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Terry Carney[1]
The Australian tribunal model of adult guardianship forged in the 1980s proved to be a uniquely successful experiment. This paper examines the robustness of that model in the face of transformations such as the rise of Neoliberal styles of government (contractualisation and privatisation of services), changing demographics, cultural pluralism, and new forms of state accountability to citizens. It argues that the adjudicative model remains attuned to contemporary social conditions but its reputation is hostage to measures to ensure that adjunct agencies, such as public trustees and default guardians, offer a responsive, personalised service rather than the bureaucratic and impersonal service to which they may be predisposed by virtue of the prior history (and operating ‘culture’) of such institutions.
Guardianship law, Australian style, has been a uniquely successful experiment.[2] However nothing stands still in life. The question posed in this paper is: Will the Australian model of guardianship survive future challenges, or is it time for a new experiment?
Policy is shaped by many forces: by ideological agendas, by cultural values, and by pragmatic forces - to pick out just three.
a. Ideological determinants of policy.
Some of the forces sculpting policy are ideological ones.
This is illustrated by the more strident advocacy of Neoliberal forms of governance which scale the state back to the role captured in the metaphor of ‘steering but not rowing’.[3] Or by the rising popularity of ideas of ‘mutual obligation’ and reciprocity in public policy, such as in the federal government’s Report on Welfare Reform,[4] or Australia’s creation of a contestable market for delivering job-matching assistance to the unemployed.[5]
The question is whether such trends will impact on guardianship. Such as in the way hinted at by Victoria’s recent debate around dismantling tribunal review of complaints about denial of public services for the intellectually disadvantaged and relying instead on managerial protections.[6]
b. Cultural determinants of policy
Other forces are ‘cultural’ ones. In the sense that they are more deeply embedded in the values of a given society at a particular historical juncture. This can be seen at work in recent writing from the US about the future of ‘private planning’ (enduring powers) as a preferred alternative to guardianship. As Rich said:
Americans have become so imbued with the idea of the sovereignty of the self - the autonomous agent who takes responsibility for his or her life, the way life unfolds, and the values that inform it - that other ways of living the life of a person become almost unintelligible.[7]
The ‘culture’ of a country plainly leaves its mark, as demonstrated by the extraordinarily low take-up of adult guardianship in Hong Kong. There the demand for guardianship has run at well below one percent of the New South Wales volumes, despite having adopted broadly similar legislation to that State.[8]
So a key issue is whether Australian guardianship harmonises with current and emerging cultural values.
c. Pragmatic influences on policy
Many of the forces at work are pragmatic responses to new configurations of society, however. Such as shifts in the age profile of the community, different patterns of engagement in the workforce, and new priorities and aspirations of the pool of people formerly relied on to power ‘civil society’.
Thus ‘personal’ guardianship is not an institution for the friendless and abandoned. Or for those whose relatives are too distant to manage their affairs, or too pre-occupied with work or other obligations to permit them to do justice to the legal mandate. This is so whether the personalised guardian has previously been identified and set up under enduring power of attorney provisions, or is being considered for appointment for the first time by a guardianship tribunal.[9]
So demographic trends, such as the slimming out of the ‘potential carer’ age groups within society, and disproportionate growth in the older age bands, necessarily diminishes the pool of prospective guardians. Likewise, labour market trends, such as female participation rates, and the diversification, insecurity and ‘non-standard’ working hours of many employees.
The question, then, is whether these transformations have altered the landscape within which adult guardianship law was constructed.
Certainly some ideas are driven by more ideological pressures, as with the US renaissance within welfare provision of ideas of ‘reciprocity’ or ‘mutual obligation’.[10] Or as illustrated by the shift from government provision to contracting out of services. The return to favour of the Nineteenth Century idea of providing government services in partnership with non-government agencies is a third example.
But which (if any) of these may impact on Australian guardianship?
a. Entrepreneurial government?
Entrepreneurial government, or a shift to ‘contractualism’ is certainly now a feature of welfare reform in America for instance.[11]
A trend summed up by Diller as characterised by three different epochs of administration: first, one where the professional discretion of social work was king, later substituted by the ‘rights’ and entitlement paradigm of lawyers, but now populated by the ‘managerial’ principles so close to the hearts of MBA graduates. [12]
If guardianship followed suit, we would expect to see a distant past where social workers and other professionals handled guardianship issues as an integral part of their discretionary management of clients. This would then have been superceded by a ‘rights’ or ‘social facilitation’ model. That prediction is not far wide of the mark: until the mid 1 980s there was significant support in the literature for a ‘social work’ model of guardianship, [13] and legislation routinely granted guardianship powers to medical or other authorities, either as a product of say admission under the Mental Health Acts or on lodgment of ‘medical certification’ of infirmity.[14]
So does this mean that ideas of contracting out of guardianship services and responsibilities, establishment of ‘quasi markets’ of private providers of guardianship for a fee, or casemanagement of guardianship - can all be expected as the next step? Perhaps not. Australia may be too robustly wedded to public provision and respect for a rights model for this to eventuate. But one cannot be certain. Victoria’s previously well regarded ‘rights and entitlement’ model for the intellectually disadvantaged, as enshrined in its Intellectually Disabled Persons’ Services Act 1986 (Vic.) came under sustained Departmental pressure on just this ground. Preference was expressed for performance standards, casemanagement and various other managerial tools. These gained Departmental favour over the reporting and monitoring machinery established under the Act, despite endorsement of the legislative approach in the Auditor General’s Report. [15]
b. Mutuality and reciprocity?
Guardianship is fortunately not caught up in the ‘reciprocity’ game which now complicates many of the claims made against the public purse by so-called ‘undeserving’ welfare clients. Such as are illustrated by the difficulties confronting the long-term unemployed: who find themselves portrayed as ‘free-loaders’ making less than their required social contribution - such that in consequence they are often obliged to be ‘churned’ through coercive programs (such as Workfare) without obvious benefit.[16]
Perhaps because guardianship caters mainly to the aged, it is largely immune from these pressures. Even in the US the aged are seen as specially exempted from mutuality expectations by virtue of having made their contribution already.[17] So continued state support to protect such deserving and ‘vulnerable’ populations would seem to be a reasonable expectation for the future.
c. The non-government sector as partner?
