Supported Decision-making 2A: Human Rights 2B: Legal Principles 2C: Ethics, Autonomy and the Law 2D: The Cultural Dimension 2E: SDM in practice & case law Recommendations for supported decision-making

2A: HUMAN RIGHTS

International human rights instruments

  1. The impetus for change in mental capacity law internationally is derived from the growing role played by human rights instruments. These instruments affirm that an absence of capacity does not mean an absence of rights. The focus is on the individual’s current position rather than past preferences.227 A central theme is the universality of human rights and of equal recognition before the law.

  2. New Zealand is a party to the main international human rights instruments relevant to both mental capacity and mental health law. These are: the International Covenant on Civil and Political Rights 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), and the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD). As a matter of international law, New Zealand is required to ensure that the standards set out in these instruments are implemented, although as a general principle a treaty will not have the force of law unless explicitly incorporated into domestic law. 228

  3. In domestic law, the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 recognise these international obligations. The NZBORA expressly affirms New Zealand’s commitment to the ICCPR and requires all statutes to be construed consistently with these rights if possible.229

  4. In England, the Human Rights Act 1998 has adopted the European Convention on Human Rights 1950 (ECHR) into domestic law.230 As a result, those rights under the ECHR, which have long been closely scrutinised by the European Court of Human Rights in Strasbourg (ECtHR), are now also enforced by domestic courts in the United Kingdom. New Zealand is not a party to the ECHR but, like the United Kingdom, is a party to both the ICCPR and the CRPD. Substantially the same rights are protected by all three of these human rights conventions. Strasbourg jurisprudence from the ECtHR is therefore directly relevant and likely to be influential in New Zealand courts, especially when its interpretations are authoritative in the English legal system, upon which the New Zealand legal system has traditionally drawn.231
223 Convention on the Rights of Persons with Disabilities (opened for signature 30 March 2007, entered into force 3 May 2008), (CRPD).


224 As discussed below, neither “substituted decision-making” nor “supported decision-making” are defined in the CRPD. A “substitute decision-maker” generally refers to a person or body who can make decisions for someone else who lacks capacity in law, such as an attorney or welfare guardian under adult guardianship law, a healthcare provider under Right 7(4) of the HDC Code, or the Court itself under statute or by way of the inherent jurisdiction.

225 Law Commission, T Spencer-Lane “Mental Capacity and Deprivation of Liberty” consultation document http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty at 154.


226 M Browning, C Bigby and J Douglas “Supported Decision-making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice” (2014) 1 Res Pract Int Devel Disab 34. Since the 1990s supported decision-making has been incorporated in legislation in several Canadian Provinces. Bach and Kerzner, above n 33. A New Paradigm For Protecting Autonomy And The Right To Legal Capacity is a commissioned report that has been influential in interpreting approaches to legal capacity.
  1. The Supreme Court of the United Kingdom referred to the CRPD for the first time on 19 March 2014 in its judgment in P v Cheshire West and Chester Council. Lady Hale said: 232
    The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to ‘everyone’ (Article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted.

The United Nations Convention on the Rights of Persons with Disabilities (CRPD)

  1. The CRPD was the first binding international human rights instrument to expressly address disability. It has been heralded as signalling a “paradigm shift” in thinking about disability rights.

  2. New Zealand signed the CRPD in March 2007, ratified it in 2008, and has played a significant role in its evolution, particularly involving representatives of disabled people’s organisations (DPOs).233 Prior to ratification of the CRPD, the New Zealand Public Health and Disability Act 2000 foreshadowed the New Zealand Disability Strategy and the development of the Disability Action Plan 2014–2018, led by the Office for Disability Issues within the Ministry of Social Development.234

  3. 2.11 An Optional Protocol operates alongside the CRPD and would allow individuals who consider that they have been victims of a violation by a State Party of the provisions of the CRPD to directly petition the United Nations Committee on the CRPD.235 Despite a large number of member states having ratified the Optional Protocol, New Zealand’s move to ratify it is still “in progress”.236
227 Donnelly, above n 24 at 274.

