Protecting the rights of the aged and individuals referred for health care

Section 4{2) of the Guardianship and Administration Act 1986, (Victoria State Government) sets out the principles that are to be followed in its administration.

           (2) It is the intention of Parliament that the provisions of this Act be interpreted and
                that every function, power, authority, discretion, jurisdiction and duty conferred
                of imposed by this Act is to be exercise or performed so that;
                2(a) the means which is the least restrictive of a person's freedom of decision and 
                      action as is possible in the circumstances is adopted, and,
                2(b) the best interest of a person with a disability are promoted, and 
                2(c) the wishes of a person with a disability are wherever possible given effect to.

In respect of the above the person must first be proven to have a disability or mental condition that precludes decision-making.

Where decision-making capacity is present, (and in the case of the Mental Health Act, there is no risk to the person or to others) the decision of the person is not negotiable, neither is their wish, and "in their best interest" must be understood to be a personal viewpoint that is not negotiable from any humane (human rights) point of view, This needs to be upheld.

A change to the Act as above is required to address this as follows;
           2(a) the means that is the least restrictive of a person's freedom of decision
                 and action, these being not negotiable must be ensured.
           2(b) the best interest of a person with a disability is not diminished but is upheld
                  as the goal and aim of guardianship to be achieved.
           2(c) the wishes of a person with a disability are not negotiable and are to be
                  upheld as the goal and aim of rehabilitation or treatment to be achieved.