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123 Cards in this Set

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What act outlines the guidelines and responsibilities of those working in Child Protection?
The Child Protection Act 1999
What is of highest concern in the Child Protection Act?
This Act is to be administered under the principle that the welfare and best interests of a child are paramount (Section 5)
What are some of the principles in the Child Protection Act (1999)?
(a) every child has a right to protection from harm;

(b) families have the primary responsibility for the upbringing, protection and development of their children;

(c) the preferred way of ensuring a child’s wellbeing is through the support of the child’s family;

(d) powers conferred under this Act should be exercised in a way that is open, fair and respects the rights of people affected by their exercise, and, in particular, in a way that ensures—
(i) actions taken, while in the best interests of the child, maintain family relationships and are supportive of individual rights and ethnic, religious and cultural identity or values; and
(ii) the views of the child and the child’s family are considered; and
(iii) the child and the child’s parents have the opportunity to take part in making decisions
affecting their lives;

(e) if a child does not have a parent able and willing to protect the child, the State has a responsibility to protect the child, but in protecting the child the State must not take action that is unwarranted in the circumstances;

(f) if a child is removed from the child’s family—
(i) the aim of authorised officers’ working with the child and the child’s family is to safely return the
child to the family if possible; and
(ii) the child’s need to maintain family and social contacts, and ethnic and cultural identity, must be
taken into account; and
(iii) in deciding in whose care the child should be placed, the chief executive must give proper
consideration

(g) A child should be kept informed of matters affecting him or her in a way and to an extent that is appropriate, having regard to the child’s age and ability to understand;

(h) if a child is able to form and express views about his or her care, the views must be given consideration, taking into account the child’s age or ability to understand.

(i) if a child does not have a parent able and willing to give the child ongoing protection, the child has a right to long-term alternative care.
What does section 6 of the Child Protection Act (1999) say about Aboriginal and Torres Strait Islander children?
When making a significant decision about an Aboriginal child or a Torres Strait Islander child, the CE must give an opportunity to a recognised entity for the child to participate in the decision-making process.
Who is a child in need of protection?
A Child in need of protection is a child who - (Section 10, CPA, 1999)

(a) has suffered harm, is suffering harm, or is at unacceptable risk of suffering harm; and
(b) does not have a parent able and willing to protect the child from the harm.
What is the legal definition of a child?
A Child is an individual under 18 years (Section 8, CPA, 1999)
According to section 9 of the Child Protection Act (1999), what is Harm?
(1) any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.

(2) it is immaterial how the harm is caused.

(3) Harm can be caused by -
(a) physical, psychological or emotional abuse or neglect;
(b) sexual abuse or exploitation.
What are the types of order that the Child Protection Court may make?
direct a parent to do or not to do something related to a child's care

direct a parent not to have contact with the child, direct or indirect, at all or only with supervision [up to 1 yr].

order that the department supervises parent‘s care of the child [ 1 year]

order that a relative or the department have day to day care of child (custody)

order that a relative or another person (usually a foster carer) or the department be entitled to make the important decisions about the child's care. Examples of this include where the child will go to school or what medical treatment the child should have (guardianship – can be short [2 years] or longer). Until child is 18 years.

(These orders may be made in combination with one another)
The Children’s Court may make a Child Protection Order only it if it satisfied –
a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and

b) there is a case plan for the child

c) if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made; and

d) the child’s wishes or views, if able to be ascertained, have been made known to the court; and

e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this part of less intrusive terms.
Does a copy of the child's case plan need to be filed with the court before a Child Protection Order can be made?
Yes.
Before making a child protection order granting custody or guardianship of a child to a person other than the chief executive, the court must have regard to reports about...
the person’s criminal history, domestic violence history and traffic history.
In addition, before making a child protection order granting *long-term guardianship* of a child, the court must be satisfied of two things; what are they?
a) there is no parent able and willing to protect the child within the foreseeable future; or

b) the child’s need for emotional security will be best met in the long-term by making the order.
the court must not grant *long-term guardianship* of a child to...
a) a person who is not a member of the child’s family unless the child is already in custody or guardianship under a child protection order; or

(b) the chief executive if the court can properly grant guardianship to another suitable person.
On the adjournment of a proceeding The Children’s Court may make all or any of the following orders (section 67) -
temporary custody

direction around contact between a child and parent

a written social assessment

medical examination or treatment

the child’s contact with family members

court order conference

family group meeting

that the child be separately legally represented
There are several rules surrounding confidentiality in Child Protection. Who is covered by these regulations?
S186 - Confidentiality of notifiers of harm or risk of harm

