The Law Reform Commission of New South Wales is seeking preliminary submissions on this review by 21 March 2016. The terms of reference are copied below.
Relevant to the medical arena is the focus on the provisions of the Act relating to clinical trials.
Also noteworthy is the focus on the appropriate relationship between guardianship law in NSW and legal and policy developments at the federal level, especially the National Disability Insurance Scheme Act 2013 (Cth).
A similar review is underway in Canada.
Pursuant to section 10 of the Law Reform Commission Act 1967, the NSW Law Reform Commission is asked to review and report on the desirability of changes to the Guardianship Act 1987 (NSW) having regard to:
1. The relationship between the Guardianship Act 1987 (NSW) and
- The NSW Trustee and Guardian Act 2009 (NSW)
- The Powers of Attorney Act 2003 (NSW)
- The Mental Health Act 2007 (NSW)
- other relevant legislation.
2. Recent relevant developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia and overseas.
3. The report of the 2014 ALRC Equality, Capacity and Disability in Commonwealth Laws.
4. The UN Convention on the Rights of Persons with Disabilities.
5. The demographics of NSW and in particular the increase in the ageing population.
In particular, the Commission is to consider:
1. The model or models of decision making that should be employed for persons who cannot make decisions for themselves.
2. The basis and parameters for decisions made pursuant to a substitute decision making model, if such a model is retained.
3. The basis and parameters for decisions made under a supported decision making model, if adopted, and the relationship and boundaries between this and a substituted decision making model including the costs of implementation.
4. The appropriate relationship between guardianship law in NSW and legal and policy developments at the federal level, especially the National Disability Insurance Scheme Act 2013, the Aged Care Act 1997 and related legislation.
5. Whether the language of ‘disability’ is the appropriate conceptual language for the guardianship and financial management regime and to what extent ‘decision making capacity’ is more appropriate.
6. Whether guardianship law in NSW should explicitly address the circumstances in which the use of restrictive practices will be lawful in relation to people with a decision making incapacity.
7. In the light of the requirement of the UNCRPD that there be regular reviews of any instrument that has the effect of removing or restricting autonomy, should the Guardianship Act 1987 provide for the regular review of financial management orders.
8. The provisions of Division 4A of Part 5 of the Guardianship Act 1987 relating to clinical trials.
9. Any other matters the NSW Law Reform Commission considers relevant to the Terms of Reference.