228 K Gledhill, “A Rights Audit of the Mental Health Act” in Dawson and Gledhill, above n 92 at 285–286. See also S Bell, J McGregor “Human Rights Law and Older People” in K Diesfeld, I McIntosh (eds) Elder Law in New Zealand (Thomson Reuters, Wellington, 2015) at 180. New Zealand is said to have a dualist approach, which distinguishes between international and national law. There is a trend towards monism internationally, whereby domestic courts can enforce both international and domestic law.

229 New Zealand Bill of Rights Act 1990, s 6. See also MA Waters “Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties” (2007) Columbia Law Rev, Washington & Lee Legal Studies Paper No. 2006-12.

230 The Convention on the International Protection of Adults signed at The Hague on 13 January 2000 is also expressly given effect in England and Wales in the MCA, s 63 and Schedule 3.

231 Gledhill, above n 228 at 286.

232 Above n 7 at [36].

233 J McGregor, S Bell and M Wilson Fault Lines: Human Rights in New Zealand (Law Foundation, Wellington, 2015). Chapter 7 describes the background to New Zealand’s involvement with the development of the CRPD and New Zealand’s responses including the independent monitoring mechanism set up under art 33.

234 Minister for Disability Issues The New Zealand Disability Strategy: Making a World of Difference Whakanui–Oranga (Ministry of Health, Wellington, 2001).

235 Article 34 of the CRPD is the key enforcement mechanism and State Parties that have ratified the CRPD must report to the Committee.

236 Office for Disability Issues, Ministry of Social Development Government Response to the United Nations Committee on the Rights of Persons with Disabilities’ Concluding Observations on New Zealand (June 2015, http://www.odi.govt.nz) paragraph 1. As at November 2015, 160 countries have ratified the CRPD and 88 countries have ratified the Optional Protocol. United Nations Enable “Convention and Optional Protocol Signatories and Ratification” www.un.org/disabilities/countries.asp?id=166.
  1. The CRPD does not create new rights but consolidates existing international obligations and clarifies their application to persons with disabilities. The principles underpinning the CRPD include respect for inherent dignity and individual autonomy – including the freedom to make choices – of persons with disabilities (art 3). Important rights include the right to liberty and security of the person (art 14); the right to freedom from exploitation, violence and abuse (art 15); the right to respect for physical and mental integrity (art 17); and the right to live independently and be included in the community (art 19).

  2. In addition to the general principles and obligations contained in the CRPD, art 12 and the right to equal recognition before the law are of central importance in understanding how the CRPD applies to mental capacity law and practice. The emphasis is on equal legal capacity. Legal capacity comprises both legal standing – being recognised as a person before the law, and legal agency – the ability to act within the framework of the legal system.237 There is an obligation on states to provide support to achieve equal capacity, for persons with disabilities who broadly include those who have “long-term physical, mental, intellectual or sensory impairments”.238 In summary, art 12 recognises the following rights and obligations on state parties:
  • the right to enjoy legal capacity on an equal basis with others;239

  • the obligation of governments to implement measures that provide access to support by those who need it to exercise their legal capacity;240 and

  • the obligation of governments to ensure safeguards are in place to prevent abuse in relation to measures for the exercise of legal capacity.241
The support paradigm
  1. In 2014, the United Nations Committee on the Rights of Persons with Disabilities (the UN Committee) released a General Comment (the General Comment) to aid interpretation of art 12. The UN Committee perceived: 242 ... a failure by state parties to understand the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.

  2. This paradigm shift represents a change in attitudes to disability that have moved away from the medical model of disability, which concentrates on the individual’s limitations, to a social model, which identifies barriers created in society.243 Under the UN Committee’s interpretation of the CRPD, perceived or actual deficits in mental capacity must not be used as a justification for denying legal capacity.244
237 Bach and Kerzner, above n 33. See also B McSherry “Legal issues: legal capacity under the convention on the rights of persons with
disabilities” (2012) 20 J Law Med 22.

