The UN Convention on the Rights of People with Disabilities affirms the right to equal recognition before the law. Article 12 provides that measures relating to the exercise of legal capacity, such as guardianship, must:
- respect the rights, will and preferences of the person;
- be free of conflict of interest and undue influence;
- be proportional and tailored to the person’s circumstances;
- apply for the shortest time possible; and
- be subject to regular review by a competent independent and impartial judicial body[Article 12].
Article 12 also requires that appropriate measures are taken to provide access by persons with disabilities to the support they may require in exercising their legal capacity. Developing practice and evidence of how people may be better supported to make decisions refers to this provision of support as supported decision making.
A supported decision making model allows and enables people with impaired decision making ability to engage in decision making to the extent of their capacity, rather than assigning a public advocate or other guardian to make decisions for them.
Often control has been denied to people with disabilities on the justification of protecting the person’s interests from the consequences of poor choices. Demonstrating that a person can make decisions does not equate to showing that he or she always chooses the option with the best outcome or makes sensible decisions.
Rather, decision making capacity exists where the person is able understand the information relevant to making a particular decision, weigh up and assess options, appreciate the reasonably foreseeable consequences and risks, in order to make an informed choice. Legal personhood includes a freedom to take risks and determine one’s own interests and priorities.
When authorities are determining whether substitute decision making is necessary in a particular case, advocacy may help to ensure that the decision making of the person with disability is assessed on an equal basis, and not by a restrictive standard, to avoid a discriminatory paternalistic imposition of values.
There will always be some subjectivity when determining whether decisions fall within limits of reasonableness, but a person with disability should not be deprived of control because he or she does not always make judicious choices. Persons without disability are entitled to make risky decisions without their capacity being questioned.
The focus should be on the decision making process, and how the person can be better supported in that, rather than a narrow assessment of the wisdom of a choice made.