MENTAL HEALTH ADVOCACY SERVICE
Ref: DOC/26/004174
Community Development and Justice Standing Committee
Level 2, 2 Parliament Place
West Perth WA 6005
Email: cdjscsubmissions@parliament.wa.gov.au
29 May 2026
Submission: Inquiry into the Guardianship and Administration System in Western Australia
1. Introduction
The Mental Health Advocacy Service (MHAS) welcomes the opportunity to provide this submission to the Community Development and Justice Standing Committee’s inquiry into the guardianship and administration system in Western Australia.
MHAS provides independent statutory advocacy under the Mental Health Act 2014 (WA), the Declared Places (Mental Impairment) Act 2015 (WA), and the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act), and regularly engages with individuals subject to guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GAA).
MHAS delivers services across a broad range of settings, including inpatient and community mental health services, private licensed psychiatric hostels, prisons, courts and tribunals, and the Disability Justice Centre. Operating across both the mental health and justice systems, MHAS has a unique system-level view of how guardianship and administration arrangements function in practice and their impact on individuals. This submission draws on that experience.
2. System Design, Legislative Framework and Human Rights Alignment
While the GAA is underpinned by principles including respect for a person’s wishes, presumption of capacity, least restrictive alternatives, and best interests decision-making, MHAS observes a significant gap between legislative intent and practice. The framework is fundamentally oriented toward substitute decision-making and provides no formal mechanisms to support individuals to make their own decisions. As a result, substitute decision-making operates as the primary mechanism, rather than a genuine measure of last resort.
This has practical implications. MHAS regularly supports individuals who do not understand the scope or effect of their guardianship or administration orders, including what decisions they retain the ability to make or how to seek review. More broadly, individuals are not consistently positioned as active participants in decisions affecting their lives.
These observations are consistent with the findings of the Disability Royal Commission (2023) (the Commission), which identified an ongoing over-reliance on substitute decision-making and concluded that guardianship is not consistently operating as a true last resort. The Commission recommended reform to embed supported decision-making in guardianship and administration law and practice, so that substitute decision-making is used only where necessary and in the least restrictive manner.
The Commission further recommended that legislation incorporate supported decision-making principles, including recognition of the equal right to make decisions, presumption of decision-making ability, respect for dignity and the right to dignity of risk, recognition of informal supports and advocates, access to appropriate supports to communicate and participate in decision-making, decisions directed by will, preferences and rights, inclusion of safeguards, co-designed processes, recognition of diversity, and cultural safety. These principles reflect a broader shift toward models grounded in Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), which recognises that individuals retain legal capacity and are entitled to access the supports necessary to exercise that capacity.
MHAS considers that the current Western Australian guardianship and administration framework is not aligned with these principles. Reform is required to embed supported decision-making as the primary model, strengthen recognition of will and preferences, and require demonstrable consideration of less restrictive alternatives.
3. Resource Pressure and Operational Constraints
Within this legislative context, system capacity, within both the Office of the Public Advocate and the Public Trustee, appears to influence how decision-making occurs in practice.
MHAS observes that direct and ongoing engagement between decision-makers and represented persons can be limited. Individuals often report infrequent contact or limited opportunity to contribute to decisions. In many cases, decisions regarding accommodation, treatment or service provision appear to rely primarily on information provided by services and are not supplemented through direct engagement with the individual.
While the reasons for these practices are not always clear, they are consistent with a system operating under workload and complexity pressures. In a framework already centred on substitute decision-making, limited direct engagement further constrains participation and reinforces reliance on alternate sources of information.
The effect is that individuals often have limited visibility of how decisions affecting them are made, and limited opportunity to influence those decisions. MHAS has repeatedly seen this reduce trust in the system and contribute to disengagement.
These operational constraints do not create the structural limitations inherent in the framework, but they do amplify them. The Commission similarly found that legislative reform alone is insufficient to achieve supported decision-making, emphasising the need for investment in training, resources and system capacity to enable meaningful implementation. This aligns with MHAS observations that, without adequate resourcing, rights-based frameworks may not be realised in practice.
Addressing these issues will therefore require both legislative reform and increased investment in system capacity, alongside models of practice that prioritise consistent engagement and meaningful participation in decision-making.
4. Interface with the Criminal Justice System
These limitations are particularly evident at the intersection with the criminal justice system under the CLMI Act, where individuals may be subject simultaneously to criminal law processes, mental health legislation and guardianship arrangements.