But perhaps guardianship is a role for the non- government charitable agencies rather than one for the state? These ideas have much currency in the US.[18] Indeed they have been boosted under the Bush Administration[19] based on renewed interest in Victorian Britain’s ideas about self-help and religious re-centering as a basis for tackling problems such as poverty.[20] The argument being that:
Unlike the state - which does more harm than good by alleviating poverty - churches, charities and other voluntary associations teach the poor to help themselves. Churches can tell the difference between the deserving and undeserving poor. They can help those who need it, and help those who don’t simply by not helping them.[21]
I have suggested elsewhere that such arguments cannot be ignored.[22] Moreover, they have found some resonance in the McClure report[23] and in public remarks by Minister Abbott, such as his observation in delivering the Kemp lecture that:
Official compassion arguably has done as much harm as good by trying to alleviate the results of poverty rather than its causes ... guaranteeing the wherewithal for life can easily remove the motivation for work.[24]
Nor is this line unknown to debates about adult guardianship, with Johns & Bowers proposing that any public guardianship sector in the US needs to be well resourced, but should be decentralised to local areas, and controlled by local not-for-profit organisations.[25] A position with some similarities to the more institutionalised welfare services ‘team’ approaches.[26]
This reconfiguration of the ‘burden of responsibility between the state, the market, and the loosely aggregated ‘private sphere’ (of self-reliance, community, family and household support’) can yield public policy gains under certain conditions. Such as in dealing with entrenched bureaucratic cultures of delivery of health in Britain.[27] But one doubts that guardianship is a case where sectoral reconfiguration would be beneficial.
Whatever the drivers of public policy, it is clear that these trends can have an impact on the public perception of (and confidence in) the work of guardianship.
In New South Wales for instance, a public lobby group gained enough purchase for its criticism of guardianship institutions to lead to a reference to the joint Parliamentary ‘Public Bodies Review Committee’.[28] This was because in practice property administration was principally entrusted to low-level ‘official’ guardians employed by a state agency. Rather than being a job handed over to individuals closer to the person and their family, or a job undertaken by professional guardians drawn from a professional background such as social work or accountancy.
In NSW, the relevant responsibilities as ‘default’ guardians of last resort are shared between the statutory office of personal (or ‘lifestyle’) guardian (the Office of Public Guardian) and an Office of Protective Commissioner (OPC). There the OPC acts as financial manager if an individual cannot be found to do the job, or if it is inappropriate to entrust the management to such an individual.[29]
As a consequence of factors such as under-funding, the over-hang of historic practices, lack of external scrutiny, or other as yet unascertained reasons - ‘bureaucratic’ culture was found by the Review to have flourished within OPC.[30] Thus, in practice, telephone contacts were found to have substituted for personal face-to-face relationships; guardians were seen as faceless ‘decisionmakers’ instead of being the advocates and facilitators envisioned in the Act;[31] and ‘office policy’ statements took the place of attempts to ascertain, and then ‘mirror’, the wishes of the represented person.[32]
The entrenchment of distant, rule-based bureaucratic ways of administering public financial management services is indeed a challenge. But it is not one which is beyond redress in Australia, as the NSW Public Bodies Review Report bears out in its raft of proposed reforms.[33] Such as its proposals to boost the income yield obtained by OPC from the Common Fund, to improve the quality (and comprehensibility) of its financial reporting to clients and to make better projections of future returns on investments. Added protections against fraud were also recommended by way of oversight from the Audit Office, with lines of communication and accountability better promoted by opening these management decisions to review by the State Ombudsman.
Of course it remains to be seen whether the practice of OPC - or its ‘culture’ as the PBRC termed it[34] - can be transformed by these reforms alone. Victoria for instance felt that the full corporatisation of the equivalent body, to form State Trustees Ltd, was necessary in order to properly purge bureaucratic culture.[35] This is also something of a work in progress even in that State, by all accounts. But irrespective of whether such reforms work, there is a more basic point. Essentially this capacity to transform OPCs bureaucratic culture into a more supportive, caring and socially adaptive form, exists only because Australia remains committed to the injection of adequate levels of public funds necessary to make this possible.[36]
Other countries, such as the US, cannot make this assumption. So is it wise for Australia to assume that it is immune from fiscal cut-back of public sector expenditures?
There is some risk of the state withdrawing adequate levels of support for guardianship.
As I have observed elsewhere,[37] US guardians are almost exclusively drawn from the volunteer pool of willing relatives. Friendless citizens needing guardianship are left out in the cold. A survey in the early 1980s found that only fourteen States saw fit to pay for ‘state’ guardians.[38] And even though Florida law made provision for publicly funded guardianship, only seven of sixty-seven Districts took up that option in a more recent review.[39]
Citing Roche[40] I suggest that:
This may or may not be a bad thing ...[because] in contemporary society ‘state servicing’ of rights is declining in importance as a ground for judging how well citizenship rights are protected. Instead, it is more important to dwell on the adequacy of the ‘civil’ spheres in which we transact citizen-citizen interactions (as in families) ... The ‘state complex’ matters less than the ‘civil society complex ... The measure of citizenship is located in borderland territory, a space created and auspiced by the state, but with its roots in civil society.[41]
If that analysis is correct, and civil society is looming as the more significant sphere, then the real challenge may be to find creative ways of ‘personalising’ guardianship services for isolated or friendless populations.
But what of the seemingly inexorable march to downsizing and rationalisation; especially in the machinery of state?
I have recently argued that there may be hidden gold in Victoria’s specialised ‘division of labour’ model of having separate tribunals to cater for otherwise cognate needs. [42]
First, it carries the advantage of permitting the practice to conform more closely to the principles set down by Parliament when it created the various bodies comprising the guardianship, mental health, disability and advocacy network. It allows ‘bright line’ distinctions to be drawn, so that guardianship is not used say to authorise treatment of severe anorexia,[43] and is less likely to contain an element of justification in terms of promotion of a ‘welfare’ or service access role.
Second, by leaving greater room for specialised expertise to be harnessed by a particular agency, or for a distinctive ‘culture’ to emerge in its operation.
But Neoliberal pressures to rationalise and amalgamate adjudicative functions remains strong, perhaps risking the capacity for ‘social tribunals’ to avoid succumbing to the more legalistic culture and practices of commercial wings of bodies like VCAT? A concern which has led me to suggest creating a second mega-tribunal (or ‘one roof’) complex - a ‘social justice’ group comprising a cluster such as residential tenancies, adult guardianship, mental health, disability and other like tribunals. [44]
There is also the risk of under-funding tribunals, starving them of their capacity to discharge their mandate, thus bringing them into disrepute: a fate which bedeviled Victoria’s Intellectual Disability Review Panel when staff cut-backs in 1993 (costing it five of seven positions) left it unable to properly monitor the use of seclusion and restraint of institutionalised populations of intellectually disadvantaged clients whose fate was entrusted to it.[45]
So one significant challenge is how to preserve such valuable characteristics without risking their being swamped by the values and process of say the commercial wings of super-tribunals such as the Victorian Civil and Administrative Tribunal ‘VCAT’ (Victoria) or the Administrative Decisions Tribunal ‘ADT’ (NSW).
