Moving towards substituted or supported decision-making?

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) entered into force in May 2008. It is the first legally binding international treaty aimed specifically at protecting the rights of persons with disabilities. Ratifying State Parties have to either incorporate new laws or change existing laws, to meet their obligations of implementing the CRPD. Article 12 (Equal Recognition before the Law) of the CRPD supports legal capacity (recognition of a person’s right to make decisions). It has been claimed that “it challenges literally centuries of legal practice which may now be directly contrary to Article 12 and therefore requires examination by States to ensure that legislation complies with the Convention…” (McLay, 2008). In relation to the interpretation of Article 12, most jurisdictions have incorporated substitute decision-making (e.g., guardianship) rather than supported decision-making in their legislation. The best interpretation of Article 12 requires a supported decision-making model. This paper will illustrate this point by (a) examining different approaches to legal capacity, (b) clarifying the distinction between substituted and supported decision-making, (c) examining the history of Article 12 in light of substituted and supported decision-making, and (d) arguing on the basis of history and the deliberation process of the CRPD, that Article 12 requires state parties to implement supported decision-making.