Arstein-Kerslake, A --- "Legal Capacity and Supported Decision-Making: Respecting Rights and Empowering People" [2016] UMelbLRS 1

Last Updated: 22 May 2019

Legal Capacity and Supported Decision-Making:
Respecting Rights and Empowering People
Dr Anna Arstein-Kerslake, J.D.
Melbourne Law School,
The University of Melbourne

Author’s note
Dr Arstein-Kerslake is a lecturer at Melbourne Law School, University of Melbourne, where she has founded the Disability Human Rights Clinic for Juris Doctorate students. She is also the Academic Convener of the Hallmark Disability Research Initiative at the University of Melbourne, which stimulates interdisciplinary disability research using a social justice framework.

Portions of this article are re-printed from the author’s PhD thesis, Restoring Voice to People, which will be published by Cambridge University Press in a forthcoming book in 2016. The research for this article was supported by funding from the European Union FP7 Marie Curie Initial Training Network, Disability Rights Expanding Accessible Markets (DREAM), in which Dr Arstein-Kerslake was a research fellow from 2011-2014 under the supervision of Professor Gerard Quinn at the Centre for Disability Law and Policy (CDLP) at the National University of Ireland, Galway (NUIG).

Correspondence concerning this article should be addressed to Dr Anna Arstein-Kerslake.
Contact: [e-mail]

Abstract

This article presents an overview of the right to legal capacity and the accompanying state obligation to provide support for the exercise of legal capacity. It addresses the provisions of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) and the UN Committee on the Rights of Persons with Disabilities’ interpretation of Article 12 in their first General Comment. Finally, it identifies the impact of the denial of legal capacity on the lives of people with disabilities and analyses areas of the law in need of reform.

Legal Capacity and Supported Decision-Making:
Respecting Rights and Empowering People

1. INTRODUCTION

Sándor Harmati is an advocate, an activist, a man with Down syndrome, and an individual living under a plenary guardianship that denies his right to legal capacity (Harmati, 2010). Mr. Harmati is a Hungarian man who has worked with disability advocacy groups in Hungary to lobby for the reform of Hungary’s restrictive guardianship laws which have resulted in Mr. Harmati suffering violations of many of his human rights, such as being prohibited from voting (Hungarian Constitution, Article 70(2)), working, and marrying (Mental Disability Advocacy Centre, 2007, p. 45). Unfortunately, legal capacity denials resulting in human rights violations, are not unique to Hungary. Instead, they are endemic across the globe.
The Convention on the Rights of People with Disabilities (UNCRPD) is the first international treaty to recognize that all people, including those with disabilities, should enjoy legal capacity on an equal basis in all areas of life. It was the fastest negotiated human rights treaty in the history of the United Nations (Geisinger & Stein, 2008, pp. 1129-1142, 1142). 82 countries signed on the opening day; the highest number of any UN Convention on its opening day (United Nations, 2011). Disability rights is an area that people from a broad range of political affiliations are willing to support. However, the resistance to Article 12 of the convention is palpable. It has been one of the most contentious areas in the convention. Article 12 seems to touch a nerve. It asks us to strip away the paternalistic instinct to protect people with disabilities. It asks us to deconstruct centuries old systems of substituted decision-making, such as guardianship, conservatorship, deputyship, wardship, and mental health law. The resistance to Article 12 may reveal the truth behind the willingness of governments to ratify the convention: an ever-pervasive stigma related to perceived ‘difference’ in people labeled as disabled, which is perpetuated via pity and a willingness to provide merely paternalistic protection and charity, rather than real opportunities for individuals to be respected and recognized as full citizens.
Understanding of the right to legal capacity has steadily developed since the adoption of the CRPD in 2006 (Committee on the Rights of Persons with Disabilities (CRPD), 2014; Dhanda, 2006-7, 2012; Minkowitz, 2006-7, 2010; Arstein-Kerslake, 2014; Flynn & Arstein-Kerslake, 2014a; Gooding, 2015; Series, 2015). This article provides an overview of that understanding and additional clarity around the right to legal capacity and the accompanying state obligations.

