ArticlePDF Available

Supported Decision-Making: A Rights-Based Disability Concept and its Implications for Mental Health Law

DOI:10.1080/13218719.2012.711683
Authors:
Piers Gooding at University of Melbourne
Piers Gooding
Download full-text PDFDownload full-text PDF
Read full-text
Download citation

Abstract

This article seeks to clarify the concept of supported decision-making and to consider its major implications for mental health law. It draws on the United Nations Convention on the Rights of Persons with Disability as well as the broader literature on supported decision-making in order to distinguish some of its conceptual features and to provide an overview of relevant debate. Emerging examples of supported decision-making in legislation, policy and programming are drawn upon to demonstrate the variety of measures that might constitute practical supported decision-making in the mental health context.
Piers Gooding - Supported Decision Making - July 02 - Submission Dra
ft.pdf
Content uploaded by Piers Gooding
Author content
All content in this area was uploaded by Piers Gooding on Nov 27, 2016
Content may be subject to copyright.
Piers Gooding - Supported Decision Making - July 02 - Submission Dra
ft.pdf
Content uploaded by Piers Gooding
Author content
All content in this area was uploaded by Piers Gooding on Nov 27, 2016
Content may be subject to copyright.
A preview of the PDF is not available
... There is an array of disability law scholarship on the CRPD and on its transformative potential [18], and several academic publications and journal issues are addressing various aspects of international and European disability law [2,19]. A range of articles have addressed the normative content of Article 12 CRPD and the challenges it brings about [20,21], and some authors have approached this provision from a critical standpoint [22]. Article 12 CRPD has been considered a 'controversial' legal norm [23], but it has also been deemed revolutionary [24], and commentators have addressed legal capacity reforms (or lack of reforms) in several countries [25]. ...
Participation, Legal Capacity, and Gender: Reflections from the United Nations Partnership on the Rights of Persons with Disabilities Project in Serbia
Article
Full-text available
  • Mar 2023
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) establishes that people with disabilities shall enjoy their human rights on an equal basis with others. Those rights include the right to legal capacity and to protection against discrimination, including intersectional and multiple forms of discrimination on the basis of disability and gender. In an effort to support the realisation of the CRPD, the United Nations team in Serbia undertook a project to address the implementation of these rights under the UN Partnership on the Rights of Persons with Disabilities (UNPRPD) programme. Namely, by bringing together stakeholders from the UN, government and civil society, the UNPRPD project in Serbia sought to create structural changes to uphold the rights of people with disabilities. With a view of understanding the process of change within, rather than the outcomes of, this UPRPD project, twenty-eight semi-structured interviews were conducted using the Most Significant Change Technique (MSCT) with key stakeholders involved in such a project. The interviews were analysed using Interpretive Phenomenological Analysis (IPA) to preserve the unique and diverse perspectives of participants who had differing roles across the project. The analysis allowed us to identify a number of facets of the process that facilitate structural change: coalition-building events; strengthening stakeholder capacity and relationships; the participation of persons with disabilities; and innovation in terms of what made the project significant, novel and in itself a change. All these facets are discussed in this article, with the purpose of supporting global efforts in alignment with the CRPD. On the whole, this article aims to support a better understanding of disability-inclusive development projects in line with the CRPD and to give evidence on how countries may begin to tackle the structural exclusion of persons with disabilities in society.
View
... This may provide an overwhelming reason in favor of exercising that right on the right-holder's behalf, even if there is no reasonable way to learn about her relevant judgments (cf. Gooding, 2013). Respecting a person may require, in such circumstances, that the person's rights are exercised according to the best available standard -e.g. based on her preferences, if her judgments cannot be discovered. ...
A hard case for the ethics of supported voting: Cognitive and communicative disabilities, and incommunicability
Article
Full-text available
  • Nov 2022
In this article, I explore the implications of three moral grounds for the justification of supported voting – respect as opacity, respect as equal status, and respect as political care. For each ground, I ask whether it justifies surrogate voting for voters unable to either communicate or give effect to their electoral judgments, due to some cognitive or communicative disability. (Henceforth: incommunicability cases.) I argue that respect as opacity does not permit surrogate voting, and equal status does not justify such support – although the latter account can make sense of the value loss involved in the persistent non-participation of individuals with cognitive and communicative disabilities. Finally, I argue that an account of supported voting based on the ethics of political care can accommodate a pro tanto moral permission to provide surrogate voting as a form of support in incommunicability cases, and it can account for the inclusive approach of the UN Convention on the Rights of Persons with Disabilities to supported decision-making. However, I show that in incommunicability cases, what the political community and individual caretakers ultimately owe to adult fellow citizens as equal members of the political community is some adequate form of political care – but not necessarily surrogate voting.
