Access to legal services
Supported decision-making and guardianship
Information and support in civil justice proceedings
Access to Legal Services
What we know
The 2012 LAW Survey found in relation to the ACT that nine per cent of respondents accounted for 63 per cent of legal issues reported and that people with disability had:
- a significantly higher prevalence of legal issues overall, substantial legal issues, multiple legal issues and were the only vulnerable group to feature within each of the 12 issue areas of law (being accidents, consumer, credit/debt, crime, employment, family, government, health, housing, money, personal injury and rights)— the majority of which are in the civil law [98]
- significantly lower levels of finalisation of legal issues (61 per cent compared to 70.4 per cent for those without disability)
- greater odds of experiencing legal issues—2.2 times higher than other respondents (62.1 per cent compared to 46.8 per cent)
- the greatest increased prevalence of legal issues of any disadvantaged group according to the greatest number of measures.
The survey highlighted the value of holistic, integrated, multifaceted approaches to justice that address the diverse needs of different people and in particular that address the needs of disadvantaged people who are especially vulnerable to legal issues. It also emphasised that access to justice is an important route to tackling social exclusion.
Legal services need to build and maintain trust with marginalised clients to be effective and this requires long-term sustainable policy and funding frameworks which underpin certainty and continuity of service provision [99].
Technology is being used in some instances to help reach many people who need advice and assistance but marginalised people often experience digital exclusion. If addressed early many legal issues can be minimised or avoided entirely. Indeed, the Productivity Commission has recognised the public benefits to the community of legal expenditure and the ‘false economy’ of not doing so, given that the costs of unresolved issues were often shifted to other areas of government spending such as health care, housing and child protection [100].
Self-help tools, legal information and unbundled services are generally inappropriate strategies for people who have poor legal knowledge, language or communication needs, cognitive impairment or mental health conditions, or limited technology capability [101]. By contrast, the Law Council noted that:
- Specialist services can develop strong referral networks with appropriate support services and community representatives, which inform their ongoing service delivery. They also have a strong knowledge of relevant laws against an increasingly complex and changing legal landscape. Specialist lawyers have an important role in informing other justice system actors about their clients’ needs, such as courts, which may lack expertise regarding a person’s background, their vulnerability factors, cognitive or behavioural issues or communication needs [102].
While single entry points into the justice system are important strategies for the general public, it is well recognised that many vulnerable groups can be reluctant to use formal single entry points. Instead, multiple, informal pathways are necessary. In particular, the role of trusted non- legal workers in facilitating side pathways into the justice system is considered pivotal, including through ‘warm referrals’, where they accompany clients to initial appointments. People experiencing disadvantage are generally more likely to raise legal issues with trusted non-legal professionals, including health and community professionals [103].
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Legal Aid
Legal Aid is one of the few ACT justice agencies that collects and can provide data but advises that it is not comprehensive across all its operations. The data relates to grants of legal aid, the provision of legal advice and duty lawyer services. It is collected via self-reporting when a person ticks a box on the client intake sheet to advise that they identify as having a disability. The data does not, therefore, cover the 16,000+ people who seek support through the Legal Aid Helpline. The data relates only to the numbers of services to clients with disability and does not identify what percentage these figures are from overall services to clients. Legal Aid considers that the statistics represent significant under-reporting and that the percentage of clients with disability is likely to be up to 20 per cent.
Figure 1: Legal Aid in the ACT
| | 2012-13 | 2013-14 | 2014-15 | 2015-16 | 2016-17 | 2017-18 |
|---|
Advice | 185 | 259 | 290 | 412 | 569 | 722 |
| Duty lawyer |
131
|
143
|
189
|
241
|
526
|
672
|
Grants | 98 | 119 | 141 | 201 | 346 | 380 |
Total | 414 | 521 | 620 | 854 | 1441 | 1774 |
Canberra Community Law
People with disability accounted for 50 per cent of clients (who provided this information) of Canberra Community Law in 2015–16. Canberra Community Law’s data is collected from self- reporting as well as the solicitors/staff making an identification based on information provided to them about clients e.g. from Mental Health ACT or from a support worker. The multiple data sources may mean the data better reflects the true numbers of people with disability seeking legal assistance than the figures provided by Legal Aid.