2. DEFINING ‘LEGAL CAPACITY’ AND THE OBLIGATIONS IN ARTICLE 12

Without the right to make fundamental decisions, such as where to reside and what kind of medical care to receive, a person is relegated to the status of an object rather than an independent human being with thoughts, emotions, and opinions (Quinn et al., 2002). The recognition of legal capacity is the tool that allows an individual access to make these decisions. It is the freedom to be a holder of rights and obligations as well as the freedom to exercise those rights and undertake those duties (CRPD, 2014, paragraph 12; Office of the United Nations High Commissioner for Human Rights, 2005, pp. 1, 13).
The recognition of a right to legal capacity in the CRPD signifies that all people have an equal right to make decisions on their own behalf (Bach & Kerzner, 2010). This means that where legal capacity can be denied to an individual, it must be done on an equal basis for people with and without disability. This requires both disability-neutral legislation as well as implementation of the legislation in such a way that ensures it is not disproportionately applied to people with disabilities (CRPD, 2014; Flynn & Arstein-Kerslake, 2014b).
Article 12 creates a state obligation to provide access to support for the exercise of legal capacity. This is one of the great innovations in the CRPD. It implicitly recognizes that everyone uses support in decision-making and that differing abilities call for differing amounts of outside aid. This acknowledges that autonomy can be exercised interdependently and that the state has a duty to ensure that everyone has the assistance required to exercise their autonomy.
Article 12 demands that supported decision-making systems replace all forms of substituted decision-making systems, such as guardianship and compulsory mental health treatment. This is stated in the UN Committee on the Rights of Persons with Disabilities’ General Comment No.1 (CRPD, 2014, paragraphs 25-28), discussed below. It is also stated in the Committee’s Concluding Observations in response to several countries’ state reports. (CRPD, 2011a, paragraph 25; CRPD, 2011a, paragraph 5; CRPD, 2012, paragraph 4; CRPD, 2013, paragraph 25). Article 12 requires States to support individuals who are in need of it and to safeguard against abuse within that support system (CRPD, 2014, paragraph 20; UNCRPD, Articles 12 and 16). This calls for a system of supported decision-making that could take many different forms including one trusted support person or a network of support people providing assistance on a one-time basis or consistently throughout an individual’s life.
Essential to a system of support is the provision of tools for augmenting decision-making capacity (Quinn, 2011). There should be an assumption that every individual has decision-making potential, although may need assistance developing those skills and expressing their wills and preferences. No one should be forced to augment their decision-making skills. However tools for such augmentation should be available. The goal of a support system should be to respect everyone’s varying decision-making methods and skills. It should not cater to the notion that there is one standard of ‘good’ decision-making that everyone should try to achieve.
Article 12 requires more than merely reforming current legal capacity law to make it disability neutral on its face. This would likely not remedy the disproportionate application of legal capacity denials to people with disabilities. It would also not adequately protect the rights, will and preferences of people with disabilities as required in Article 12(4). The replacement of substituted decision-making regimes with supported decision-making regimes is intented to provide the opportunity to remedy current unequal treatment of people with disabilities in the denial of legal capacity and also the opportunity to re-evaluate the systems that exist and ensure that all individuals faced with legal capacity denials have their rights, will and preferences respected.