View
... Recommendations proposed by Community Leagal Assistant Society BC could also be implemented, including: amending the deemed consent model to promote consent rights; increased oversight and accountability of involuntary treatment processes to ensure appropriate and ethical application; periodic legal review of detentions; reimplementation of an external rights advising service to ensure people are informed of their rights; and scheduled periodic reviews of the legislation to ensure implementation of current and evidence informed approaches to involuntary psychiatric treatment (Johnston, 2017). The act could be reconstructed towards a person-centred and equity-oriented approach, requiring shared decision-making (Gooding, 2013), which could incorporate a secondary decision maker and advanced directives (Schizophrenia Society of Ontario, 2013). The role of police could also be revisited, and alternatives such as an integrated or civilian led model could be explored to reduce unnecessary force and associated harms. ...
Involuntary psychiatric treatment and the erosion of consent: A critical discourse analysis of mental health legislation in British Columbia, Canada
Article
The Mental Health Act (1996) is legislation that directs voluntary and involuntary psychiatric treatment for people experiencing mental health issues in British Columbia (BC), Canada. This critical discursive analysis explores how BC’s Mental Health Act (1996) and the Guide to the Mental Health Act (2005) structure involuntary psychiatric treatment and illustrates how the discourses within these texts constitute people experiencing mental health issues as passive recipients of care. Understandings of people experiencing mental health issues as pathological, incapable, vulnerable and dangerous justify their need for protection and the protection of others. Protection is identified as a central legitimising discourse in the use of involuntary psychiatric treatment. Further, these texts define the roles and responsibilities of police, physicians and nurses in authorising and implementing involuntary psychiatric treatment. This analysis describes how this legislation erodes consent and entrenches social marginalisation. Alternatively, discourses of equity have potential to transform health care practices and structures that reproduce discourses of deficit, vulnerability and dangerousness, shifting towards promotion of the rights and safety of people experiencing mental health issues and crises.
View
... 2 The committee has also advised that substitute decision-making-where another person makes a decision on someone else's behalf-should be replaced with supported decision-making, where individuals are supported in making decisions based on their own will and preferences. 3 Despite the ethical and human rights imperatives to reduce coercive practices, psychiatry as a profession has struggled to realize these aspirations. 4 There have been few demonstrable gains in recent decades. ...
Applying Human Rights and Reducing Coercion in Psychiatry following Service User-Led Education: A Qualitative Study
Article
Full-text available
  • Dec 2021
Despite the imperatives to reduce coercive practices such as substitute decision-making, seclusion, and restraint, the psychiatric profession has struggled to realize these aspirations. Education delivered by people with lived experience of mental distress can help facilitate change. We introduced a service user-led academic program for psychiatry residents focused on promoting human rights and reducing coercive practices in mental health care. Few published reports of such service user-led education exist. In this qualitative study, we analyze data exploring this new program's impact in practice. Four major themes were identified. Service user-led training was challenging but highly valued and prompted a paradigm shift, changing residents' thinking. Residents had so much promise in their early intentions to reduce coercive practices. However, numerous barriers impeded them from implementing these intentions. Power differentials that existed at multiple levels caused residents to experience themselves as "pawns" playing set roles working under a system with entrenched hierarchies, resource limitations, legislative frameworks, and public expectations operating to maintain the status quo. The apprenticeship model under which psychiatry residents work is a significant socializing influence. If only the "old paradigm" is modeled and taught, then this hinders more progressive thinking. Service user-led education should be offered more broadly.
View
Ableism, Racism, and the Quality of Life of Black, Indigenous, People of Color with Intellectual and Developmental Disabilities
Article
Background. Research indicates Black, Indigenous, people of color (BIPOC) with intellectual and developmental disabilities face disparities in quality of life outcomes. This study’s aim was to examine how ableism and racism impacted the quality of life of BIPOC with intellectual and developmental disabilities. Methods. Using a multilevel linear regression, we analyzed secondary quality of life outcome data from Personal Outcome Measures® interviews with 1,393 BIPOC with intellectual and developmental disabilities and implicit ableism and racism data from the 128 regions of the United States in which they lived (discrimination data came from 7.4 million people). Results. When BIPOC with intellectual and developmental disabilities lived in regions of the United States which were more ableist and racist, they had a lower quality of life, regardless of their demographics. Conclusions. Ableism and racism are a direct threat to BIPOC with intellectual and developmental disabilities’ health, wellbeing, and overall quality of life.
View
Stigma, occupational injustice, and individualization of systemic issues: current issues faced by community dwelling adults with serious mental illnesses
Article
  • Jan 2023
Serious Mental Illness (SMI) is a mental, behavioral, or emotional disorder resulting in serious functional impairment, which substantially interferes with or limits one or more major life activities. As of 2019, it is estimated that 13.1 million adults aged 18 or older are living with an SMI in the United States. Community-dwelling adults with SMI have identified many benefits that help with carrying out needed activities in the community but also face many barriers such as (internalized) stigma, occupational injustice, and individualization of systemic issues. It is imperative for practitioners to understand how these barriers impact participation and create better ways to understand and center the voices of this population in assessment and intervention and work to address barriers at both an individual and systems level.
