NDIA Accountability Project

Joint Parliamentary Committee: Inquiry into Supported Decision-Making for adults with disability and older people in NSW

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Submission

No 7

SUPPORTED DECISION-MAKING IN NSW

Organisation: Mental Health Coordinating Council

Date Received: 11 March 2026

Joint Parliamentary Committee: Inquiry into Supported Decision-Making for adults with disability and older people in NSW

mhcc.org.au

mhcc mental health coordinating council

Mental Health Coordinating Council

Ground Floor, Building 125
Corner of Church and Glover Street
Lilyfield NSW 2040

PO Box 668 Rozelle NSW 2039

For any further information please contact:

Corinne Henderson
Director, Policy & Systems Reform
redacted

Copyright © 2026 Mental Health Coordinating Council. This document may be cited in part or reproduced in whole with permission.

Disclaimer: The content of this document is published in good faith. It reflects the views of its authors on behalf of MHCC.

To reference this document, please cite as follows: Mental Health Coordinating Council 2026, Submission to the Joint Parliamentary Committee: Inquiry into Supported Decision-Making for adults with disability and older people in NSW. Author: Henderson C.

This submission includes research using earlier MHCC submissions and papers and was conducted with the assistance of AI technology. It has been carefully curated and reviewed by MHCC staff.

CONTENTS

Executive Summary

“Section 28B (1) of the Ageing and Disability Commissioner Act 2019 (the Act), requires that the Ageing and Disability Committee conduct an inquiry into and report on supported decision-making for adults with disability and older people in NSW, with particular reference to:

a) the lived experience of people seeking to access appropriate support to make decisions for themselves

b) barriers to implementing models for supported decision-making across legal, financial, health, education, employment and care systems in NSW

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

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

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

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

g) other related matters

The inquiry will examine the role and functions of the Ageing and Disability Commission (ADC) in relation to supported decision-making (SDM) and consider options for enhancing the process of implementing supported decision-making into their remit.”

MHCC is pleased to have an opportunity to contribute to discussions and provide comments based on its experience of introducing SDM into sector development capacity building learning activities for the community-managed mental health sector (CMO) as well as related human services sectors.

SDM is a process of assisting a person make their own decisions, so that they can develop and pursue their own goals, make choices about their life and exercise more control over things important to them. Successful use of SDM will assist people exercise their human rights, maximise autonomy and realise greater independence when making everyday decisions such as care and support planning.

MHCC has been at the forefront of the development, implementation and evaluation of SDM training and education programs. Our work in this context has a foundation in the social model of disability and aligns to the United Nations Convention on the Rights of Person with Disabilities (UNCRPD). For over a decade MHCC has taken a leadership role in advocating SDM to be integrated into a trauma-informed, recovery-oriented best practice approach. We have fostered a growth in skills for the mental health and human services workforce. Our SDM training promotes a strength-based model that exemplifies these principles of practice with growing familiarity to the mental health and psychosocial workforce.

MHCC currently offers two online SDM learning products:

  • Two self-paced training modules - Introduction to Supported Decision-Making freely available from our website.
  • A Learning Hub established that provides a home for existing and future resources including a video Empowering Choice in Mental Health

In 2024/25, MHCC also delivered an online, live and interactive training workshop ‘Supported Decision-Making: Building Mental Health & Psychosocial Disability Workforce Capacity’. This program was fully funded by the NSW Department of Communities and Justice, through the Disability Advocacy Futures Program 2023/24 and reached 300+ mental health and psychosocial support workers across the CMO sector.

Notably, 81% of participants who completed the evaluation questionnaire post-training identified that they are actively applying the SDM strategies in their work. The training has fostered a shift towards strength-based practices, emphasising the validation of individual perspectives, prioritising active listening, and providing consistent support.

Participants noted that decision-making processes have become more decisive for service users, and they feel more confident in addressing barriers. This approach has led to improved outcomes for those they support.

In this submission MHCC have endeavoured to provide the Ageing and Disability Committee with feedback in relation to all the matters identified in the Terms of Reference. Our recommendations are informed by feedback from members and interested stakeholders and reflect the voice of service providers and people with lived experience that engage with the service sector.

MHCC acknowledge that some repetition exists in this submission. This is reflective of the overlap across several topics identified in the Terms of Reference. Nevertheless, we have attempted to consolidate the Recommendations to limit repetition and provide overarching themes (see p.5).

We look forward to hearing about the outcomes of the Inquiry and express our willingness to be consulted about the contents of this paper.