S187 - Confidentiality of information obtained by persons involved in administration of Act

S188 - Confidentiality of information given by persons involved in administration of Act to other persons

S159 - Principles for coordinating service delivery and exchanging information.
When reviewing a Child Protection decision, what can the Queensland Civil and Administrative Tribunal (QCAT) do?
confirm, set aside or vary the decision; or

set aside the decision and substitute its own decision; or

set aside the decision and return it to the decision maker for reconsideration in accordance with directions given by the tribunal.
What are some of the review-able decisions according to Schedule 2 of the Child Protection Act 1999?
Directing a parent in relation to a supervision matter stated in a child protection order;

Deciding in whose care to place a child under a child protection order granting the chief executive custody or guardianship;

Not informing a child’s parents of person in whose care the child is and where the child is living;

Refusing to allow, restricting, or imposing conditions on, contact between a child and the child’s parents or a member of the child’s family;

Removing a child from carer’s care
What are some of the key concepts surrounding Human Rights?
People are treated the same everywhere, rich or poor, men or women, no matter where we live.

Rights are connected to each other.

Rights are inherent -not able to be taken away under any circumstances.

Governments have a responsibility to respect and protect the rights and freedoms of all people.
Are the principles outlined in the 1948 Universal Declaration of Human Rights Legally binding?
No, they're a statement of goals intended to influence international law development
What forms may human rights violations take?
Civil

Political

Social

Economic

Cultural
What does the International Covenant on Civil and Political Rights deal with as regards the democratic process?
freedom of speech and religion and the right to vote

freedom from unfair arrest and detention and the right to a fair trial; and

freedom of association and the right to join trade unions
What does the International Covenant on Civil and Political Rights deal with as regards basic living standards?
access to food, housing, work, social security, education and health; and

fair wages and safe working conditions.
Between International Covenants and Conventions, which are binding?
Covenants are non-binding but Conventions are binding.
Are signed International Conventions automatically a part of a nations law?
The Commonwealth Government agrees to observe international standards, but this does not make those standards legally enforceable within Australia.

Australia has taken the option of not making these Conventions immediately part of its legal system. Specific Australian legislation is required to enact these Treaty agreements.

Without such legislation, the international obligation is not legally enforceable within Australia.
This is a result of difficulty in ensuring compliance across commonwealth /State structures.

In international law, having a federal legal system does not excuse a failure to observe human rights.
But in practical terms, a federal system can make the task of guaranteeing that people are able to access their rights more complicated.
Although we do not have a Bill of Rights or Charter, what are some of Australia's Constitutional rights?
freedom of religion

freedom from discrimination on the basis of state residence

trial by jury

acquisition of property on just terms; and

some rights that can be implied, such as freedom of political expression.
What do rights under the Australian Constitution protect?
They generally only apply to federal laws and not to state laws.

The High Court has interpreted these rights narrowly. For example, the High Court has never applied the right to freedom of religion to override a law that is inconsistent with this right.
What influence do International Human Rights Conventions and Covenants on Australian Law?
Moral right inherent in society

International human rights standards are “a legitimate and powerful influence on the development of the common law”.

allows courts throughout Australia to look at international human rights principles when making decisions about peoples’ rights.
What is the difference between a criminal act, and a civil breach?
A crime is an act or omission against the state or nation.

A civil breach is an act or omission against an individual.
What act covers public space law?
The Summary Offences Act, 2005

S.6 is now the public nuisance provision: behaving in a disorderly, offensive, violent and threatening manner (including language) –Max $750 or 6 months

Also -

Being drunk in public–max $150 (also The Liquor Act 1992)

Begging –max $750 or 6 months

Graffiti and possession offences eg paints/B&E/stolen

Wilful exposure ($150) if intended ($3000 or 1 year)
- Nude sunbathing; urination in public
- Defence to urination if no public toilets available.
If someone fails to appear for a hearing for a breach of the Summary Offences Act, 2005, what is the legal recourse?
A warrant for that person's arrest may be issued.
Which Act contains the Move on laws?
The Police Powers and Responsibilities Act (2000).
What are some of the specifics regarding 'Move On Powers' (PPA, 2000)?
PPR Act apply:
- in a regulated (public) space

- Police suspect your behaviouror presence is making people anxious/ you were disrupting an event/ offending or threatening people/interfering with trade or business

Police officer may ask you to “move on”

