Dr Julia Duffy1
1Queensland University Of Technology, Australian Centre For Health Law Research, , Australia
Biography:
Julia Duffy is a Research Fellow, providing consultancy services to government and non-government organisations on disability and human rights and researching and publishing in those areas. She has served as Qld’s Deputy Public Guardian, on Qld’s Mental Health Review Tribunal, and as a director of Family Planning Queensland.
Abstract:
The binary framing of adult guardianship as antithetical to supported decision-making, has been fuelled by the international media through reporting the case of Britney Spears. A more accurate and nuanced understanding of what guardianship can be and how it can operate to maximise supported decision-making, independence and autonomy is required. Calls for abolition of guardianship without true understanding of what it is, or what may replace it, risks governments defunding current systems of support for our most vulnerable, in the name of upholding civil and human rights.
This paper aims to bring an understanding of what is at stake, by comparing the conservatorship system in California with the guardianship systems in Queensland and Victoria, using the case of Ms Spears. It demonstrates how archaic legislation and judicial culture in California led to rights-denying paternalistic decisions which would not be possible under Queensland and Victorian laws mandating supported decision-making both outside of and within guardianship. The study compares not just substantive law, but also differences in procedure which mean that in Australia there is better oversight, more flexibility and more fluidity in and out of guardianship and supported decision-making systems. Ironically, ‘due process’ rights in the US operate ultimately to limit access to the courts, while by comparison, access is enabled by the informality of tribunal systems that prevail in Australia.
If Britney Spears had lived in Australia, she would most probably not have been made subject to guardianship, and if she had, it would not have lasted 13 years.
Presentation Slides PDF – Click here