Abuse and Misuse of Substitute Decision-Making (SDMg) Powers: Guardianship and Administration Law and Associated Governance Institutions in the Spotlight

Abstract

Abuse and misuse of Substitute Decision-Making (SDMg) authority impacts the lives of children and adults with decision-making disabilities. The concerns raised in this paper amplify previous attention addressed by advocacy agencies and law reformists such as the Law Commission of Ontario. I analyse problems associated with Plenary Guardianship from both the lived experience of the non-guardian perspective and from the authority bestowed to the Guardian pursuant to the Guardianship and Administration Act 1990 of Western Australia legitimating the unintended capacity to abuse one’s substitute decision-making authority. Substitute decision-making arrangements enable decisions to be made on behalf of a person with a decision-making disability; usually made when such arrangements are necessary and subject to safeguards. Detrimentally, the substitute decision-maker (SDM) can assert broader powers beyond sensible measures that include thwarting investigations undertaken by family members; removing family members from the life of the person for whom an order is made; inappropriately applying a paternalistic or ‘best interest’ approach to decision-making where other approaches are required; failing to consider the individual’s wishes or making decisions contrary to those wishes; having insufficient contact with the individual; and, sharing insufficient or incorrect information. Moreover, they may subject the individual for whom an SDM order is made to experimental medical treatment in tandem with imposing or condoning severe and harmful restrictive-practices. Consequently, the second issue addressed in this paper concerns normalising both chemical and physical restrictive-practices that are both morally abhorrent and clinically highly questionable. Furthermore, often undertaken by service providers and their contracted psychiatrists and treating teams, endorsed under authority of a collaborating Guardian or SDM.

Citation

Naimo, J. (2022), "Abuse and Misuse of Substitute Decision-Making (SDMg) Powers: Guardianship and Administration Law and Associated Governance Institutions in the Spotlight", Walsh, A. and Boucher, S. (Ed.) Who's Watching? Surveillance, Big Data and Applied Ethics in the Digital Age (Research in Ethical Issues in Organizations, Vol. 26), Emerald Publishing Limited, Leeds, pp. 75-92. https://doi.org/10.1108/S1529-209620220000026006