Submission No 19

SUPPORTED DECISION-MAKING IN NSW

Organisation: Decision Agency

Date Received: 13 March 2026

NSW Parliamentary Inquiry into Supported Decision-Making 2026

Date of submission 13 March 2026

About Decision Agency

Dr Michelle Browning is a nationally recognised supported decision-making expert. In 2010 she explored the emerging concept of supported decision-making in the United Kingdom and Canada on a Churchill Fellowship investigation1. She went on to conduct doctoral research focused on the practice in Canada which was completed in 20182. She has been involved in eight pilot projects across Australia (NSW, VIC, QLD, WA & SA) which have explored support for decision making in a diverse range of contexts (e.g. volunteer supporters matched with isolated decision makers, supporting the decision making of people with complex communication access needs) and using different practice frameworks (e.g. La Trobe Support for Decision Making Framework, WAiS Framework, CID Framework).

Dr Browning works with government and non-government organisations to produce supported decision-making resources, policy and practice guidelines. She has collaborated with three Australian guardianship jurisdictions (NSW, Victoria and South Australia) to explore how supported decision-making can be incorporated into the work of guardianship. These collective experiences have shaped her submission to this inquiry. For more information about Michelle please visit her website www.decisionagency.com.au.

Contact Details

Dr Browning would welcome the chance to speak further about this matter at an in person hearing. To arrange this, or for more information about this submission please contact:

Dr Michelle Browning Director, Decision Agency redacted

1 Her investigation report can be accessed here: To investigate new models of guardianship and the emerging practice of supported decision making - Churchill Trust

2 Here doctoral dissertation can be accessed here: Developing an understanding of supported decision-making practice in Canada: the experiences of people with intellectual disabilities and their supporters - La Trobe

Summary of Recommendations

That NSW create legal mechanisms that enable people with disability to receive decision support that is legally recognised by important third parties such as health professionals, legal professionals and banking institutions.
That NSW Government resources the Ageing and Disability Commissioner (ADC) to champion the practice of supported decision-making in NSW through legislative amendments and additional funding.
That the ADC takes responsibility for the development of a SDM quality framework, education and skill development across all sectors, and investigative powers to respond to allegations of undue influence and coercion of legally appointed decision supporters.
That NSW Government funds community based advocacy agencies to provide decision support to people who are without informal supporters offering a real alternative to substitute decision-making.
That NSW ADC Parliamentary committee recommend reform of the NSW Guardianship Act so that it compliments changes made to the ADC Act and aligns with the recommendations of the Disability Royal Commission.

Introduction

Supported decision-making

Supported decision-making is the process of assisting people to be able to make their own decisions and direct their own lives. It is a practical and legal alternative to substituted decision-making where others make decisions on behalf of a person.

At different times, we all need assistance to make decisions. For many of us receiving good decision support gives us greater confidence we have successfully weighed up our options and made the right decision. But for many people with disability, good decision support enables their fundamental human rights to autonomy, self-determination and recognition of legal capacity3. Supported decision-making is necessary to ensure they have access to information, services and products in a way that suits their needs4. It also helps people work out how they can minimise risks and protect themselves from harm5.

History in Canada

Supported decision-making has its origins in Canada in the early 1990’s. It developed with two important aims to support people to be self-determining citizens, and to remove the legal barriers created by issues of incompetency which prevented people with intellectual disabilities from receiving individualised funding6. Supported decision-making was developed as a legal alternative to guardianship and forms of formal substituted decision-making. Family members of people with significant intellectual disabilities objected to the removal of the legal right of adults with disabilities to make decisions through the appointment of guardians and financial administrators7.

A parent leader, Audrey Cole, who advocated for legislative reform in Canada stood before the Ontario Parliamentary Standing Committee on Administration of Justice, on 12 February, 1992 and explained the imperative for supported decision-making in the following way…

3 Browning, Bigby & Douglas (2021). A process of decision-making support: Exploring supported decision-making practice in Canada. Journal of Intellectual and Developmental Disability, Vol 46 (3), p.138-149. doi:10.3109/13668250.2020.1789269. 4 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, p.9. 5 Working Together to Deliver the NDIS. Independent Review into the National Disability Insurance Scheme. Final Report (2023) p.104. 6 Bach, M. (1998). Securing self-determination: Building the agenda in Canada. Retrieved from http://www.communitylivingbc.ca/what_we_do/innovation/pdf/Securing_the_Agenda_for_Self-Determination.pdf 7 Gordon, R.M. (2000). The emergence of assisted (supported) decision-making in the Canadian law of adult guardianship and substitute decision-making. International Journal of Law and Psychiatry, 23(1), 61-77. doi:10.1016/S01602527(99)00034‐5

When we start by assuming that certain people are unable to exercise their right to self-determination because of their incapacity, we inevitably look for solutions in the appointment of others to make decisions for them. Mindful of the intrusiveness of that process, we seek to temper it by imposing the least restrictive of a known series of alternatives, such as full or limited guardianship, all of which take away rights to some degree or other.