3. UN CRPD COMMITTEE GENERAL COMMENT No. 1

In April 2014, the CRPD Committee adopted General Comment (GC) No. 1 on the Right to Equal Recognition Before the Law. The author of this article supported the Committee in the drafting and adoption of the GC in Geneva. The GC is an authoritative interpretation of Article 12. It was created because of a concern that the rights and obligations in Article 12 were being misinterpreted. The GC outlines the rights and obligations and begins to provide guidance on the implementation of the various provisions of the Article.
Two of the most important contributions of the GC are the definition of impermissible substituted decision-making regimes and the guidelines on support for the exercise of legal capacity. The GC defines substituted decision-making as any system in which the individual’s legal capacity is denied, an outside decision-maker is appointed against the will of the individual, and that decision-maker makes decisions in the ‘best interests’ of the individual without an obligation to uphold the will and preference of the individual (CRPD, 2014, paragraph 27). A denial of legal capacity occurs, when an individual is either not respected as a person before the law or is not permitted to exercise legal agency. An outside decision-maker is anyone that is not the individual themselves. An appointment occurs against the will of the individual when the individual is expressing that they do not want an outside decision-maker and such an appointment is made regardless. Best interests decision-making occurs where the outside decision-maker is empowered to make whatever decision she or he believes would be in the best interests of the individual. A system is incompliant with Article 12 if it denies legal capacity and appoints an outside decision-maker against the will of the individual and permits that decision-maker to use a best interest paradigm.
There has been continued misinterpretation of what constitutes impermissible substituted decision-making under Article 12. There will situations in which someone else needs to make a legal decision on behalf of another person, for example where the will and preference of the individual cannot be ascertained. The demand to replace substituted decision-making regimes with support paradigms leaves room for such decisions. If it did not, it would be unworkable and impractical. The need for such decision-making will occur in nearly everyone’s lives and the law must provide a response for when that situation arises. Article 12 merely requires that when the situation arises, the law’s response does not amount to ‘substituted decision-making,’ as defined by the GC and discussed above (CRPD, 2014, paragraph 27). This disallows many pieces of legislation and practices that currently exist, including much of mental health law. However, it does not disallow all decisions that are made on behalf of another person. Instead, it demands that the law responds differently to such situations. It demands that the law respect the right to legal capacity of all on and equal basis and implement a paradigm of support.
The guidelines provided in the GC on the implementation of a support paradigm for the exercise of legal capacity are as follows:

(a) Supported decision-making must be available to all. A person’s level of support needs, especially where these are high, should not be a barrier to obtaining support in decision-making;

(b) All forms of support in the exercise of legal capacity, including more intensive forms of support, must be based on the will and preference of the person, not on what is perceived as being in his or her objective best interests;

(c) A person’s mode of communication must not be a barrier to obtaining support in decision-making, even where this communication is non-conventional, or understood by very few people;

(d) Legal recognition of the support person(s) formally chosen by a person must be available and accessible, and States have an obligation to facilitate the creation of support, particularly for people who are isolated and may not have access to naturally occurring support in the community. This must include a mechanism for third parties to verify the identity of a support person as well as a mechanism for third parties to challenge the action of a support person if they believe that the support person is not acting in accordance with the will and preferences of the person concerned;

(e) In order to comply with the requirement, set out in article 12, paragraph 3, of the Convention, for States parties to take measures to “provide access” to the support required, States parties must ensure that support is available at nominal or no cost to persons with disabilities and that lack of financial resources is not a barrier to accessing support in the exercise of legal capacity;

(f) Support in decision-making must not be used as justification for limiting other fundamental rights of persons with disabilities, especially the right to vote, the right to marry, or establish a civil partnership, and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty;

(g) The person must have the right to refuse support and terminate or change the support relationship at any time;

(h) Safeguards must be set up for all processes relating to legal capacity and support in exercising legal capacity. The goal of safeguards is to ensure that the person’s will and preferences are respected.

(i) The provision of support to exercise legal capacity should not hinge on mental capacity assessments; new, non-discriminatory indicators of support needs are required in the provision of support to exercise legal capacity. (CRPD, 2014, paragraph 29)
The primary goal of these guidelines is to ensure that the rights, will and preferences of individuals using support are protected. This means that the will and preferences of the individual must be central to any system related to the exercise of legal capacity. It also means that such a system must include safeguards to protect the full gamut of rights, including rights to autonomy (UNCRPD, Articles 12 and 19(a)) and rights to health and physical integrity (Articles 17 and 25).