Disability Discrimination Law (DDL) provided 337 advices in relation to disability discrimination in 2015–16, an increase of 62 per cent over the previous year. The three major areas for advice work were service provision, employment and accommodation. The major types of disabilities involved were physical and psychiatric disabilities.
Street Law works with clients with a wide range of life experiences. Its data indicates that 19 per cent of clients in 2015–16 identified as being Aboriginal or Torres Strait Islander, 47 per cent had a disability, 44 per cent were born outside Australia and 11 per cent identified as speaking a language other than English at home.
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What we heard
Community feedback was that many people with disability did not know how to seek legal advice and assistance and presumed they could not afford it or that their issues were not really legal issues. Carers also raised that they did not feel they could seek advice and did not know where to go to do so. At times the community consultations sessions allowed for people with disability to be put in touch with a legal service provider to assist them with their issues.
Continuity and consistency were important to people with disability in their relationships with legal services providers (as well as other services). They wanted to understand what was happening and to have their legal service provider ‘joint the dots’ for them.
Community consultations also raised a concern that for many important civil law issues— such as personal injury compensation— there did not appear to be publicly funded services available, which precluded people with disability from seeking redress due to cost.
The need for a specialist Disability Legal Service— like the Intellectual Disability Rights Service (IDRS, NSW)— was raised by a number of consultation participants. Existing legal services providers were felt by some to have insufficient understanding of and expertise in disability issues. However, others praised Legal Aid and Canberra Community Law for their support and dedication. The IDRS in NSW not only represents people with disability but has a model of wrapping the services of a lawyer, disability advocate and social worker around a person, so that a person’s health, financial, social and legal needs can be addressed in an integrated way.
The broader legal profession were felt to lack understanding of disability issues. Lawyers themselves felt they did not have anyone from whom they could seek advice on how to manage situations and what supports might be needed.
Legal Aid ACT has run clinics in Canberra to increase awareness among people with disability about their rights, trying to meet people in locations where they feel comfortable. They have partnered with Advocacy for Inclusion, undertaking client interviews at the Advocacy for Inclusion premises on a regular basis. Generally,
Legal Aid ACT has found that clinics work best in locations where people are regularly coming through the door to services, for example the weekly outreach to aged care services at the Canberra Hospital.
Legal Aid ACT expressed the viewed that their cultural liaison officer model (for clients from CALD backgrounds) was highly successful and had played an important role in building trust and accessing hard to reach communities. They felt this may be a model to emulate for people with disability. Cultural liaison officers were described as substantially improving staff cultural competence and delivering training to address cultural knowledge gaps.
The President of the ACT Civil and Administrative Tribunal noted that Legal Aid provides an invaluable service in representing clients at Mental Health Tribunal matters and that they have generally obtained detailed instructions from clients. Legal Aid and/or the Public Advocate have also assisted clients after hearings to ensure that they have understood proceedings and decisions that have been made. ACAT has developed a process of making ‘warm referrals’ to Legal Aid which is working well.
What could we do?
Suggestions from consultations and research include:
- the creation of a speciality disability legal service
- increasing the availability of models of legal service that bring together lawyers with allied support workers or services to provide more holistic solutions to people with disability concerns
- increasing outreach activities by legal services providers through measures such as Health Justice Partnerships
- exploring new service delivery points by including legal service in initiatives such as the Schools as Communities program
- establishing disability liaison officers in legal service providers to increase the providers disability competence and responsiveness
- using legal assistance funding arrangements to encourage and support innovative service solutions which improve access for people with disability.
