Dr. Eilionóir Flynn:

On the point about consultation, we appreciate that there is a tight timeline. There is a shared desire to commence the Act as swiftly as possible, given how long people have been waiting. However, we feel strongly, as has been said by other witnesses, that it is not too late for the Department to undertake a more comprehensive and meaningfully inclusive consultation with those who are directly affected by this legislation and the amendments contained in the proposed heads of Bill. That can be done in a number of ways. It can start with some of the groups that presented yesterday and extend beyond them. There are different means by which the Department can engage with people. We encourage it to do so before bringing the final Bill to Parliament.

I will give an example of the bureaucratisation of support that we are concerned about. There is a clear example in head 3, which is continued in heads 38 and 60. There is a proposal to remove the opportunity to include decisions about healthcare treatment in enduring powers of attorney. That would mean that if I wanted to create an enduring power of attorney and I also wanted to plan my healthcare decisions in advance, I would have to create not one but two instruments, which are an enduring power of attorney and an advanced healthcare directives. I may then have two separate requirements for supporting evidence, witnesses for each instrument, and separate assessments of capacity to make both instruments, since capacity is to be assessed in a decision-specific manner under the legislation. It is especially burdensome if the relevant people would like to authorise the same person who they are granting power to under their enduring power of attorney as their designated healthcare representative in an advanced healthcare directive. While people should be free to create two instruments if they wish, we are concerned that the legislation is making this distinction and not allowing people the freedom that they would like to have to decide exactly how their support will be provided. That is just one example of the bureaucratisation of support.

Regarding the need for legislation to be made available in an easy to read format, there are several precedents for how this can be done. My centre and other groups have expertise in supporting the development of easy to read documents. For example, in England, the Mental Capacity (Amendment) Act 2019 was developed as an easy to read version. We have some good examples for how this kind of capacity-related legislation can be done, even though the legislation is complex, and it takes time to explain it in an accessible manner that retainers the accuracy of the legislation. I will leave it at that for now and am happy to speak again if the Senator has questions.