Submission No 18

SUPPORTED DECISION-MAKING IN NSW

Organisation: Uniting NSW.ACT

Date Received: 13 March 2026

Committee on Ageing and Disability Parliament of NSW 11 March 2026

Uniting NSW.ACT response to the NSW Parliamentary inquiry into supported decision-making

Uniting NSW.ACT contributes to the work of the Uniting Church in NSW and the ACT, through social justice, advocacy, community services and spiritual care. We provide services for people through all ages and stages of life, and drive solutions to systemic issues so people experiencing disadvantage can live their best lives.

We welcome the opportunity to provide comment on supported decision making in NSW. We support over 145,000 people in NSW and the ACT across a variety of services including 62,300 Local Area Coordination (NDIS) participants, 988 disability service clients and 8,875 mental health and wellbeing clients.

We have the following overarching comments in response to this Inquiry:

Decision making is a skill that should be developed, exercised and honoured. Too often people with disability are denied the opportunity to build capacity, exercise their right to make decisions and have their decisions respected by others.
There is an urgent need for more information, education and assistance for people with disability, their family members and services to learn about and implement supported decision making.
The Ageing and Disability Commission must be adequately resourced to engage in proactive education relating to supported decision making. This includes the need for culturally appropriate tools which meet the specific needs of First Nations people and support self-determination.
Balancing supported decision making, dignity of risk, duty of care and harm minimisation is a challenge for providers.

If Uniting NSW.ACT can assist with any further information, please contact Clare Lawrence, Senior Principal Policy Officer redacted

Yours sincerely,

redacted

Dr Andrew Montague Director, Communities Uniting NSW.ACT

Head Office ABN 78722 539 923 Level 4 / 222 Pitt Street Sydney NSW 2000

PO Box A2178 Sydney South NSW 1235

T 1800 864 846 E ask@uniting.org

Supported decision making in NSW

Supported decision making is an important but poorly understood practice within the community. There is currently no legal framework for the implementation and use of supported decision in NSW. For this response, we have used the following definition:

Supported decision making is the process of providing support to people to make decisions to remain in control of their lives. Supported decision making involves building the skills and knowledge of people with disability, their friends, families, carers, peers and professionals.1

This is in contrast to substitute decision making where a court or tribunal appoints a substitute decision-maker to make decisions (health and lifestyle and/or financial and legal) on behalf of the person they represent and where the legal effect of a decision made by a substitute decision-maker is the same as if the person had made the decision themselves.

a) the lived experience of people seeking to access appropriate support to make decisions for themselves and b) barriers to implementing models for supported decision-making across legal, financial, health, education, employment and care systems in NSW

As an organisation, we assist people with disability and their families to make supported decisions every day. In our experience, supported decision making is on a spectrum which varies based on the type of decision and capacity of the person.

Understanding of supported decision making and recognition of capacity

Supported decision making fundamentally relies on others to understand and engage with the principles underpinning supported decision making and implement them in day-to-day life. In our experience, there is a lack of community awareness of supported decision making, the tools available and the opportunities to make space for supported decision making. We have discussed this further within this response.

Ableism and outdated views on the capacity of people with disability form a barrier to recognising supported decision making. People with disability who we support report that services (including government systems) assume that they do not have capacity and formally or informally defer to others in their lives. The lack of understanding of the diversity of decision making contributes to a culture whereby informal or formal substitute decision making is normalized.

Additionally, poor understanding of the diversity of communication styles and lack of active listening prevent people with disability from participating in decisions which impact their lives. This is not a reflection on the person but rather systems which fail to embed person-centred approaches to service delivery.

Availability of capacity building supports

Childhood

Decision making is a skill which is built, developed and maintained over time. This begins in childhood when parents, family members and teachers support children to seek information, weigh up consequences and make decisions.

For children with disability, this may look different and may require different forms of support. This may include providing information differently, allowing more time for decisions, encouraging risk, and responding positively to the will and preference of the child. It also means assuming capacity, adopting a positive attitude towards decision making and understanding that

1 NDIS, “Supported Decision Making Policy.”

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the journey of supported decision making is diverse and rarely linear.

Parents, teachers and other services need access to information, resources and training to better understand what supported decision making looks like for children with disability. There is an absence of easily accessible, understandable and practical information on how this looks and feels.

As a result, parents and other adults assume a decision-making role in the life of a child with disability which continues into adulthood. Children therefore transition into adulthood without having practiced the skills and capacity to make decisions. This normalizes informal substitute decision making, even when there is not a formal guardianship or financial management order in place. For example, service providers deferring to parents for decisions rather than engaging directly with the person with disability.

