The current system of guardianship is “butchering a number of human rights” and it’s taking too long to reform the system, the Disability Discrimination Commissioner says, the Sydney Morning Herald reports.
Alastair McEwin, the Disability Discrimination Commissioner at the Australian Human Rights Commission, said Australia was falling behind in its international obligations on the rights of people with disabilities, with the United Nations due to report on the nation’s progress this year.
Mr McEwin said there was a strong case for a review of the guardianship and financial administration regimes run by the states, but stopped short of calling for it to be included in the terms of reference for the upcoming royal commission into aged care.
“Guardianship is about making decisions on behalf of someone else and, when you substitute one person on behalf of someone else, you’re completely butchering a number of human rights, including the right to make a decision based on your own will and preferences,” Mr McEwin said.
“There’s absolutely a role for supporting someone with disabilities to make decisions but the key word is ‘supporting’.”
There are tens of thousands of people around Australia under guardianship and/or financial management, including those with intellectual disabilities, mental illness, brain injuries and age-related dementia. The number of people in the system is growing because of the ageing population.
The state courts or civil and administrative tribunals can appoint a guardian for health and lifestyle decisions and/or a financial manager when a person is considered to lack the capacity to make decisions. The appointees can legally make decisions on the affected person’s behalf.
This is at odds with the rights-based approach enshrined in the UN Convention on the Rights of Persons with Disabilities, which Australia ratified in 2008 and the states and territories adopted in 2010 through the National Disability Strategy.
‘Progress is incredibly slow’: Australia lagging on disability rights (Sydney Morning Herald)
American Bar Association