Getting the balance right: conceptual considerations concerning legal capacity and supported decision-making

Parker, Malcolm (2016) Getting the balance right: conceptual considerations concerning legal capacity and supported decision-making. Journal of Bioethical Inquiry, . doi:10.1007/s11673-016-9727-z


Author Parker, Malcolm
Title Getting the balance right: conceptual considerations concerning legal capacity and supported decision-making
Journal name Journal of Bioethical Inquiry   Check publisher's open access policy
ISSN 1872-4353
1176-7529
Publication date 2016-06-21
Year available 2016
Sub-type Article (original research)
DOI 10.1007/s11673-016-9727-z
Open Access Status Not Open Access
Total pages 13
Place of publication Dordrecht, Netherlands
Publisher Springer Netherlands
Collection year 2017
Language eng
Formatted abstract
The United Nations Convention on the Rights of Persons with Disabilities urges and requires changes to how signatories discharge their duties to people with intellectual disabilities, in the direction of their greater recognition as legal persons with expanded decision-making rights. Australian jurisdictions are currently undertaking inquiries and pilot projects that explore how these imperatives should be implemented. One of the important changes advocated is to move from guardianship models to supported or assisted models of decision-making. A driving force behind these developments is a strong allegiance to the social model of disability, in the formulation of the Convention, in inquiries and pilot projects, in implementation and in the related academic literature. Many of these instances suffer from confusing and misleading statements and conceptual misinterpretations of certain elements such as legal capacity, decision-making capacity, and support for decision-making. This paper analyses some of these confusions and their possible negative implications for supported decision-making instruments and those whose interests these instruments would serve, and advises a more incremental development of existing guardianship regimes. This provides a more realistic balance between neglecting the real limits of those with mental disabilities and thereby ignoring their identity and particularity, and continuing to bring them equally and fully into society.
Keyword Decision-making capacity
Disability guardianship legal capacity supported decision-making
Guardianship legal capacity supported decision-making
Legal capacity
Supported decision-making
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
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Created: Fri, 01 Jul 2016, 15:10:20 EST by Dr Malcolm Parker on behalf of School of Medicine