Target behaviour that related to homelessness

Failure to comply with direction to move-on = arrest [criminal ] / $3000 fine

Impossible to contest this power except by refusing to move

June 2006 –changes to make move-on powers statewide
Aside from the 'Move on Powers', when else may a police officer use her/his discretion to intervene in someone's public behaviour?
The PPA (2000) states that Police may take all steps the police officer believes is reasonably necessary to prevent or stop

A breach of the peace (s.42)

A riot (s.43)

The commission of an offence (S.44)
Does the Domestic and Family Violence Protection Act 1989 (QLD) cover same-sex relationships?
Yes - as of 1999.
Does the Domestic and Family Violence Protection Act 1989 (QLD) cover more than just those in an intimate relationship?
Yes - as of 2003, it was extended to broad range of family members, people in a relationship of informal care and those in certain dating relationships.
What is the main purpose of the DFVPA, and how is this purpose achieved?
s3A(1) The main purpose of this Act is to provide for the safety and protection of a person in the case of domestic violence committed by someone else…

s3A(2) The way in which the main purpose of this Act is achieved is by allowing a court to make a domestic violence order to provide protection for the person against further domestic violence.
Under the DFVPA, what is the definition of domestic violence?
s11(1) Domestic violence is:
(a) wilful injury
(b) wilful damage to the other person’s property
(c) intimidation or harassment of the other person
(d) indecent behaviour to the other person without consent
(e) a threat to commit an act mentioned in paragraphs (a) to (d)

Also - s11(2) the person committing the acts of domestic violence need *not personally* commit the act or threaten to commit it.
What are the 8 behaviours that come under the definition of Domestic Violence?
physical abuse-including direct assaults on the body, use of weapons, driving dangerously, destruction of property, abuse of pets in front of family members, assault of children, locking the victim out of the house, and sleep deprivation.

sexual abuse-any form of forced sex or sexual degradation, such as sexual activity without consent, causing pain during sex, assaulting genitals, coercive sex without protection against pregnancy or sexually transmitted disease, making the victim perform sexual acts unwillingly, criticising, or using sexually degrading insults.

emotional abuse-blaming the victim for all problems in the relationship, constantly comparing the victim with others to undermine self-esteem and self-worth, sporadic sulking, withdrawing all interest and engagement (e.g. weeks of silence).

verbal abuse-continual ‘put downs’ and humiliation, either privately or publicly, with attacks following clear themes that focus on intelligence, sexuality, body image and capacity as a parent and spouse.

social abuse-systematic isolation from family and friends through techniques such as ongoing rudeness to family and friends, moving to locations where the victim knows nobody, and forbidding or physically preventing the victim from going out and meeting people.

economic/financial abuse-complete control of all monies, no access to bank accounts, providing only an inadequate ‘allowance’, using any wages earned by the victim for household expenses.

spiritual abuse-denying access to ceremonies, land or family, preventing religious observance, forcing victims to do things against their beliefs, denigration of cultural background, or using religious teachings or cultural tradition as a reason for violence.

damage to property–including breaking crockery, punching holes in wall done to frighten person
What are the domestic relationships that are covered under the DFVPA?
s11A (1) domestic relationships include:
‣Spousal relationships;
‣Intimate personal relationships;
‣Family relationships; and
‣Informal care relationships.
Under section 12 of the DFVPA, what is the definition of a spousal relationship?
It is a relationship between:
- spouses who are or have been married [former],
- either one of the biological parents of a child [need not have been or be in a relationship together],
- either person in a couple who have or are living together
Under section 12A of the DFVPA, what is an Intimate personal relationship?
It's defined as:
- people who are or were engaged or betrothed and
- people who are or were previously dating and whose lives have become enmeshed “to the extent that the actions of 1 of them affect or affected the actions or life of the other“

Indications of a an Intimate personal relationship include -

‣The circumstances of the relationship, including for example trust and commitment
‣Length of time
‣Frequency of contact
‣Level of intimacy
Under section 12B of the DFVPA, what is a Family Relationship?
‣People who are a relative by blood or marriage such as grandparent, aunt, uncle, step-parent, half-brother, mother-in-law, parent and child (if over 18)

‣Can include extended family as it also includes those people who are regarded as relatives by Aboriginal or Torres Strait Islanders and non-English speaking families
Under section 12C of the DFVPA, what is an Informal Care Relationship?
‣When one person is dependent on someone else for help with the activities of daily living –may include dressing, preparing meals or shopping
‣Help must be needed because of the disability, illness or impairment
‣Help must be provided in an informal way and not involve fee –not formal care relationship.
Under section 12D of the DFVPA, how does the act pertain to children?
(1) Subject to this section, a person who is a child may be named as the aggrieved or the respondent in a domestic violence
order.
(2) However, the child may be named as the aggrieved or the
respondent only if a spousal relationship, intimate personal
relationship or informal care relationship exists between the
child and the other party named in the domestic violence
order.