For further information about this submission please contact Corinne Henderson, Director, Policy & Systems Reform redacted

Dr Evelyne Tadros
Chief Executive Officer
Mental Health Coordinating Council
Adjunct Associate Professor, School of Clinical Medicine, Discipline of Psychiatry and Mental Health, UNSW Medicine

11 March 2026

Recommendations

Recommendation 1: Strengthen the Ageing and Disability Commission’s System Leadership, Oversight and Guidance Role

That the functions of the Ageing and Disability Commission be strengthened to provide clear system leadership, authoritative guidance, active monitoring and public reporting to ensure SDM is embedded consistently and effectively across NSW.

Recommendation 2: Establish Supported Decision-Making as the Default and Enforceable Approach

That the NSW Government establish SDM as the default and enforceable approach to decision-making for adults with disability and older people across all legal, health, mental health, aged care and community service systems, with substitute decision-making used only as a genuine last resort.

Recommendation 3: Limit Substitute Decision-Making Through Strong Safeguards, Duties and Review

That substitute decision-making be strictly limited, time-bound and subject to robust safeguards, including clear statutory duties to act in accordance with a person’s human rights, and their ‘will and preferences’, regular independent review, and oversight to prevent default reliance on restrictive practices.

Recommendation 4: Invest in System and Workforce Capability to Operationalise Supported Decision-Making

That the NSW Government invest in the practical, workforce and system enablers required to make SDM operational rather than aspirational, including workforce training, time, advocacy, peer support and consistent recognition of supporters and advance preferences.

Recommendation 5: Embed Cultural Safety, Lived Experience and Intersectional Approaches to SDM

That SDM be implemented in ways that are person-centred and person-led, culturally safe, trauma-informed, rights-based and informed by lived experience, including recognition of collective and relational decision-making approaches for Aboriginal people and people from culturally and linguistically diverse backgrounds.

Recommendation 6: Align NSW Legislative Frameworks with Supported Decision-Making and Human Rights Obligations

That NSW guardianship, mental health, disability and aged care legislation be systematically aligned with supported decision-making principles and Australia’s human rights obligations, including the UN Convention on the Rights of Persons with Disabilities.

Who We Are

Mental Health Coordinating Council (MHCC) is the peak body predominately for community-managed mental health organisations (CMOs) in NSW and is a Registered Training Organisation (RTO). We mostly represent community-based, non-government organisations that support people living with mental health challenges. MHCC’s 150 plus members assist people to live well in the community by delivering mental health and psychosocial supports including social inclusion, rehabilitation, and clinical services. Our purpose is to promote a strong and sustainable community-managed mental health sector with the investment, resources, and workforce it needs to provide effective psychosocial, health and wellbeing programs and services to the people of NSW.

MHCC provides leadership for its members and the sector promoting policy and legislative reform, and systemic change. We design and develop resources to assist community-based organisations build its workforce capacity to deliver quality services, informed by a human rights-based, trauma-informed, recovery-oriented practice approach.

We work closely with Mental Health Australia on matters of national interest to the sector, including cross-governmental collaboration, bilateral agreements, and the NDIS. We also collaborate with the NSW Mental Health Alliance, a partnership of state-based peak bodies and professional associations, on matters of mutual interest.

The RTO delivers accredited and non-accredited programs, that support organisations and individuals to deliver high quality mental health and related psychosocial and rehabilitation services. We also deliver training and professional development more broadly across human service sectors including housing and homelessness, alcohol and other drugs and disability.

Terms of Reference

MHCC provide the following comments to the Terms of Reference.

a) the lived experience of people seeking to access appropriate support to make decisions for themselves

For adults with disability, including people living with mental health challenges, and for older people in NSW, particularly those living with psychosocial disability, the lived experience of decision-making is often shaped by systemic barriers, inconsistent access to support, and frequent challenges to their autonomy and legal agency. While supported decision-making (SDM) is gaining recognition in policy and public discourse, many people report that it remains poorly understood and unevenly implemented across service systems.

People with lived experience of these challenges commonly describe being assessed primarily through a risk- and deficit-focused lens, where expressions of distress, disagreement with professionals, or non-normative decision-making are misinterpreted as evidence of incapacity. In practice, this can result in decisions being made for them rather than with them, even when they are able to express their will and preferences with appropriate supports in place. This experience is particularly pronounced in mental health, aged care, disability, health, and crisis contexts, where time pressures and risk-averse cultures often override rights-based approaches.

