Getting the Balance Right: Conceptual Considerations Concerning Legal Capacity and Supported Decision-Making
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The United Nations Convention on the Rights of Persons with Disabilities urges and requires changes to how signatories discharge their duties to people with intellectual disabilities, in the direction of their greater recognition as legal persons with expanded decision-making rights. Australian jurisdictions are currently undertaking inquiries and pilot projects that explore how these imperatives should be implemented. One of the important changes advocated is to move from guardianship models to supported or assisted models of decision-making. A driving force behind these developments is a strong allegiance to the social model of disability, in the formulation of the Convention, in inquiries and pilot projects, in implementation and in the related academic literature. Many of these instances suffer from confusing and misleading statements and conceptual misinterpretations of certain elements such as legal capacity, decision-making capacity, and support for decision-making. This paper analyses some of these confusions and their possible negative implications for supported decision-making instruments and those whose interests these instruments would serve, and advises a more incremental development of existing guardianship regimes. This provides a more realistic balance between neglecting the real limits of those with mental disabilities and thereby ignoring their identity and particularity, and continuing to bring them equally and fully into society.
KeywordsDecision-making capacity Disability Guardianship Legal capacity Supported decision-making
- ACT Disability, Aged and Carer Advocacy Service (ADACAS). 2013. Spectrums of support: A report on a project exploring supported decision-making for people with disability in the ACT. http://www.adacas.org.au/decision-support/copy_of_SupportedDecisionMakingProjectFinalReport.pdf. Accessed July 3, 2014.
- Advocacy for Inclusion. 2012. Supported decision-making, legal capacity and guardianship. Implementing Article 12 of the Convention on the Rights of Persons with Disabilities in the Australian Capital Territory. http://www.advocacyforinclusion.org/publications/supported_decision_making_legal_capacity_and_guardianship2012final.pdf . Accessed July 3, 2014.
- Australian Law Reform Commission. 2013. Equality, capacity and disability in commonwealth laws. Issues Paper 44. June 7, 2013 (modified November 24, 2014). http://www.alrc.gov.au/inquiries/legal-barriers-people-disability. Accessed July 3, 2014.
- ———. 2014. Equality, capacity and disability in commonwealth laws (ALRC Report 124). November 24: 2014. https://www.alrc.gov.au/publications/equality-capacity-disability-report-124. Accessed December 16, 2014.Google Scholar
- Bach, M., and L. Kerzner. 2010. A new paradigm for protecting autonomy and the right to legal capacity. Ontario Law Commission. http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner. Accessed July 10, 2014.
- Buchanan, A.E., and D.W. Brock. 1989. Deciding for others: The ethics of surrogate decision-making. Cambridge: Cambridge University Press.Google Scholar
- Carney, T., and F. Beaupert. 2013. Public and private bricolage—Challenges balancing law, services and civil society in advancing CRPD-supported decision-making. UNSW Law Journal 36(1): 175–201.Google Scholar
- Charlton, J. 2000. Nothing about us without us: Disability oppression and empowerment. Berkeley and Los Angeles: University of California Press.Google Scholar
- Commissioner for Human Rights (Council of Europe). 2012. Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities. https://wcd.coe.int/ViewDoc.jsp?id=1908555. Accessed July 10, 2014
- Devereux, J., and M. Parker. 2006. Competency issues for young persons and older persons. In Disputes and dilemmas in health law, ed. I. Freckelton and K. Petersen, 54–76. Sydney: Federation Press.Google Scholar
- Devi, N. 2013. Supported decision-making and personal autonomy for persons with intellectual disabilities: Article 12 of the UN Convention on the Rights of Persons with Disabilities. The Journal of Law, Medicine and Ethics (41)4: 792–806.Google Scholar
- International Disability Caucus. n.d. Legal capacity. http://un.org/esa/socdev/enable/rights/ahc8docs/ahc8idclegcapfl.doc. Accessed July 1, 2014.
- NSW Family and Community Services (Ageing, Disability and Home Care). 2013. http://www.adhc.nsw.gov.au/__data/assets/file/0003/279039/SDMP_fact_sheet_Oct2013.pdf . Accessed July 5, 2014.
