FEATURE
‘New Avenues of Providing Effective Care: the Role of Microboards’ DR DAVID PLATER, LUKAS PRICE, ESTHER RICHARDS AND DR MARK GIANCASPRO1
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n January, 2021, the independent South Australian Law Reform Institute (SALRI), based at the University of Adelaide Law School, released its Report into the role and operation of Enduring Powers of Attorney (EPAs) under the Powers of Attorney and Agency Act 1984 (SA) (POA Act) in South Australia.2 SALRI’s report also examined the role of ‘microboards’ in providing flexible and effective long-term care to persons with disability, and raised some of the legal issues and implications that exist under present law and practice.3 Significantly, the concept of microboards was not raised by SALRI in its consultation, but rather by members of the community, health and disability sectors. The concept was raised in relation to dissatisfaction with existing options – such as powers of attorney (POAs), guardianship and administration orders and the Public Trustee. The extensive reliance upon perceived unregulated commercial care and the role of Government care was also of concern. It was suggested that, drawing on recent developments in Canada4 and Western Australia, SALRI should look further at the role and operation of microboards to determine their feasibility as a viable alternative to existing support strategies. A microboard is a relatively new concept in Australia. It involves a small group of interested individuals who gather around a person with special needs (whether elderly and/or with a disability) to support them throughout their lives.5 Generally, these groups take the form of an incorporated legal entity and can serve as a vehicle for supported decisionmaking in a number of areas, including financial management,6 health care, treatment, safeguarding and governance. In its operation, a microboard seeks to represent best practice in disability support by moving away from the concept of substitute decision-making – where a person or persons are appointed to make decisions for someone else. Substitute decision-making can impact a person’s sense of autonomy, self-worth
and wellbeing.7 Microboards have the advantage of exercising decisions relating to a range of personal issues, which allows the model a certain degree of flexibility. A microboard could theoretically exercise a similar authority to that utilised under POAs, Advance Care Directives or guardianship orders, and has the potential to render these otiose. The membership of a microboard may change over time and members may be selected according to their familial, personal, or professional connections or expertise. SALRI was told that microboards appear to offer an encouraging alternative to existing substitute decision-making mechanisms, and this relatively new approach has the potential to act as a longterm and sustainable safeguard in the lives of vulnerable people. However, significant questions remain as to the role and effect of present law and practice to accommodate and best provide for microboards. The intersection of the role and operation of a microboard with the National Disability Insurance Scheme (NDIS) in Australia8 remains unclear.9 SALRI noted that, while the ability of microboards to provide for the long-term care of persons with disability has apparent merit, further discussion was beyond the scope of its EPA reference. SALRI recommended undertaking a future reference in close consultation with interested parties to examine the role, operation, and implications of microboards.10
CONTEXT The effective care of persons with disability or cognitive impairment and the prevention of abuse are the subject of extensive scrutiny and concern.11 There are various issues and perceived omissions in the provision of long-term care or support to an individual with disability through some of the usual means, such as a POA, guardianship or administration orders, residential care facility, commercial care or the Public Trustee. These concerns are compounded by the profound change in practice from substitute to
supported decision-making models and the shift to tailored care in the community (as demonstrated by the NDIS). The suggestion of a microboard as a new flexible model to provide effective tailored care with a focus on supported decisionmaking has emerged. The absence of relationships and support networks outside of a paid individual(s) was raised in SALRI’s EPA consultation as a source of community concern.12 The presence of non-family relationships is seen as an essential safeguard, particularly when parents are no longer around or able to take an active role in providing care. A microboard seeks to formalise relationships into a legal structure with accountability mechanisms, ensuring that safeguards exist beyond the lifespan of the primary carers. Law and social reform in the area of disability since the 1970s has emphasised the shift from a medical model of disability to a social model of disability.13 An increased level of priority has been given to deinstitutionalisation, self-autonomy and the right of individuals to enjoy a suitable quality of life.14 The United Nations Convention on the Rights of People with Disabilities15 emphasises that these are human rights, and calls for the equal representation of people with disabilities within the law.16 This has led to an increased questioning of traditional ‘paternalistic’ substitute decision-making models (where a person, body or Government makes decisions for a person with a disability) and increasingly a shift to the concept of supported decision-making.17 Supported decision-making seeks to support people with impaired decision-making functions to make and implement informed decisions.18 In many ways, this accords with much of the ‘normal’ decision-making process, with consultation and input from family, friends and relevant professionals.19 Supported decision-making takes various practical forms, including making information accessible, giving advice about different pathways, taking steps to recognise the person’s actual preferences, and assisting July 2021 THE BULLETIN
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