Are supported decision-making alternatives available to all persons with disabilities?

Explanation

A supported decision-making regime comprises various support options which give primacy to a person’s will and preferences and respect human rights norms. It should provide protection for all rights, including those related to autonomy (right to legal capacity, right to equal recognition before the law, right to choose where to live, etc.) and rights related to freedom from abuse and ill-treatment (right to life, right to physical integrity, etc.). This distinguishes supported decision-making from substituted decision-making, where the guardian or tutor has court-authorized power to make decisions on behalf of the individual without necessarily having to demonstrate that those decisions are in the individual’s best interest or according to his/her wishes. States’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives.

In detail

Summary

There is still a lot to do in terms of equal recognition before the law, in particular in terms of monitory mechanisms which lack in various countries and guardianship systems that still exist in many countries. While 43% of respondents stated supported decision-making alternatives are available but not to all persons with disabilities or lack in adequate support for their realisation, 41% claimed they are not available. respondents highlighted several issues including:

  • The problem of little knowledge on the freedom of speech for PWDs.
  • No monitoring- no policies or institution monitoring independent decision making
  • A replacement system is common for decision making- i.e.: guardians.
Comments

“Supported decision making alternatives are available in some provinces and territories for some persons with disabilities but not at a federal level, and exclusive on the most part for persons with intellectual disabilities.” (Tara Brinston, Canadian Association for Community Living, Canada)

“Supported decision making is available, but is not sufficiently monitored to ensure the guardian has indeed allowed the views of the PWD to be respected.” (Pat Farr, Coordinator, Cook Islands National Disability Council, Member of DPI, Cook Islands)

“Supportive decision-making will only be available to people who are assessed to have mental capacity to make decisions with support.” (Berit Vegheim, Chair, Civil Rights Foundation Stop Discrimination, member of DPI, Norway)

CRPD Article

Article 12: Equal recognition before the law

“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”

(UN Convention on the Rights of Persons with Disabilities)

Article 19- Living independently and being included in the community

“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

(UN Convention on the Rights of Persons with Disabilities)