Challenging the core of legal doctrine: negotiating the ‘supported’ decision making paradigm

Dr Jeanne Snelling1

1University Of Otago, Dunedin, New Zealand

With few exceptions, a person’s right to make and act on a decision in jurisdictions such as New Zealand depends upon them possessing certain functional abilities, commonly referred to as mental capacity. However, an emerging human rights discourse rejects the orthodox approach in favour of a support-based paradigm that is premised upon two distinct but related concepts: “universal legal capacity” and “supported decision making”. On this account, every adult person retains the right to exercise legal agency regardless of mental status, although some individuals will require active and potentially significant support to do so.  Importantly, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in conjunction with the subsequent General Comment (GC) of the Committee on the Rights of Persons with Disabilities, has endorsed this alternative support-based model in international law.  While the support paradigm has much to offer a rights-based society, it also presents a radical challenge to established legal doctrine.  This presentation identifies two particularly challenging areas implicated by the support paradigm, and considers the extent to which existing health care law may be interpreted consistently with the emerging supported decision-making paradigm.


Dr Jeanne Snelling is a Lecturer at the University of Otago, holding joint appointments with the Faculty of Law and the Bioethics Centre.  Jeanne’s research interests include medical law and the regulation of emerging biotechnology.