Also...

If child is under 16 and is an aggrieved or respondent, all documents including applications and protection order must be delivered to the child’s parents as well as the child
- Cannot deliver at the child’s school
- If a child is between 16-18, a copy of the documents are not automatically delivered to parents

And Section 12D only applies if the situation doesn't apply to the "family relationship" category.
According to Section 12D of the DVFPA, how does the act pertain to children?
(1) Subject to this section, a person who is a child may be named as the aggrieved or the respondent in a domestic violence
order.
(2) However, the child may be named as the aggrieved or the
respondent only if a spousal relationship, intimate personal
relationship or informal care relationship exists between the
child and the other party named in the domestic violence
order.

Also...

If child is under 16 and is an aggrieved or respondent, all documents including applications and protection order must be delivered to the child’s parents as well as the child
- Cannot deliver at the child’s school
- If a child is between 16-18, a copy of the documents are not automatically delivered to parents

And Section 12D only applies if the situation doesn't apply to the "family relationship" category.
Is Domestic Violence considered a civil, or criminal matter?
Civil
If a domestic violence offender has a gun, does the DVFPA cover what should happen with the weapon?
No, it's referred to the weapons act.
Who can apply for an order under the DFVPA?
Application can be made by: -
‣The aggrieved
‣Authorised person
‣Police officer
‣Guardian under the Adult Guardian
‣Attorney under a power of attorney
Under the DFVPA, what other conditions can the court order?
Prohibiting certain behaviour

Prohibiting the respondent from remaining at premises, entering premises, approaching within a certain distance

Prohibiting the respondent from contacting or attempting to contact

Returning property to aggrieved

Prohibit attempts to contact or locate (or getting anyone else to do the same)

Ouster condition (I'm pretty sure this means someone may be ousted from their premises)
Is the information that social workers receive privileged information?
Most of it is not. Social workers can never guarantee absolute confidentiality
Because:

Legal proceedings may compel it

Agency reporting requirements eg. child protection, Centrelink, probation

Information may need to be passed on to others (supervisor, agency referral, duty to warn)

In certain circumstances:

may be compelled to disclose information.

may be prohibited from disclosing information.

may at times choose to disclose information.

may be protected if they do disclose information.
What are some examples of information that Social Workers are compelled (by law) to disclose?
Public health reporting eg. notifiable diseases

If search warrant, allow access to records

Youth justice, probation, Centrelink workers, Child protection workers

If client consents to disclose

Abuse of older people –sexual and physical in Aged care [2007]

A subpoena may apply - A notice issued by a court ordering a person to appear in court or to produce particular documents.
What sort of information are social workers prohibited from disclosing?
Privacy Act–written consent to release information even on referral –must become routine; covers storage issues etc

Social workers in Centrelink; health workers and public servants must not divulge information acquired –even to cts.

Family Law Act1975 (Cth)–marriage counsellors and mediators –confidentiality s19(1) and s62F(8)

Health Services Act1991 (Qld) –health workers cannot disclose information gained through work
In what situations can a social worker choose what s/he discloses?
Child abuse –no mandatory reporting for social workers in Queensland unless in child protection agency etc -only doctors, nurses, school principals in State schools are required

Not legally required to disclose criminal offence unless asked by police –obstructing police investigations –negligence if their knowledge concerns an intended and identifiable crime and victim –may be agency requirements

BUT! if someone is about to be harmed –Duty to warn may override confidentiality
In what way do social workers have limited protection if they choose to disclose certain information?
Breach of confidentiality may be negligent (defamation)

May have some protection if communicated to person to whom they had a duty to communicate to and did so in good faith

May need to disclose to protect someone –Whistleblowers legislation eg elder abuse

Duty to warn
How should a social worker approach clients about confidentiality issues?
Be clear with client about the limits of confidentiality in your situation

Make sure that limits re disclosure are discussed up front
What is meant by the 'Duty to Warn'?
When clients indicate that they intend to hurt someone else or themselves, must weigh obligation to maintain client confidentiality with duty to warn in the public interest.

Rely upon Privacy ActNPP2.1 –allows for unauthorised disclosure if threat or public safety.