Adulthood

For adults with disability, supported decision-making may be new and unfamiliar. For people with disability who have not previously been provided with access to supported decision making, it is important to have access to individual capacity building services. This may include funding under a NDIS plan or upskilling for their formal and informal supports.

Informal substitute decision making can be inadvertently encouraged by service systems which do not allow for the time which may be needed to properly engage in supported decision making. Ensuring that information is understood, providing space to consider consequences and interpreting decisions can take time. There can be a tendency to default to informal substitute decision making where it is easier and less time intensive for someone else to make a decision on behalf of the person.

The NSW Council for Intellectual Disability (CID) has created excellent resources for supported decision making, led by people with intellectual disability.2 These resources have been incredibly valuable for us as a provider in understanding how to embed human rights approaches to support and to build capacity in the people that we serve. We believe that these should be more broadly distributed across service systems. There would also be value in considering what supported decision making looks like for other people with disability, for example psychosocial disability.

Example

Uniting provides services to a man with disability who has had limited exposure to supported decision-making. As a result, he defers to others in his life for decisions including his parents, friends and services. While not under a formal guardianship order, others in his life have become informal substitute decision makers. Under his NDIS plan, he identified that he wanted to make more decisions about his own life. He has recently received funding for capacity building supports including psychology, which has allowed him to understand his right to make decisions and build comfort in making decisions for himself. Uniting has been actively working with him to create small and large opportunities to make decisions and ensure that his views and interests are considered first.

Access to information

Supported decision making requires that the person with disability has access to information which is understandable, linguistically and cognitively appropriate. This looks different depending on the person with disability.

Within Uniting, we aim to ensure that the people we support have access to appropriate information through:

Translating information to Easy English and Easy Read, particularly within our disability specific services
Ensuring that translation services are available both in person and in written materials
Embedding active listening and reflective practice to ensure that we are guided by the views, interests and goals of the people that we support.

2 Council for Intellectual Disability, “Supported Decision Making Hub.”

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Institutionalisation and service delivery

People with disability have historically been denied the opportunity to be considered decision makers in their own lives. This is most prominently seen in the history of institutionalisation in NSW whereby people with disability lived in residential centres where decision making was restricted and it was assumed that residents lacked capacity to contribute to decisions about their own lives.

With the closure of large institutions (including Metro, Hunter and Rydalmere/Westmead Residences), residents of institutions were transitioned into community living which has been a critical step in recognising their right to live freely and enjoy the highest possible quality of life. Many of these residents moved into group homes as funded by the NDIS.

However, the Disability Royal Commission noted that there is an inherent risk that group homes continue to demonstrate the characteristics of institutions including rigid routines, lack of control over day-to-day decisions and paternalistic approaches to services.

As a Supported Independent Living provider, we are committed to ensuring that our residents make decisions about their lives and home. This requires a deliberate and intentional approach which places the person with disability at the centre. This includes:

Embedding the My Rights Matter Supported Decision-Making Framework from the NSW Council of Intellectual Disability into our practices and training for staff.
Developing and implementing a My Voice template which is used at least monthly and is an opportunity for a resident to talk about their goals, what is happening in their home and what they would like to change. They do this with their Key Worker.
Using the La Trobe “Skills for Active Support” training and model which places the person with disability at the centre of service delivery.

The La Trobe University Active Support approach includes four key principles: every moment has potential, graded assistance to ensure success, maximise choice and control, and support should be provided little and often.3 We encourage the Inquiry to review the resources provided by La Trobe which provide an example of how supported decision making can and should be embedded into everyday service delivery.

It is important to recognise that supported decision making is an approach that should be used in all aspects of daily life, not simply major decisions. This includes respecting the right for a person to choose their own food, routines, activities and relationships. Doing so ensures that the person with disability has the skills and capability to make larger decisions if and when they arise.

Recovery focused approaches in mental health

Uniting adopts a recovery-oriented approach to mental health which is centered on the belief that each person is different and should be supported to make their own choices, listened to and treated with dignity and respect. This approach recognises that people with mental illness and psychosocial disability are experts in their own lives and that services should be tailored towards their individual goals, interests and hopes.

We use the CHIME Framework for personal recovery which identifies five major themes: connectedness, hope and optimism, identify, meaning and purpose, and empowerment. These

3 La Trobe University, “Skills For Active Support.”

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underpin our ways of working and the support that we provide to people with psychosocial disability.