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Supported Decision - Making and Guardianship
The ACT’s Law Reform Advisory Council (LRAC) finalised its report into the Guardianship and Management of Property Act 1991 (Guardianship Act) in July 2016. The then Attorney-General released the report publicly in September 2016. The Government is considering its response to the report. The ACT currently has a functional set of laws and systems for guardianship. However, disability rights and human rights standards and principles have evolved since the commencement of the Act, most notably the ratification of the UN Convention on the Rights of Persons with Disabilities. Current thinking calls for a less paternalistic approach, ensuring that people with disability have equal standing before the law. Legislative amendment would be required to meet these objectives, with a range of non-legislative approaches also required to contribute to broader reform.
The LRAC report made 16 recommendations across the areas of policy, principles and legislation. The main theme of the recommendations was that the ACT move away from a ‘best interests’ model of substitute decision making towards a ‘will, preferences and rights’ based supported decision making model.
Reform of the ACT’s guardianship regime, encompassing cultural change, policy and program development, and legislative amendment, would actively support a range of government priorities:
- care when you need it (ensuring people who require decision making support receive it)
- building a better city (fostering a culture of inclusivity and equal recognition before the law)
- support when it matters (ensuring that interventions are available when required to prevent harm).
LRAC identified that substantial reform would need to include:
A. The development and provision of explanatory information and education programs to promote supported decision making skills and change decision-making culture across the community.
B. Support for the relational changes necessary to allow greater decision making by those who are currently under a substituted decision-making arrangement.
C. Observation of, and learning from, pilot supported decision-making processes.
D. Development of ways of assessing the supports someone may need to exercise their decision-making ability.
E. Assistance for people with impaired decision- making abilities to become ‘decision-ready’ and learn specific decision-making skills for those decisions they see as important to their lives.
F. Administrative mechanisms to help facilitate the making and implementation of supported decisions, including guidelines for the various roles in a supported decision-making environment.
G. Development of appropriate registration processes, so that people can record their will and preferences and any formal arrangements they want to operate to support their decision making.
H. The development and implementation of appropriate monitoring and oversight mechanisms, where these are necessary.
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External Developments
Since the preparation of the LRAC report, a number of other entities have progressed action on related issues. Cumulatively, they lessen the LRAC report’s primacy as the source of impetus and direction for change. Novel and largely untested approaches that are being contemplated locally, nationally and internationally are an evolving body of work.
Australia ratified the UN Convention on the Rights of Persons with Disabilities in 2008, signalling an intention to ensure that domestic laws and policies impacting on people with disability were consistent with the articles contained in the Convention. Article 12 provides that people with disability are entitled to equality before the law.
Advocacy for implementation of alternatives to substitute decision making, including supported decision making, started to gain significant momentum following the endorsement of general comments regarding the interpretation and application of Article 12. Paragraph seven was particularly clear in its assertion that any form of substitute decision making was non- compliant with the Convention:
States parties must holistically examine all areas of law to ensure that the right of persons with disabilities to legal capacity is not restricted on an unequal basis with others. Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment. These practices must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others [104].
The NSW Law Reform Advisory Commission’s guardianship review was tabled in August 2018. It recommends substantial reforms, different in detail to the ACT LRAC recommendations, but similar in scope. The NSW Government has not yet responded to the review. Queensland introduced its Guardianship and Administration and Other Legislation Amendment Bill 2018 in February 2018. Amongst other things, it seeks to more closely align Queensland law with the UN Convention on the Rights of Persons with Disabilities.
The Australian Law Reform Commission (ALRC) issued its report Elder Abuse—A National Legal Response in June 2017. Relevant recommendations largely focus on enduring powers of attorney. The outcomes of cross- jurisdictional work being conducted for the Council of Attorneys-General, currently in progress, are likely to lead to reform in this space. The Commonwealth has committed to establishing a register of powers of attorney. Options for the harmonisation of laws are being prepared.
The Tasmania Law Reform Institute commenced community consultation on an issues paper in December 2017, and released its report in 2018 [105].
