Ethical Issues when mediating family disputes
when the older person has impaired decision
– making capacity: a rights based approach to
family disputes about Advance Care
Directives
Elly Nitschke
Senior Project Officer, Advance Care Directives
Office of the Public Advocate
[email protected]
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Advance Care Directive
An advance care directive is a legally
binding document where a person is able
to write down instructions, wishes and
preferences for future health care,
accommodation and personal matters
and/or appoint one or more substitute
decision- makers to make decisions on
their behalf in any period of impaired
decision making capacity or as determined
by the person.
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Advance Care Directives ACT 2013
Rights Based Legislation where people can
direct in advance:
What ‘quality of life’ means to them
How they wish to live
How they want decisions made for them in
the future (in the event they are not able to
make their own decisions
Enabling substitute decision –makers,
health professionals and others to make
decisions based on knowledge of a
person’s preferences and values
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OPA Mediation Model
The mediation model developed for
the OPA Service takes a rights based approach adhering to the
principles of:
the Advance Care Directives Act
the principles underpinning mediation
Charter for Rights for Older People
the Convention on the Rights of
Persons with Disabilities.
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Mediation Definition
• Mediation is a collaborative,
voluntary, non – coercive problem
solving process where an
independent mediator, who is non –
judgemental and does not have
authority to impose a solution, assists
the parties to come together, discuss
the issues in dispute and find
acceptable solutions to those issues.
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Ethical Issues
How to include a person with impaired
decision-making capacity in the
mediation process
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Decision – Making Capacity
All people have the right to make decisions about
their lives for as long as they are able to and to
have support if they have difficulty doing so.
Substitute decision making – as opposed to ‘best
interest’ decision-making.
If a person is not able to make decisions, even with
support, then their authorised substitute – decision maker
must ‘stand in the shoes’ of the person and make
decisions as she/he would have done.
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Decision-making Capacity
Advance Care Directives Act 2013 Section 7 (2)
(a) a person will not be taken to be incapable of
understanding information merely because the person is not
able to understand matters of a technical or trivial nature;
and
(b) a person will not be taken to be incapable of retaining
information merely because the person can only retain the
information for a limited time; and
(c) a person may fluctuate between having impaired
decision-making capacity and full decision-making capacity;
and
(d) a person's decision-making capacity will not be taken to
be impaired merely because a decision made by the person
results, or may result, in an adverse outcome for the person.
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Empowerment / Self Determination
Rights based approach adheres to
the principles of empowerment and
self determination
Mediator must assess the most
appropriate way for the person to take
part in the mediation process
Assessment begins upon receipt of
an application
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Involvement of Older Persons
Enable older person to take part in
mediation as far as reasonably
practicable.
Does not mean direct involvement
necessary
Assessment - how to involve
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Involvement of Older Persons
Direct involvement in mediation
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minimise conflict
support person
individual meetings
breaks
written statements
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Involvement of Older Persons
Represented by the substitute
decision-makers
If one appointed
If dispute is not between the person
who made the ACD and the substitute
decision-maker
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Inclusion of the Older Person
Represented by an Advocate
Professional Advocate
Private Advocate
Nominated by the person
Nominated by other participants
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Mediator Neutrality/ Impartiality
Where do these principles when
mediating disputes involving people
with impaired decision-making
capacity?
Guided by the principles of the ACD
Act
Positive focus on the older person
Transparent process
Clear explanations
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Mediated Agreements
Inappropriate agreements
Coercion
not fully understanding the agreement
Referral to the Guardianship Board
Provisional agreements
Interim agreements
Review date for agreements
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OPA Dispute Resolution
Service
Office of the Public Advocate
08 8342 8200
[email protected]
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