NSW (DS) Acts 58(1) (an “agent'l

123 Article 7 of the Declaration, Supra n 84.

124 Qld Act s 17(1); NSW (DS) Act 1987 s 53(1); Vic Act s 10, Schedule 2 item 2.3; Tas Act s 8(3), Schedule 3 item 12; SA Act s 24(7); NT Act s 12(1). In New Zealand, by contrast, procedures are laid down in the Act (including conciliation hearings) or are governed by rules promulgated by Order in Council: NZ Act s 111. Except to the extent that the Supreme Court moulds its own procedures when dealing with applications to appoint a committee of the person or property, neither WA, nor the ACT have this feature.

125 Vic Acts 10(7).

126 Re Magavalis (1983] I Qd R 59, 63-64.

127 NSW (DS) ACT 1987 s 60(1)(a). In each instance, only relevant questions or documents may be insisted on, and, subject to a protection against self-incrimination, (s 61(2)) witnesses are required to attend and answer questions: s 62. SA Acts 25a(l)(a)(b) [relevance is again a limiting consideration: s 25( I)(e)].

128 Qld Acts 31.

129 Ibid s 42. The powers are detailed in the Commissions of Inquiry Act 1950 (Qld), but do not extend to clothing the Council with powers earmarked for judges under that legislation.

130 Ibid s17(2). Either parties, or the members of the Council may request that adjournment, but there is no authority to compel attendance or production of material.

131 Tas Act s 8(3), Schedule I, item 12; s 30, Mental Health (Hospital and Guardianship) Regulations 1964 reg 14(d).

132 NZ Acts 78(1).

133 NZ Act s 76. The maker of the report may be called (s 76(7)) and the costs of the report may be ordered to be carried by the public purse: s 76(5).

134 NT Acts 12(3); Vic Acts 11(2).

135 NT Act ss 12(4) [interviews], I!(I) [general authority].

136 Alberta Acts 4(2).

137 Qld Act ss 16(1)(a) [may “approve'1, 20 [by vote of members]; NSW (DS) Act 1987 s 14( I) [“satisfied ... in need'1; Vic Act s 22( I) “satisfied ... 1; SA Act s 26( I) [“satisfied., . 1; NT Act s 15(I) [“satisfied ., . 1; NZ Act ss 9(2) ['satisfied/ determine1, IO [ satisfied];Tas Acts 23(1).

l38 McD v McD [1983] 3 NSWLR 81, 86.

139 Mental Health Act 1959 (Eng) s 34(1); Mental Health Act 1963 (Tas) s 23(1). A similar provision was found in the Mental Deficiency Act 1913 (Eng) s 10(2). Gunn, however, sees the real foundation in the 1957 Royal Commission on Mental Health, which saw guardianships as a means of enabling people to live controlled lives in the community: M Gunn, “Mental Health Act Guardianship: Where Now?” [1986] Jo of Social Welfare Law 144, 144-145.

140 Mental Health (Amendment) Act 1982 (Eng) s 8; Mental Health Act 1983 (Eng) s 8(1).

141 D Carson, “Mental Processes: The Mental Health Act 1983” [1983] Jo of Social Welfare Law 194, 198. Accordingly treatment may not be imposed: B Hoggett, “Analysis: The Mental Health Act 1983” [1983] Public Law 172, 189.

142 Shapland, J and Williams, T, “Legalism Revived: New Mental Health Legislation in England” (1983) 6 Int Jo of Law and Psychiatry 351, 363.CrossRefGoogle ScholarPubMed

143 Victoria, Report of the Minister's Committee on Rights and Protective Legislation for Intellectually Handicapped Persons (1982, Melbourne Vic Gov Printer), 44 [the committee proposed that certain sensitive medical powers require the consent of the Board: 61-67].

144 Vic Act ss 24(1) [the plenary 'parental' power], (2) [the list], 25(1) [the partial order 'list selection1, (2) [the power to add conditions].

145 Vic Acts 26(1)

146 Qld Acts 26(3).

147 NSW (DS) ACT 1987 ss 16(1)(b)(c)(d).

148 Ibid ss I6(2)(b) and (a) respectively. The Act states that reference to a “function” includes “reference to a power authority, and duty”: s 3(6)(a).

149 Re R [1983) I NSWLR 556, 564. [Powell J concluded that in special circumstances payments might be made for services rendered by a guardian).

l50 Hv H[l984] I NSWLR 694,707.