A recovery focused approach to mental health is guided by the individual hopes that the consumer has for their future. This looks different for every person and the journey that they take is deeply individual. Supported decision making is embedded in every aspect from enabling the person to identify their hopes, building a sense of meaning and building capacity to make decisions over time.

Within our Housing and Accommodation Support Initiative (HASI) and HASI Plus programs, some of our consumers enter into our services under a guardianship, financial management, community treatment or forensic order which limits their legal decision-making capacity. As a result, they may legally not be able to make larger decisions such as their health and lifestyle or financial purchases. Where this occurs, our staff work collaboratively with the person to make decisions within the limitations of the order, for example putting together a budget which can be used in discussions with the financial manager. We will also advocate for their views to be considered by legal substitute decision makers and assist in building self-advocacy skills.

A recovery focused approach also allows the consumer to build their capacity to manage decisions over the time that they are with our HASI+ program. For example, when someone enters into our HASI+ program our staff will hold and distribute their medication and observe that it is consumed. Over time, the aim is that the person will build insight and capacity to understand the need for their medication and be able to manage it independently. Staff will engage in a stepped approach to help the person to manage their medication with gradually reduced oversight.

Further, our multi-disciplinary teams actively seek to involve the consumer wherever possible to ensure that their voice is heard when making decisions about their recovery pathway.

Limitations of the current legislation

Rigid understanding of decision-making

The current legal framework in NSW for substitute decision making does not allow or enable supported decision making. Decision making capacity is predominantly reviewed as binary; a person with disability either has or does not have decision making capacity. The spectrum of capacity is not recognised, beyond the allocation of decision-making functions under guardianship orders which may allow a represented person to maintain decision making in some areas.

As discussed below, the Law Reform Commission has already considered the opportunities for reform to embed legal recognition of supported decision making and the role of supporters in enabling decision making for people with disability.

Law Reform Commission Review of the Guardianship Act

The limitations and challenges associated with the Guardianship Act 1987 have already been reviewed by the Law Reform Commission in their 2018 review of NSW guardianship laws.4 This included a detailed and thorough analysis on how supported decision-making could be implemented including the appointment of supporters, support arrangements and reserve supporters.

Despite the comprehensive and detailed recommendations provided by the Law Reform Commission, there has been a disappointing lack of progress in responding to the findings of the report.

We encourage the Committee to return to the work of the Law Reform Commission as part of this Inquiry to consider how the role of supporters could be embedded in NSW guardianship law.

4 Law Reform Commission, Review of the Guardianship Act 1987.

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Similar measures have already been introduced in Victoria to provide a modern framework for appointing a guardian and/or administrator, and introduce statutory recognition for supported decision-making. The Disability Royal Commission has also provided guidance on how these reforms could occur.

Applications for substitute decision making in the context of the NDIS

There has been a significant increase in applications to the NSW Civil and Administrative Tribunal between 2017 and 2022. While there has been a lack of rigorous investigation into why this has occurred, the Disability Royal Commission found that guardianship applications in NSW citing the NDIS as the primary reason for applications increased by 367 per cent between 2018 and 2022.5

In 2025 the Office of the Public Advocate in Victoria raised concerns that the NDIS is unintentionally contributing to greater reliance on guardianship for people with significant decision-making disabilities. Their report, Multiple Appointments: What is known about people who remain under guardianship for years at a time indicated that reappointment rates for people under 65 have increased significantly and the number of younger people subject to guardianship has also risen which has coincided with the rollout of the NDIS in Victoria.6 While this is specific to guardianship applications in Victoria, we believe that there is an urgent need to undertake similar analysis in NSW.

c) the distinct experiences of and challenges faced by Aboriginal people and people from culturally and linguistically diverse backgrounds

Supported decision making often assumes people have already been taught how to identify options, assess risk, and understand consequences. For many First Nations people, there has been limited investment in building these skills from early childhood. Greater focus is needed on embedding decision-making capability across the lifespan, including within schools, families, and community settings, so it becomes a practiced and supported skill rather than something introduced only when systems require it.

Access to decision-making supports is uneven. Many resources are digital and assume reliable internet access, literacy, and familiarity with service systems. This creates barriers, particularly for people in regional or remote areas. There is a need for culturally appropriate resources, including Easy Read and Aboriginal English materials, and greater investment in community-based and face-to-face approaches that build trust and understanding. Representation matters. People need to see themselves reflected in the resources and approaches being used.

First Nations people living outside metropolitan areas often have fewer service options, which limits meaningful choice. In these contexts, families and communities frequently carry the responsibility for supporting decision making without adequate guidance or resourcing. Strengthening local service capability and providing practical tools to families and community supporters is essential.