I have long argued that one of the most distinctive, and most valuable, side-winds of Australia’s guardianship was its ability to connect with rising demand for more intimate, more personalised, more flexible, and more adaptable forms of adjudication.[46]
One of the challenges stemming from the adoption of the Neoliberal agenda is that older style legal culture will again become embedded. This has been fully argued elsewhere, such as in the context of the federal Government’s ill-fated ART proposal.[47]
The challenge is partly structural - the risk that a ‘social law’ division will follow procedures promulgated by more dominant commercially- oriented ‘pace-setter’ divisions. But it is also crucially affected by the way appointments are made to a Division. Reduction in the range of disciplines and backgrounds from which members are drawn, and increasing proportions of ‘careerist’ full-time members - alters the ethos and narrows the diversity of membership of the decision making body. The age profile of tribunal members is also likely to rise; the proportion of the membership representative of various disability categories is likely to fall; and the range of social backgrounds and values of members seems destined to contract.
In one sense, it might have been thought that these risks might be offset in the newly amalgamated VCAT when it gained the wide range of compulsory conferencing, mediation and settlement powers conferred by Part 5 of the VCAT Act 1998 (Vic) (ss 83, 88, 93). Indeed, I have argued that these more flexible powers may in part be the stuff from which to construct ‘postmodern’ remedies for the diversity and flexibility sought under ‘contracting out’ and case management.[48]
But not in situations where one’s property or liberty are at stake. Here I would contend that the composition of the Tribunal, its empathy and outreach skills, and its flexibility of mind - are central elements to success.[49]
Accountability is always an issue in public policy which impacts on individual rights. Accountability to the strictures of the law; accountability in reaching sound decisions on the merits; and accountability for processes.
a. Accountability on a point of law
Access to judicial review on a question of law has been taken as axiomatic in guardianship legislation. In Victoria, although merits review has been attenuated, accountability on a point of law is preserved by s 148 of the VCAT Act 1998 (Vic) which was introduced by a radical neoliberal Government perhaps tempted to remove that right.
In short accountability in law seems unproblematic, and it appears unlikely to come under challenge. The exact opposite is the case with merits review however, as shown by the divergence between Victoria and NSW.
b. Access to merits review
The divergence between these two states is ironic because administrative review is especially pertinent in ‘mass’ decisionmaking arenas.[50] This is because accessibility to traditional forms of justice (such as an appeal on a point of law) is necessarily problematic on grounds of cost, and because the real dispute is likely to be about the merits rather than the lawfulness of the decision made.
Instructively perhaps, the review undertaken by the Public Bodies Review Committee (PBRC) of the NSW Parliament found considerable disquiet at the perceived lack of accessible merits review of decisions made by the ‘public face’ of the Guardianship Tribunal in those cases where private individuals are not available, and OPC or the Public Guardian is obliged to take on the work of giving effect to Tribunal decisions about personal guardianship or financial management. Evidence to the PBRC portrayed the OPC/PG complex (and by inference the Tribunal) as ‘unaccountable’ and ‘secretive’.[51] By parity of reasoning, the accessibility to merits review of initial decisions made by the Guardianship Tribunal was also of prime concern here as well, though the PBRC report chose not to extend its proposed ADT reviews to the Tribunal, apparently because it felt that its terms of reference were too narrow.
Until very recently, under the NSW model, people dissatisfied with decisions of the Guardianship Tribunal had access only to the Supreme Court.[52]
This avenue of review was not restricted to arguing points of law, but such appeals were the only ones available as of right; leave was required in order to canvass the merits of the decision. Merits review was technically open, but it was inaccessible to most people with an ordinary grievance or sense of disquiet. Taking a case to the Supreme Court was too difficult, too costly, and too disproportionate - it involved using a proverbial sledgehammer to crack a nut.
So too for challenges to the work done by public agencies which may administer an order. The NSW PBRC Report therefore saw wisdom in providing a more accessible form of administrative review in the case of OPC and the OPG; conceiving of merits review as an important accountability device.[53] Accordingly it recommended that the legislation be amended to provide for decisions of OPC and the Public Guardian (but not orders of the Guardianship Tribunal itself) be reviewable before the Administrative Decisions Tribunal (ADT). [54]
Government however saw it differently, passing the Guardianship and Protected Estates Legislation Amendment Act 2002 (NSW) which not only implemented the PBRC proposals,[55] but also provides for rehearings by the ADT in all key areas of guardianship.[56] The amendments left Supreme court powers under s 67 untouched, subject to an ‘election’ between the two avenues of review. An election effectively controlled by ‘leave’ provisions of the court and tribunal, stating that an application to one ousts review before the other, unless respectively the ADT[57] or the Supreme Court,[58] permits their application to lapse in order that the other body may deal with it.
Oddly, merits review of Tribunal decisions was available in Victoria prior to 1998. Section 67 of the Guardianship and Administration Board Act 1986 (Vic) exposed the Guardianship and Administration Board (GAB) to full merits review before the Administrative Appeals Tribunal (the AAT was an administrative arm of an intermediate court, the County Court.[59] But in 1998 Victoria reversed itself, removing merits review. The original Board was absorbed by the Victorian Civil and Administrative Tribunal (VCAT). It now forms the Civil Division (Guardianship) of VCAT, and there is no administrative review body above it to which an application for merits review might be made.
Of course such an avenue of further review on the merits always had the potential to be offered in-house’ within VCAT itself. Such internal second layer of review was advocated at the federal level by the Administrative Review Council in its Better Decisions Report.[60] But Part 3 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) initially forbade this possibility, prior to passage of an amendment in late 2000. For the first two years, proceedings were able to be re-opened only in very limited circumstances, such as where there was a good explanation for a person’s non attendance at, or being under-represented during the original hearing.[61] Following the enactment of ss 60A-60D at the end of 2000, it is now open to parties (or the specialist ombudsman-like watchdog, the ‘Office of Public Advocate’) to request a merits rehearing of such cases (other than temporary orders). The re-hearing is by a more senior member.[62] Other people notified of the earlier hearing but who did not become a party to it can only apply by leave.[63]
So NSW is no longer vulnerable to criticism in not having ready access to merits review of the decisions of its Guardianship Tribunal (an option also largely restored in Victoria).
c. Accountability for ‘process’: who hears applications, how do they proceed and how do they explain themselves?
