On 24 January 2023, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability published its report titled, “Diversity, dignity, equity and best practice: a framework for supported decision-making”. The report can be found here.
This research report was authored by an eminent group of academics and practitioners and is notable for its identification of support as a vital element of the decision-making rights of vulnerable and intellectually disabled people.
The La Trobe Support for Decision Making Practice Framework is advocated in the report as an approach to sound decision making. This framework has the following elements:
- Knowing the person
- Identifying and describing the decision
- Understanding a person’s will and preferences about the decision
- Refining the decision and taking account of constraints
- Considering whether a self-generated, shared or substitute decision is to be made
- Reaching the decision and associated decisions
- Implementing the decision and seeking advocates if necessary.
The three principles of practice for supporters using the La Trobe Framework are:
- commitment (that is, having a relationship with the person and commitment to upholding their rights);
- orchestration (the primary supporter leads and coordinates support, draws in other supporters and mediates any differences), and
- reflection and review (by the supporter to ensure transparency and accountability in their role).
Supporters also need to be able to implement a range of strategies that suit the person they are supporting.
But let’s get practical
For all its detail, however, the report does not address the need for practical and implementable processes to support the decision making of the vulnerable and the disabled.
Autonomy First, in conjunction with Dr Jane Lonie and other collaborators, has developed processes to guide not only its own operations when dealing with vulnerable clients, but also those of the Capacity and Capability Clinic at Macquarie University Hospital.
It is our belief that, when dealing with decision making support, it is essential to understand the will and preference of the person under care and not to rush into substitute decision making mode. Disability does not necessarily mean decision making incapacity. It may simply raise a flag for concern. At Autonomy First Lawyers, we employ a collaborative, cognitive responsive consultation process which, where possible, proceeds at the cognitive speed of the client, not necessarily that of their carers and supporters, in order to avoid an injustice being delivered to the rights of a vulnerable person.
We commend the work of Daniel Kahneman and his book Thinking Fast and Slow for anyone interested in the reasons for this approach.
When an issue needs to be resolved
Of course, it may become clear during this process that the decision-making ability of a person is impaired and that the extent of that impairment needs to be resolved. In this regard, Kunc J in Ryan v Dalton made the following observations:
“106 Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.
107 It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:
1. The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.
2. A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.
3. In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.
4. In case of anyone:
a. over 70;
b. being cared for by someone;
c. who resides in a nursing home or similar facility; or
d. about whom for any other reason the solicitor might have concern about capacity,
the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.
5. Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.
108 I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.”
At Autonomy First Lawyers, we remain concerned about the ease with which personal fiduciaries, such as attorneys and guardians, can use client vulnerability to activate enduring appointments and ignore the decision-making rights of vulnerable or disabled persons, denying them appropriate respect and a voice.
So, to provide a platform from which we can address these issues, we have set out on our website client interview resources that help to identify the facts required to make an evaluation of the client, their instructions and their demonstrated decision making ability.
Why should you consult us?
We are available to consult with any person concerned about the decision-making ability of themselves or another.
We remain committed to the ethics of care for the ageing.
We commit the time to understanding the will and preference of any person of concern first and then build our response to that situation as needed in conjunction with the client and their carers, supporters, family and representatives.
This is called collaborative cognitive responsive practice. The journey always starts with an initial conversation. Call or contact us for further information.