Access to meaningful decision-making support is frequently contingent on individual advocacy, informal family support, or the discretion of individual practitioners, rather than embedded in service delivery as a guaranteed right. Many people report having limited awareness of SDM options (where they exist) or being offered substitute decision-making pathways, such as guardianship or involuntary treatment, without genuine exploration of less restrictive alternatives.

Where SDM tools do exist, they are often inconsistently recognised across legal, health, and service systems, undermining their practical usefulness.

Lived experience accounts also highlight the emotional and relational impacts of having decision-making authority removed or curtailed. People describe feelings of disempowerment, loss of dignity, and erosion of trust in service systems, particularly where decisions conflict with their known values, cultural obligations, or recovery goals.

Conversely, where SDM is implemented well, through trusted supporters, skilled and trained workers, clear communication, and respect for will and preferences, people report improved confidence, engagement, and wellbeing.

For people whose capacity fluctuates over time, including during periods of distress, crisis or cognitive decline - SDM is most effective when it is flexible, proactive, and grounded in existing relationships and advance preferences. Lived experience demonstrates that capacity is not static, and that people can continue to exercise legal agency with the right supports, even in complex or high-support needs situations. However, current systems too often treat periods of increased support need as justification for wholesale removal of decision-making rights.

MHCC stress that barriers to accessing SDM are compounded by culturally unsafe service responses, language barriers, and distrust of statutory systems shaped by historical and ongoing stigma and discrimination. MHCC has consistently argued that SDM must be culturally safe, trauma-informed, and responsive to collective and relational decision-making approaches, rather than using narrowly individualised or procedural models^1.

Overall, the lived experience of people seeking decision-making support underscores a gap between the aspirational commitment to SDM and its everyday reality. Addressing this gap requires shifting from discretionary, best interests, goodwill-based practices to clear, enforceable expectations that supported decision-making is the default approach, with substitute decision-making used only as a genuinely last-resort measure.

MHCC suggest that the primary barrier to implementing SDM across NSW systems is the continued dominance of substitute decision-making, risk-averse cultures, financial constraints and capacity-focused frameworks, notwithstanding growing policy commitments to SDM. Lived experience demonstrates that, in practice, SDM remains discretionary rather than embedded, with people’s access dependent on individual practitioners, services, or advocates rather than enforceable rights.

MHCC highlights that inconsistent legal recognition of SDM across legislative and policy frameworks creates significant barriers to implementation. While it may be referenced or encouraged in some contexts, guardianship, mental health, aged care, and disability systems continue to rely heavily on capacity assessments and substitute decision-making pathways, often without requiring that genuine SDM options be explored first.

The absence of a clear, enforceable legal preference for SDM means that it is too easily displaced by guardianship, involuntary treatment, or other restrictive interventions, particularly during periods of crisis or fluctuating capacity.

Likewise, pressure on governments to adopt a public-safety lens, particularly following tragic events, affects considerations about a person’s capacity to make decisions. This frequently results in risk averse assessments of individual’s impairment, when SDM could potentially support them more appropriately.

Risk-averse and coercive service cultures

Across aged care, disability, health, mental health, and justice systems, risk-averse organisational and political cultures can be identified as a major barrier to SDM.

Behaviours associated with distress, trauma, disagreement, or non-normative decision-making are frequently misinterpreted as lack of capacity, leading services to prioritise risk management over respect for will and preferences. These practices disproportionately affect people with disability and older people, particularly in critical crises, where time pressures and fear of liability drive rapid escalation to substitute decision-making rather than rights-based, supported approaches.

Practical and resourcing barriers

SDM is under-resourced or absent as core business across systems. People report limited access to practical supports necessary for SDM to work in practice, including:

  • sufficient time for decision-making
  • accessible information and supportive communications
  • independent advocacy and peer support, and
  • recognition of trusted supporters across systems.

Without these supports, SDM remains aspirational rather than operational, particularly in legal, financial, and service delivery settings, and is inconsistently recognised across systems

MHCC also identify fragmentation across legal, health, financial, employment, education, and human services support systems as a significant barrier. Where a person’s SDM arrangements, advance preferences, or trusted supporters are recognised in one context, they are often ignored or discounted in another, undermining continuity and trust.

This inconsistency is particularly harmful for people with fluctuating or episodic capacity, whose decision-making support needs may change over time, but whose legal agency is frequently removed completely rather than flexibly supported.

