Chapter 2 – Supported Decision-making

Chapter 2 is in five sections:

  1. The human rights concepts in the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

  2. The common legal principles in both the Mental Capacity Act (England and Wales) and the Protection of Personal and Property Rights Act 1988.

  3. The notion of autonomy as understood in ethics and in the law.

  4. New Zealand’s cultural dimension and tikanga Māori.

  5. Supported decision-making in practice and in English case law.Setting the context and understanding the legal concept of capacity.

Introduction

  1. This chapter considers the impact of human rights instruments and the paradigm shift promoted in the United Nations Convention on the Rights of Persons with Disabilities (CRPD),223 from substituted decision-making to supported decision-making.224  It considers the role of the law and argues that substituted and supported decision-making regimes are not mutually exclusive: there is a place for both of them in law and they can coexist.

  2. Supported decision-making refers to a process of providing support to people whose decision- making ability is impaired, to enable them to make their own decisions whenever possible.225 Originally developed in Canada as an alternative conceptual framework for decision-making, the idea of supported decision-making challenged the belief that personal autonomy could only be expressed independently.226 It was seen as a way to overcome barriers for people with intellectual disabilities. The concept now has far greater reach, applying to people with a wide range of impairments that affect decision-making. While the concept has gained international traction, it poses significant challenges for the development of law and policy. This is due in part to multiple and sometimes confused understandings of what legal capacity and supported decision-making actually entail and how to translate those concepts into workable laws. Therefore, it is essential to have a clear understanding of these human rights concepts when undertaking a review of the law and to place them in a social and cultural context.

  3. Contemporary thinking in ethics reflects a shift in focus from individual notions of autonomy to accounts of autonomy that affirm the importance of relationships in exercising legal capacity. The positive obligation to recognise support relationships in the CRPD also has synergies with tikanga Māori, where the values of individual autonomy and collective decision- making processes can work alongside each other. This chapter makes connections between supported decision-making as understood in human rights law, legal principles, ethics and Aotearoa/New Zealand’s own cultural dimension.

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.

  © Copyright 2017 Alison Douglass