Useful criteria posited by McMahon (1992) as giving a defence:
1.The victim is clearly identified
2.The plan to kill is specific
3.The client has the means to carry out the threat
4.Steps to protect the victim are practicable.
If a client consents to disclosing information, what does it all mean?
May consent to disclose under Privacy Act 1988(Cth) …if know what being disclosed and why

Must ensure that the consent is real and informed

“Consent validates treatment, intervention or professional action” (K&R, p.87)

Consistent with ethical guidelines re self -determination

Main case: Roger v Whitaker(1992) 175 CLR 479 –found that not informed consent because doctor had not given patient all information necessary about the risks of the surgery
What does Informed Consent mean?
Client needs to have:

Full details of risks generally and specifically of intervention

Consent is both intervention and activity specific and time limited

Information presented in a way that is easily understood by that client

Opportunities to clarify issues

Genuine comprehension of risks

Written consent preferable

Record of agreement [K & R, p.88]
What are the rules around negligence for social workers?
Social workers provide services and advice. If incorrect and client suffers some detriment as a result, there may be an allegation of negligence.

Area of law is torts –legal obligation

A tort is a civil wrong, not a criminal matter

Does not have to be intentional harm.

Growth industry in current times

The remedy for a tort is damages as compensation for loss suffered as a result of the civil wrong / and/ or injunction to stop behaviour
What are the elements of negligence?
Remember INTENT is not issue here but WHAT HAPPENED.

Need all four elements for negligence:
1.Duty of care
2.Breach of duty of care
3.Damage
4.Close connection between the act and the damage
What does Duty of Care mean?
Established in Donoghue & Stevenson (1932) –clarified to whom one owes a duty of care

An individual must take reasonable care to avoid actions which would be likely to injure his/her neighbour

A “neighbour” is a person(s) who is (are) so closely affected by my actions that I ought reasonably to have had them in mind as being so affected.

If you do not take reasonable care, you may be negligent.

Legal as well as ethical obligation to ensure that the advice given to client is correct

Professional standards of care are higher than those of ordinary people.

Rogers v Whitaker–duty of care where actual reliance by client on a professional opinion can cause harm + “standard of care of the ordinary skilled person professing to have that special skill”

Enshrined in Civil Liability Act 2003(Qld)
How is it decided that someone is liable for an act (under the Civil Liability Act, 2003, QLD)
Liability is not incurred “if the professional acted in a manner widely accepted by peer professional opinion as competent professional practice”.

“Widely accepted” does not mean universally accepted

Differing professional practices may be relied upon in court

“Professional opinion” that the Court considers irrational may not be relied upon
What must occur for there to be a negligent misstatement (a sub-category of professional negligence)?
Special relationship -The social worker is trusted by a person as likely to be correctly informed.

The social worker realises(or ought to realise) that the information will be used by the recipient.

It is reasonable for person relying on the advice to do so and there was resultant loss
Why keep records?
To ensure continuity of intervention

To assist in clinical decision-making and subsequent service delivery

To refresh memory

To assist in preparation of reports

To provide one basis of accountability

To provide a basis for professional supervision

To assist in decision-making

To assist in research and generation of new knowledge

Risk management
What are some of the symptoms of Mental Illness?
Hearing voices

Being persecuted by foreign powers or government agents

Misperception of events in the environment

Thoughts being controlled or stolen

Distress

Special significance being given to mundane events
A person must not be considered to have a mental illness because of any of the following reasons...
Religious, cultural, philosophical or political belief

Membership of a racial group

Economic or social status

Sexual preference or orientation

Sexual promiscuity

Immoral or indecent conduct

Drugs or alcohol

Intellectual disability

Antisocial or illegal behaviour

Involved in family conflict

Previous treatment for a mental illness or subject to involuntary assessment/treatment
What are the criteria for applying for involuntary assessment?
The person appears to have a mental illness.

The person requires immediate assessment.

The assessment can properly be made at an authorised mental health service.

There is a risk that the person may:
- cause harm to himself or herself or someone else; or
- suffer serious mental or physical deterioration.

There is no less restrictive way of ensuring the person is assessed

The person –
- Lacks the capacity to consent to be treated for the illness; or
- Has unreasonably refused proposed treatment for the illness.
What is the role of the Mental Health Court?
To decide questions of unsoundness of mind, diminished responsibility and fitness for trial.

Hear appeals from the Mental Health Review Tribunal.

Make enquiries into a patient’s detention and, if appropriate, to order the patient’s discharge.
Who sits on the Mental Health Court?
Supreme Court judge.