View
La compleja comprensión del artículo 12 de la Convención sobre los Derechos de las Personas con Discapacidad
Article
Full-text available
  • Aug 2022
El entendimiento de los derechos de las personas con discapacidad se ha visto modificado por la adopción e implementación de la Convención sobre los Derechos de las Personas con Discapacidad. Entre los cambios necesarios para su implementación, resalta el referido a la capacidad jurídica (o capacidad de ejercicio) de las personas con discapacidad. A contracorriente con lo que se registra en la mayor parte de Códigos Civiles de la región, la Convención reconoce que las personas con discapacidad sí pueden tomar decisiones y que su discapacidad no puede ser motivo para privarlos de ese derecho. Para garantizar esto, es necesario que los Estados reconozcan apoyos para la capacidad jurídica que sean vigilados por salvaguardias que eviten abusos, influencia indebida y conflictos de intereses. Este artículo presenta los diferentes debates que se han sucedido a nivel doctrinario con respecto a estas nuevas instituciones que obligan a repensar diversas categorías jurídicas como el acto jurídico y sus causales de anulabilidad y nulidad; el consentimiento informado; o la inimputabilidad.
View
“My Voice Was Discounted the Whole Way Through”: A Gendered Analysis of Women’s Experiences of Involuntary Mental Health Treatment
Article
Although it is well established that women experience significant gendered oppressions when accessing mental health services, research exploring the impacts of involuntary mental health services is frequently conducted without attending specifically to gender. This article reports on a qualitative study that explored women's experiences of compulsory mental health treatment in Australia. In-depth interviews revealed substantial gendered harms experienced by women within involuntary mental health treatment settings. Themes identified were: involuntary treatment replicates the dynamics and tactics of gendered violence; treatment involves profound deprivation and losses, with potential implications across the lifecourse; mental health services disrupt and undermine mothering; and recovery is found outside of coercive mental health systems. The study reveals the heightened harms experienced by women within involuntary mental health contexts, as well as women's strategic resistances to psychiatric oppression. It demonstrates the relevance of a conceptual lens that is attuned to gender, in order to develop a deeper understanding of women's experiences of intersecting oppressions within involuntary mental health settings. Implications include the need for alliance-building across feminist and critical mental health movements, and the need for a much more robust engagement by the social work profession in challenging the widespread acceptance of involuntary mental health treatment.
View
Mental Health Law in China: A Socio-legal Analysis
Book
  • Apr 2022
This book provides an important critique of mental health law and practice in China, with a focus on involuntary detention and treatment. The work explores China’s mental health law reform regarding treatment decision-making in the new era of the UN Convention on the Rights of Persons with Disabilities (CRPD). It adopts a socio-legal approach, not only by undertaking a comprehensive desk-based analysis of the reforms introduced by China’s Mental Health Law (MHL) but also examining its implementation based on evidence from practice. The book seeks to investigate whether China’s first national MHL takes a step closer to the requirements of the UN Convention on the Rights of Persons with Disabilities on mental health treatment decision-making, and, if not, why not? The book will be of interest to those working in the areas of mental health law and policy, medical law and disability, human rights law, and Asian Studies.
View
Paternalism vs. autonomy? Substitute and supported decision-making in England and Hungary
Article
Full-text available
  • Feb 2022
This paper explores substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, adopted by the UN General Assembly in 2006, introduces a ‘paradigm shift’ in the regulation of legal capacity by endorsing the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’. After examining the conceptual and regulatory issues surrounding substitute and supported decision-making and the requirements of the CRPD and the first General Comment of the UN Committee on the Rights of Persons with Disabilities (GC1), the paper proceeds to examine the regulations of the Mental Capacity Act 2005 (England & Wales) and the Hungarian Civil Code and their (non-)compliance with the CRPD and GC1.
View
View
View
Mental Disabilities and the Law: From Substitute to Supported Decision-Making?
Article
There are two statutes in England and Wales dealing with the closely related concepts of mental disorder and mental capacity, and the relationship between them has proved difficult and controversial. In response, various measures have been suggested with a view to easing some of the tensions and this article starts by examining the two most familiar proposals. This article concludes that while both may reduce the discriminatory aspects of the current law, they are both constrained by their reliance on substitute decision-making and best interests. An alternative and more radical model based on universal capacity and supported decision-making is provided by the UN Convention on the Rights of Persons with Disabilities. The remainder of the article considers the implications that might flow from the wholesale adoption of such a model in England and Wales.
View
View
View
View
View
View
View
View