Had we asked how decisions are made rather than who decides, we would perhaps have recognized that the road to self-determination is rarely travelled in solitude. Typically, we make that journey interdependently, in the company of those who care about us. It is not usual for us to make decisions alone and unaided. We make decisions with the affection and support of people we trust – family, friends and others whose opinions we respect. When we enjoy the presumption of competence or capacity, we are never asked to reveal that we had support in making our decisions, nor are we required to prove our capacity to make them independently. To subject others to such requirements on the basis of disability is discriminatory.

Had we not concentrated on who decides, we would have seen the need to provide for everyone the same opportunities for support in decision-making that most of us take for granted. In the spirit of equality, we would have recognized the need to validate decisions resulting from such support in the name of the person at the centre of it. Perhaps then we would have looked for the most enabling solutions in an infinite and untapped reservoir of alternatives for empowering those of us who are disadvantaged. Rather than competence, we would have been thinking about accommodation.

Supported decision-making is based on a set of principles which challenge the long held belief that personal autonomy can only be expressed independently. It seeks recognition of the interdependent nature of decision making by challenging legal definitions of capacity that cast decision making as primarily a cognitive, rational, and independent process8.

Context in Australia

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability heard people with disability face many barriers to being able to exercise their autonomy. These barriers include:

Being unable to access essential information or to communicate effectively because of an absence of reasonable adjustments

8 Browning, M., Bigby, C., & Douglas, J. (2014). Supported decision-making: Understanding how its conceptual link to legal capacity is influencing the development of practice. Research and Practice in Intellectual and Developmental Disabilities, 1(1), 34-45. doi:10.1080/23297018.2014.902726

A lack of support for decision-making
Not having access to an independent advocate
Systemic neglect and discrimination in the health care system and
The overuse of restrictive practices against people with disability9.

These barriers to autonomy can create systemic neglect and make worse the violence, abuse and exploitation experienced by people with disability. The Disability Royal Commission recognised supported decision-making is key to enabling the autonomy of people with disability. They reflect,

Some people with disability are denied the right to make big or even everyday decisions about their lives. What is referred to as ‘substitute decision-making’ can prevent people with disability from exercising their autonomy. Substitute decision-making is decision-making by someone on behalf of another person. It takes place because a person is considered to lack capacity to make decisions themselves. Substitute decisions can be made on personal, financial, property and health matters. People with cognitive or psychosocial disability are disproportionately affected by substitute decision-making.10

The Disability Royal Commission have recommended community attitudes, policies and practice need to better recognise and enable supported decision-making11, and guardianship and administration laws need to be reformed to embed the practice12.

9 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, p.10. 10 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Executive Summary, p.70. 11 Recommendations 6.13 – 6.14 12 Recommendations 6.4 – 6.15

That NSW create legal mechanisms that enable people with disability to receive decision support that is legally recognised by important third parties such as health professionals, legal professionals and banking institutions.

A central aim of supported decision-making is supporting people to exercise their legal capacity. For this to occur, there needs to be legislation that recognises the role of decision supporters when assisting people to make important legal decisions. For example, the Supportive Guardian and Attorney provisions in the Powers of Attorney Act 2014 in Victoria, and the medical support person role in the Medical Treatment and Decision Making Act 2016 in Victoria.

In creating these legal mechanisms NSW needs to ensure they do not discriminate against people with significant cognitive disability by adopting a traditional capacity threshold that denies them access to using these provisions.

Alternative definitions of capacity should be used such as the formula proposed by Bach & Kerzner that recognises the role of supports and accommodations in creating a person’s decision-making capability13. The Representation Agreement Act in British Columbia Canada provides an example of how a lower threshold for the establishment of a Section 7 Representation Agreement can ensure people with significant cognitive disability are able to access them as an alternative to guardianship14.

13 A new paradigm for protecting autonomy and the right to legal capacity. Advancing substantive equality for persons with disabilities through law, policy and practice. Michael Bach and Lana Kerzner, 2010, p.72. 14 To read more about how the wording of the RAA enables people with more significant disabilities to be included read this resource by Nidus Personal Planning Resource Centre and Registry Nidus_References_RA7All.pdf.

That NSW Government resources the Ageing and Disability Commissioner (ADC) to champion the practice of supported decision-making in NSW through legislative amendments and additional funding.

When seeking a government agency to champion the practice and oversight of supported decision-making in NSW the ADC is well placed. It sits outside of existing substitute decision-making mechanisms and therefore avoids the conflicts of interest NSWTG would have as substitute decision maker seeking to promote supported decision-making as an alternative.

Decision Agency supports significant reforms to the Guardianship Act 1987 to align practice more closely with the aims of the support paradigm. However, even after such reform it would still be preferable to invest in resourcing supported decision-making services and mechanisms outside of the guardianship and financial administration system.

The Guardianship and Administration Act 2019 in Victoria straddles both paradigms (support and substitute) which creates significant tensions for delegates working under the Act. NSW can avoid this tension by making the ADC the home of supported decision-making in NSW.

