People who face difficulty when making certain kinds of decisions should be provided with methods to support them to make these decisions before the appointment of a substitute decision-maker is resorted to.
The Act envisages that such processes will be used under the NDIS as the nominees provisions demonstrate. The NDIS objects and principles, however, use similar language as Article 12, strengthening arguments for the use of supported decision making at first instance when a participant encounters challenges in making decisions.
Furthermore, the principles guiding actions of people who may do acts or things on behalf of others outline that people with disability should be involved as far as possible in decision making processes that affect them and “the judgements and decisions that people with disability would have made for themselves should be taken into account”.
The NDIS process requires a participant, or his or her authorised representative, to make numerous decisions, some of which will have a significant impact on the participant’s life. If the Act’s objects and principles of maximised choice and control are not being realised in practice (for instance, a participant is presumed to not possess legal capacity without a genuine exploration of the person’s capabilities), advocacy may help protect the right to self-determination and prevent the person’s decision making being unfairly or unreasonably limited.
Specifically, advocacy may be needed to protect the rights of a person with disability to take reasonable risks, and determine his or her interest,s which are strengthened by the principles guiding actions under the Act. Advocacy and other forms of support may also assist person engaging in supported decision making to gather information, understand their rights and options under the NDIS and communicate preferences and aspirations.