As mentioned already, our prior research demonstrated various strengths of Australia’s guardianship panels when compared to regimes which utilise courts.[64]
One (rather simplistic) metaphor to capture this finding was the suggestion that ‘new [legislative] wine sours in old [judicial] bottles’. But is one of the challenges to guardianship the risk of slow deterioration over time? To press the metaphor: perhaps the ‘corkage’ is poor? Will the positive ratings of Tribunals commending them for their more sensitive and flexible hearings, the reduction in social distance between participants and the board, and the more inquisitorial or outreach forms of procedure, steadily drift back towards more orthodox legal forms - with their penchant for adversarial styles, technical standards and forms of proof, greater passivity, and (at worst) a temptation towards pomposity?
Certainly this risk cannot be dismissed. By contrast with some other tribunals (such as the federal Social Security Appeals Tribunal ‘SSAT’), lawyers have always held a rather special position in guardianship. This altered somewhat when Victoria amalgamated the Guardianship and Administration Board ‘GAB’ into VCAT however. Under the Guardianship and Administration Board Act 1986 (Vic), lawyers were required to preside.[65] But for a special dispensation, this would have continued under VCAT, where the primary legislation contained a base rule that a lawyer must always decide cases heard alone, and must preside when more than one member sits.[66] Although tucked away in an obscure part of the legislation, this requirement is softened for guardianship cases however, by confining it to hearings of temporary orders, thus allowing non-lawyers to sit alone when dealing with other application.[67] While statistics do not disclose precisely how often non-lawyers sit alone, it is understood that multi-member hearings are rare; so this dispensation may do less than it otherwise might to avoid a tendency for the views and values of lawyers to become further entrenched as the proportion of single member hearings rises in response to pressures to contain costs.
On the other hand some improvements have been made in the way guardianship tribunals make their formal communication of their decisions. At first, reasons were not always seen as a routine entitlement. This was strongly criticised in our 1991 evaluation report on the Victorian GAB.[68] We warned against allowing provision of reasons to be relegated from a routine to an ‘on request’ entitlement, on fallacious grounds such as financial economy, speed of decisionmaking, or convenience. This was apparently heeded. Legislation now meets ‘bedrock’ expectations: in Victoria, more weakly in providing for reasons for any ‘final orders’, but permitting oral reasons subject to an entitlement to request written reasons within fourteen days.[69] In NSW, more vigorously in that s 68 (1B) requires that reasons be provided as soon a practicable after making a decision.
Even so, there is no recent research on the perceptions by clients and stakeholders of the way guardianship tribunals are operating. A good report card may still be warranted. Or practices may be less distinctive than once was the case. Only future research can shed light on this.
Farming out of the former activities of government can take various forms. A service such as provision of care and support for intellectually disadvantaged clients can be contracted out to private sector agencies, as has been the case in Victoria.
This has implications for the form in which legislation is written, its normative power, and for the way service standards and policies are best monitored.
a. The form of the legislation
One implication of this is that the legislative framework for delivery, accountability and monitoring of services requires amendment if it is to continue to govern private sector service providers. Thus such an adjustment was required to be made to the Victorian Intellectually Disabled Persons’ Services Act 1986 (IDPSA), which governs access to (and review of) services for the intellectually disadvantaged. As a consequence, private sector agencies became subject to the statutory obligation to provide monthly reports to the IDRP on their use of seclusion or restraints, for example.
The challenge for guardianship to follow suit by extending its normative reach to catch peripheral, private sector agents may not be so apparent at first blush. However research demonstrates that guardianship is principally utilised by people who are in, or are on the cusp of consideration for entry to, some type of supported or institutional care setting.[70] A constituency heavily skewed towards vulnerable older age groups. So there already are significant numbers of private sector players - the owners and operators of the hostels and nursing homes in which such people reside.
Experience with the otherwise endeavours of the Australian federal government to engender respect for a ‘rights’ culture for aged residents gives pause for reflection. Thus the study by Gibson, Turrell & Jenkins found that at a practical level residents had made fewest gains in winning recognition for their entitlement to manage their funds or have a significant say in their medical care, even though the code of practice ‘privileged’ these rights along with less contentious ones which proved more acceptable to staff of these institutions.[71] So the form of engagement by the law may be more problematic when it seeks to regulate the private market. Of course private sector responsibility for aged care accommodation has always been significant over the last decade or so in Australia.
However the changes in the political economy of institutional care cannot be ignored. Especially when it is remembered that guardianship is but one of several tiles in the legislative mosaic.[72] As pointed out by the Victorian Auditor General’s report on services for the intellectually disadvantaged, the overall package may be thrown out of kilter if other pieces of legislation do not have an equivalent penetration into private sector services.[73] Thus the IDPSA 1986[74] was found to be deficient because it did not cover people in nursing homes for those needing more intensive support. Guardianship does not suffer that formal limitation, but does it work as well in this setting as in others?
b. Changing normative power of legislation
As the Victorian Auditor General and others found, experience demonstrates that the normative force of legislation such as the IDPSA 1986 may be greatly diminished when responsibility for services shifts from the public to the private sector.
Senior staff of many of the private sector services for the intellectually disadvantaged were found to be blissfully unaware of their statutory reporting obligations. And the ability to effectively disseminate information about those responsibilities, or to educate staff about their obligations, proved doubly difficult.[75]
This is likely to become an increasing issue for guardianship too. Private sector services are driven by attention to the bottom line imperative of profitability, a factor which does not feature in the equation of a public sector provider. Opportunity costs, time burdens, and the economic cost-benefit calculus - all necessarily affect the behavior of private sector providers. Services come to be imbued with the ‘enterprise’ culture of market logic.[76]
If the actual (or perceived) burden of cooperating with guardianship laws becomes too great, it can be anticipated that ways will be found to reduce their penetration among populations of clients catered for by those services.
c. The choice of monitoring modality
Of course that is the very argument made by proponents of non-legislative approaches to encouragement of best practice standards, and to monitoring of performance. As mentioned, Victorian intellectual disability services offer a worked example of this.
The legislative ‘planning model’ (based on preparation of a ‘general’, and later, on ‘individual’ service plan as the gateway to services and guarantor of provision: ‘GSP’ and ‘ISP’s) was found to have been diluted or side-lined by the adoption by the State Department of Human Services of a (somewhat ill- fated) ‘point in time’ system of casemanagement as its major administrative modality.[77] Backed by the usual faith in management by ‘quality performance’ standards.
The Department’s response to the Auditor General’s Report committed to re-aligning the two, but spoke rather worryingly of doing so by adopting ‘new statutory planning machinery’, including a strong inference that timelines for preparation of GSPs might be watered down.[78] As I have said elsewhere, if true, this would be:
A sentiment plainly contrary to the Auditor General’s endorsement of retention of measurable standards, rather than their replacement by managerialist theory’s preference for process measures of compliance.[79]
In short, ‘managerialism’ is a serious threat to statutory systems of adult guardianship.