Intersectional and cultural barriers

For First Nations people as well as people from culturally and linguistically diverse (CALD) backgrounds and marginalised individuals e.g. who are neurodivergent or from the LGBTIQA+ community, MHCC suggest that barriers to SDM are compounded by culturally unsafe practices, language barriers, and distrust of statutory systems shaped by historical and ongoing discrimination, and in some cases experiences of systemic trauma (e.g., seclusion and restraint including chemical restraint).

Uniform, procedural models of decision-making fail to recognise collective, relational, and community-based approaches, further limiting effective implementation of SDM for these communities.

Oversight and accountability gaps

MHCC argues that weak oversight and accountability mechanisms allow barriers to persist. There is limited system-wide monitoring of how often SDM is attempted, bypassed, or replaced by substitute decision-making, and insufficient scrutiny of disproportionate impacts on people with psychosocial disability, First Nations people, CALD communities, and older people.

MHCC propose that until SDM is underpinned by clear legal preferences, practical resourcing, cultural change, and effective oversight, it will remain unevenly implemented across NSW, with substitute decision-making continuing to operate as the default rather than the exception.

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

MHCC recognises that experiences of decision-making, autonomy, and access to support are shaped by intersecting factors including culture, colonisation, racism, language, disability, age, and mental health status.

Aboriginal people and people from CALD communities who live with mental health challenges and psychosocial disability often face heightened risks of having their decision-making rights overlooked or overridden, particularly within health, mental health, aged care, and justice systems.

Systemic and structural barriers

Aboriginal people and people from CALD communities frequently encounter:

  • Culturally unsafe service responses, including decision-making processes that do not reflect cultural values, collective decision-making traditions, or community authority structures.
  • Language and communication barriers, including inadequate access to interpreters and culturally safe and appropriate information about rights, options, and SDM mechanisms.
  • Risk-averse and coercive practices, where behaviours associated with distress, past and current trauma, or mental health crises are misinterpreted as incapacity, leading to premature reliance on substitute decision-making or restrictive interventions.
  • Distrust of statutory systems, shaped by historical and ongoing experiences of stigma, discrimination, child removal, institutionalisation, and over-policing, characteristically discourages engagement and limits genuine participation in decision-making.

These barriers are often compounded for older Aboriginal people and older people from CALD communities who experience psychosocial disability, age related health issues affecting their sight and hearing, cognitive difficulties, mental health challenges, dementia, or fluctuating capacity, increasing the likelihood of guardianship, involuntary treatment, or exclusion from decisions about their own lives including as a consequence of familial coercive control.

Implications for supported decision-making

MHCC emphasise that SDM must be implemented in ways that are person-centred and person-led, culturally safe, trauma-informed, and rights-based, rather than relying on uniform or procedural models that fail to account for lived experience. For Aboriginal people and people from CALD backgrounds, effective SDM requires:

  • Recognition of collective, relational, and community-based approaches to decision-making, rather than narrow individualised models.
  • Flexible support arrangements that allow trusted family members, Elders, community leaders, or peer supporters to play a meaningful role, where this reflects the person’s will and preferences.
  • Active efforts to counter stigma, racism, and assumptions about capacity, particularly where a diagnosis of a mental health condition intersects with cultural difference (values and beliefs).

In addressing these distinct experiences and challenges, MHCC considers that the ADC has an important role in:

  • Ensuring that guidance, oversight, education and implementation of SDM are culturally responsive and inclusive and codesigned and developed in partnership with Aboriginal community-controlled organisations and CALD community organisations.
  • Monitoring the impact of decision-making practices on Aboriginal people and people from CALD backgrounds, including patterns of guardianship, substitute decision-making, and restrictive practices.
  • Promoting models of SDM that are informed by lived and living experience and community knowledge, including peer-led and culturally grounded approaches.
  • Utilising its systemic advocacy and reporting functions to address discriminatory practices and recommend reforms that reduce disproportionate reliance on substitute decision-making for Aboriginal people and people from CALD communities.

Addressing the distinct experiences of Aboriginal people and people from culturally and linguistically diverse backgrounds is essential to ensuring that SDM in NSW is genuinely equitable, rights-based, maximises choice and is reflective of the diverse ways people understand autonomy, support, and decision-making.

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

The ADC should have a critical role to play in promoting, embedding, and safeguarding the provision of SDM for people with lived experience of disability, or who may be an older person living with health and psychosocial challenges with a diversity of coexisting challenges, including coming from marginalised groups (Neurodivergent, LGBTIQA+).