Supported decision making relies on trusted relationships. First Nations people must feel culturally safe and free from fear of judgement, racism, or negative consequences when expressing their preferences. Supporters, including professionals and external advocates, must have the cultural capability to communicate effectively and respectfully. Without this, substitute decision making can become the default, not because of a lack of ability, but because of systemic barriers.

5 Royal Commission into violence, abuse, neglect and exploitation of people with disability, Volume 6: Enabling Autonomy and Access. 6 Office of the Public Advocate, Multiple Appointments: What Is Known about the People That Remain Subject to Guardianship for Years at a Time?

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Additionally, it is important to understand the role of community in decision making within First Nations families. For some First Nations people, the impact of decisions on their family and community is a considerable factor which impacts decision making processes. Decision making does not happen in isolation but in the context of families, friends and communities.

There are additional risks where supported decision making is not actively monitored or safeguarded, particularly in situations involving family violence, controlling behaviours, or social isolation. Low literacy, lack of formal diagnosis, and limited awareness of available supports can also prevent First Nations people and their families from accessing supported decision-making pathways. This reinforces inequities and increases the likelihood of substitute decision making.

It is also important to recognise the ongoing impacts of colonisation on First Nations people. One of our staff members commented:

Most of [our Elders] would have been born pre the 1967 referendum, you know, so they’re coming from a space of not even being citizens, not ever having choice. We need to be really mindful of that.

As a consequence of historic disempowerment, First Nations people (including people with disability) are disproportionately represented in systems which remove or limit choice including child protection, justice and substitute decision making systems. The Disability Royal Commission found that First Nations people are overrepresented in guardianship systems; in NSW 7.3% of people with an appointed public trustee were First Nations as of June 2022.7 We refer the Inquiry to the work of the Royal Commission on the experiences of First Nations people and substitute decision making.

Supported decision making enables self-determination and builds the capacity of both the person and their community. Self-determination for First Nations people is inherently tied to the rights to make decisions, the need to recognise the expertise of First Nations people and honour the cultural diversity within our communities.

Recommendation:

That the Ageing and Disability Commission co-design supported decision making resources with First Nations people including:

A range of tools which are available in a variety of languages including Aboriginal English and are embedded in mainstream service systems
Outreach programs lead by and for First Nations communities which are tailored to the needs of First Nations peoples
Resources to upskill mainstream services to understand cultural safety and respect for self-determination in supporting First Nations people with disability

Further, the Ageing and Disability Commission should:

Ensure that all supported decision-making resources (such as tools, training or awareness raising materials) include representation of First Nations people with disability and recognise the importance of cultural safety in service delivery
Continue to build formal and informal safeguards to protect the rights of First Nations people with disability

7 Royal Commission into violence, abuse, neglect and exploitation of people with disability, Volume 6: Enabling Autonomy and Access.

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d) the role and functions of the Ageing and Disability Commission (the Commission) in relation to supported decision-making

The Ageing and Disability Commission should be empowered and enabled to raise awareness and embed supported decision-making across all service areas, not just within the disability sector. We note that one of the purposes of the ADC is to:

Raise community awareness to reduce and prevent abuse, neglect and exploitation of older people and adults with disability [Emphasis added]8

The Commission does critical work in responding to abuse, neglect and exploitation. We commend the work that the Commission does, including delivering the Ageing and Disability Abuse Helpline, undertaking investigations, and managing the Official Community Visitor program. However, a lack of resourcing has prevented the Commission from investing in proactive and preventative programs which uplift the capacity of people with disability.

This is not intended to be a negative reflection on the Commission, rather a consequence of the scale and importance of their work. We note that there has been a 68% increase in the number of calls to the Helpline between 2019-2020 and 2024-25.9 In the same period there was a 155% increase in the number of reports received.10 Demand for support in responding to abuse, neglect and exploitation will continue to grow as awareness of the Commission increases.

The Commission is well placed to adopt a leadership role within the social services sector to embed an understanding of prevention, not just identification and reaction. Supported decision making acts as a preventive factor which uplifts the capacity and autonomy of the person with disability and increases understanding of the rights of people with disability.

Supported decision making must be embedded across all mainstream systems, not just disability or aged care services. People with disability and older people interact with a variety of service systems across health, justice, housing, education and social services. Each of these service systems must have a comprehensive understanding of both the theory and practice of supported decision-making to deliver high quality services and improve the lives of their clients.

It also allows community members and service providers to identify signs of abuse, neglect or exploitation by increasing understanding of the rights of people with disability and the role of the Commission where there are concerns that those rights are being violated.