238 United Nations Convention on the Rights of Persons with Disabilities, art 1.

239 United Nations Convention on the Rights of Persons with Disabilities, art 12(1) and (2).

240 United Nations Convention on the Rights of Persons with Disabilities, art 12(3).

241 United Nations Convention on the Rights of Persons with Disabilities, art 12(4).

242 United Nations Committee on the Rights of Persons with Disabilities General Comment Number 1 Article 12: Equal recognition before the law, CRPD/C/GC/1 (2014) at [3]. The Convention itself does not actually mention “supported decision-making” or “substitute decision-making” or define these terms.

243 Bach and Kerzner, above n 33 at 18.

244 General Comment No 1, above n 242 at [12]. As discussed above, a distinction is made between legal capacity – a legal status or standing, and mental capacity - the ability of individuals to make decisions for themselves, either on their own or with support.
  1. The scope of the obligations imposed by art 12, as interpreted in the General Comment, are controversial, particularly whether the concept of incapacity can still be used as a relevantconcept in law without breaching the CRPD.245 Although legal capacity is a central concept within the CRPD, the Convention itself provides no definition of it. The General Comment also claims that art 12 prohibits the imposition of “substitute decisions” on people with disabilities in all cases, requiring instead that they be given access to the support they need to exercise their legal capacity in accordance with their will and preferences.246

  2. In England, a report commissioned by the Ministry of Justice found that the MCA was not fully compliant with the CRPD in terms of its definition of “mental incapacity”, and in safeguarding the “rights, will and preferences” of the person, as required by art 12(4), in the MCA’s best- interests decision-making framework.247 The authors rejected, however, the UN Committee’s claim that compliance with the CRPD requires the abolition of substitute decision-making and the best-interests decision-making framework. As a matter of international law, the status of the General Comment is that of an authoritative statement rather than a binding instrument such as the Convention itself, but it is considered to be a powerful influence on domestic policy debates.248

  3. The UN Committee’s view that all persons have legal capacity at all times irrespective of mental status has attracted criticism, particularly if it requires the immediate abolition of mental health laws involving involuntary admission and treatment.249 Even proponents of the “fusion” of mental health and mental capacity law into a single statutory regime governing state intervention in the lives of people with disabilities that would be based squarely on incapacity criteria, regard the UN Committee’s interpretation of art 12 as being unrealistic. 250 It fails to recognise potential difficulties in determining a person’s genuine “will and preferences”, and there is a lack of clarity as to when “supported” decision-making becomes “substitute” decision-making, and when and why the safeguards listed in art 12(4) are required around this process.
Safeguards to prevent abuse
  1. The notion that supported decision-making should be “free of conflict of interest and undue influence” under art 12(4) of the CRPD is one of the most important provisions of the CRPD. The safeguards must ensure that:251
    ... measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.
245 P Bartlett “The UN Convention of the Rights of Persons with Disabilities and Mental Health” (2012) 75 Mod Law Rev 752; S Callaghan and C Ryan “An Evolving Revolution: Evaluating Australia’s compliance with International Human Rights in Mental Health Law” (2016) draft article.

246 General Comment No.1, above n 240 at [26].

247 Szerletics, above n 209.

248 Szerletics, above n 209 at 12, fn 18 where the legal status of General Comments is discussed further. See also T Carney “Supported decision-Making for People with Cognitive Impairments: An Australian Perspective?” (2015) 4 Laws 37 at 41.

249 MC Freeman, K Kolappa, JM de Almeida and others “Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities” (2015) 2(9) Lancet Psychiatry 844.

250 J Dawson “A realistic approach to assessing mental health laws’ compliance with the UNCRPD” (2015) Intl J Law Psych 1;
Callaghan and Ryan, above n 245.