Two appointed psychiatrists assist the MHC.
Who sits on the Mental Health Review Tribunal?
1 Panel with varying composition

Usually 3-5 members

President (lawyer with 7 years experience)

Lawyer with 5 years experience

Psychiatrist

Person with other relevant qualifications/experience approved by Minister
What is the definition of a mental illness according to the Mental Health Act 2000 (QLD)?
Mental illness is a condition characterised by a clinically
significant disturbance of thought, mood, perception or
memory.
What are the rights of those with mental illness?
same human rights as everyone else;
involvement in decisions; confidentiality; & least restrictive environment
What is a Justices Examination Order?
An order given to be signed (and signed by) a magistrate or justice of the peace to examine a person involuntarily for mental illness, when they reasonably believe that a person has a mental illness.
What is an Involuntary Treatment Order?
It's an order imposed on a client that they must follow a treatment plan, either in the community or as an in-patient.

If a person being treated in the community does not comply, and continues to refuse to comply after being asked to by a doctor, a notice is given them that they must report to a stated mental health service on a stated day for treatment. If they do not comply with the notice, then the health practitioner may take the patient to the health service for treatment, where they may be detained until treatment requirements are satisfied.
What is an Allied Person?
A person nominated by someone with a Mental Illness who may make decisions on their behalf.
What is fluctuating capacity?
It's capacity that comes and goes.
What does parens patriae mean?
Duty of the Sovereign
What is the definition of capacity (according to the PAA and the GAA)?
capacity, for a person for a matter, means the person is
capable of—
(a) understanding the nature and effect of decisions about
the matter; and
(b) freely and voluntarily making decisions about the
matter; and
(c) communicating the decisions in some way.
What is a fundamental principle when dealing with a capacity issue?
The presumption is that a person has capacity (so presumption of incapacity must be proven)
What are the 3 areas that capacity relates to?
DECISION SPECIFIC
◦surgery compared to a flu vaccination

DOMAIN SPECIFIC
◦May have capacity for finances but not for health care or accommodation

TIME SPECIFIC
◦fluctuating capacity –someone who has early dementia
Does not having capacity mean that someone is completely incapable of making decisions?
No, it is NOT a Global or total inability to make any decisions
How does one prove that someone doesn't have capacity?
MMSE (Mini-Mental State Examination) score not enough to decide capacity for decision making

Practitioner or person making allegation must document evidence of incapacity to make specific decisions

How to assess „capacity‟ still a matter of much dispute and research
What are the 4 guardianship organisations in QLD?
The Queensland Civil and Administrative Tribunal

The Office of the Adult Guardian

The Public Trustee

The Office of the Public Advocate
As a social worker, what is something you can do to try to determine incapacity?
Ask Questions about life-processes of the client
What does it say in the Acknowledgements section (s5) of the GAA?
This Act acknowledges the following—
(a) an adult’s right to make decisions is fundamental to the adult’s inherent dignity;
(b) the right to make decisions includes the right to make decisions with which others may not agree;
(c) the capacity of an adult with impaired capacity to make
decisions may differ according to—
(i) the nature and extent of the impairment; and
(ii) the type of decision to be made, including, for example, the complexity of the decision to be
made; and
(iii) the support available from members of the adult’s existing support network;
(d) the right of an adult with impaired capacity to make
decisions should be restricted, and interfered with, to the least possible extent;
(e) an adult with impaired capacity has a right to adequate and appropriate support for decision-making.
What does the GAA say about achieving balance (s6)?
This Act seeks to strike an appropriate balance between—
(a) the right of an adult with impaired capacity to the
greatest possible degree of autonomy in decision-making; and
(b) the adult’s right to adequate and appropriate support for decision-making.
What does the GAA say about informal substitute decision making?
Guardianship and Administration Act 2000 recognises that decisions may be made on an informal basis by an adult‟s existing support network if the person lacks capacity to make his or her own decisions

But that it...

Depends on the type of decision to be made
What is the aim of the Enduring power of attorney?
to allow a person appointed –the “Attorney” (donee) to make decisions on behalf of the person who made the appointment [donor].
When is an Enduring power of attorney organised?
In anticipation of impaired capacity (while capacity is still with the person)
What's the go with appointing an Enduring power of attorney?
A person with capacity may appoint –
◦one or more attorneys;
◦different attorneys for financial and personal decisions;
◦attorneys in succession i.e. on death or loss of capacity of a prior attorney
◦Jointly, severally or by majority decision
-To make decisions for them if they lose capacity.
◦Once appointed, person may access banks, sell property etc
◦A person can choose who to appoint
What are the conditions on an EPOA when looking after finances?
S37 Avoid conflict transactions

S49 Keep records

S50 Keep money separate

S51 Power to invest in authorised investments

S54 Gifting –reasonable and usual

S55 Maintain adult‟s dependents
What are some of the potential short-comings of the EPOA system?
Financial powers come into force straight after signature unless otherwise stated. Health/personal only when person lacks capacity.