151 Re B (An Alleged Lunatic) [1891) 3 Ch 274, 277. Morris, writing about the American position, agrees that while a common law guardian has the 'care and custody' of the person and may establish their residence anywhere, “the ward is not his prisoner ... and may not be constrained without just cause”: G Morris, supra n IOI, 408 citing Browne v Superior Court 16 Cal 2d 593 (1940), 600-601; 107 P 2d I, 4.

152 S v McC;W v W [1972) AC 24, 45 [the question involved the ordering of a blood test to determine paternity).

153 Hewer v Bryant [1969) 3 All ER 578, 582.

154 Dependent Adults Act RSA 1980 (Alb) ss 10.1-10.2.

155 SA Acts 27(1)(a)(e).

156 NT Act ss 17, 18.

157 NZ Acts IO(l)(a)(i). The welfare guardian is referred to ins IO(l)(k).

158 Section 12(1).

159 Section 18(2).

160 Section 18(1)(a)-{f). The guardian may not, however, refuse consent to life saving or standard medical care: s 18( IXc).

161 Qld Act s 44(5) [failure to show good reason to deny entry plus “immediate risk'1, (6) [elements of application]; Tas Act s 99(1) [ill-treatment, neglect etc, or inability of a single person to care for themselt].

162 Qld Acts 44(5); Tas Acts 99(1).

163 Qld Acts 44(7); Tas Acts 99(2).

164 Qld Acts 44(3).

165 Vic Act s 27(1) [criteria], (2) [report as foundation for removal to a safe place], (3) [police may use reasonable force].

166 NSW (DS) Act 1987 ssl2(1) [criteria], (2) [powers of entry, search and removal], (5) [police may use reasonable force], 13 [place of safety].

167 Vic Act ss 32, 33.

168 Vic Acts 32(3)(4).

169 Vic Act s 16(1)(h). Although headed 'powers and duties', the section does not confer any direct powers of entry.

170 NT Acts 19.

171 NZActsIIO(a).

172 G Sharpe, “Guardianship: Two Models for Reform” (1983) 4 Health Law in Canada 13, 14-15. Similar provisions exist in states such as New York: ibid. A 1973 Victorian Bill to provide to similar effect for alcoholics was blocked in the upper house: Vagrancy (Insufficient Means) Bill 1973; T Camey,supra n 76, 236.

173 >Dawson, J, “Fundamental Rights” and the Mentally Disabled” (1986) 6 Otago L Rev 291, 296-297Google Scholar

174 See for instance S Herr, “Legal Advocacy for the Mentally Handicapped” (1980) 3 Int Jo of Law and Psychiatry 61, 62-63; or, for more extended treatment, “Rights of Disabled Persons: International Principles and American Experiences” (1980) 12 Columbia Human Rights L Rev I.l75 [1989] 2 WLR 1063; 2 All ER 545.

176 Eg per Neill L.J in the Court of Appeal; Lord Brandon in the House of Lords.

177 See n 181 below.

178 [1988] AC 199, 205-206.

179 NSW (OS) Act ss 33(1) [major medical treatment declared by regulation], 37 [person responsible, or the Board, must consent]; Vic Acts 37 [“major medical procedures” specified by the Board in guidelines; a compromise category and process settled in Parliament to replace the 'list' approach]; SA Act s 28c(l) [sterilisation or abortion requires consent of the Board]; NT Act s 21(4) [major medical procedures include abortions, “contraception” and “medical procedure(s) ... generally accepted by the medical profession as being of a major nature” and which do not remove an “immediate threat to a person's health'1- New Zealand lists ECT, brain surgery and medical experimentation: NZ Act s l8(l)(d)(f). Tasmania's scheme of entrusting a guardian with the powers of a parent over a child under 14 would presumably lead back into the common law: Tas Act s 23(1). Queensland makes no such provision, the thrust of the legislation being enabling rather than protective: K Rosser, “Medical Consent - Legislate or Leave Alone?” (1989 unpublished), 5. WA and the ACT are also silent.

180 In re F: (Mental Patient: Sterilisation) (1989] 2 WLR 1063; 2 All ER 545.

181 (1989] 2 WLR l063, l067 (Lord Brandon, interpreting public interest as necessity), 1085 (Lord Goff), l093 (Lord Jauncey concurring); l080 (Lord Griffith not deciding but implying a preference for public interest), l064 (Lord Bridge not deciding).