- NSW Legislative Council (Standing Committee on Social Issues). 2010. Substitute decision-making for people lacking capacity. http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/e00602d3c8f39ca5ca2576d500184231/$FILE/100225%20SDM%20Final%20Report.pdf. Accessed July 5, 2014.
- Office of the Public Advocate (Qld). n.d. Current research and advocacy projects. http://www.justice.qld.gov.au/justice-services/guardianship/public-advocate/current-projects. Accessed July 5, 2014.
- ———. 2014a. Systems Advocacy. Decision-making support for Queenslanders with impaired capacity: A conceptual framework. http://www.justice.qld.gov.au/__data/assets/pdf_file/0004/249403/Decision-making-support-for-Queenslanders-with-impaired-capacity-A-conceptual-framework-March-2014.pdf. Accessed July 5, 2014.
- ———. 2014b. Decision-making support in Queensland’s guardianship system. An Issues Paper. http://www.justice.qld.gov.au/__data/assets/pdf_file/0018/314172/Issues-Paper-November-2014.pdf. Accessed November 20, 2014.
- Office of the Public Advocate (SA). 2011. Supported decision making. http://www.opa.sa.gov.au/resources/supported_decision_making. Accessed July 5, 2014.
- Office of the Public Advocate (Vic). 2014. Supported decision-making pilot project. http://www.publicadvocate.vic.gov.au/file/file/Research/Current%20projects/SDM%20project%20flyer%20FINAL.pdf . Accessed July 5, 2014.
- Parker, M., and C. Cartwight. 2005. Mental capacity in medical practice and advance care planning: Clinical, ethical and legal issues. In Mental capacity. Powers of attorney and advance health directives, edited by B. Collier, C. Coyne, and K. Sullivan, 56–92. Sydney: Federation Press. Representation Agreement Act 1996, BC. http://www.bclaws.ca/Recon/document/ID/freeside/00_96405_01. Accessed July 8, 2014
- Shakespeare, T. 2006. Disability rights and wrongs. London: Routledge.Google Scholar
- Steele, L. 2008. Making sense of the Family Court’s decisions on the non-therapeutic sterilisation of girls with intellectual disability. Australian Journal of Family Law 22(1): 1–23.Google Scholar
- Szmukler, G., R. Daw, and F. Callard. 2014. Mental health law and the UN Convention on the Rights of Persons with Disabilities. International Journal of Law and Psychiatry 37(3): 245–252.Google Scholar
- Then, Shih-Ning. 2013. Evolution and innovation in guardianship laws: Assisted decision-making. Sydney Law Review 35: 133–166.Google Scholar
- United Nations. 2006a. Convention on the Rights of Persons with Disabilities. http://www.un.org/disabilities/convention/conventionfull.shtml. Accessed July 1, 2014
- ———. 2006b. Convention on the rights of persons with disabilities. Why a convention? http://www.un.org/disabilities/convention/questions.shtml. Accessed July 1, 2014
- ———. 2007. Handbook for parliamentarians on the Convention on the Rights of Persons with Disabilities. http://www.ipu.org/PDF/publications/disabilities-e.pdf. Accessed July 1, 2014.
- Victorian Law Reform Commission. 2012, Guardianship: Final report No 24. http://www.lawreform.vic.gov.au/sites/default/files/Guardianship_FinalReport_Full%20text.pdf. Accessed July 10, 2014.
- Wallace, M. 2012. Evaluation of the supported decision-making project. http://www.opa.sa.gov.au/resources/supported_decision_making/may_2013_update . Accessed July 10, 2014.
- Weller, P. 2011. The Convention on the Rights of Persons with Disabilities and the social model of health: New perspectives. Journal of Mental Health Law (Special Edition) 74–83.Google Scholar
- White, B., L. Willmott, and S.-N. Then. 2014. Adults who lack capacity: Substitute decision-making. In Health law in Australia, 2nd ed, ed. B. White, F. McDonald, and L. Willmott, 193–253. Sydney: Thomson Reuters.Google Scholar