Abstract
Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or “nominee” arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any “off the shelf” measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia’s National Disability Insurance Scheme and “disability trusts” in Australia and Canada).
Highlights
In its concluding observations on States parties’ initial reports, in relation to article 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that StatesLaws 2015, 4 parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences.” ([1], para. 26).In supported decision-making, the individual is always the primary decision maker, but it is acknowledged that autonomy can be communicated in a number of ways, provision of support in different forms and intervals can assist in the expression of autonomous decisions
While much of the focus in what follows is on realisation of individual choice and autonomy (a “negative” or “civil” right), paragraph 3 of Article 12 enunciates the rather neglected corollary of the “socio-economic” right, when it speaks of the obligation for States Parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”
The ALRC found the existing arrangements to be a mix of substitute, supported and informal decision-making, where “three key decision-making mechanisms include: autonomous decision-making by participants; informal supported decision-making; and substitute decision-making by nominees”, though the low rate of appointment of Commonwealth nominees at NDIS trial sites, none at all so far in NSW, meant that family
Summary
In its concluding observations on States parties’ initial reports, in relation to article 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that States. A supported decision-making regime comprises various support options which give primacy to a person’s will and preferences and respect human rights norms It should provide protection for all rights, including those related to autonomy (right to legal capacity, right to equal recognition before the law, right to choose where to live, etc.) and rights related to freedom from abuse and ill-treatment (right to life, right to physical integrity, etc.). Many of these supports have their existence outside and quite independently of the law 1, being reliant on natural familial or friendship relationships and civil society networks, including those constructed or facilitated by other individuals, services or agencies—whether lying inside or outside government Despite a number of enquiries and academic commentary, Australia has been slow to legislate supported decision-making by comparison with Canada or Sweden [6,32,33] 2
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