International experience offers mixed evidence for Australia. Ireland’s 2015 guardianship legislation was seen as leading the way yet has remained largely dormant with inoperative and unfunded provisions. The experiences and outcomes of this style of scheme therefore remain untested, despite having been passed three years ago. Ireland has, however, now allocated funding to the Decision Support Service created under the Act and appointed a Director. This opens the way for the substantive legislation to eventually become active.
The Law Commission of Ontario’s Legal Capacity, Decision-making and Guardianship report was finalised in March 2017. This report and its related research includes valuable insights into the effectiveness of various provincial models that are sometimes proffered as model legislation. Many of those assessments are not favourable.
Reform work in the ACT will need to take these developments into careful consideration.
What we heard
Guardianship
Views were expressed that guardianship can be sought for the convenience of lawyers (and often parents) rather than supporting people to make their own decisions when they are capable of doing so. It was proposed that legislation should provide a presumption of support if anyone’s rights are to be taken from them. It was further suggested that when a guardianship order is in place, it is assumed to provide coverage for all domains of an individual’s life, even if that is not explicitly stated. Therefore, some people with disability report feeling that all their opportunities for decision making are removed, with service providers and institutions defaulting to guardians for all decisions.
It was also proposed that advocates be formally recognised in legislation as having a right to attend ACAT with someone in guardianship proceedings to provide communication support and advisory support. It was alleged that some advocates have been asked to leave ACAT proceedings so that the member can talk with the person with disability on their own.
ACAT members expressed that they found it difficult to encourage supported decision-making where there were few, if any, supports to parties to explore such options and little advice to the Tribunal on suitable arrangements.
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Legal Capacity
The legal profession was criticised for making assumptions that people with psychosocial disability would not have capacity to make decisions, and that when someone makes a bad decision it is because of their disability, rather than accepting that many people make bad decisions. This leads to further assumptions that people with disability are unable to represent their own views or speak for themselves in legal proceedings. Some people who are perceived as ‘difficult’ have not been able to obtain legal representation, which can lead to applications for a guardian to be appointed for them, instead of supporting the person to participate in their own matters.
As people with disability are known to have poorer socioeconomic outcomes, they are more likely to access community legal support than the rest of the community. The limited time available to community legal practitioners can make it difficult to accommodate the additional time needed to work with people with communication and cognition impairments. It has been reported that this pressure can also be a factor in encouraging people to take up guardianship arrangements in order to expedite and clarify communication regarding a matter. This situation provides another example of the potential benefit of disability advocate and supporter schemes [106] where people with disability have access to a supporter or independent advocate who can assist and support them during legal processes such as in a court or tribunal process or in making a complaint to police.
There is little guidance for lawyers in the ACT on how to assess legal capacity and issues that should be considered prior to considering substitute decision making. One model is the Queensland Law Society Queensland Handbook for Practitioners on Legal Capacity [107].
Handbooks in other jurisdictions fail to recognise supported decision-making and proceed straight from assessment of a person’s capacity to substitute decision-making.
Legal Aid ACT has commenced work on the development of a capacity handbook for the ACT but this project has stalled due to resourcing constraints.
A University of Melbourne study [108] found that the provision of suitable supports for people in fitness to plead proceedings improved their ability to understand and provide instructions such that the persons could proceed to test the evidence against them and avoid the sometimes adverse outcomes of being found unfit to plead.
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Community Awareness
Participants expressed views that indicated it was difficult to get organisations to accept anything less than guardianship and many would not act in accordance with arrangements such as Health attorney arrangements. It was felt that this was due to a cautious approach to duty of care issues and that there needed to be greater community legal education about the decision-making options available and their legal validity.
What could we do?
The ACT Government supports increased decision-making autonomy for people with disability and improving communication and decision-making supports to people with disability. The Government is working through its response to the LRAC report with these values as central. The Disability Justice Strategy could also be an appropriate platform in which to articulate a commitment to a will, preferences and rights- based approach to supported decision making and to identify steps to achieving this.
