This article aims to help readers to understand the conceptual link between supported decision making and legal capacity and how this is influencing the development of practice. It examines how the concept has been defined as: a process of supporting a person with decision making; a system that affords legal status; and a means of bringing a person's will and preference to the centre of any substituted decision-making process. The conceptual link between supported decision making and legal capacity is explored by outlining three conceptualisations that are influencing the development of practice. It is important to understand the difference between supported decision making and support with decision making. Both involve offering support to a person who is unable to navigate decision making independently. However, the key difference is whether or not the process results in greater legal capacity for the individual. Additionally, supported decision making requires the development of legal mechanisms that le...

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Supported Decision Making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice

It is widely accepted among medical ethicists that competence is a necessary condition for informed consent. In this view, if a patient is incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient. We call this the competence model. According to a recent report of the United Nations (UN) High Commissioner for Human Rights, article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) presents a wholesale rejection of the competence model. The High Commissioner here adopts the interpretation of article 12 proposed by the Committee on the Rights of Persons with Disabilities. On this interpretation, CRPD article 12 renders it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired decision-making capacity and demands the replacement of all regimes of substitute decision-making by supported decision-making. In this paper, we explicate six adverse consequences of CRPD article 12 for persons with mental disabilities and propose an alternative way forward. The proposed model combines the strengths of the competence model and supported decision-making.

https://jme.bmj.com/content/medethics/44/4/226.full.pdf

Adverse consequences of article 12 of the UN Convention on the Rights of Persons with Disabilities for persons with mental disabilities and an alternative way forward.

Persons with mental illness (PWMI) are often not afforded the same opportunity to make decisions on a par with others in society. Article 12 of the International Convention on the Rights of Persons with Disabilities (CRPD) states that persons with disabilities should have equal recognition before the law and the right to exercise their legal capacity. Exercising legal capacity can mean making decisions about employment, medical or psychosocial treatment, property, finances, family, and participation in community activities. The aim of this paper is to comprehensively review the evidence on supported decision making for PWMI, both in legislation and research globally, with a focus on low- and middle-income countries (LMICs). Results reveal only a few countries have provisions for supported decision-making for PWMI, with a particular shortage of such provisions in legislation in LMICs There is also a general paucity of research evidence for supported decision-making, with the majority of research focusing on shared decision-making for treatment decisions. This review highlights the need for additional research in this area to better guide models, which can be utilised in domestic legislation, particularly in LMICs, to better implement the ideals of Article 12 of the CRPD.

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Supported Decision-Making for Persons with Mental Illness: A Review

Research shows that self-determination and the right to make life choices are key elements for a meaningful and independent life. Yet, older adults and people with disabilities are often placed in overly broad and restrictive guardianships, denying them their right to make daily life choices about where they live and who they interact with, their finances, and their health care. Supported decision-making (SDM)—where people use trusted friends, family members, and professionals to help them understand the situations and choices they face, so they may make their own decisions—is a means for increasing self-determination by encouraging and empowering people to make decisions about their lives to the maximum extent possible. This article examines the implications of overly broad guardianship and the potential for supported decision-making to address such circumstances. It introduces the National Resource Center for Supported Decision-Making as one means to advance the use of supported decision-making and increase self-determination.

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“The Right to Make Choices”: The National Resource Center for Supported Decision‐Making

The International Framework

In deceptively simple language, Article 12 of the United
Nations Convention on the Rights of Persons with Disabilities
(“CRPD”), Equal Recognition before the law,
provides that “States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others
in all aspects of life.” If, as is clear from the deliberations that
produced this article, Article 12’s use of the term “legal capacity”
includes not simply the capacity to have rights (or passive capacity)
but also the capacity to act or exercise one’s rights, an important
question that arises is how to address the circumstances of
individuals with disabilities who may not be able to exercise
their legal capacity without some kind of assistance or intervention.
Article 12(3) addresses this question in language that once
again seems straightforward and
uncontroversial: “States Parties
shall take appropriate measures
to provide access by persons
with disabilities to the support
they may require in exercising
their legal capacity.” Yet this
use of the word “support,” and
the related concept of supported
decision making, represents nothing
less than a “paradigm shift”
away from well-established but
increasingly discredited notions
of substituted decision making.
Rhetorical identification of the
shift from substituted to supported
decision making, however, is one thing; understanding
what these terms mean, and fully implementing a regime truly
oriented toward supporting rather than supplanting the decision making
rights of people with disabilities, is quite another matter.

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Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

This article addresses Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD), Equal recognition before the law, and its emphasis on supported decision making as one way in which an individual's legal capacity can be facilitated. After briefly describing Article 12 and the important paradigm shift it reflects, I identify the move from guardianship, or substituted decision making, to supported decision making that Article 12 represents. I then examine some of the early submissions on Article 12 that States Parties have made to the UN Committee on the Rights of Persons with Disabilities, pointing out that several of these responses reflect a fundamental understanding of what supported decision making is. I conclude by noting some steps that states, NGOs, and people with disabilities can take to make it more likely that Article 12 will have more than rhetorical significance.

Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making

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Client-Centered Counseling: Reappraisal and Refinement

In this article, the authors identify current trends in promoting supported decision-making as an alternative to guardianship for people with disabilities. Support for supported decision-making (SDM) and other reforms to guardianship can be found in international conventions and declarations (notably, Article 12 of the CRPD); Concluding Observations and General Comment No. 1 issued by the UN Committee on the Rights of Persons with Disabilities; and in various countries (or states/provinces/localities within those countries), including the United States, where developments in state legislation, state court cases (including the Jenny Hatch case, in which one of the co-authors was counsel and another testified as an expert witness), pilot projects, and financial support from the federal government have begun to articulate a robust vision of SDM.

Emerging International Trends and Practices in Guardianship Law for People with Disabilities

Of the 20 Americans with Disabilities Act (ADA) cases that the United States Supreme Court has decided in the 25 years of the statute’s existence, Olmstead v. L.C. by Zimring is without doubt the most significant for people with intellectual and developmental disabilities. Olmstead is the only Supreme Court ADA case that specifically addresses the rights of people with intellectual and developmental disabilities, but its importance goes well beyond this specific fact. In this essay, I set out the holding of the Olmstead decision, its connection to, and extension of, prior case law, the extent of its subsequent enforcement, and its implications in areas that go beyond the institutional context of the case itself.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2798226_code468680.pdf?abstractid=2749372&mirid=1

Robert Dinerstein

Papers

Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making

Client-Centered Counseling: Reappraisal and Refinement

Emerging International Trends and Practices in Guardianship Law for People with Disabilities

The Olmstead Imperative: The Right to Live in the Community and Beyond