Equality, Capacity and Disability in Commonwealth Laws: Informed consent and NDIS recommendations

Last week the Australian Law Reform Commission released a discussion paper DP81, as part of its Inquiry into Commonwealth laws and legal frameworks that deny or diminish the equal recognition of people with disability before the law and their ability to exercise legal capacity.

Informed consent to medical treatment

Chapter 10 of the paper deals with informed consent to medical treatment. The Commission proposes a review at the State & Territory level for informed consent law and for advance care directives, with a view to adoption of laws consistent with the National Decision-Making Principles and the Commonwealth decision-making model. The emphasis appears to be on the introduction of a supported decision making model rather than a substitute decision making model.

National Disability Insurance Scheme nominees

Chapter 5 of the paper deals with the National Disability Insurance Scheme. It notes that thus far few ‘nominees’ have been formally appointed under the NDIS, with decision making by persons with impaired capacity therefore mostly being supported informally by family members and others.

The Australian Law Reform Commission recommends reform of the NDIS Act & Rules, so as to introduce a model for supported decision making (see chapter 4 of the discussion paper). This reform would permit the appointment of a ‘supporter’ to assist with decision making, or a representative to make substitute decisions.

Interaction between the current NDIS nominee regime and the current State & Territory guardianship regimes is also discussed.



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