4. THE SUPPORT PARADIGM

The denial of decision-making power to individuals with disabilities is a pervasive and harmful form of discrimination (Winick, 1992). Article 12 of the CRPD recognizes that every person has a will, desires, and needs - and that every person is capable of making choices accordingly. Not every person is able to express her choices in ways that are conventionally accepted communication. Some people communicate through words, others through signs, others through writing, and others through simple smiles. When a person communicates with the world in unconventional ways, others may not recognize that she is communicating and expressing her likes and dislikes, needs and desires. Whichever way an individual communicates, conventional or not, Article 12 requires that their desires not be ignored. The support paradigm is a system in which people work together to understand an individual’s desires and choices and then provide the means for that person to exercise legal capacity and live life in the way she or he chooses as opposed to a way imposed by someone else’s decision made on her or his behalf (Flynn and Arstein-Kerslake, 2014a).
The support paradigm reflects the social model of disability (Jesperson, n.d.). The social model perceives disability as a creation of a society that is unwilling to make the slightest bend to address the needs of those that may be outside of the ‘norm.’ It says that if a person with a ‘disability’ is unable to function, it is because society is unwilling to interact with the person in a way that allows the person to function (Kayess & French, 2008; Barnes & Mercer, 2005). The support paradigm demands that society adjust to individuals’ differing needs and act in a way that eliminates the barriers to legal capacity by providing adequate assistance for the exercise of that legal capacity.
Article 12 requires that, in any support system, the individual is the core decision-maker. The support persons or people are there to explain details, when necessary, and interpret the signs and desires of the individual when it is needed (CRPD, 2014, paragraphs 16-19; United Nations, 2007). The onus is on the supporter to ensure that he or she is accurately and completely comprehending and interpreting the will and preferences of the individual. This applies to all people, including individuals experiencing significant disability that may greatly affect cognitive process and communication (Watson et al., 2014). Supporters may play a more significant role in decision-making. However, their primary purpose is discovering the will and preference of the individual and supporting the individual to realize that will and preference.
Positive Effects of the Support Paradigm
The legal recognition of an individual as a decision-maker has significant effects. It fosters equality across many areas of life such as employment and personal relationships. It also affirms the power of choice thereby enabling individual development (Winick, 1995; Deci & Ryan, 2000; Ryan & Deci, 2000). When the law permits support for individuals when making decisions, there are also significant effects. The support paradigm fosters social solidarity without sacrificing the recognition of equal legal capacity. By offering the choice of assistance, the supported decision-making paradigm removes the illusion that legal capacity can only be exercised through self-sufficiency. This opens the door for a societal dialogue about the interdependence of all individuals (Quinn, 2011; Quinn & Arstein-Kerslake, 2012).
The support paradigm’s humanistic approach – adapting to the needs of all individuals and not allowing the law to sanction one person taking control of the decisions of another person – has the potential to provide a much lower risk of exploitation than guardianship and other substituted decision-making systems. Studies have shown that where autonomy is fostered and where individuals are given meaningful choices, intrinsic motivation is increased and the overall well-being of the individual is enhanced which is supported by the self-determination theory (Ryan & Deci, 2000; Deci & Ryan, 2000). Therefore, it can be argued that legal capacity systems that recognize every individual as a decision-maker, may serve to foster autonomy and create stronger individuals who are better able to protect themselves from abuse and exploitation. Of course, meaningful safeguards are still necessary to ensure an effective system of support that is free from abuse – as required by Article 12(4).
The support paradigm requires a presumption that all individuals have decision-making ability. It then explores what support each individual needs in exercising her decision-making ability and expressing her preferences (Quinn, 2010). The paradigm of support applies to a wide range of abilities and adjusts itself to meet the needs of those different abilities (Bach & Kerzner, 2010; Flynn & Arstein-Kerslake, 2014a). It is not a binary model of capacity or incapacity. It does not create a separate category of people who are ‘legally incapacitated,’ which may amount to institutionalized discrimination and subordination (Herr, 2003; Dhanda, 2006-7). Such categorization is procedurally problematic (Owen et al., 2009) and can be disempowering for those labeled ‘incapacitated’ (Winick, 1995; Stefan, 1993).
Concluding Remarks on the Support Paradigm
Self-determination may be daunting for many people. Families of individuals with disabilities may fear that their family member with a disability will not be able to make the best decisions for him or herself. People with disabilities may themselves be fearful of a new responsibility to make important decisions about their own lives that they may have never been faced with before. However, no person is an island (Donne, 1624). People with disabilities and people without disabilities are faced with decisions everyday and are assisted in varying ways in making those decisions. The support paradigm is not proposing a radical change in how an individual makes decisions. It is merely requiring that the freedom to make decisions is not removed from an individual. It recognizes that many people need more assistance than others in making decisions and that assistance should be provided to the fullest extent desired by the individual.
Currently, people without disabilities are generally free to make decisions on a much wider scale than people with disabilities. People without disabilities are free to make decisions that serve their interests or their loved ones interests or, in the alternative, do not serve their interests. Article 12 is merely requiring that a person with a disability should be equally free to exercise his or her legal capacity and make his or her own decisions whether or not the outside world views them as ‘good’ or not (Quinn, 2010).
Autonomy and interdependence can and should coexist in the support paradigm. An individual with a disability should be free to make his or her own decisions and concurrently she should be offered the support she needs to fully understand the decision that she is making and to make her desires and choices known to the world. The supported paradigm enables self-determination while encouraging communal involvement and support. (Quinn, 2011)

