Assumptions of Decision-Making Capacity: The Role Supporter Attitudes Play in the Realisation of Article 12 for People with Severe or Profound Intellectual Disability

Joanne Watson

doi:10.3390/laws5010006

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was the first legally binding instrument explicitly focused on how human rights apply to people with disability. Amongst their obligations, consistent with the social model of disability, the Convention requires signatory nations to recognise that “…persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and mandates signatory nations to develop “…appropriate measures to provide access by persons with disability to the support they may require in exercising their legal capacity”. The Convention promotes supported decision-making as one such measure. Although Australia ratified the UNCRPD in 2008, it retains an interpretative declaration in relation to Article 12 (2, 3, 4), allowing for the use of substituted decision-making in situations where a person is assessed as having no or limited decision-making capacity. Such an outcome is common for people with severe or profound intellectual disability because the assessments they are subjected to are focused on their cognition and generally fail to take into account the interdependent nature of human decision-making. This paper argues that Australia’s interpretative declaration is not in the spirit of the Convention nor the social model of disability on which it is based. It starts from the premise that the intention of Article 12 is to be inclusive of all signatory nations’ citizens, including those with severe or profound cognitive disability. From this premise, arises a practical need to understand how supported decision-making can be used with this group. Drawing from evidence from an empirical study with five people with severe or profound intellectual disability, this paper provides a rare glimpse on what supported decision-making can look like for people with severe or profound intellectual disability. Additionally, it describes the importance of supporters having positive assumptions of decision-making capacity as a factor affecting supported decision-making. This commentary aims to give a focus for practice and policy efforts for ensuring people with severe or profound cognitive disability receive appropriate support in decision-making, a clear obligation of signatory nations of the UNCRPD. A focus on changing supporter attitudes rather than placing the onus of change on people with disability is consistent with the social model of disability, a key driver of the UNCRPD.

Highlights

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is the first human rights treaty of the twenty-first century, it is the first legally binding instrument thatLaws 2016, 5, 6; doi:10.3390/laws5010006 www.mdpi.com/journal/lawsLaws 2016, 5, 6 explicitly provides an explanation of how human rights can be applied to people with disability [1]. Australia ratified the Convention in 2008, it included an Interpretative Declaration relating to Article 12
Within an Australian context, while an interpretative declaration allowing for substitute decision-making for people with severe or profound cognitive disability is in place, there is no legislative incentive for researchers to work toward enhancing this group’s capacity to lead self-directed lives
In its report the Commission emphasised the universality of the right to lead a self-directed life, suggesting that the understanding articulated in the Australian Declaration does not comprehend the true intention of Article 12, which extends beyond the provision of supported decision-making to include measures that respect a person’s autonomy, will and preferences

Summary

Introduction

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is the first human rights treaty of the twenty-first century, it is the first legally binding instrument that. Within an Australian context, while an interpretative declaration allowing for substitute decision-making for people with severe or profound cognitive disability is in place, there is no legislative incentive for researchers to work toward enhancing this group’s capacity to lead self-directed lives. In its report the Commission emphasised the universality of the right to lead a self-directed life, suggesting that the understanding articulated in the Australian Declaration does not comprehend the true intention of Article 12, which extends beyond the provision of supported decision-making to include measures that respect a person’s autonomy, will and preferences. In its report the ALRC pays explicit attention to the exclusionary impact this lack of understanding of the intention of Article 12, has on people with severe or profound cognitive disability [22]

Empirical Study Methodology

Empirical Study Findings and Implications

Supporter Responsiveness

Conclusions