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

TLDR

Supported decision making differs from general support by aiming to enhance legal capacity, requiring legal mechanisms that legitimize interdependent decision making and shared capacity. The article seeks to clarify the conceptual link between supported decision making and legal capacity, explore how this link informs practice development, and highlight the need for research on coexistence with substituted decision making and mental capacity assessment. The authors define supported decision making as a process that supports individuals, a system granting legal status, and a means to center a person’s will in substituted decisions, and they outline three conceptualisations that influence practice development. Greater understanding of these conceptual foundations enables practitioners to evaluate new law reforms more effectively and, if a robust theory emerges, empowers people with cognitive disabilities worldwide.

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.