Promoting supported decision-making as the preferred model

MHCC supports reforms that align NSW law and practice with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), including a shift away from substitute decision-making and towards SDM as the default approach. This includes recognising decision-making as a capacity that can be supported, rather than as a fixed threshold that, once unmet, justifies removal of legal agency.

In this context, the Commission’s role should include:

  • Actively promoting SDM as the preferred and rights-consistent model across service systems, including health, mental health, aged care, disability, housing, and justice.
  • Providing authoritative guidance to service providers, practitioners, and statutory bodies on how SDM can and should operate in practice for older people, people with disability including mental health challenges, cognitive impairment and psychosocial disability.
  • Reinforcing that SDM applies equally to people experiencing episodic or fluctuating cognitive difficulties and episodic mental health conditions, including during periods of crisis or increased support need.

Oversight, education, and system leadership

MHCC emphasise the need for enforceable obligations across public services to uphold human rights, including for access to SDM, rather than relying on discretionary or goodwill-based approaches.

Within its functions, the Commission is well placed to:

  • Provide education and resources for individuals, families, carers, and supporters about SDM options and safeguards.
  • Build capacity and the capability of frontline workers (including in mental health, disability and aged care settings) to recognise and facilitate SDM, particularly for people whose decision-making is frequently challenged or overridden.
  • Identify and address systemic practices that default too quickly to substitute decision-making, restrictive practices, or guardianship, particularly for people with physical and psychosocial disability as well as for older people.

Monitoring and addressing barriers to implementation

MHCC often highlight that legal and systemic barriers continue to limit the meaningful uptake of SDM across NSW, including inconsistent recognition across systems and a lack of investment and practical supports to make SDM workable.

The Commission’s role should therefore include:

  • Monitoring how SDM is being implemented (or not implemented) across different sectors and settings.
  • Identifying barriers faced by people living with disability, age related and psychosocial challenges, including stigma, risk-averse practice, coercion, and over-reliance on assessments of capacity.
  • Utilising its reporting, inquiry, and advocacy functions to recommend reforms that strengthen SDM and reduce inappropriate use of guardianship and substitute decision-making.

Supporting intersectional and culturally responsive approaches

MHCC recognises that experiences of decision-making are shaped by intersecting identities, including culture, age, disability, and mental health status. The TOR explicitly recognises the distinct experiences of Aboriginal people and people from culturally and linguistically diverse backgrounds, which is consistent with MHCC’s rights-based and intersectional approach.

Safeguards and limits on substitute decision-making

MHCC has consistently argued that substitute decision-making should be used only in limited and appropriate circumstances, with strong safeguards and a clear preference for SDM wherever possible.

Accordingly, the Commission has an important role in:

  • Reinforcing that substitute decision-making is an option of last resort, not a default response to disability, ageing, or mental health crises.
  • Promoting safeguards that ensure people subject to substitute decision-making retain maximum autonomy, participation, and access to supports.
  • Contributing to law reform discussions to ensure guardianship and related regimes are aligned with SDM principles and human rights obligations.

From MHCC’s perspective, the ADC is key to establishing a central leadership and oversight role, ensuring that SDM is not merely aspirational, but a lived reality for people older people, people living with disability including mental health challenges, and those at the intersection of mental health, disability, and ageing in NSW.

The role of the Senior Practitioner

Despite strong and consistent opposition from across the disability sector, the NSW Government has elected to proceed with the establishment of a Senior Practitioner (SP) role to authorise behaviour support plans. If this role is to exist, it is critical that it be oversighted by a body that is structurally and philosophically aligned with supported decision-making practice.

In considering the role and functions of the ADC, our view is that they are best placed to provide SP oversight. The ADC would help ensure that authorisation processes are grounded firmly in SDM principles, prioritising the will and preferences of the person and strengthening safeguards against unnecessary or intrusive restrictive practices. Importantly, an independent oversight body would help maintain a clear focus on promoting autonomy, protecting rights, and ensuring that behaviour support planning empowers—rather than overrides—the decision-making capacity of older persons, and people living with a disability including mental health, developmental difficulties, and other complex intersecting challenges. The role would be complemented by an enhanced systems monitoring and improvement role for the ADC in relation to restrictive practices.

The Disability Royal Commission was clear that the Senior Practitioner should be “an independent statutory authority” (Final Report, Volume 6, page 512). To ensure independence from government the SP must be able to demonstrate clear statutory independence, and MHCC propose that the ADC can fulfil that objective.

