MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (15:50:54): Throughout the course of this debate, in the other place as well as in some of the points made in this house, issues were raised that require some clarification. Firstly, on the subject of medical treatment decisions under the Medical Treatment Planning and Decisions Act 2016 (MTPD) some members have raised that they do not believe guardians should be given power to make medical treatment decisions for people in their care. The MTPD act commenced on 12 March 2018 and clarified the interaction of the role of the medical treatment decision-maker under the act with the role of a guardian appointed by VCAT under the Guardianship and Administration Act 1986. The bill reflects this clarified position. The MTPD act allows a person to appoint a medical treatment decision-maker to make medical treatment decisions on their behalf when they do not have decision-making capacity for such decisions. If a person has not appointed their own medical treatment decision-maker, the MTPD act next recognises as the decision-maker any guardian appointed by VCAT with powers to make decisions in relation to the medical treatment. Even though appointed under the Guardianship and Administration Act, a guardian with powers to make medical treatment decisions must comply with the MTPD act in relation to medical treatment decisions. For example, the MTPD act sets out the processes that must be followed by a medical treatment decision-maker when making medical treatment decisions on behalf of someone who cannot make these decisions themselves. The Guardianship and Administration Act continues to provide for a separate process for VCAT to approve the carrying out of a special medical procedure in circumstances where the patient does not have decision-making capacity to consent to the procedure. A ‘special medical procedure’ means a procedure that will or is likely to result in sterilisation, a termination of a pregnancy or any removal of tissue for transplantation to another person. There has also been some consideration of the use of the term ‘estate’ throughout the bill, and there is concern that this term is not defined or used consistently throughout. The Guardianship and Administration Act provides for the appointment of an administrator for the represented person’s estate. In relation to administration orders, the bill allows for the appointment of an administrator for the financial matters for which the represented person does not have decision-making capacity. This change in terminology—that is, no longer using the term ‘estate’—reflects the policy intention that an administration order be proportionate and appropriately tailored to the represented person’s circumstances and not necessarily an order that allows the administrator to deal with all of the represented person’s property and finances. The term ‘estate’ otherwise remains in the bill in provisions not related to the administration order and is used in the same way as under the Guardianship and Administration Act. The Guardianship and Administration Act does not define ‘estate’, and a need for a definition has not previously been proposed. I move now to the issue of the remuneration of administrators. It has been noted that the remuneration of legal practitioner administrators is a current issue. The Guardianship and Administration Act 1986 currently allows VCAT to approve remuneration for professional administrators. The Law Institute of Victoria (LIV) is currently in negotiation with VCAT about the proposed scale of costs for legal practitioners appointed as administrators. The bill clarifies the current approval process by providing that approval be in accordance with any scale fixed by VCAT rules or as otherwise approved by VCAT. The bill does not interfere with the LIV’s ability to provide its views to VCAT on any scale that is fixed in relation to remuneration at a point in the future. Regarding the powers of investigation given to the public advocate, this proposal still requires further consideration. The Victorian Law Reform Commission’s 2012 Guardianship: Final Report recommended that the public advocate’s statutory investigation function be expanded to cover wider issues of abuse and exploitation of people with disability as well as the misuse of power by private guardians, administrators and attorneys. The proposal requires an analysis of the public advocate’s existing investigation function as well as an analysis of how this investigation function interacts with other Victorian bodies that play a role in safeguarding and supporting vulnerable Victorians, including older people and people with decision-making disability. The role played by these other bodies has changed since the publication of the Guardianship report. In particular Victoria Police is the frontline responder to family violence, including elder abuse. For example, in response to the 2014 report of the Royal Commission into Family Violence Victoria Police is in the process of trialling a dedicated family violence and elder abuse response team. The proposal also requires consideration of recommendations arising out of the Australian Law Reform Commission’s 2017 Elder Abuse—A National Legal Response report. The elder abuse report recommended that public advocates in states and territories or another similar agency be provided with explicit powers to safeguard at-risk adults from abuse and neglect. The safeguarding function is recommended to include coordinating legal and medical and other services, meeting with relevant bodies to prepare a plan to stop the abuse and support the adult, and reporting the abuse to police. Continuing on with the public advocate and concerns about their powers of delegation under this bill and whether there is an appropriate amount of transparency and accountability for any delegation, under clause 19 the public advocate may delegate to employees of the Office of the Public Advocate (OPA) certain functions, powers and duties under the bill and under relevant acts, including the Medical Treatment Planning and Decisions Act 2016 and the Powers of Attorney Act 2014. The public advocate is already able to delegate functions, powers and duties under the Guardianship and Administration Act 1986. The functions, powers and duties of the public advocate under the Medical Treatment Planning and Decisions Act and the Powers of Attorney Act are much more limited. Delegation of the public advocate’s powers and duties as a guardian or as an attorney under an enduring power of attorney will continue to be subject to oversight by VCAT. All delegations must be made by a formal instrument of delegation. As under the Guardianship and Administration Act, currently the public advocate will only be able to delegate powers of duties as a guardian to someone other than an OPA employee with VCAT approval. In the debate Ms Ratnam also raised funding issues in relation to the Office of the Public Advocate. What we will say is that the government acknowledges the increase in demand being experienced by the Office of the Public Advocate, and this is exactly why we have provided the OPA with a $5.4 million funding boost over two years. I will also quote from the latest OPA annual report which states, and I quote: I acknowledge the State Government for supporting OPA to meet this demand through the very welcome significant budget boost … I understand that there is a series of amendments being proposed by Mr Meddick from the Animal Justice Party in relation to this bill. They essentially deal with one particular issue but it has a number of consequential effects, and I indicate that the government will be accepting those amendments.
Motion agreed to. Read second time. Committed.
