Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?

Abstract

Honouring the requirement of the Convention on the Rights of Persons withDisabilities to introduce supported decision-making poses many challenges. Not least of those challenges is in writing laws and devising policies which facilitate access to formal and informal supports for large numbers of citizens requiring assistance with day-to-day issues such as dealing with welfare agencies, managing income security payments, or making health care decisions. Old measures such as representative payee schemes or "nominee" arrangements are not compatible with the CRPD. However, as comparatively routine social security or other government services become increasingly complex to navigate, and as self-managed or personalised budgets better recognise self-agency, any "off the shelf" measures become more difficult to craft and difficult to resource. This paper focuses on recent endeavours of the Australian Law Reform Commission and other local and overseas law reform and policy initiatives to tackle challenges posed both for ordinary citizens and those covered by special programs (such as Australia's National Disability Insurance Scheme and "disability trusts" in Australia and Canada).

Assistive technologies for people with dementia: ethical considerations

“…This may result in more restrictive options: for example, the person living with dementia: (i) may have to officially appoint payment nominees or representative payees for pensions; 43 (ii) may be pressured to execute enduring or durable powers of financial attorney; or (iii) may have to resort to formal financial guardianship. This would be problematic under the convention, which rejects proxy decision-making 44 . On the other hand, the development of smart card technologies may offer better guarantees of personal privacy than are available under protective regimes that require the registration of durable powers as a condition of their recognition – a measure which may deter the adoption of such private planning options 45 …”

Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?

“…And that the withdrawal or winding back of most proxies, especially outside mental health treatment, is contingent on delivery of adequate Article 12(3) support in those settings. 5 This is because the right to SD is properly characterised as a socio-economic right (Carney 2015a). Fundamentally, then, SD as conceived in Article 12(3) is about ensuring that everyone has access to the necessary resources and assistive relationship(s) to enable full expression of their human agency as a relational being (see for example Herring 2016, p. 18;Gooding 2012, p. 435).…”

“…For instance calls have been made for more attention to be paid to the routine needs of large numbers of ordinary people (i.e., item (b): (Carney 2015a)) and concern expressed about neglect of the needs of people who are socially isolated (item (c)). But adapting Anna Arstein-Kerslake et al's observation that NDIS resourcing is already adequate to also properly fund SD, a start could very well be made with that population (noting however the authors difficult to avoid worry that SD may just become 'another service' controlled and delivered by others rather than by those being supported: (Arstein-Kerslake et al 2017)).…”

Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws

“…Terry Carney in this journal has explored the ways in which law reform bodies are taking up the challenge to find ways of supporting decision-making rather than staying with the status quo of substituted decision-making for those with "cognitive impairments" [53]. He addresses recent law reform proposals including those of the Australian Law Reform Commission in relation to "supporters" and "representatives" of those with mental and intellectual impairments [54].…”

“…He addresses recent law reform proposals including those of the Australian Law Reform Commission in relation to "supporters" and "representatives" of those with mental and intellectual impairments [54]. Carney argues that there is a case for "hastening slowly" in this regard in order to ensure a proper evidence base for "genuine" supported decision-making ( [53], p. 53).…”