A collaborative relationship between roles must be established across the NSW consent or authorisation system and the role of the NDIS Commission, including clear definition of who is responsible for what. NSW and Commonwealth Governments also should commit to actions to grow the workforce to include skilled behaviour support practitioners.

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

To enhance access and the practice of SDM in NSW requires strengthening and clarifying the functions of the ADC so that SDM is not merely promoted as good practice, but embedded, and actively overseen across systems. Lived experience demonstrates that without clear authority, guidance, and accountability, SDM remains uneven and easily displaced by substitute decision-making.

Establishing a clear statutory preference for supported decision-making

MHCC would support legislative amendments to the Ageing and Disability Commissioner Act 2019 to ensure that the ADC has an explicit function to promote SDM as the preferred and default approach to decision-making for adults with disability and older people. This must include a clear statutory recognition that decision-making capacity can be supported, and that the inability to make a decision without support, does not justify removal of legal agency.

Such amendments would strengthen the ADC’s role in reinforcing that substitute decision-making is an exceptional and last-resort measure, rather than a routine response to disability, ageing, or mental health crisis.

Stronger oversight of substitute decision-making practices

MHCC argue that the Commission’s functions should be expanded to enable active monitoring and scrutiny of substitute decision-making, including guardianship, restrictive practices, and involuntary interventions. This would include powers to:

  • monitor patterns of reliance on substitute decision-making across systems
  • identify circumstances where SDM has not been adequately explored; and
  • report publicly on systemic barriers and disproportionate impacts Aboriginal people, people from CALD backgrounds, older people and people living with psychosocial disability, including from other diverse and marginalised communities.

Enhanced oversight functions would support cultural and systemic change by shifting focus from individual failure to system accountability.

Authoritative guidance and system leadership on supported decision-making

MHCC emphasise the importance of the Commission having a strengthened role in providing authoritative, practical guidance on how SDM should operate in practice across legal, health, mental health, aged care, disability, and justice systems.

This could include an explicit function to:

  • issue guidance on recognising will and preferences
  • clarify the role of trusted supporters
  • promote flexible approaches for people with fluctuating capacity; and
  • counter risk-averse and capacity-focused interpretations that undermine SDM.

Such guidance would assist practitioners and agencies to move beyond procedural compliance toward rights-based implementation.

Education and capacity-building functions grounded in lived experience

MHCC support expanding the ADC’s education functions to ensure system-wide capability-building on SDM, including supporting and investing in targeted education and training provided from training experts to serve both inhouse needs and for external training to frontline workers, statutory decision-makers, and service leaders.

MHCC would stress that this education must be:

  • co-designed and informed by lived experience
  • trauma-informed; strengths-based and
  • culturally safe and inclusive of Aboriginal and CALD perspectives, including collective and relational approaches to decision-making.

Embedding these functions in legislation would reduce reliance on discretionary training and support consistent practice across NSW.

A stronger role in law reform and systemic advocacy

MHCC recommends that the ADC’s systemic advocacy and reporting functions should be strengthened to enable it to proactively identify legislative and policy reforms required to align NSW decision-making frameworks with SDM principles and human rights obligations.

This includes a clear role in:

  • advising on reforms to guardianship, mental health, disability, and aged care legislation
  • highlighting inconsistencies that undermine recognition of SDM across systems; and
  • advocating for reforms that translate SDM principles into enforceable legal obligations, rather than aspirational statements.

MHCC suggest that strengthening the functions of the ADC through clearer statutory authority, enhanced oversight, authoritative guidance, investment, and a stronger role in education and law reform is essential to ensuring that SDM is embedded as the default approach in NSW, and that substitute decision-making is used only in appropriate and limited circumstances.

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

MHCC has consistently emphasised that substitute decision-making should be used only as a last resort, and only where a person’s will and preferences cannot be determined or supported, even with appropriate supports in place. Across its many related submissions, MHCC has argued for a clear and enforceable presumption in favour of SDM, in line with Australia’s obligations under the UNCRPD.

Clear preference for SDM in law and practice and measures to ensure substitute decision-making remains limited should include:

  • Explicit recognition in legislation and guidance that decision-making capacity can be supported, and that inability to make a decision without support does not justify removal of legal agency.
  • Requirements that all reasonable and appropriate support options are explored and documented before substitute decision-making is considered.
  • Alignment of guardianship, mental health, disability, and aged care frameworks to ensure consistent recognition of SDM across systems.