Gives extensive powers to person appointed unless in document.

No checks and balances in place.
◦No registration centrally [except for dealing s in land]
◦Not uniform legislation
◦No education for attorneys
◦Issues with witnessing provision
◦Complexity of powers versus ease of access of EPOA
What is the difference between a guardian and an administrator?
Guardian is appointed to make decisions about health or personal matters –can be a close friend/family of adult or the Adult guardian

Administrator is appointed to make decisions about an adult‟s finances –can be a close friend/family of adult or the Public Trustee of Queensland or another trustee company
What role does QCAT have?
Only become involved if there is no informal means of support AND if decision needs to be made now.

Tribunal considers:
◦Does adult have impaired capacity for decision-making?
◦Does a decision about a personal, health or financial need to be made now?
◦Who is the most appropriate person to make this decision?

Can appoint for a period of time or for a particular purpose.
What role does the Public Trustee play?
May be appointed to be administrator over the adult's finances

Usually appointed if there is conflict in the family or if there is no suitable person eg adult has no one close.

Only handles finances –cannot be appointed as a guardian for personal or health
Attorneys under EPOAs are classed as “formal decision-makers”, so when would you need to refer to QCAT to have a decision made?
If:
◦ your client does not have capacity to make EPOA
◦A current EPOA no longer wants the responsibility and the person whom the EPOA decides for doesn't have capacity.
◦Your client's informal arrangements were no longer working and a decision needed to be made
◦If your client had no support people who could make decisions necessary for her
What is financial abuse?
Financial abuse occurs when there is any act involving misuse –whether intentional or unintentional –of an older person with impaired capacity's assets [including cash, personal or real property etc]

Financial abuse different to other forms of elder abuse – about privacy and NOT dependent upon contact with older person
◦Family, particularly adult children most involved
◦Informal and formal access
◦Intentional and unintentional financial abuse
What are some examples of financial abuse?
Forging a signature on cheques or legal documents;

Theft of the cash, or pension cheques;

Overdrawn/depleted bank accounts

Abuser withholding money for daily expenses from the older person

Discrepancy between the older person‟s standard of living and their financial assets;

Unusual transactions conducted on behalf of the older person;

Disappearance of jewellery or other personal possessions;

Wrongful use of a Power of Attorney, Enduring Power of Attorney, or trustee‟s responsibilities, such as forcing the older person to sign over control of property; or

Forced or undue influence on the older person to sell a home, transfer the home to another, change a will, or make a will.
When does substitute health decision making apply?
Substitute health decision-making ONLY applies when the patient is unable to make their own health decisions. If a person has capacity to make own decisions, then guardianship NOT apply
Who can make informal health decisions?
Informal health decisions can be made by a Statutory health decision-maker[SHA] if an adult has lost the capacity to make these decisions –no need for signed formal document.
What does an Advance Health Directive do?
It gives formal notification of decisions in relation to a person’s health care decided prior to losing capacity
What are the general principles of the GAA?
Presumption of Capacity

Same Human Rights

Individual Value

Valued Role as a Member of Society

Participation in Community Life

Encouragement of Self-Reliance

Maximum Participation and Minimal Limitations

Maintenance of Existing Supportive Relationships

Maintenance of Environment and Values

Appropriate to Circumstances

Confidentiality
What is involved in making an Advance Health Directive?
it requires doctor involvement

There are also other execution requirements

comes into effect when adult becomes unable to make decisions on health care

Does not authorise euthanasia –planned killing of a person

It also protects the health care provider if they follow the directive.
What are some of the types of directions an Advance Health Directive might contain?
Give directions about health care and 'special' health care

Appoint an attorney for health matters, in event that directions in AHD prove inaccurate

Provide terms or information to attorney about exercising the power

Consent to health care despite objection (from family members, presumably)

Withdrawal or withholding of life sustaining measures
What are the life sustaining measures?
Cardio pulmonary resuscitation [NFR order]

Assisted ventilation;

Artificial feeding

Artificial hydration CPR

(Blood transfusion is not such a measure)

Doctors do have to give palliative care
The inclusion of directions regarding the withdrawal or withholding of a life saving measure in an Advance Health Directive has some conditions, what are they?
Terminal condition that is incurable or irreversible & two doctors have opinion that principal is reasonably expected to die within 1 year; or