5. LEGAL CAPACITY SYSTEMS IN NEED OF REFORM

One of the reasons that Article 12 has been so contentious is that it requires real changes to existing legal systems and challenges people’s notion of people with disabilities as lacking decision-making skills. This notion has fostered the paternalistic legal capacity systems that dominate the world today, violate Article 12 of the CRPD, and must be reformed. Although there is debate about what Article 12 exactly requires of States Parties, there is some consensus on a few key issues, including: the recognition of legal capacity on an equal basis for all (Flynn & Arstein-Kerslake, 2014a, 2014b; Minkowitz, 2006-7; UNCRPD, Article 12(2)), the primacy of the will and preference of the individual, (Arstein-Kerslake, 2014; Centre for Disability Law & Policy, 2011, p. 6; Bach & Kerzner, 2010, p. 61; UNCRPD) and the construction of adequate safeguards (National Guardianship Network, 2013, recommendation no. 2; UNCRPD, Article 12(4); CRPD, 2014, paragraphs 20, 22, 29, and 50).
Currently, there are very few jurisdictions that fulfill these requirements. For example, as in many jurisdictions (Ashton, 2012, p. 113; Mental Capacity Act 2005, Ch 9), in New York State, a diagnosis of developmental disability can be used as evidence to deny an individual her legal capacity. The individual also has no statutory right to be at the hearing that determines whether to remove legal capacity from that individual (Matter of Chaim A. K, 2009;^[1] New York Surrogate’s Court Procedure Act (Article 17-A) § 1750). There is also no further reporting process required in New York after the individual is placed under a guardian (Matter of Mark C. H., 2010^[2]). In Wisconsin, an individual can be denied legal capacity and, once under a guardianship, loses her right to vote, to marry, or to consent to sterilizations without a court specifically finding otherwise (Wisconsin Department of Health Services, 2008, sections 1-3). In California, by statute, the court can grant a conservator the power to consent to the sterilization of the conservatee (California Probate Code § 1950-69) and to specify that a consertavor has control over the social and sexual contacts of a conservatee (California Probate Code § 2351.5(b)(6)). These particular examples are all within the United States, which is thought of as having some of the most progressive protections for the rights of the people with disabilities (Thornburgh, 2012, p. 8) – some countries that have less developed protections, have even more oppressive legal capacity laws (Mental Disability Advocacy Centre, 2006, 2007).
England and Wales, like the United States, have been lauded for having a robust system of rights protections for people with disabilities and England has been listed as one of the countries with the most comprehensive definitions of disability discrimination (Degener & Quinn 2002). However, although their legal capacity system was relatively recently reformed in 2005 in response to a finding by the Law Society’s Mental Health Sub-Committee that legislation was lacking in this area (Ashton, 2012, p. ix), when compared with the standards established in Article 12, it falls short in several aspects (Series, 2013). Although there is not space in this article to do a thorough analysis of the 2005 Mental Capacity Act (MCA) (Ch. 9, UK Public General Acts (England and Wales)), a few key flaws can be highlighted. Most significantly, it can be argued that the MCA’s mere categorization of individuals as ‘incapacitated’ is a violation of Article 12 simply because it denies those individuals their right to legal capacity. This raises the issue of the MCA’s conflation of the concepts of ‘legal capacity’ and ‘mental capacity.’ It is important to distinguish between decision-making ability (mental capacity) and legal capacity. All individuals have varying levels of decision-making ability. However, Article 12 suggests that decision-making ability is not something that should have any impact on an individual’s right to legal capacity (UNCRPD, Article 12(3)). Irrespective of decision-making ability, according to Article 12, every person has an inherent right to legal capacity and equal recognition before the law (Minkowitz, 2006-2007, pp. 408). The MCA provides a functional assessment of mental capacity – denying legal capacity to those that do not pass the test. Article 12, instead, requires that a system never deny legal capacity, and instead provide appropriate assessments limited to what type of supports a particular individual needs in order to be able to exercise her legal capacity.
The Act requires a two-stage test of capacity, which begins with determining whether the person has an impairment of the mind or brain (Department for Constitutional Affairs, 2007, p. 41; Ashton, 2012, p. 113). This automatically places individuals with intellectual disabilities or mental illnesses on unequal standing with all others being assessed for legal capacity, violating Article 12(2) of the Convention which states that persons with disabilities shall enjoy legal capacity on the same basis as others and in all aspects of life (UNCRPD, Article 12(2)). The second step of the capacity test in the MCA is to ask whether the person is able to make the specific decision in question at the time it needs to be made (Department for Constitutional Affairs, p. 41; Mental Capacity Act (2005), Ch. 9, UK Public General Acts, Part 1 (2)(1) & Part 1 (3)(1)). However, in order to recognize legal capacity for all, there should not be an assessment of whether a person is able to make a decision, but simply an assumption that they can and an effort to determine their wishes. Furthermore, the MCA places the power to assess capacity in the hands of almost any third party who needs a decision to be made – without significant procedural protections (Ashton, 2012, p. 126, sec. 2.100). Article 12(4) requires that any assistance provided in decision-making must be accompanied with appropriate procedural safeguards, which are lacking when doctors, lawyers, and others are permitted to make ad hoc determinations of whether an individual has sufficient decision-making skills. Finally, while the MCA does mention the importance of giving weight to the wishes of the individual (Mental Capacity Act 2005, Ch. 9, Part 1 (3)(6)(a)), it still maintains the best interest standard as the primary means for decision-making. Article 12 makes no mention of best interests, and instead requires States to “respect the rights, will and preferences” of the individual (UNCRPD, Article 12(4)).
The MCA was a step in the right direction and is a distinct improvement upon the prior guardianship system in England and Wales. Gordon R. Ashton (2006) describes how the previous guardianship system was more restrictive, provided the individual with very little control, and did not provide an assumption of capacity). However, with the UK’s signature of the Convention and its ratification, England and Wales must modify their system further to come into compliance with the Convention and to uphold the human rights of individuals with disabilities.
As is evident from these examples, there is an immediate need for legal capacity reform around the globe.

