Supported decision-making – in law

  1. Supported decision-making is a central concept in art 12 of the CRPD. It is based on the idea that all adults, except in limited circumstances, have some level of ability and should be entitled to make decisions expressing their will and preferences, but may require varying levels of support to do so. Rather than question whether a person has capacity to make decisions – reflecting a “binary view” of capacity and decision-making – the preferable approach is to ask what level of support, or what mechanisms, are necessary to support people to express their will or preferences.271 Supported decision-making can be referred to as a process, a mechanism, a system, or a framework.272 The concept encompasses a range of support mechanisms from informal to formal. Carney summarises a number of these: 273
  1. effective communication, especially in providing information and advice to a person and ensuring they are able to communicate their decisions to others;
  2. spending time to determine a person’s preferences and wishes;
  3. informal relationships of support between a person and members of their social networks;
  4. agreements or appointments to indicate that a relationship of support exists; and
  5. statutory relationships of support – whether through private or court/tribunal appointment.
  1. Unlike traditional guardianship law, supported decision-making focuses on people retaining their legal powers of decision, but a third party is authorised by law to do such things as provide assistance, or access and share their personal information.274 As understood in human rights law, supported decision-making involves more than support with decision- making: it is about providing an alternative legal mechanism that give people legal standing where possible and to recognise their needs within the framework of the law.275

  2. Legal capacity can be understood as a continuum in which supported decision-making occurs throughout. There is a point along the continuum in which a person may be found unable to make a legally binding decision, even with support (here the person loses legal agency but retains legal standing).276 Where this point is to be found depends on the complexity of the decision. But the likely will and preferences of the person still remain central to the decision- making process.

  3. There are some challenges in establishing legal frameworks in line with the CRPD. The lack of a clear definition of supported decision-making has led to conceptual confusion about what it means in law. Its connection to the concept of legal capacity is not entirely clear. Nor is it clear how substitute decision-making and the modern notion of supported decision-making are to co-exist. There will be some situations when a person is completely unable to participate in decisions, such as when in a coma. There will also be circumstances where a person with impaired capacity is given support but they may still lack the ability to make a decision for themselves. In these situations a substitute decision-maker will need to make a decision for them.
Supported decision-making – a legal principle
  1. Existing legal principles in both the MCA and PPPR Act implicitly assume that there is a role for supported decision-making, more expressly so in the MCA. These legal principles and concepts govern all decisions made and actions taken under both mental capacity laws. They are the aids to interpreting the law. Both the MCA and the PPPR Act have principles that are remarkably similar except for the MCA’s overriding decision-making principle of the person’s best interests.277 By comparison, best interests is not an express principle of the PPPR Act; instead its primary objectives are to make the least restrictive intervention and to maximise the person’s capacity to participate in decision-making.278

271 Australian report, above n 264 at 93.

272 Browning, Bigby and Douglas, above n 226 at 36.

273 T Carney “Participation and Service Access Rights for People with Intellectual Disability: A Role for the Law?” (2013) 38 J Intell Devel Disab 59 at 66.

274 T Carney, above n 273 at 60.

275 Browning, above n 226 at 40.

276 Browning, above n 226 at 39.

277 Mental Capacity Act 2005, ss 1(5) and 4.

278 Protection of Personal and Property Rights Act 1988, s 8(1) and (2). Under the HDC Code, where a person has diminished competence for decision-making they still retain the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence: Right 7(3).

Figure 2: Legal principles

  1. All legal principles in the MCA and the PPPR Act are underpinned by the ethical notion of autonomy to a lesser or greater degree, even though the value of autonomy in some situations is contested. The presumption of capacity,279 maximising a person’s capacity, and maintaining their freedom to make unwise decisions (if capable or “capax”),280 reflect the legal “right” to non-interference and to make decisions for one’s self.

  2. The “unwise decisions” principle asserts that people are entitled to make imprudent decisions so long as they have the capacity to do so.281 Thus, a person cannot be deemed to lack capacity just because health professionals, or even the court, disagree with their decisions. But making unwise choices may be sufficient to raise doubts as to the person’s capacity, for example, if this is out of character.282 It is an assessment of a person’s decision-making ability and not the substance of the decision they make, that is relevant to the court exercising jurisdiction. Despite this “imprudence limitation”, under the PPPR Act the court may still consider that the appointment of a welfare guardian is the only way to achieve “appropriate” decisions, one of the criteria for appointing a welfare guardian.283

  3. Both English and New Zealand statutes have principles akin to the notion of supported decision-making but there are few mechanisms to prioritise or enforce them. In the MCA, a person is “not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”284 The accompanying Code of Practice under the MCA provides guidance to professionals and decision-makers on how to support people to understand relevant information during assessment of their capacity and to enhance their capabilities for decision-making.285

279 The PPPR Act affirms the common law presumption of competence. The presumption is rebuttable and the legal burden of establishing lack of competence falls on the person alleging it. The presumption of competence appears in s 5 Part 1, Personal Rights, s 24, Part 5 Property Rights and s 93B Enduring Powers of Attorney, the Protection of Personal and Property Rights Act 1988. Under the HDC Code the presumption of competence is recognised in Right 7(2).

280 “Capax/incapax” is Latin for capable/incapable, latin-dictionary.net.

281 Mental Capacity Act 2005, s 1(5); Protection of Personal and Property Rights Act 1988, s 6(3).

282 P Letts (ed), Assessment of Mental Capacity, A Practical Guide for Doctors and Lawyers (3rd ed, The British Medical Association and the Law Society, 2010) at 27.

283 Protection of Personal and Property Rights Act 1988, s 12(2).

284 Mental Capacity Act 2005, s 1(3).

285 Office of the Public Guardian Mental Capacity Act Code of Practice (TSO, London, 2013) at 29.

  1. In the PPPR Act, one of the primary objectives is to maximise a person’s capacity to the greatest extent possible. This is sometimes referred to as the “empowerment principle”. This description overstates the weight attached to it in practice, as it tends to be overshadowed by the other primary objective of making the least restrictive intervention.286 Both these principles generally come into play only after a person has been found to lack capacity and an intervention is considered necessary. For example, only after a welfare guardian has been appointed are they placed under a duty to consult the person subject to the order and to maximise their participation in decisions.287

  2. The weakness of this legal framework is that there is no positive obligation to support the person to exercise their capacity at the beginning of the decision-making process; or, put another way, there is no presumption of supported decision-making. Furthermore, if a person lacks capacity and intervention is considered necessary, the framework does not emphasise that their will and preferences are still to be taken into account when decisions are made by others.

286 The objective of maximising a person’s participation to the greatest extent possible is rarely referred to in Family Court judgments.

287 Protection of Personal and Property Rights Act 1988, s 12.

  © 2020 Alison Douglass