Recommendation:

That the NSW Government increase funding and resourcing for the Commission to undertake strategic education on supported decision making both within government and across the community.

e) possible changes to the functions of the Commission, including legislative amendments to the Act, to enhance supported decision-making

We do not have any specific recommendations relating to legislative amendments to the Act governing the work of the Commission. We believe that the challenges facing the Commission in delivering education on supported decision making relate primarily to resourcing, rather than to legislative limitations.

f) measures to ensure that substitute decision-making is an alternative approach that is employed in appropriate and limited circumstances

We support the ambition that substitute decision-making is only employed in appropriate and

8 Ageing & Disability Commission, “What We Do.” 9 Ageing and Disability Commission, Annual Information Statement 2024-2025. 10 Ageing and Disability Commission, Annual Information Statement 2024-2025.

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limited circumstances. Our previous responses demonstrate that more work is needed to increase supported decision making which we believe would reduce the need for both formal and informal substitute decision making.

While out of scope for this inquiry, we note that the services provided by NSW Trustee and Guardian and Public Guardian require improvement including an urgent increase in funding to allow for appropriate customer service. This is particularly important given the role that financial management and guardianship play in the lives of people with disability who have been found to not have the legal capacity to make financial, health and lifestyle decisions for themselves. The people that we support under financial management and guardianship frequently report that their manager or guardianship changes without notice, that their goals and wishes are poorly understood, and that there is a lack of support to enable them to participate in decisions about their own lives.

However, we maintain that there is currently and will continue to be a need for substitute decision making for vulnerable people who require a higher degree of support to ensure their safety and wellbeing.

Supported decision making, dignity of risk, harm minimisation and duty of care

The intersection between respect for decision making, dignity of risk, harm minimisation and duty of care is complex and challenging for providers to manage.

We recognise that people with disability have the right to make decisions, even when there is a degree of risk or where others disagree. In our services, dignity of risk is closely related to harm minimisation. When the people we support choose to make risky decisions, we will, as far as possible, attempt to minimise the risk of potential harm.

However, as a service provider we are also bound by our duty of care to the people we support. The Australian Department of Health and Aged Care describes this as follows:

Working in the aged or disability sector, you have a legal and moral responsibility to keep the people you support safe from harm while using your service or in your care11

The challenge for our staff is, how do we balance the right for a person to make a decision which may place them at risk of harm with our responsibility to keep them safe from harm?

Example

Uniting’s mental health services provide intensive supports to consumers with complex co-morbidities across their physical and psychological health. Some consumers make lifestyle decisions which negatively impact on their health, for example consuming foods which make it challenging to manage their diabetes. Additionally, the complexity of their mental illness may mean that they have limited insight into the implications of their choice.

This has subsequent consequences for their psychological wellbeing including the effectiveness of their medication. For example, where a person does not manage their diabetes and blood sugar properly, their psychotropic medication may not be absorbed effectively. In extreme cases, this may result in hospitalisation either for their physical or psychological health.

While Uniting services can provide advice, support and information on making health and lifestyle decisions, the person can choose to disregard this support and make decisions which place their physical and psychosocial health at risk. Our staff are concerned that there is a risk that Uniting will be found to be negligent by not intervening where a person makes a decision that may be perceived as dangerous.

Dignity of risk

11 Department of Health and Aged Care, “Duty of Care.”

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As a mental health provider, we have a robust governance structure which guides our decision making where there may be a conflict between dignity of risk, harm minimisation and the right for the person to make a decision for themselves. This includes multi-disciplinary approaches, escalation to our clinical lead and clinical risk committee and seeking expertise as appropriate.

For example, for some clients with a history of substance use it may not be realistic for abstinence to be an immediate goal. Instead, staff may be required to consider how best to support a person who is continuing to engage in substance use with a longer-term goal of abstinence through counselling and other forms of support. This decision would be made with the support of Uniting’s clinical team including AOD counsellors and practitioners.

This is also embedded in our disability services whereby staff are encouraged to recognise the right of a person with disability to make choices for their own lives. Where concerns are raised, there are escalation and consultation pathways which allow staff to access guidance and information.

Conclusion

In conclusion, we welcome the work of the Inquiry in considering supported decision making in NSW. This is a critical issue which impacts on the day to day lives of people with disability across the state. We believe that further work is needed to improve community awareness, increase the capacity of people with disability and their supporters and reform legislative frameworks to recognise supported decision making.

We would welcome the opportunity to contribute further to the work of the Inquiry.

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