6. IMPLICATIONS FOR MENTAL HEALTH LAW

Article 12 has significant implications for mental health law (Minkowitz, 2006-7). It may require mental health law, in the form it currently exists, to be dismantled (Arstein-Kerslake, 2015; Minkowitz, 2010). Most mental health law specifically allows for the denial of legal capacity of people with a mental health diagnosis (McSherry & Weller, 2010; Morse, 1977-8, p. 532). This is denial of legal capacity on the basis of psycho-social disability, directly contravening the Article 12(2) requirement that people with disabilities enjoy legal capacity on an equal basis in all areas of life.
Furthermore, most mental health law violates Article 12(4), which requires that states, “... ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person ...” In a human rights instrument, the term ‘respect’ requires that the state not interfere with or impair individual rights (Steiner et al., 2008, p. 187). In Article 12(4), this means that the state is obligated to not interfere or impair the rights, will and preferences of individuals with disabilities through measures related to the exercise of legal capacity. Mental health law qualifies as a measure related to the exercise of legal capacity, because one of its primary functions is the denial of the legal capacity of the individual with psycho-social disability in order to circumvent the requirement of consent from the individual for treatment, restraint, and detention (McSherry & Weller, 2010).
There are mental health laws that include consideration for the will and preference of the individual with psycho-social disability. However, it is often only consideration that is required and there is no obligation to refrain from interfering or impairing the will and preference of the individual, as is required in Article 12(4). Instead, the will and preference of the individual is often easily overridden by a psychiatrist or another actor. For example, the Mental Health Act in Victoria, Australia was reformed in 2014 and states,

“(3) The authorised psychiatrist may make a treatment decision for the patient if the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist.

(4) In determining whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to all of the following—

(a) the patient's views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve;

(b) the views and preferences of the patient expressed in his or her advance statement;

(c) the views of the patient's nominated person;

(d) the views of a guardian of the patient;

(e) the views of a carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the carer and the care relationship;

(f) the views of a parent of the patient, if the patient is under the age of 16 years;

(g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order;

(h) the likely consequences for the patient if the proposed treatment is not performed;

(i) any second psychiatric opinion that has been given to the authorised psychiatrist.” (Mental Health Act (Victoria) 2014, section 71(3-4)).
Here, there is no obligation for the psychiatrist to respect the will and preference of the individual with psycho-social disability, as would be required by Article 12(4). There is, however, a duty for the psychiatrist to ‘have regard’ for the individual’s views and preferences to the extent that is ‘reasonable in the circumstances.’ This is only an obligation to consider the views and preferences of the individual and not to respect them. Furthermore, it seems that the psychiatrist is given quite broad discretion to determine that it is not ‘reasonable’ to give regard to such views and preferences. This provision gives psychiatrists substituted decision-making power over individuals with psycho-social disability, which was interpreted by the General Comment to be a violation of Article 12 (CRPD, 2014, paragraphs 25-28).
This is just a brief analysis of some of the obvious contradictions between mental health law and Article 12. However, the principle difficultly lies in the foundations of mental health law itself. Mental health law is premised on the differential treatment of people with psycho-social disabilities (Morse, 1977-8, pp. 530-532). It’s primary purpose is to create special legal rules that only apply to people with psycho-social disability (Morse, 1977-8, p. 531). All the autonomy restrictions in mental health law are, therefore, restrictions on autonomy – and often legal capacity – on the basis of the individual having a disability. It is also problematic that the aim of mental health law is often to regulate the procedures by which autonomy can be removed from people with psycho-social disabilities. This is fundamentally at odds with the goal of Article 12, which is to protect the autonomy rights of people with disabilities by disallowing any denials of legal capacity that are made on the basis of disability (CRPD, 2014, paragraphs 12-15). If there is to be any legislation related to mental health that is Article 12 compliant, its theoretical foundation must be turned up-side-down. Instead of protecting the procedure by which autonomy can be removed, it must protect the legal capacity of the individuals that use mental health services by ensuring that all services have an obligation to respect the rights, will and preferences of all service-users including those with diagnosed psycho-social disability.

7. CONCLUSION

Without the recognition of the human right to legal capacity, individuals are treated as mere objects of the state and may not have the opportunity to explore their own will and desires. Substituted decision-making systems, as defined in the General Comment, are paternalistic and highly restrictive systems that do not allow individuals to exercise their right to legal capacity and often do not foster development or self-determination. The support paradigm offers a system that meets the goals of the CRPD, protects the right to legal capacity, and allows for individuals to be empowered to develop their own capabilities as full members of society – in this way, respecting a right to legal capacity is not only a human rights imperative, it is also smart policy.

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^[1] 8/26/2009 NYLJ 41 (col 1) (Sur Ct, New York County).

^[2] 5/10/2010 NYLJ 243 (Sur Ct, New York County).