182 Ibid l064 (Lord Bridge), l067 (Lord Brandon).

183 Ibid 1064 (Lord Bridge), l067 (Lord Brandon), l093 (Lord Jauncey).

184 Ibid 1067.

185 Ibid 1086.

186 Ibid l087.

187 Id. The standard was enunciated in Bolam v Friern Hospital Management Committee (1957] 2 All ER 118.

188 Ibid 1068 (Lord Brandon). The special features were the irreversibility of sterilisation, its negation of a fundamental right to procreate, the moral and emotional implications, the risk of error, the risk of improper reasons influencing the decision and the advantage in shielding the practitioner from criticism or legal action.

189 Ibid 1063 (Lord Bridge), 1068 (Lord Brandon), 1089 (Lord Goff), 1093 (Lord Jauncey concurring). Lord Griffiths dissented, ruling that, for such “a grave decision with all its social implications”, it was not satisfactory to do other than insist that the consent of the court should be mandatory: ibid 1080.

190 Ibid 1088.

191 Id. Lord Jauncey expressly concurred; and Lord Bridge must have had this passage of the judgment in mind when he, somewhat enigmatically, wrote that the “special considerations which apply in the case of [sterilisation] . . . arise only because such treatment cannot be considered either curative or prophylactic”: ibid, 1064.

192 Re 'Jane'(l989) FLC 77,234; also (1988) 12 Fam LR 662.

193 (1989) FLC 77,234, 77,241 and 77,246. Nicholson CJ did not decide between (i) reading the Commonwealth Powers (Family Law - Children) Act 1986 (Vic) and the Family Law Act 1975 (Cth) ss 60E, 60F, 63A as achieving this; and (ii) reaching this conclusion by force of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

194 In Re B (A Minor) (Wardship: Sterilisation) [1987] 2 WLR 1213, 1218.

195 (1989) FLC 77,234, 77,260. Family Law Act s 60D. No real guidance was provided on whether the standard would be different for an adult, but, since the welfare and best interests test is a creature of the ward of court jurisdiction, it is unlikely to differ.

196 (1989) FLC 77,234, 77,257.

197 Re A Teenager (1989) FLC 77,192 (Family Court).

198 These two States come closest to the common Jaw standard laid down in Jane's case.

199 K Rosser, supra n 179,passim.

200 Rosser, for example, argues for a workable and balanced reconciliation of laissez faire and regulatory approaches: K Rosser, supra n 179, 21.

201 Vic Act ss 36-42 (Victoria does, however, clothe a plenary guardian with the power to consent to any health care “that is in the interests” of the represented person: s 24(2)(d)); SA Act ss 28a-28k; NSW (DS) Act 1987 ss 35-48.

202 Blumstein, J, “Rationing Medical Resources: A Constitutional Legal and Policy Analysis” (1981) 59 Texas L Rev 1345 1348Google Scholar

203 Vladeck, B, “The Market vs Regulation: The Case For Regulation” (1981) 59 Milbank Memorial Fund Quarterly/Health and Society 209,211.CrossRefGoogle ScholarPubMed

204 R Fein, “Social and Economic Attitudes Shaping American Health Policy” (1980) 58 Milbank. Memorial Fund Quarterly/Health and Society 349, 381; H Teff, “Regulation Under the Medicines Act 1968: a continuing prescription for health” (1984) 47 Mod L Rev 303.

205 Victoria, Report ... supra n 143, 62-63.

206 Vic Act ss 36(2) [jurisdictional limit], 37(3) [guidelines).

207 K Rosser, supra n 179, 15.

208 Vic Act s 36(3).

209 K Rosser, supra n 179, 19-21.

210 Ibid IO (citing the concerns of the Chair of the Board).

211 Private communication, Ms A Burgess, SA Health Commission, 15 March 1989.

212 The scheme is implicit in L Frolik, “Plenary Guardianship: An Analysis, A Critique and Proposal for Reform” (1981) 23 Arizona L Rev 599, 649-650.

213 T McGarity, “Regulatory Reform and the Positive State: An Historical Overview” (1986) Administrative L Rev 399.

214 Simon, W, “The Invention and Reinvention of Welfare Rights” (1985) 44 Maryland L Rev I, 23-37Google Scholar

215 Fennell, P, “Law and Psychiatry: The Legal Constitution of the Psychiatric System” (1986) 13 Jo of Law and Soc 35, 40-41Google Scholar

216 Ibid 42-43.

217 Alberta Act s 20.1(1). The scheme covers an “examination or medical surgical, obstetrica or dental treatment needed” where they have not, to the knowledge of the medical practitioner/ dentist previously withheld consent: ss 20.l(l)(b)(c).