In addition, the ADC has an adult safeguarding role which aligns strongly with aims of supported decision-making - which are building the autonomy of people with disability, their self-determination and supporting them to exercise their legal capacity.

For the ADC to champion supported decision-making in NSW, legislative amendments are needed that recognise fundamental changes to its role including:

promoting and developing supported decision-making capability,
establishing and monitoring quality standards across sectors and
safeguarding individuals through investigating allegations of undue influence and coercion.

The ADC will need to receive appropriate funding to undertake the significant expansion of its role and functions.

That the ADC takes responsibility for the development of a SDM quality framework, education and skill development across all sectors, and investigative powers to respond to allegations of undue influence and coercion of legally appointed decision supporters.

The ADC is a trusted agency guided by principles that align with supported decision-making such as being guided by the will, preferences and rights of people with disability. They are in a unique position to offer leadership and address the absence of quality standards related to supported decision-making practice in NSW.

The ADC can bring together practice expertise, including lived experience, to inform the development of a supported decision-making framework and quality standards. A reporting or evaluative framework would sit alongside the standards, and the ADC could monitoring how it is embedded across sectors.

Education, training and skill development would be an important aspect of ADC’s leadership and would include the development of resources and guidance material for people with disability, their support networks, service providers and government agencies.

Investigative powers to be able to respond to allegations of undue influence and coercion by legally appointed supporters would be an important safeguard the ADC would provide.

That NSW Government funds community based advocacy agencies to provide decision support to people who are without informal supporters offering a real alternative to substitute decision-making.

Advocacy plays a key role in enabling people with disability to realise their rights, exercise their autonomy and access services and supports15. Some people with disability are isolated and without natural supporters who can assist them to make decisions. In these circumstances, independent advocates are needed to assist where paid supporters might have conflicts of interest16. Advocacy is a less restrictive option to guardianship and financial administration, and the Disability Royal Commission strongly recommended it be resourced to meet current and future demand17.

The NSW Government needs to adequately fund community based advocacy organisations to be able to provide supported decision-making. This will ensure substitute decision making is truly the last resort for people with cognitive disability in NSW. Advocacy organisations are also in a strong position to be able to assist the ADC in providing advice, support and evidence based training in supported decision-making to individuals and organisations across sectors.

15 Vol 6, p.255 16 Vol 6, p.267 17 Reflections on Guardianship – The law and practice in Victoria, Office of the Public Advocate, February 2023, p.33.

That NSW ADC Parliamentary Committee recommend reform of the NSW Guardianship Act so that it compliments changes made to the ADC Act and aligns with the recommendations of the Disability Royal Commission.

The NSW Parliamentary Committee should recommend the NSW Government act on changing the outdated Guardianship Act 1987 to ensure it aligns with changes to the ADC Act.

In addition, the committee’s recommendations should include those made by the Disability Royal Commission that seek to embed supported decision-making into Guardianship Acts across Australia by:

Including a set of supported decision-making general principles18
Using more modern language19
Including reference to CRPD in objects of legislation20
Changing the focus from capacity to decision-making ability21
Including a formal supporter model22
Ensuring representatives are truly used as a last resort23
Creating a new decision-making process24
And ensuring supported decision-making guides the work of adult safeguarding bodies as a guiding principle25

18 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.6. 19 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.4. 20 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.5. 21 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.7. 22 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.8. 23 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.9. 24 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 6: Enabling Autonomy and Access, Recommendation 6.10. 25 Royal Commission into Violence, Abuse, Neglect and Exploitation. Final Report (2023). Volume 11:, Independent Oversight and Complaint Mechanisms, Recommendation 11.11.

Conclusion

The NSW Government has an opportunity to ensure real action is taken to enable supported decision-making to become a reality for people with disability in NSW. New legislation is needed that recognises the role of supporters assisting people to make important legal decisions. And old legislation, such as the Guardianship Act 1987, must be changed. The Guardianship Act needs a new object, principles, formal supporter model, and decision-making process to ensure substitute decisions are guided by the will, preferences and rights of represented persons.

The ADC is well placed to become the home of supported decision-making practice in NSW. As practice champion, it will lead the development of a supported decision-making framework, quality standards and practical resources needed to build capability across all sectors. Legislative changes and additional funding will be needed to embed new the functions of measuring quality, building capability and safeguarding decision-making rights.

The ADC will need to collaborate with community based advocacy organisations to provide advice, support and evidence based training in supported decision-making. Additional funding will also be needed to ensure advocacy organisations are able to provide decision support to people with disability who do not have informal, independent supporters who would otherwise come under guardianship or financial administration.

In taking decisive action, the Parliamentary Committee will ensure people with disability receive the support they need to exercise their autonomy, self-determination and recognition of legal capacity through the practice of supported decision-making26.

26 Browning, Bigby & Douglas (2021). A process of decision-making support: Exploring supported decision-making practice in Canada. Journal of Intellectual and Developmental Disability, Vol 46 (3), p.138-149. doi:10.3109/13668250.2020.1789269.