251 United Nations Convention on the Rights of Persons with Disabilities, art 12(4).
  1. A common criticism of the support paradigm is that it offers few tools under art 12(4) to mitigate harmful decisions and does not deal with the “hard cases”, where there is the potential for undue influence, exploitation and abuse by supporters of the person with impaired capacity. The hard cases can occur within both substitute decision-making (guardianship) and supported decision-making regimes.252 While the latter is less paternalistic, it runs the risk of offering little protection against harm.

  2. Protecting people from harmful influences raises the whole notion of how autonomy is viewed in the law, when a facet of autonomy concerns an individual’s ability to make an informed, uncoerced decision. In this respect, capacity and the notion of undue influence are inextricably linked.253
Negative and positive rights
  1. The CRPD is also significant because it attempts to break down traditional distinctions between civil and political rights, which are usually negative – such as non-interference by the state – and social and economic rights, which are usually positive, such as guaranteeing social inclusion and participation and the right to healthcare.254 Positive obligations in respect of autonomy do not mean that “what I want should be delivered”, but that a fair balance should be struck between individual rights and societal interests.255

  2. Under the CRPD, the problem that emerges is how to deliver support mechanisms required under art 12(3) (a positive right), while at the same time ensuring protection from abuse under art 12(4) (a negative right).256 Protection from harm, and the recognition of the vulnerability of people with impaired capacity to abuse and exploitation, form the rationale for the appointment of substitute decision-makers in adult guardianship law, and for the existence of the inherent “protective” jurisdiction of the court.257 For example, the purpose of the PPPR Act is to “protect and promote” the rights of people who lack capacity.258 The law recognises that protecting people from harm can be a source of empowerment and can correspondingly promote autonomy.
The CRPD and the PPPR Act
  1. After signing the CRPD, New Zealand’s PPPR Act was initially considered consistent with the CRPD, although the analysis undertaken was relatively superficial as there was a push at the time for New Zealand to ratify the Convention as soon as possible given New Zealand’s role in promoting the Convention.259 While the primary objectives of the PPPR Act and its participatory model may be aligned with the CRPD in some respects, supported decision- making (or a legal mechanism to implement it) is not expressly recognised in the legislation.260
252 L Series “Relationships, autonomy and legal capacity: Mental capacity and support paradigms” (2015) 40 Int J Law Psych 80 at [4.5].

253 D Lush, Senior Judge of the Court of Protection “Question and Answer session” (Academy of European Law’s Conference on the Rights of Persons with Disabilities, Trier, Germany, 11 and 12 December 2014).

254 M Donnelly Healthcare Decision-making and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press, Cambridge, 2010) at 5. This divide between positive and negative rights is not always clear. Participation and inclusion are equally evident in some of the ICCPR.

255 M Brazier cited by Donnelly, above n 254 at 79.

256 Bach and Kerzner, above n 33 at 37.

257 The protection of vulnerable adults outside of statutory law under the MCA has led to the re-emergence of the inherent jurisdiction in England: DL v A Local Authority, above n 213. See discussion of Vulnerable Adults and the Inherent Jurisdiction in Chapter IA Setting the Context. In New Zealand, the inherent jurisdiction of the High Court still survives in the Protection of Personal and Property Rights Act, s 114 and Judicature Act 1908, s 17.

258 Protection of Personal and Property Rights Act 1988, Preamble.

259 McGregor, Bell and Wilson, above n 233 at 107-134.

260 The primary objectives of the PPPR Act are to make the least restrictive intervention and maximise a person’s participation to the greatest extent possible: Protection of Personal and Property Rights Act 1988, s 8, discussed below.
  1. The General Comment released in 2014 casts doubt on New Zealand’s compliance with the CRPD as does the subsequent report on New Zealand’s position from the UN Committee. New Zealand, along with many other countries that ratified the convention, has an adult guardianship law (the PPPR Act), the scheme of which provides for adult guardianship and substituted decision-making. Yet the concluding observations recommended “that the State party take immediate steps to revise the relevant laws and replace substituted decision- making with supported decision-making. This should provide a wide range of measures that respect the person’s autonomy, will and preferences, and is in full conformity with Article 12 of the Convention.” 261

