Recursos físicos

For persons with a mental illness or a mental disorder, the Guardianship and Administration Act 1986 (GAA) allows for substitute decision making and the enforcement of these decisions. The GAA covers people who are unable because of their disability to make reasonable decisions for themselves. While the GAA is human rights focused, that is, all functions that are performed should be by means that are least restrictive of a person’s freedom and action as is possible in the circumstances, it also allows for significant intrusion and restriction of the life of a person. The intrusion must be on therapeutic or best interests’ grounds.

In 1986, the tribunal for presiding over guardianship matters was the Guardianship and Administration Board (GAB). In these early days, and up to and including the mid 1990s, decisions were presided over by three member multi- disciplinary panels, comprising at least one legal member, a medical member and the third member with relevant experience and skills such as a psychologist, social worker or psychiatric professional. After this time, and possibly due to financial constraints, the GAB moved away from three member panels to a one member legal panel, with the possibility of co-opting another member (often medically trained) if the circumstances indicated this would be beneficial, such as infertility procedures and so forth (J. Billings, Dep. President VCAT, personal communication, August 13, 2008). In 1998, GAB became part of the Victorian and Civil Administrative Tribunal (VCAT). Currently the majority of matters heard before VCAT are presided over by a single member panel that is legally trained. This practice of a single panel I believe dilutes the knowledge of complex issues such as disability and its various manifestations, such as best practice treatment options and so forth.

Health Tribunal moving from a multi-disciplinary panel to a one-member panel and its impact on decision making. I also consider the VCAT experience in moving from a multi-disciplinary panel to a one-member panel has had a negative impact on the ability to balance the different legal, social and clinical considerations. This study revealed that guardians were appointed as “they may” engineer change for people with BPD; however the clinical evidence does not support these assertions. Moreover, when the person with a BPD vehemently opposes the guardian’s appointment, it is hard to argue that the appointment of a guardian is least restrictive of a person’s freedom and in a person’s best interests. Legal determinations have been made and conceptual dilemmas have been raised regarding these tensions and are next discussed.

In a Victorian Supreme Court decision, Justice Cavanough (XYZ v State Trustees Limited & Anor (2006) 4043), examined these issues and was persuaded by the arguments raised by Carson (1993), who was concerned regarding proposals to the Law Commission in England and Wales about mentally incapacitated adults’ decision making. Carson (1993) feared that a threshold test of (medical) disability would lead to unwarranted discrimination against people suffering from mental disorders. Moreover, he predicted it would lead to inappropriate decision making. Most pertinently he said,

It will be perfectly human, and understandable, when courts and tribunals take advantage of expert witnesses, to learn about how the disabled person has problems, which could so easily be sorted out by the court or tribunal authorizing someone to tidy up the individual’s life. It is a recipe for paternalism. It is very unfair to insist…that expert witnesses must only give evidence on their specialist area and then expect them to fudge that rule in order to help the legal system out with a difficult client group. It is unfair to criticize psychiatrists and other(s)…for ‘medicalising’ issues and then devise a scheme which encourages them to do it again (at 313).

believe to prevent the undue medicalising of issues the VCAT should and must co-opt suitably qualified medical and /or psychologically trained members to preside over matters for people diagnosed with BPD.

Assessing decision-making capacity provides a strong example that links ethical concern, legal judgment and health care delivery. While the judgment in determining capacity that is, to establish the presence or absence of legal rights is ultimately a legal one, medical or other health professionals are utilised for the final determination (Parker, 2008). This area is also somewhat unclear and murky. While some interpret capacity as a yes-no proposition (Parker, 2004; Stewart & Biegler, 2004) an argument exists that a risk-related standard should apply, while a counter argument is that a rigorously applied procedural standard should be reflected in the law (Parker, 2004). The Mental Capacity Act (2005) for England and Wales provided a statutory framework to both empower and protect people, and I argue offers a way forward. The Act is underpinned by five key principles, which are:

• A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;

• Individuals being supported to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions;

• Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make their decisions;

• Best interests – an act or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests; and

• Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms (Mental Health Capacity Act for England and Wales, 2005, s.1).

In a similar style, Purser, Magner and Madison (2009) stated that therapeutic jurisprudence (which promotes the three concepts of participation, dignity and trust), may provide the framework to re-evaluate the legal and medical approaches to current and future competency assessment. They believed that competency in the legal context, has four elements which are:

• understanding the information which forms the basis of the decision;

• appreciating the information;

• applying the information in reasoning to make a decision; and

• expressing consistent choices (Purser, Magner & Madison [2009], p.796).

Irrespective of which framework is established, a consistent and transparent system with respect to decision-making competency and capacity is needed. There does need to be greater synergy between the law and medical as well as mental health professionals, in determining when, and if, to infringe upon a person’s rights.

The presence of a non legally trained member on the panel would not only provide a much needed bridge between the legal and mental health professionals but also provide a thorough understanding of the complexity of mental illnesses, and enable robust discussion and debate around mental illness to ensure that VCAT’s inquisitorial and fact-finding role is upheld. In addition, VCAT should perhaps avail itself of clinical reports from independent clinical forensic agency and cross examination of authors, to aid VCAT decision making. Another option could be to also employ a VCAT member with dual legal and clinical qualifications to aid the process, since dual-qualified professionals exist these days.