The CLMI Act prioritises community protection and is strongly procedural in focus. Within this context, redacted: s22 substitute redacted: s22 may be layered onto already restrictive settings, further reducing autonomy and limiting opportunities for supported redacted: s22 decision-making. MHAS routinely supports individuals in custody redacted: s22 decision-making. or under supervision who are also subject to guardianship orders. In practice, Advocates observe fragmented redacted: s22 where responsibility is diffused, and decisions are delayed. Individuals under supervision experience redacted: s22 decision-making. uncertainty about who holds redacted: s22 authority. Opportunities to influence decisions is often limited. redacted: s22 decision-making
These observations are consistent with findings of the Commission, which identified that people with disability often encounter multiple systems applying different approaches to redacted: s22 leading to reduced autonomy and inconsistent outcomes. The Commission recommended that supported redacted: s22 decision-making, be embedded in guardianship and administration law and practice, and progressively implemented across related systems, so that substitute redacted: s22 is used only as a last resort decision-making and in the least restrictive manner. redacted: s22 decision-making
The cumulative effect is a system that can stall redacted: s22 while marginalising the individual’s voice, despite the presence of multiple oversight bodies. Addressing this will require stronger redacted: s22 decision-making alignment between guardianship, mental health and justice frameworks, clearer delineation of roles and authority, and, consistent with the Commission’s recommendations, a coordinated shift toward supported redacted: s22 across these systems.
5. Participation, Procedural Fairness and Communication Support
A key issue identified by MHAS is the limited ability of individuals to meaningfully participate in State Administrative Tribunal (SAT) processes. While procedural safeguards exist, participation is often constrained by the complexity of proceedings, limited support, and communication barriers.
MHAS notes the use of communication partners within court processes under the CLMI Act. Although provided for the benefit of the courts to facilitate the individual’s participation in their own legal proceedings, the program ensures that individuals are supported to understand proceedings and
express their views. This approach recognises that effective participation requires tailored support, not simply the provision of information.
Extending a similar model to SAT proceedings, particularly in matters determining whether a guardian or administrator is required, would provide a practical and proportionate reform. This is necessary to give effect to Article 12 of the CRPD, as without appropriate supports, individuals cannot be said to meaningfully exercise their legal capacity.
MHAS’ experience demonstrates that, in the absence of such supports, individuals may be unable to fully engage with SAT processes or articulate their views, particularly where cognitive and/or communication barriers are present. The introduction of communication partners would strengthen procedural fairness and improve the quality and legitimacy of decision-making by ensuring that the person’s will and preferences are more clearly understood and considered.
6. Accessibility, Oversight and Complaints
MHAS observes that oversight and complaints mechanisms remain difficult to navigate and are largely reactive. Individuals and families often lack clarity about how to raise concerns and may be reluctant to do so where decision-makers hold significant authority.
Advocates have found that issues are at times only addressed once problems have escalated, rather than through proactive monitoring or early intervention. Improving accessibility and independence of complaints processes, alongside more proactive oversight, would strengthen accountability across the system.
7. Trauma-Informed Practice
Trauma-informed practice is not consistently reflected in the guardianship and administration system, despite the high prevalence of trauma among individuals subject to these processes. Frameworks that limit autonomy or participation risk reinforcing experiences of powerlessness and distress, particularly where individuals are not supported to understand or influence decisions affecting their lives.
MHAS observes that individuals who feel excluded from decision-making or unclear about decisions affecting them are more likely to disengage from services and processes. This is particularly evident for people living in private licensed psychiatric hostels and those engaged with the criminal justice system under the CLMI Act, where restrictions on autonomy are already significant. These observations are consistent with findings of the Commission, which identified that systems lacking transparency, participation and respect for autonomy can contribute to disengagement and adverse outcomes and emphasised the need for greater alignment with human rights-based approaches.
Trauma-informed practice, characterised by transparency, collaboration and respect for autonomy, reinforces the exercise of legal capacity as recognised in Article 12 of the CRPD. Without these elements, procedural safeguards alone may be insufficient to support meaningful participation.
Embedding trauma-informed approaches would therefore not only improve individual experience but also strengthen decision-making by ensuring that a person’s will and preferences are better understood and taken into account.
8. Conclusion and Reform Priorities
The guardianship and administration system in Western Australia plays an important protective role, but its current design and operation limit its ability to realise its stated principles. Reliance on substitute decision-making, combined with system capacity constraints and interfaces with other legislative frameworks, reduces opportunities for participation and undermines autonomy in practice.
Consistent with the Commission and Australia’s obligations under Article 12 of the CRPD, reform should prioritise a shift toward supported decision-making, with substituted decision-making used only where necessary and as a genuine last resort.
This submission identifies four key areas for reform:
- Legislative reform to embed supported decision-making as the primary model, including recognition of will and preferences, stronger requirements to demonstrate less restrictive alternatives, and ensuring access to supports that enable individuals to participate in decision-making.
- Increased system capacity, including resourcing and workforce capability to support direct engagement and participation.
- Improved alignment across systems, particularly between guardianship, mental health and criminal justice frameworks.
- Stronger participation and accountability mechanisms, including communication supports, accessible complaints pathways, and trauma-informed practice.
Taken together, these reforms would reposition the system toward a more person-centred approach to decision-making, grounded in support, participation and autonomy, and improve both individual experience and the quality of decision-making.
Sincerely,
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Dr Sarah Pollock
Chief Mental Health Advocate
MENTAL HEALTH ADVOCACY SERVICE