This paper is not the vehicle for a comprehensive audit of all the possible challenges which might eventuate. Instead, I will now offer a ‘windscreen survey’ of a few of the better known of the remaining ones.
Elsewhere I have reviewed the US approach to guardianship, drawing attention to the way in which their value preference for ‘private ordering’ has led to undue deference being given to the arrangements put in place by enduring power of attorney schemes, compounded by lack of ready access to courts when these arrangements prove unsuitable and need to be dissolved or remade.[80] As a consequence, there is a heightened risk of neglect or abuse occurring within civil society.
The NSW Report, and the New Zealand experience with its court-based guardianship law[81] suggests that it may be the lack of access to review which is crucial to avoiding adverse social outcomes here, since private ordering of itself is unproblematic. It is only when the passage of time (or unexpected new circumstances) brings undone the instructions or values expressed at the time of execution, or when a guardian turns out to be a poor (or unworthy) choice, that abuse or neglect becomes a serious risk warranting intervention to override those instructions.
Coercion does play a legitimate role in guardianship. It is not all the beer and skittles of the sentiments about social facilitation, normalisation, and least restrictive alternatives which so infused and powered the original guardianship design conceived by the Victorian Cocks Committee in its 1982 report which set out the original ‘blueprint’ for the Australian model. Nevertheless it should be appreciated that this was an enquiry:
[U]ndertaken in an intellectual and social environment especially sympathetic both to Wolfsenberger’s mid 1970s model of ‘citizen advocacy’, and to the principle of ‘normalisation’ already contained in various International Declarations of the Rights of the Disabled. Concepts further elaborated by Wolfsenberger and re-stated as ‘role valorisation’ during the early 1990s. ...
[Consequently] [I]deas of citizen-based responsibility for supporting and engaging disadvantaged people in their community were prominent. [So] the principle of the least restrictive alternative was taken very seriously from this time forward. And the test of need which triggers the possibility of making an order has rather eschewed abstract cognitive enquiries in favour of a test of ‘social’ (or functional) competence.[82]
The balance between preservation of autonomy, and action to protect the vulnerable, has of course always been at the centre of the work of those bodies.[83]
But the balance point rightly remains a hotly contested issue, as it has been historically.[84] This is most poignantly illustrated by the differing approaches adopted in NSW and Victoria about whether guardianship is the appropriate ‘boundary riding’ body to adjudicate on coerced treatment of anorexics. Victoria leaves that to mental health, on the basis that they have the greater expertise in policing John Stuart Mill’s utilitarian liberal principles of sufficiency of harm to self or others to warrant overriding patient choice.[85] NSW prefers the brokerage, watchdog and arbitral advantages conferred by selecting guardianship to do this work, a choice which remains finely poised.[86]
Given that public trust and confidence may hinge on the appropriateness of the answer to the question of where to draw the line between legitimate and illegitimate intervention, and how to allocate this work between the various adjudicative bodies (including new bodies like Ontario’s ‘Consent and Capacity Board , or even an amalgamated ‘Human Rights’ division of VCAT),[87] this plainly remains as a possible area of challenge for guardianship. Just as it is when considering the role of guardianship in managing the ‘public risk’ presumed to arise with certain sociopathic personality disorders.[88]
I opened this paper by posing the question of whether Australia needs to return guardianship to the social laboratory, in order to devise a new model to replace the success of the 1980s experiment.
In order to assess this, we reviewed a variety of possible challenges which might contradict or undermine the planning assumptions on which the current model is based. This is not an idle academic enquiry, but a real debate. Critics of the 1980s package of legislation of which guardianship forms a part have pilloried it as ‘aspirational’ or ‘principle-based’ policy-making.[89] Those critics preferred a more pragmatic, managerial, or ‘evidence-based’ approach to policy and program development. A view strongly expressed during the period of the Victorian Kennett administration for example. Guardianship has largely been immunised against that critique because it has been a popular institution, and because the evidence demonstrated that it was doing a very effective job, especially at the initial adjudicative or gatekeeping stage, and in subsequent monitoring of orders.[90]
However the Achilles heel of the Australian model of guardianship is undoubtedly the extent to which it ultimately rests on the quality of the private and the public guardians to whom the daily job of work must inevitably be delegated. In financial administration, which relies extensively on the statutory guardians of last resort (Victoria’s State Trustees Ltd or OPC in NSW), we have seen that the worst features of ‘bureaucratic culture’ may colonise the field. This can bring guardianship to the brink of pariah status, as the recent NSW Parliamentary enquiry bears out. This may be replicated elsewhere in a decade or two, as the pool of private guardians potentially able to act in lifestyle (personal guardianship) shrinks due to the competing demands of employment and social complexity, or finds itself overtaxed as the guardian cohort slims just as the demographic bulge of ‘frail aged’ former baby-boomers maximises the demand for such supports.
Moreover, the gatekeepers may face an erosion in their levels of public support. Either because the qualities of sensitive, flexible inquisitorial justice which fuelled the success of the initial experiment dribbles away, to be replaced by a pale imitation of the judicial style of decisionmaking found to be less apt in this field. Or, more challengingly, it may erode because these institutions are unable to grow and mature. They may lose their capacity to accommodate what may be rising demands to recognise the plurality and difference said to characterise postmodern life. The polycentric or ‘messy’ complexity of modern life. Where the dichotomous simplicities and certitudes of past eras no longer resonate. Changes arguably calling for greater resort to mediation, conciliation, and other ‘alternative’ styles of adjudication.
That is a challenge which is arguably best being addressed by the potential reposed in a little known, and undervalued, Victorian body - the Intellectual Disability Review Panel. It is the ease with which such bodies can be extinguished in the name of managerialism and fiscal rectitude; or be neutered by absorption within an amalgamated ‘mega-tribunal’ in the name of administrative convenience and efficiency, which I see as posing one of the more insidious challenges.
The long term success or otherwise of Australia’s guardianship experiment, then, may be measured by how well we acknowledge (and adapt to or resist) these less ‘obvious’ challenges.
Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunal (1995).
Alexander, G, ‘Avoiding Guardianship’ (1990) 2 Journal of Elder Abuse and Neglect 163.
Auditor General of Victoria, Services for People with an Intellectual Disability (2000).
Bartlett, J, ‘Guardianship by Centralised Government Agencies – The New South Wales Experience’ (Paper presented at the 26th Congress of the International Academy of Law and Mental Health, Montreal, 1-6 July 2001).
Carney, T, ‘Civil and Social Guardianship for Intellectually Handicapped People’ (1982) 8 Monash Law Review 199.
