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Guardianship and Administration Amendment (Advance Care Directives) Bill 2021


Cassy O'Connor MP

Cassy O'Connor MP  -  Thursday, 1 July 2021

Tags: Health, Guardianship, Elder Abuse

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, I am only going to make a brief contribution on the bill.

Ms Archer - I love it when you say that and then you go for half an hour, which is fine. We have plenty of time.

Ms O'CONNOR - You make a fair point, Attorney General, but I do not want to hold up the business of the House. Dr Woodruff made our substantive contribution and very well at that.

I wanted to pick up some of the things that Mr Ellis said in his contribution, which was a very thoughtful contribution. We kept hearing the term 'self determination'. While I appreciate that this is the first tranche of the recommendations that are contained in this mighty tome, the Tasmania Law Reform Institute Review of the Guardianship and Administration Act 1995 (No. 26)

Ms Archer - Glad you brought it in. It's fairly big, isn't it?

Ms O'CONNOR - It is a hefty report and I would not be truthful if I said I had read it all. There is a whole suite of recommendations in here, and I know this has been raised with you by other speakers, but there is a real issue around self-determination for people who come under emergency orders and guardianship orders, and we would argue that the evidence points to a system at the moment that is not adequately respecting the rights of people who may end up in the health system or a facility associated with the health system to have a say in their care, their future, where they live and what role their family might play in their care.

As a result of the work of Advocacy Tasmania and the fact that people are coming, I am sure, to all members of parliament with stories about the Public Trustee and interactions with the Public Trustee which are far less than satisfactory, we have a folio of stories from our constituents that are really distressing, but more than that, they tell me that we have enabled a system here in Tasmania, through almost an excess of caution or paternalism, that frequently takes away the rights of people and where judgments are being made that rob people of their right to self-determination.

Those judgments are being made in hospitals by doctors and social workers about a person and as soon as an emergency order is in place, that person is effectively robbed of any right to self-determination and their loved ones are not part of a decision-making process in relation to that person.

I argue that this makes us in breach of our UN convention obligations on the rights of persons with disability but also on civil and political rights. It is just not good enough that we have allowed a system to evolve that is robbing people of their right to self-determination and basically making what we would argue, particularly on a number of the case studies we have looked at, decisions about a person's care without providing that person, should there be some cognitive issue, with the support to have a say. Once a person is put on an emergency order for 28 days, they can be put on a second rolling emergency order for another 28 days and during that period that person is stuck in the system and totally at the mercy of the health care system. It is deeply paternalistic.

There is the story of Jill I told in here last week, but to recap briefly, I used to talk to Jill quite a bit down at Salamanca outside Salamanca Fresh where she would sell tickets for the MS Society. She dedicated her life to raising funds for the Multiple Sclerosis Society. She had a bit of a health issue, ended up in hospital and then basically this woman, who is clearly intelligent and competent, had her rights taken away from her. She has no right to self determination apparently and is still in the hospital five months after she entered it. Her great frustration is that she just wants to go home. Why would we not have a system that would support Jill and people like her to live in their own home, should that be their choice?

I personally have a concern that there is a financial incentive here for the Public Trustee to take management of people's affairs. I believe they take something like a 6 per cent fee on income in order to manage a person's financial affairs, and if the minister has more clear information on that, I am happy to stand corrected, I am just talking from memory here.

Ms Archer - All that is part of the terms of reference of the review and that will be looked at.

Ms O'CONNOR - I am glad that we are undertaking a review of the interaction between the Guardianship and Administration Act and the Public Trustee, but to reiterate Dr Woodruff's call, it is not to be delayed. Every day that we do not address this is another day that people like Jill or Arthur from George Town and many other people are going to be deprived of their rights. I ask members in this place to reflect on how they would feel if when they are older they injure themselves, or are a bit vague and wind up in hospital, and go through what is arguably a bit of a sneaky assessment, where people are not told that the medical professional who is coming in to talk to you is actually doing an assessment; people like Jill are told they are just coming in for a chat.

There are processes here that are denying people their rights and if it was one of us, just imagine. You go into hospital for health care, you need support, and suddenly a bunch of doctors and social workers are telling you that you are not going home ever again and you have no rights here. That is what happened to Jill, that is what happens to people all over Tasmania at the moment, and that is why Advocacy Tasmania's advocacy at an individual and a systemic level on this issue should be supported by all members in this place.

I completely agree with Mr Ellis - and it is not often that happens - that we need to be supporting people's right to self-determination. We need to be making sure that we are not, through possibly the best of intentions, engaging in another form of elder abuse by taking rights away from people, and it becomes almost state-sanctioned abuse because people are denied a voice, denied a right, not supported to make choices and their families are often completely disempowered in the process.

Could the minister provide some information on a time line? I am not sure that we have had that information yet so I think that would be really helpful. I will just say that once you give the Guardianship and Administration Board more powers to make orders, you need to have a real eye on how that power is being exercised, because at the moment people at a time of stress in their lives are being disempowered through the Guardianship and Administration Board process. One of the recommendations of the TLRI is that there needs to be an appeal mechanism to a GAB decision where a group of people who are not part of the original decision are assessing that appeal. I grew up in Queensland and it is a bit like asking the Queensland police service to investigate itself for improper conduct; they were always going to find themselves not guilty.

We need to keep an eye on the people who are making decisions about the lives of our constituents. Jill, for example, was appointed a public guardian she has not seen. Jill's story, which is on the Advocacy Tasmania website, is that all she gets every day is that she is given her pills and she is still sitting there in hospital. She would rather be at Salamanca helping to raise funds for the MS Society, and when you have a look at the video, one of the reasons she was found to not to have capacity to make a decision is that she bought a motorhome and sold it for less than she paid for it. Well, who has not made a stupid decision like that? Who has not bought something and gone, 'I do not really want this or need it or like it', and then you go to sell it and you sell it at a loss. It does not mean you do not have capacity to make decisions.

That is another point that the TLRI makes - we should have the capacity to make bad decisions. This is where you need to check the paternalism of the state because it is in the best interests of the person - and that is why I think there has been a misapplication of the best interests of the person test - to accept that sometimes people make bad decisions. It does not mean they do not have capacity to have self-determination over what happens to them after they are injured and they wind up in the health system.

From what we are hearing, much of the issue stem from decisions that are made on the hospital floor by social workers and by doctors. Once that decision is made, as I said, everything changes for that person and self-determination largely goes out the window. If the Attorney-General could help the House to understand when we will see the terms of reference for the review of the Public Trustee and a time frame for improvements, that would be helpful to the House. More importantly, it would provide some comfort to Advocacy Tasmania and all those families that are affected and afflicted by what we would argue in some cases is the excessive paternalism of the state.