Abstract
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making (SD) has largely been a case of much talk and little real action. As a socio-economic right, actualising support is resource-intensive as well as being fairly uncharted territory in terms of what works, to what degree and for how long benefits last. This paper, drawing lightly on mainly Australian examples, considers unexplored (and sometimes unorthodox) approaches such as the ‘needs-based’ principle for setting social welfare priorities as possible ways of revitalising SD through progressive realisation, whether through civil society programs or under the law. It argues that pure repeal of proxy decision-making on its own is not viable in realpolitik terms so progressive realisation of ‘repeal with adequate support’ must instead be devised for SD implementation to progress.
Highlights
Article 12 of the Convention on the Rights of Persons with Disabilities (2006)1 (‘CRPD’) is widely, but certainly not universally, understood in line with the views of the monitoring Committee as calling for the repeal of substitute decision-making regimes—such as adult guardianship or proxy decision-making for involuntary mental health patients—and for their replacement with supported-decision-making (‘supported decision-making (SD)’) which does not transfer any decision making away from the person.The repeal arm located in Article 12(1), (2) advances a civil right, while the provision of support subject to ‘safeguards’ arm found in Articles 12(3), (4), arguably is a socio-economic right
This paper suggests that the answer to such questions is more ‘yes’ than ‘no’, and in addressing some of these themes, it sketches some ideas on how SD implementation may begin to be reimagined and the stalled progress rectified
This paper was stimulated by the apparently glacial progress made in the decade since the CRPD enunciated the right to support
Summary
Article 12 of the Convention on the Rights of Persons with Disabilities (2006) (‘CRPD’) is widely, but certainly not universally, understood in line with the views of the monitoring Committee as calling for the repeal of substitute decision-making regimes—such as adult guardianship or proxy decision-making for involuntary mental health patients—and for their replacement with supported-decision-making (‘SD’) which does not transfer any decision making away from the person. This paper suggests that the answer to such questions is more ‘yes’ than ‘no’, and in addressing some of these themes, it sketches some ideas on how SD implementation may begin to be reimagined and the stalled progress rectified In doing so it characterises the SD arm of Article 12 as a socio-economic right due to its capacity-building personal development and associated significant resourcing implications for supporters, meaning both that progressive realisation (and non-retrogression) tests must be met, and that there is salience to conversations closer to traditional welfare allocation (and priority setting) debates. Channelling Jenny Goldschmidt’s CRPD focus on pursuit of transformative equality and justice—engaging principles of equality, accessibility, autonomy, participation and inclusion (Goldschmidt 2017)—this paper takes a broad brush look at new ways of realising CRPD substantive equality rights in the world of realpolitik, lightly engaging some concrete examples from Australia regarding possible priorities to be favoured.
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