Carney, T, ‘Welfare Appeals and the ARC Report: To ssat or not to ssat; Is that the question?’ (1996) 4 Australian Journal of Administrative Law 21.
Carney, T, ‘Abuse of Enduring Powers of Attorney - Lessons From the Australian Tribunal Experiment?’ (1999) 18 New Zealand Universities Law Review 481.
Carney, T, ‘Protection, Populism and Citizenship’ (2000) 17 Law in Context 54.
Carney, T, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity? (2001) 24 International Journal of Law and Psychiatry 95.
Carney, T, ‘Measuring Regulatory Success in High Volume Fields’ in Penalties: Policy, Principles and Practice in Government Regulation - Conference papers from the Australian Law Reform Commission Conference on ‘Civil and Administrative Penalties’, Sydney, 9 June, 2001, CD Rom.
Carney, T, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’ (2001) 5 Newcastle Law Review, forthcoming 2003.
Carney, T, ‘Regulation of Treatment of Severe Anorexia Nervosa: Assessing the options?’ (2002) 11(3) Australian Health Law Bulletin 25.
Carney, T and Ramia, G, From Rights to Management: Contract, New Public Management and Employment Services (2002).
Carney, T and Singer, P, Ethical and Legal Issues in Guardianship Options for Intellectually Disadvantaged People (1986).
Carney, T and Tait, D, Balanced Accountability: An Evaluation of the Victorian Guardianship and Administration Board (1991).
Carney, T and Tait, D, The Adult Guardianship Experiment: Tribunals and Popular Justice (1997).
Carney, T, Tait, D, Saunders, D, Touyz, S and Beumont, P, ‘Institutional Options in Management of Coercion in Anorexia Treatment: The Antipodean Experiment.’ (2003) 26, iv, International Journal Law and Psychiatry, forthcoming.
Considine, M, Enterprising States (2001).
Diller, M, ‘The Revolution in Welfare Administration: Rules, Discretion & Entrepreneurial Government’ (2000) 75 New York University Law Review 1121 available at http://papers.ssrn.com/paper.taf?abstract_id=257482.
Fins, D, ‘Health Care Decision-Making for Incapacitated Elders: An Innovative Social Service Agency Model’ (1994) 6(2) Journal of Elder Abuse & Neglect 39.
Gibson, D, Turrell, G and Jenkins, A, ‘Regulation and Reform: Promoting Residents’ Rights in Australian Nursing Homes’ (1993) 29 Australian and New Zealand Journal of Sociology 73.
Johns, F, and Bowers, V, ‘Guardianship Folly: The Misgovernment of Parens Patriae and the Forecast of its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century – A March of Folly? Or Just a Mask of Virtual Reality’ (1997) 27 Stetson Law Review 1.
Jost, D, ‘The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled from their Zealous Protectors’ (1980) 56 Chicago - Kent Law Review 1087.
McClure, Participation Support for a More Equitable Society: The Interim Report of the Reference Group on Welfare Reform (2000).
McClure, Final Report: Participation Support for a More Equitable Society (2000).
Millewa, T, Valentine, J and Calnan, M, ‘Community Participation and Citizenship in British Health Care Planning: Narratives of power and involvement in the changing welfare state’ (1999) 21 Sociology of Health & Illness 445.
OECD, Innovations in Labour Market Policies: The Australian Way (2001).
Public Bodies Review Committee, Parliament of NSW, Inquiry into the Office of Protective Commissioner and the Office of the Public Guardian (2000) <www.parliament.nsw.gov.au/prod/parliament/Committee.nsf/>.
Public Bodies Review Committee, Parliament of NSW, Personal Effects: A Review of the Offices of the Public Guardian and the Protective Commissioner (2001) <www.parliament.nsw.gov.au/prod/parliament/Committee.nsf/> at 16 October 2001.
Reynolds, S and Carson, L, ‘Dependent on the Kindness of Strangers: Profesional guardians for older adults who lack decisional capacity’ (1999) 3 Ageing & Mental Health 301.
Reynolds, S and Wilber, K, ‘Protecting Persons with Severe Cognitive and Mental Disorders: An analysis of public conservatorship in Los Angeles County, California’ (1997) 1 Ageing & Mental Health 87.
Rich, B, ‘Advance directives. The next generation’ (1998) 19(1) Journal of Legal Medicine 63.
Roche, M, Rethinking Citizenship: Welfare, Ideology and Change in Modern Society (1992).
Ryan, W, ‘The New Landscape for Nonprofits’ (1999) Harvard Business Review Jan/Feb 122.
Schmidt, W, Bickel, R, Bell, W, Miller, K and New, E ‘Issues in Public Guardianship’ (1982) 15 Urban and Social Change Review 21.
Sherman, R, ‘Guardianship: Time for a Reassessment’, 1980 49 Fordham Law Review 350.
Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A legal framework for compulsory care (2002).
Veith, L, Blair, C, Leonard, N, Bouma, R and Pazda, H,. ‘Attorney-Case Manager Collaboration in the Conservatorship of Older Adults’ 1996 5(3) Journal of Case Management 115.
Guardianship Act 1987 (NSW)
Guardianship and Administration Board Act 1986 (Vic)
Guardianship and Protected Estates Legislation Amendment Act 2002 (NSW)
Intellectually Disabled Persons’ Services Act 1986 (Vic)
Protected Estates Act 1983 (NSW)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Alcorn, G, ‘Bush Puts His Faith in Religious Welfare’, Sydney Morning Herald (Sydney), 31 January 2001, 9; Wood, ‘We’re Not Believers’, The Guardian (London), 2 February 2001.
Green, D. ‘The Role of Tribunals in Regulating the Lives of People with Disabilities’ (Paper presented at the Humanities Program Conference ‘Constructing Law and Disability’, Law and Society Annual Conference, Canberra, 4-5 December 2000).
Handler, J. ‘The Paradox of Inclusion: Social Citizenship and Active Labour Market Policies’ (Paper presented at the Law and Society Annual Conference, Budapest, 4-8 July 2001).
Hunt, T, ‘Back to the Workhouse for America. (How a group of historians influenced George W. Bush’s domestic policy)’, New Statesman (London), 22 January 2001, 27.
Macdonald, E, ‘Welfare Concept A Mixed Blessing: Minister’, Canberra Times (Canberra), 14 July 2001, 3.
Wood, K, ‘We’re Not Believers’, The Guardian (London), 2 February 2001.