  2. The Government’s response to the UN Committee’s criticisms of New Zealand law (based on its interpretations of art 12, as part of the independent monitoring process), has been muted. That response does not directly address the UN Committee’s recommendation to take “immediate steps” to revise relevant laws and replace substituted decision-making with supported decision-making.262 Paul Gibson, the Disability Commissioner, says, “We are getting so far behind and we were once a leader”.263
Australian law reform
  1. In 2014, the Australian Law Reform Commission’s report (the Australian report) examined the legal framework within Australia and the changes required having regard to the CRPD.264  The main recommendation of the Australian report is for the Commonwealth states to establish national decision-making principles to ensure that supported decision-making is encouraged.265 In fact, much of the relevant legislation would have to be enacted in Australia at the state – rather than federal (or Commonwealth) – level of government.

  2. Prior to the Australian report in 2012, the Victorian Law Reform Commission (VLRC) advised that the existing laws in Victoria were complex and inaccessible, with provision for six different types of substitute decision-makers to be appointed, under three separate Acts.266 The key VLRC recommendation was to create a single statute to provide for substitute decision- making for people with impaired capacity that allowed for a continuum of decision-making arrangements and mechanisms. In addition to more traditional substitute decision-making arrangements, the VLRC recommended the creation of “supporters” and “co-decision- makers” who could be appointed by the person or by the Victorian Civil and Administrative Tribunal (VCAT).267
261 Office for Disability Issues Government response to the United Nations Committee on the Rights of Persons with Disabilities Concluding Observations on New Zealand (Ministry of Social Development, Wellington, 2015) at [22].

262 Instead the Government’s response refers to the existing Disability Action Plan 2014-2018 and that this work may recommend changes to legislation. ODI above n 261 at [19]. The UN Committee directed its recommendations more towards compliance with the Mental Health (Compulsory Assessment and Treatment) Act 1992. It is also important to note that the CRPD is concerned to remove discrimination across a range of laws that affect people with disabilities.

263 Interview with Paul Gibson, Disability Commissioner, Human Rights Commission. (A Douglass, Wellington, 2015).

264 Australian Law Reform Commission Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, Canberra, August 2014).

265 Other key principles are that representative decision-makers are appointed only as a last resort; and a person’s will, preferences and rights are to direct decisions that affect their lives. However, the Australian report says very little about how to implement measures to safeguard against abuse under art 12(4) of the CRPD. See Guidelines at 86 - 87 of Australian report.

266 Victorian Law Reform Commission Guardianship: Final Report 24 (VLRC, Melbourne, 2012) at 37 at [3.30].

267 Victorian Law Reform Commission, above n 266, at xxvii and xli. A similar continuum concept was developed (and subsequently revised) in the Irish Assisted Decision-Making Bill, see Chapter 1C.
  1. In 2014, a Bill was introduced to the Victorian Parliament which would have established Australia’s first supported decision-making model. However, it has not yet passed into law.268 Two of the reform initiatives were roundly criticised and were described as “botched”.269 There was conflation of the concepts of supported and substituted decision-making by creating “supportive guardians” and “supportive attorneys”, as well as a proposal for expedited appointment of parents as guardians or administrators of children lacking decision-making capacity on turning 18.270

268 Guardianship and Administration (G&A) Bill 2014. This was a partner Bill to the Powers of Attorney Bill 2014, which was passed and the Act commenced on 1 September 2015. The G&A Bill did not pass before the 2014 elections, which the governing conservative coalition lost. The Bill is no longer listed on the Victorian Legislation and Parliamentary Documents website (www.legislation.vic.gov.au).

269T Carney “What does the UN CRPD and Supported Decision-making Mean in the Real World?” Presentation to Capacity Australia conference, Sydney, 13 November 2015.

270T Carney “Supporting People with Cognitive Disabilities with Decision-Making: Any Australian Law Reform Contributions?” (2015) 15/23 Sydney Law School Legal Studies Research Paper at 2. Carney, above n 269.

  © 2019 Alison Douglass