Supported Decision Making: Understanding How its Conceptual Link to Legal Capacity is Influencing the Development of Practice

Abstract

This article aims to help readers to understand the conceptual link between supported decision making and legal capacity and how this is influencing the development of practice. It examines how the concept has been defined as: a process of supporting a person with decision making; a system that affords legal status; and a means of bringing a person's will and preference to the centre of any substituted decision-making process. The conceptual link between supported decision making and legal capacity is explored by outlining three conceptualisations that are influencing the development of practice. It is important to understand the difference between supported decision making and support with decision making. Both involve offering support to a person who is unable to navigate decision making independently. However, the key difference is whether or not the process results in greater legal capacity for the individual. Additionally, supported decision making requires the development of legal mechanisms that legitimise the interdependent nature of decision making and the concept of shared capacity. By having a greater understanding of the conceptual foundations of supported decision making, practitioners can engage in more focused evaluation of proposed new law reform and practice. Research will be vital in understanding how supported and substituted decision making could coexist and how mental capacity could be assessed in this new decision-making paradigm. If a more substantial theory of practice can be developed, supported decision making has the potential to empower and enrich the lives of people with cognitive disabilities, both in Australia and all over the world.

Keywords:

• supported decision making
• legal capacity
• support with decision making and practice

Acknowledgements

Thank you to Lucy Knox and John Chesterman for providing valuable feedback in the development of this article.

Notes

1. Legal capacity as defined by the Commissioner for Human Rights (2012) is “a person's power or possibility to act within the framework of the legal system” (p. 7).

2. The Vulnerable Persons Living with a Mental Disability Act, CCSM c.V90 1993 (Manitoba); Representation Agreement Act, RSBC 1996 c.405 (British Columbia); Adult Guardianship and Co-decision Making Act, SS 2000 (Saskatchewan); Decision Making, Support and Protection to Adults Act, 2003 (Yukon); Adult Guardianship and Trusteeship Act, SA 2008 (Alberta).

3. Definition retrieved 3 February 2014, from http://www.un.org/disabilities/default.asp?id=262