[1] LL.B (Hons), Dip. Crim. (Melb); Ph.D. (Mon); Professor of Law, the University of Sydney (173-175 Phillip St Sydney 2000 Australia; fax: +61 2 9351 0200; email: terryc@law.usyd.edu.au). A revised version of a paper delivered at the 27th Congress of the International Academy of Law and Mental Health, Amsterdam, 8-12 July 2002.
[2] T Carney and D Tait, The Adult Guardianship Experiment: Tribunals and Popular Justice (1997).
[3] Neoliberalism - and other general descriptors for the transformation in the form of governance away from the Weberian (‘procedural’) form of public sector, centralised, hierarchically organised, standardised administration - glosses over the fact that alternative governance comes in several forms, and is something of a ‘hybrid’. For a recent discussion of ‘corporate’ (or managerial) governance, ‘market’ governance, and ‘network’ governance, see Considine, Enterprising States (2001); Carney & Ramia, From Rights to Management: Contract, New Public Management and Employment Services (2002).
[4] McClure, Participation Support for a More Equitable Society: The Interim Report of the Reference Group on Welfare Reform (2000); McClure, Final Report: Participation Support for a More Equitable Society (2000).
[5] OECD, Innovations in Labour Market Policies: The Australian Way (2001); Carney and Ramia, From Rights to Management: Contract, New Public Management and Employment Services (2002).
[6] T Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’ (2001) 5 Newcastle Law Review, forthcoming 2003.
[7] B Rich, ‘Advance Directives. The Next Generation’ (1998) 19(1) Journal of Legal Medicine 63.
[8] Further, T Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’ (2001) 24 International Journal of Law and Psychiatry 95.
[9] Ibid.
[10] A Wax, ‘A Reciprocal Welfare Program’ (2001) 8 Virginia Journal of Social Policy and the Law, available at Legal Scholarship Network http://papers.ssrn.com/sol3/results.cfm; A Wax, ‘Rethinking welfare rights, reciprocity norms, reactive attitudes, and the political economy’ (2000) 63 Law and Contemporary Problems 257.
[11] J Handler, ‘The Paradox of Inclusion: Social Citizenship and Active Labour Market Policies’ (Paper presented at the Law and Society Annual Conference, Budapest, 4-8 July 2001).
[12] M Diller, ‘The Revolution in Welfare Administration: Rules, Discretion & Entrepreneurial Government’ (2000) 75 New York University Law Review 1121.
[13] T Carney and P Singer, Ethical and Legal Issues in Guardianship Options for Intellectually Disadvantaged People (1986).
[14] T Carney, ‘Civil and Social Guardianship for Intellectually Handicapped People’ (1982) 8 Monash Law Review 199.
[15] Further, Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[16] OECD, above n 5; Carney and Ramia, above n 5.
[17] Wax, ‘A Reciprocal Welfare Program’, above n 10, 8.
[18] W Ryan, ‘The New Landscape for Nonprofits’ (1999) Harvard Business Review Jan/Feb 122.
[19] G Alcorn, ‘Bush Puts His Faith in Religious Welfare’, Sydney Morning Herald (Sydney), 31 January 2001, 9; Wood, ‘We’re Not Believers’, The Guardian (London), 2 February 2001.
[20] T Hunt, ‘Back to the Workhouse for America. (How a group of historians influenced George W. Bush’s domestic policy)’, New Statesman (London), 22 January 2001, 27.
[21] Ibid.
[22] Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8.
[23] Above n 4.
[24] Quoted in E Macdonald, ‘Welfare Concept A Mixed Blessing: Minister’, Canberra Times (Canberra), 14 July 2001, 3.
[25] F Johns and V Bowers, ‘Guardianship Folly: The Misgovernment of Parens Patriae and the Forecast of its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century – A March of Folly? Or Just a Mask of Virtual Reality’ (1997) 27 Stetson Law Review 1, 81 and 86.
[26] D Fins, ‘Health Care Decision-Making for Incapacitated Elders: An Innovative Social Service Agency Model’ (1994) 6(2) Journal of Elder Abuse and Neglect 39; L Veith et al ‘Attorney-Case Manager Collaboration in the Conservatorship of Older Adults’ (1996) 5(3) Journal of Case Management 115.
[27] T Millewa, J Valentine and M Calnan, ‘Community Participation and Citizenship in British Health Care Planning: Narratives of Power and Involvement in the Changing Welfare State’ (1999) 21 Sociology of Health and Illness 224.
[28] Public Bodies Review Committee, Parliament of NSW, Inquiry into the Office of Protective Commissioner and the Office of the Public Guardian (2000) <www.parliament.nsw.gov.au/prod/parliament/Committee.nsf/>
[29] Guardianship Act 1987 (NSW) s 25M.
[30] Public Bodies Review Committee, Parliament of NSW, Personal Effects: A Review of the Offices of the Public Guardian and the Protective Commissioner (2001) <www.parliament.nsw.gov.au/prod/parliament/Committee.nsf/> at 16 October 2001. The Committee Report was tabled on 16 October 2001.
[31] Ibid 58-59.
[32] Ibid 47-48; J Bartlett, ‘Guardianship by Centralised Government Agencies – The New South Wales Experience’ (Paper presented at the 26th Congress of the International Academy of Law and Mental Health, Montreal, 1-6 July 2001).
[33] Above n 30, 13-16, especially recommendations 8, 12, 13, 19.
[34] Ibid19.
[35] They began life in 1939 as the state owned Office of Public Trustee, in 1987 this was transformed into the State Trust Corporation, and in 1994 it was incorporated under the corporate law as State Trustees Ltd, a company 100% owned by the state. Details of its ‘personal administration services’ offered as part of its public responsibilities to vulnerable groups, may be found on its web site www.statetrustees.com.au/index.cfm?section=pasd&sub=disability.
[36] Bartlett, ‘Guardianship by Centralised Government Agencies – The New South Wales Experience’, above n 32.
[37] Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8.
[38] W Schmidt et al, ‘Issues in Public Guardianship’ (1982) 15 Urban and Social Change Review 21.
[39] S Reynolds and L Carson, ‘Dependent on the Kindness of Strangers: Professional guardians for older adults who lack decisional capacity’ (1999) 3 Ageing & Mental Health 301.
[40] M Roche, Rethinking Citizenship: Welfare, Ideology and Change in Modern Society (1992) 232.
[41] Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8, 111.
[42] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[43] T Carney, ‘Regulation of Treatment of Severe Anorexia Nervosa: Assessing the options?’ (2002) 11(3) Australian Health Law Bulletin 25.
[44] Further, Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[45] Ibid.
[46] T Carney, ‘Protection, Populism and Citizenship’ (2000) 17 Law In Context 54.
[47] Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8.
[48] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[49] Carney, ‘Protection, Populism and Citizenship’, above n 46.