Strong safeguards and procedural protections

MHCC highlight the risk that substitute decision-making is often relied on too quickly, particularly for, older people, and people with psychosocial and physical disability as well as those people experiencing crises or fluctuating capacity. To limit inappropriate use, MHCC supports measures such as:

  • Robust safeguards and review mechanisms for any substitute decision-making arrangements, including regular, independent review focused on whether SDM can replace or reduce substitute arrangements.
  • Ensuring people subject to substitute decision-making retain maximum participation, including being involved in decisions to the greatest extent possible and supported to express their will and preferences.
  • Clear duties on decision-makers to act in accordance with the person’s known will and preferences, rather than subjective assessments of “best interests”.

Reducing risk-averse and coercive practices

Substitute decision-making is often driven by risk-averse and coercive practices, particularly in disability, mental health, aged care, and justice settings. Behaviours associated with distress, trauma, or mental health crisis are frequently misinterpreted as incapacity, leading to disproportionate use of guardianship or involuntary interventions.

Measures to address this include:

  • Clear guidance and training for practitioners to distinguish risk, disagreement, and unconventional decision-making from lack of capacity.
  • Oversight of practices that rely heavily on capacity assessments or crisis contexts to justify substitute decision-making.
  • Accountability mechanisms to identify and address patterns of over-use particularly affecting marginalised groups of people, including people with physical and psychosocial disability and older people.
  • System oversight, monitoring, and accountability

MHCC argue that limiting substitute decision-making requires more than aspirational principles; it requires active oversight and accountability. In this context, the ADC has an important role in:

  • Monitoring the prevalence and use of substitute decision-making, including guardianship and restrictive practices.
  • Identifying disproportionate impacts on people with physical and psychosocial disability, Aboriginal people, people from CALD communities, and older people.
  • Utilising its inquiry, reporting, and advocacy functions to recommend reforms that reduce reliance on substitute decision-making and strengthen access to SDM.

Law reform aligned with human rights obligations

MHCC supports broader law reform, including amendments to the Disability Discrimination Act and the development of a Disability Rights Act, to translate human rights principles into enforceable obligations across public services.

These reforms are essential to ensuring substitute decision-making remains exceptional and time-limited, rather than a routine response to disability, ageing, or mental health challenges.

From MHCC’s perspective, ensuring that substitute decision-making is used only in appropriate and limited circumstances requires a clear legal preference for SDM, strong safeguards, cultural and systemic change, and effective oversight to prevent the unnecessary erosion of autonomy for, older people, people with disability and people with psychosocial disability.

Workforce capacity building making SDM a reality for people living with disability, ageing and psychosocial challenges

MHCC propose that a rights-based, lived-experience-led approach for the workforce draws directly from the themes already in this submission. Access to SDM supports cannot be realised without a capable, rights-literate, and appropriately supported workforce across legal, health, aged care, disability, mental health, justice, and community service systems. This includes investment in capacity building for learning and development.

Lived experience demonstrates that even where policy commitments to SDM exist, workforce capability gaps and entrenched practice cultures continue to drive default reliance on substitute decision-making rather than supported approaches.

Workforce capacity building, capability and training

MHCC emphasise that many frontline workers, statutory decision-makers, and service leaders have little practical understanding of SDM, including how to recognise will and preferences, work with trusted supporters, and support people whose capacity fluctuates. Support often remains inconsistent, optional, or overly procedural, rather than having SDM embedded as a core professional competency. Much confusion still exists about the difference between shared decision-making and SDM.

We also argue that workforce development must include:

  • Ongoing training about SDM as a strengths and rights-based practice
  • Clear guidance on distinguishing risk, disagreement, and distress from lack of capacity
  • Practical skills for supporting decision-making in complex or crisis contexts; and
  • Education that reinforces that decision-making capacity can be supported, rather than treated as a fixed threshold.

Lived experience, peer, and advocacy roles

MHCC strongly emphasise the importance of lived-experience-led roles, including peer workers and independent advocates, in making SDM work in practice. People consistently report that access to SDM is more effective where supporters understand trauma, and the real-world impacts of coercive decision-making.

MHCC propose that:

  • Peer workers and advocates should be recognised, resourced, and embedded across systems
  • Workforce models must value relational, trust-based support, not just clinical or procedural expertise; and
  • Independent advocacy is essential to counter power imbalances and ensure people are supported to express their will and preferences, particularly in high-risk or statutory settings.

