What Role for Adult Guardianship in Authorising Restrictive Practices

Abstract

This paper undertakes the first comprehensive analysis of the role that Australian guardianship laws play in regulating restrictive practices for people with intellectual and cognitive impairment. It identifies and critiques the five possible legal bases for authorising such decisions in the guardianship system before concluding that the law should be reformed to place decision-making about this issue on a clear, certain and consistent basis. This should be achieved by legislative reform and should not have to rely on tribunal decision-making. The paper also questions whether the guardianship system is an appropriate vehicle for regulating restrictive practices. Historically, restrictive practices were not part of decision-making regimes for adults with impaired capacity but it appears that it is now widely assumed to be a logical home for such practices. If that is to be the case, the guardianship system must maintain its clear focus on adults with intellectual and cognitive impairments and that the rights, interests and welfare of this cohort are paramount in decision-making about restrictive practices.