[50] T Carney, ‘Measuring Regulatory Success in High Volume Fields’ in Penalties: Policy, Principles and Practice in Government Regulation - Conference papers from the Australian Law Reform Commission Conference on ‘Civil and Administrative Penalties’, Sydney, 9 June, 2001, CD Rom.
[51] Bartlett, ‘Guardianship by Centralised Government Agencies – The New South Wales Experience’, above n 32; Public Bodies Review Committee, above n 30, 19.
[52] Guardianship Act 1987 (NSW) s 67.
[53] Bartlett, ‘Guardianship by Centralised Government Agencies – The New South Wales Experience’, above n 32.
[54] Public Bodies Review Committee, above n 30, 53-56.
[55] See generally, Guardianship and Protected Estates Legislation Amendment Act 2002 (NSW) schs 2, 3, and especially Guardianship Act 1987 (NSW) s 80A, Protected Estates Act 1983 (NSW) ss 21A, 23A, 28A, 30A.
[56] See now Guardianship Act 1987 (NSW) s 67A(1), extending a right of review to matters involving: exercise of powers in ss 6K (reviewing enduring guardian instruments), 6MA (substituting an enduring guardian), 14 (making guardianship orders), 25C (reviewing guardianship orders), 25E (making financial management orders), 25H (making interim financial management orders), 25P (reviewing financial management orders), 25U (reviewing managers), and 28 (giving directions to guardians).
[57] s 67(1A).
[58] s 67A(3).
[59] Guardianship and Administration Board Act 1986 (Vic) ss 41, 42.
[60] Administrative Review Council Report No 39, Better Decisions: Review of the Commonwealth Merits Review Tribunals (1995); T Carney ‘Welfare Appeals and the ARC Report: To Ssat or not to Ssat: Is That the Question?’ (1996) 4 Australian Journal of Administrative Law 21.
[61] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120.
[62] Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1, pt 9, cl 31.
[63] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60A(2).
[64] Carney and Tait, above n 2. Sometimes, as in Canada and Europe, there are constitutional reasons why a court must be selected. In other cases the choice rests on the (closely analogous) argument of principle that it is wrong to permit fundamental rights to be varied by a body other than a court. On other occasions, courts are chosen simply because they were the body which historically did this work.
[65] Sch 2, item 1(4).
[66] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 64, 65
[67] Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1, pt 9, cl 31.
[68] T Carney and D Tait, Balanced Accountability: An Evaluation of the Victorian Guardianship and Administration Board (1991).
[69] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 117.
[70] Carney and Tait, ‘The Adult Guardianship Experiment: Tribunals and Popular Justice’, above n 2.
[71] D Gibson, G Turrell and A Jenkins, ‘Regulation and Reform: Promoting Residents’ Rights in Australian Nursing Homes’ (1993) 29 Australian and New Zealand Journal of Sociology 73.
[72] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[73] Auditor General of Victoria, Services for People with Intellectual Disability (2000).
[74] For a review: Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A legal framework for compulsory care (2002).
[75] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[76] M Considine, Enterprising States 2001.
[77] Above n 73, 35-37.
[78] Ibid 38, 41.
[79] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[80] T Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8.
[81] T Carney ‘Abuse of Enduring Powers of Attorney – Lessons from the Australian Tribunal Experiment?’ (1999) 18 New Zealand Universities Review 481.
[82] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6.
[83] Carney and Singer, above n 13.
[84] R Sherman, ‘Guardianship: Time for a Reassessment’ (1980) 49 Fordham Law Review 350; D Jost, ‘The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled from their Zealous Protectors’ (1980) 56 Chicago-Kent Law Review 1087; G Alexander, ‘Avoiding Guardianship’ (1990) 2 Journal of Elder Abuse and Neglect 163; Carney, ‘Globalisation and Guardianship: Harmonisation or (Postmodern) Diversity?’, above n 8.
[85] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6. The advantages of guardianship law include: (i) it is a body ‘purpose built’ to focus on retention or loss of ‘social’ functioning in relevant sphere of life;
(ii) it is more consumer accessible and consumer friendly; (iii) it is a body more receptive to the views of the young person and the young person’s family; and (iv) it is more facilitative, and is less deferential to medical opinion. Disadvantages include: (i) it may be wrong in principle for guardianship to assume responsibility as the ‘turnkey on adolescent liberty’; (ii) it may grant too little authority to clinicians (leading to delay or omission of needed treatment); or
(iii) require undue ‘too-ing and fro-ing’ and delay.
[86] See T Carney, ‘Regulation of Treatment of Severe Anorexia Nervosa: Assessing the options?’ (2002) 11(3) Australian Health Law Bulletin 25. The advantages of using mental health tribunal include: (i) it is the body with specialist knowledge and responsibility for weighing up balance between patient autonomy and serious illness justifying treatment on ground of harm to self; (ii) the tribunal blends medical and legal expertise; (iii) and authorisation grants clinicians the ‘broad mandate for action’ which they seek (in that no further consent is required once a patient has been civilly committed). Disadvantages include: (i) the stigma associated with mental health processes; (ii) it leaves too much power in hands of clinicians, without a ‘watchdog’ such as a statutory guardian; and (iii) hearings may disempower patient and alienate or marginalise families.
The advantages of guardianship law include: (i) it is a body ‘purpose built’ to focus on retention or loss of ‘social’ functioning in relevant sphere of life; (ii) it is more consumer accessible and consumer friendly; (iii) it is a body more receptive to the views of the young person and the young person’s family; and (iv) it is more facilitative, and is less deferential to medical opinion. Disadvantages include: (i) it may be wrong in principle for guardianship to assume responsibility as the ‘turnkey on adolescent liberty’; (ii) it may grant too little authority to clinicians (leading to delay or omission of needed treatment); or (iii) require undue ‘too-ing and fro-ing’ and delay.
[87] Above n 74.
[88] D Green, ‘The Role of Tribunals in Regulating the Lives of People with Disabilities’ (Paper presented at the Humanities Program Conference ‘Constructing Law and Disability’, Law and Society Annual Conference, Canberra, 4-5 December 2000).
[89] Carney, ‘Re-mixing “Access”, “Advocacy”, “Empowerment” and “Protection”: A case for a specialised division of labour in guardianship, mental health and disability services adjudication?’, above n 6; T Carney, D. Tait, D Saunders, S Touyz, P Beumont ‘Institutional Options in Management of Coercion in Anorexia Treatment: The Antipodean experiment.’ (2003) 26, iv, International Journal Law and Psychiatry, forthcoming.
[90] Carney and Tait, ‘The Adult Guardianship Experiment: Tribunals and Popular Justice’, above n 2.
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