Cultural safety and intersectional competence

We stress that workforce capability must extend beyond technical SDM knowledge to include cultural safety, trauma-informed practice, and intersectional competence.

Aboriginal people and people from culturally and linguistically diverse (CALD) backgrounds experience compounded barriers to SDM due to culturally unsafe service responses and systemic distrust.

MHCC argue that the workforce must be supported to:

  • Work with collective, relational, and community-based decision-making approaches
  • Engage effectively with interpreters, cultural brokers, Elders, and community leaders; and
  • Challenge assumptions about capacity that intersect with racism, ageism, and stigma
  • Time, resourcing, and system settings.

MHCC highlight that SDM is often undermined by workforce pressures, time constraints, and risk-averse organisational settings. Where staff are under-resourced or operating in crisis-driven environments, SDM is treated as optional or impractical, rather than core business.

To make SDM a reality, MHCC propose that workforce reform must be supported by:

  • Adequate time and staffing levels to enable meaningful decision-making support
  • Clear organisational expectations that SDM is the default approach; and
  • Leadership that reinforces rights-based practice and accountability, rather than fear of liability.

Role of the Ageing and Disability Commission

MHCC emphasise that the ADC has a critical role in driving workforce change, including through education, guidance, and system leadership. This includes ensuring that workforce development on SDM is consistent, authoritative, person-centred and person-led, and grounded in lived experience, rather than discretionary or fragmented.

Without sustained investment in workforce capability grounded in lived experience, cultural safety, and enforceable rights, SDM will remain uneven and aspirational, rather than a practical reality for people with, older people, and people with disability and psychosocial disability in NSW.

Pilot Testing and Evaluation

To operationalise its monitoring and system leadership role, the ADC should be empowered to design, commission, and evaluate pilot studies that test practical SDM models across key NSW systems, including for example: mental health, aged care, disability support and justice health contexts. These pilots would generate high quality evidence on what supports are most effective, and identify systemic barriers, and provide insights into culturally responsive, person-centred and person-led and trauma-informed approaches. They could also test decision support tools, communication strategies, workforce training elements, and findings would inform state-wide implementation and guide legislative and policy reform.

The ADC should develop and publish a statewide SDM Evaluation Framework, including performance indicators, outcome measures, and practice benchmarks. This would enable consistent monitoring across sectors, support accountability, and provide the basis for continuous improvement.

To support transparency and accountability the ADC should be required to publicly report on findings from pilot studies and ongoing evaluation, including trends in substitute decision making, systemic barriers, and disparities affecting Aboriginal, CALD, older people, and people with disability including psychosocial disability.

All evaluation activities should be co-designed, produced, implemented and evaluated with people with lived experience to ensure that measures of success reflect autonomy, choice, cultural safety, and maximise opportunities for an individual to exercise their will and preferences.

MHCC suggest that pilot testing and evaluation align well with our proposal that the ADC play a part in active monitoring, reporting, and system and workforce improvement.

Resourcing of the ADC’s system leadership role should explicitly support alignment between supported decision-making policy, practice and oversight and any reforms to the Guardianship Act 1987 (NSW) under consideration, to avoid fragmentation, inconsistent application of rights, and continued default reliance on substitute decision-making.

This initiative should be undertaken in a manner that aligns with, and supports implementation of, any amendments to the Guardianship Act 1987 (NSW) or associated decision-making laws under consideration, to ensure consistent application of SDM principles across guardianship, mental health, disability and aged care systems.

Consolidation Map

This consolidation map indicates how recommendations can be grouped in relation to the Terms of Reference topic.

Recommendation Consolidation of themes from Term of Reference topics
1. Strengthen the ADC’s system leadership, oversight and guidance role b, d; h.
2. Establish SDM as the default and enforceable approach a, d, e,
3. Limit substitute decision-making through safeguards, duties and review e, f,
4. Invest in system and workforce capability to operationalise SDM a, b, g,
5. Embed cultural safety, lived experience and intersectional approaches to SDM c, g,
6. Align NSW legislative frameworks with SDM and human rights obligations c, (parts of e) and i

mhcc mental health coordinating council

Mental Health Coordinating Council

Ground Floor, Building 125
Corner of Church and Glover Street
Lilyfield NSW 2040

PO Box 668 Rozelle NSW 2039

T. 02 9060 9627
E. info@mhcc.org.au
W. mhcc.org.au