Supported decision-making: a disability and human rights-based concept for mental health law

Abstract

This thesis examines whether or not the supported decision-making model provides a conceptual and practical alternative to the traditional substituted decision-making approach to mental health laws. Advancements in international human rights law, in particular the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), have generated new ideas and standards in law, policy and practice governing the provision of healthcare and disability support. One of these ideas, ‘supported decision-making,’ is advanced by the CRPD as the preferred response when the legal capacity of a person with a disability is potentially compromised. However, its operation in mental health law and policy and in practical support for people with psychosocial (mental health) disabilities remains unclear. This thesis seeks to identify what form supported decision-making may take, or may already take, in mental health law, policy and practice. The thesis concludes that supported decision-making, as it is advanced in the CRPD, addresses many but not all persistent issues in contemporary mental health laws. In particular, it provides people with psychosocial disabilities with substantive rights to access support services, as well as protecting against substituted decision-making under current laws. Ultimately, as a human rights concept that is embedded in the CRPD, supported decision-making holds promise as a alternative for the substituted decision-making approach of current mental health law. This thesis sets out to refine the conceptual understanding of supported decision-making in protecting the rights of persons with psychosocial disability in legal capacity-related laws, and offers recommendations for creating a ‘supported decision-making regime’ in domestic law and policy.