The Government recognises that any proposed legislative change is, however, only part of the necessary change toward practical fulfilment of human rights obligations. That community and service attitudes are deeply embedded is broadly reflected in the experiences of people with disability. To fulfil our obligations under the Convention and to ensure that people have both opportunity and support for decision making, both awareness raising and skill development across the community are required. A cultural shift is necessary.
The ACT Government has, over many years, funded a range of projects and initiatives aimed at exploring how supported decision making can be embedded in the ACT. There has also been a commitment of funds from the Commonwealth through preparation for the NDIS and latterly through the ILC building fund, to establish, develop and grow resources to progress supported decision making. These consolidated programs have ranged from working with individuals to develop supported decision- making relationships, to engaging key decision makers across the justice and disability sectors, developing a tool kit, a decision-making flowchart available online, and working with services and stakeholders to change the narrative around supported and substitute decision making. There are currently two funded programs on SDM underway in the ACT. ADACAS is funded through the ILC funding to focus on the health space and how people can be supported to make decisions. ACT Government funding is enabling Advocacy for Inclusion and ADACAS to undertake education and engagement with key stakeholders and community to change the dialogue and expectations about supported decision-making.
The latter project includes activities that enable people with disability to create supported decision making relationships, equip people with disability and their supporters with decision-making skills as well as provide professional development for health professionals, support workers, legal professionals, teachers and businesses.
While supported decision-making is broadly supported across the disability community, there are no precedents where it has been successfully embedded across a community, including as part of a continuum leading up to and including substitute decision-making. Cultural change on this level is complex and multifaceted, and will take time.
To this end, it will be necessary to continue to conduct action research and to trial new approaches to explore what works for people, families and services. This additional work to sustain cultural change during and after any potential legislative change is essential. Without addressing community awareness and skill development, people with disability will continue to experience discrimination based on their decision-making ability and be unable to enact their rights as decision makers.
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What we know
The civil justice system in the ACT includes not only the civil jurisdictions of the Magistrates Court (including the Industrial Court) and Supreme Court but also the ACT Civil and Administrative Tribunal and the Coroner’s Court.
As already stated in the section above on ‘Access to Legal Services’, we know that the majority of legal issues experience by people with disability are in the area of civil law [109]. This makes the provision of accessible information to enable navigation of the system and appropriate supports and adjustments critical in achieving access to civil justice for people with disability.
In the ACT, the ACT Law Reform Advisory Council is currently considering how restorative justice might be used in the coronial system.
What we heard
The recurring themes of information, education and supports were heard in consultations discussing civil justice issues.
We heard that for people involved in coronial processes there are number of barriers to accessing justice. This applies whether the person with disability is the deceased or a family member of the deceased.
In particular, we heard from a few families of the deceased who participated in the consultation process that they felt there was a real challenge was in achieving equal status with other parties to proceedings, not least because of the cost involved in the family briefing separate legal representation if they wished to fully participate in proceedings as a party. We heard that where the deceased was a person with a disability, families wanted the Coroner’s Court to receive the best information to allow the Coroner to make their finding. The families hope was that this would lead to the possibly of positive actions following the Coroner’s recommendations, to prevent future deaths where possible. We also heard in consultation with stakeholders that families sometimes struggled to reconcile the restorative and therapeutic aspects of the coronial process with the (sometimes conflicting but overriding) duties and obligations arising from the Coroner sitting as a Court. On occasion, this has left families believing that the Court received inaccurate or incomplete information as part of receiving evidence on which findings were ultimately made. Improvement in family supports and/or publicly information on the Court and coronial process might also assist families to understand the extent of the Coroner’s powers and to manage expectations as the (often lack of) enforceability of coronial recommendations or follow-up after the death of their loved one.
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What could we do?
The Disability Justice Strategy could incorporate the learnings from the ACT Law Reform Advisory Council report and ensure there is an ongoing disability focus on the supports available to people with disability across all aspects of the civil justice system.
Part 2 Chapter 4 Criminal Justice System
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Page updated: 27 Feb 2024