In a persistent vegetative state; or

Permanently unconscious (e.g. coma); or

Adult has illness/injury of such severity that there is no reasonable prospect of recovery to the extent that principal’s life can be sustained without the continued application of life sustaining measures
An Advance Health Directive is the first port of call if someone has a health issue, but lacks capacity. If there is no AHD, where do health care professionals turn for decisions?
1.Look to whether the Tribunal has appointed a guardian under an Order

2.Look to whether there is an EPOA for health decisions appointed [note if there is an attorney under AHD, it over-rules that under an EPOA]

3.Look to whether there is a Statutory Health Attorney available.
What is a Statutory Health Attorney?
For Health Matters, the first readily available and culturally appropriate of the following, in order of priority:

spouse of adult (in close & continuing relationship) –includes de facto

carer (not a "paid" carer)

close friend or relative

(An SHA is sought if there's no Advance Health Directive to be found, or a Guardian or EPOA to make a health decision for someone who is incapacitated)
What is the definition of an un-paid carer?
Someone who provides;

domestic services and support; or

arranges for such services and support

(while not paid, can receive Carers Pension)
If there is no Advance Health Directive, Guardian, EPOA for health decisions, or Statutory Health Attorney, where do the health professionals look to make decisions?
If no one available or culturally appropriate, then Office of the Adult Guardian acts as Statutory Health Attorney of last resort

The Office of the Adult Guardian also can act if attorney or guardian is acting against the 'Health Care Principle' or disagreement between attorneys or between guardians is going on.
What does the 'Health Care Principle' state?
that health care must take into account:

Power to be exercised only if appropriate to promote and maintain the Adult’s health and well-being

Attorney must to the greatest extent practicable
- seek the adult’s views and wishes
- take information given by adult’s health provider into account

Where two treatment options are available, the choice must be the "least Restrictive Alternative"
What is the definition of "Health Care"?
Care, treatment, service or procedure to diagnose, maintain, or treat the principal’s physical or mental condition;
◦carried out by or under the supervision of a health provider
What does "Health Care" not include?
First aid treatment;

A non-intrusive examination made for diagnostic purposes eg X-ray; or

Administration of a pharmaceutical drug if:
◦a prescription is not needed to obtain it;
◦It is normally self-administered and
◦for a recommended purpose and at a recommended dosage level [eg Panadol]
When can minor care be carried out without consent?
Can be carried out without consent only if health provider considers that health care is
◦necessary for the adult’s health and well-being, and
◦Of a type that will promote health and well-being
When can urgent health care without consent be carried out?
Allowed if adult has impaired capacity and medical practitioner states care needed as:

Imminent risk to health; or

To prevent significant pain or distress and Substituted consent not reasonably practicable;

Objection in Advance Health Directive cannot be overridden [but doctors would have to be aware of the AHD]
When can an objection to health care by an adult be overridden (if there is no Advance Health Directive, Guardian, Attorney (with health decision rights), Statutory Health Attorney, or Statutory Health Attorney of last resort)?
May only be overridden if adult has minimal or no understanding of -
◦what the health care involves; and/or
◦why the health care is required

The health care is likely to cause the adult
◦no distress; or
◦temporary distress which is outweighed by the benefit
According to "Good Medical Practice", when can the option to withhold/withdraw life sustaining measures be taken (if there's no Advance Health Directive, consent by guardian, attorney, or Statutory Health Attorney)?
withhold/ withdraw life-sustaining measures cannot operate unless health provider reasonably considers the commencement or continuation for the adult would be inconsistent with good medical practice
When may force be used by a health provider, or person acting under a health provider's direction?
May be used by a health provider or person acting under health provider’s direction if it is the minimum that is necessary and reasonable to carry out the health care authorised under the Act
What is the principle that applies to the use of restraint for people with disabilities?
Least restrictive alternative Principle
Are there constraints on the use of restraint with those with disabilities?
Yes - see Disability Services and Other Legislation Amendment Bill 2008
Do the Disability Services and Other Legislation Amendment Bill 2008 amendments about the use of restraint apply to anyone other than those with disabilities?
No.
Are the Disability Services and Other Legislation Amendment Bill 2008 amendments about the use of restraint subject to review?
Yes.
What is the purpose of the QLD Mental Health Act, 2000?
The purpose of this Act is to provide for the involuntary
assessment and treatment, and the protection, of persons
(whether adults or minors) who have mental illnesses while at
the same time—
(a) safeguarding their rights and freedoms; and
(b) balancing their rights and freedoms with the rights and
freedoms of other persons.

(Section 4)