218 J Eekelaar, “The Emergence of Children's Rights” (1986) 6 Oxford Jo of Legal Studie: 161, 170; T Marshall, Sociology at the Crossroads and other Essays (1973) 67-127; T Gostin “The Ideology of Entitlement” in P Bean (ed) Mental Illness: Changes and Trends (1983 27-54.

219 M Foley, “The Revolution in Law - Towards a Jurisprudence of Social Justice” (1983 I Australian Jo of Law and Soc 60, 79.

220 A Tay, “Law, the Citizen and the State” in E Kamenka, R Brown, and A Tay, (eds) La and Society: The Crisis in Legal Ideals (1978) I.

221 Tay writes of “a revolution replacing contract between the parties by contract dictated fro above, law by administration, politics by ombudsman, property by hand-outs, individu legal responsibility by statistical analysis and consequent “treatment” or manipulation”: ibid

222 C Koch, “Effective Regulatory Reform Hinges on Motivating the “Street Level” Bureaucra (1986) 38 Administrative L Rev 427, 431.

223 Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213, 218- 219; applied in Re Eand the Guardianship and Administration Board and the Public Advocate (1988) 2 VAR 222, 224-225.

234 Re M (1988) 2 VAR 213, 220.

235 Id.

236 Re e (1988)2 VAR 222,225.

227 Supra text at n 178.

228 For example the Minister may, by notice, “determine standards to be observed in the provision of nursing home care”: National Health Act 1953 (Cth) s 45D (inserted by s 16 Nursinf Homes and Hostels Legislation Amendment Act 1987).

229 Health Services Act 1988 (Vic) Part 5 Community (Residential Services) Visitors; ss I I{ [functions of visitor], 121 [requests to see visitor], 123 [twice yearly reports to the Public Advocate].

230 After a survey of legislation in Canada, Australia, New Zealand, England and Scotland the right has been said to be “virtually non-existent”: R Gordon and S Verdun-Jones, “Tht Right to Refuse Treatment: Commonwealth Developments and Issues” (1983) 6 Int Jo oi Law and Psychiatry 57, 63.

231 Ibid 67. Under North American experience delays in obtaining guardianship consent considerably extended the periods of in-patient care, without, it is judged, doing muc to enhance the dignity of decision-making by the individual: J Bloom L Faulkner, V Ho! and R Rawlinson, “An Empirical View of Patients Exercising Their Right to Refus Treatment” (1984) 7 Int Jo of Law and Psychiatry 315, 317-318, 326.

232 Ibid 71.

233 Gordon, R and Verdun-Jones, S, “The Impact of the Canadian Charter of Rights and Freedo upon Canadian Mental Health Law: The Dawn of a New Era or Business as Usual?” (198 14 Law, Medicine and Health Care 190, 195Google Scholar

234 P Doty and E Sullivan, “Community Involvement in Combatting Abuse, Neglect, and Mistreatment in Nursing Homes"(l983) 61 Milbank Memorial Fund Quarterly/Health and Society 222, 246-249. The Board would comprise mainly community representatives, would mediate or make findings on the severity of complaints, and in the latter case would report the gradings to licensing authorities, who would be obliged to suspend or de-register on a 'points system' akin to that for traffic violations.

235 Ibid 232 247

236 lbid230'. 230

237 Ibid 245.

238 G Teubner, “ and Reflexive Elements in Modern Law” (1983) 17 Law and Soc Rev 239; also P Nonet and P Selznick, Law and Society in Transition: towards responsive law (1978); A Parkin, “Public Law and the Provision of Health Care” (1985) 7 Urban Law and Policy 10 I.

239 M Moran, “Crises of the Welfare State” (1988) 18 British Jo of Political Science 397.

240 As evidenced by the 1,941 applications, and the I,772 orders made in the first year of operation of Victoria's 'crisis' model Board: Victoria, Annual Report 1987-1988 Guardianship and Administration Board (1988, Melbourne) 10.

241 Vic Act ss 15, 16 [Public Advocate]; Intellectually Disabled Person's Services Act 1986 (Vic) ss 53-60 [Community Visitors).

242 Re 'Jane' (1989) FLC 77,234.