Pressure point for state guardians

Human rights begin “in small places, close to home … Unless these rights have meaning there, they have little meaning anywhere,” former US first lady and political activist Eleanor Roosevelt said in 1958.

That quote resonates profoundly when I think about the tens of thousands of people across Australia under the guardianship of a state or territory public advocate body.

These bodies, conceived as independent statutory offices, were created to advocate for and safeguard the rights of individuals with decision-making disabilities, thereby mitigating potential neglect, exploitation and abuse.

However, some of them are coming under increasing criticism for the way in which they make decisions for people in their charge (and how they are funded).

In Western Australia, ABC News has reported that people under the care of the Office of the Public Advocate (OPA) are being charged exorbitant fees, in some cases left without access to money for necessities and forced out of their own homes.

The OPA is also facing allegations of not providing adequate treatment to people in its care.

Similar stories have been repeated in other states and territories.

Part of the reason for the challenges we see with public advocate bodies may be that, in recent years, they have been overwhelmed by a flood of new guardianship appointments.

The majority of this surge would relate to the reforms within the disability sector, brought about by the NDIS, which have highlighted gaps in formal decision-making.

This has likely been exacerbated by the enhanced scrutiny and regulation in the aged care around obtaining consent in the context of lifestyle decisions and restrictive practice decisions.

These matters have led to an influx of applications for guardianship appointments.

When a tribunal determines that there are no suitable family members or friends available, the relevant public advocate body will be appointed as guardian.

Most states and territories then legislate that a guardian must always consider their ward’s wishes and act in their best interests.

Sadly, though, my impression is that public advocate bodies at the state and territory level have not been able to match the abovementioned increase in demand.

In WA at least, the OPA’s annual reports indicate that both funding and staffing levels have actually decreased per appointment during the past five years.

The result seems to be that public advocate bodies are stretched to the limit and often unable or unwilling to actively engage in decision-making on behalf of those they are appointed to represent.

My own experience of this was in the case of a young Aboriginal man with disabilities who was being forced to leave his home to move to another part of the city.

This decision had been made by a delegate of a public advocate body who had never met him, never sought to understand his wishes or to understand the deeply embedded support network that had grown around him and which was helping him to thrive.

He was unheard and alone. It took a sustained campaign by his support provider to get the delegate to finally listen to him.

At the core of this matter lies the individual’s voicelessness.

Stripped of decision-making capabilities, they become vulnerable and reliant on others for advocacy.

When the public advocate is disengaged, this can leave the individual without any agency in their own lives.

The families of these people often find themselves helpless, observing their loved ones struggle while they remain unable to influence the decision-making process effectively.

What’s more, they have limited remedies and strict gag laws in most states and territories prevent people from speaking out if they have grievances.

A full exploration of the way in which the public advocate bodies operate is beyond the scope of this column.

However, it seems clear to me that the effectiveness of these bodies (including the way in which they are funded) needs to be reviewed.

Eleanor Roosevelt’s words remind us that human rights start at home; in this context, with the public advocate bodies.

If they falter in protecting the rights of the most vulnerable at this micro level, our larger-scale efforts are rendered meaningless.

(Many thanks to Andreas Geronimos and Emily Edgar for their contributions to this piece.)

• Amber Crosthwaite is a commercial lawyer specialising in seniors living, aged care and disability