Through a glass darkly – evolving a practice of supported decision-making in the absence of a legal framework

Dr John Hopkins1

1Psychological Medicine, Middlemore Hospital, Auckland, New Zealand, ,

Supported decision-making involves providing support to people whose decision-making ability is impaired, to enable them to make their own decisions wherever possible. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) confers the right to enjoy legal capacity on an equal basis with others; and the twin obligations of governments to – ensure that those who need it to exercise their legal capacity receive access to support; and ensure safeguards are in place to prevent abuse when exercising their legal capacity. New Zealand was quick to sign the CRPD in 2007, then ratify it a year later and has actively supported its evolution. New Zealand’s guardianship legislation, The Protection of Personal Property and Rights Act (PPPR Act) 1987, was initially considered consistent with the CRPD, but over time concerns have emerged that revision of the New Zealand legislation is required to make it fully conform with Article 12 of the CRPD. The PPPR Act is underpinned by the principles of – presumption of capacity; maximising a person’s capacity; allowing the freedom to make unwise decisions; and making the least restrictive intervention. These principles implicitly assume there is a role for supported decision-making. However, the PPPR Act does not explicitly provide a framework for the development or application of supported decision-making – there is no definition included; no guidance or instruction on when to use it or how; and the only legal remedies stipulated are various forms of substituted decision-making. So in the absence of a clear legal framework, clinicians are left evolving their practice of the support and assessment of capacity by ethical first principles. This presentation describes the journey of one clinician whose work frequently encompasses capacity assessment, to “peer through the glass darkly” and develop an ethical practice of supported decision-making.


Biography:

John Hopkins is an adult and old age liaison psychiatrist at Middlemore Hospital in Auckland. His clinical experience over a 30 year career includes rehabilitation, administrative, disability, adult community and old age psychiatry. He is an unrepentant “baby boomer” with particular interests in delirium, capacity assessment and co-funding for complex co-morbid conditions.

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The Australasian Association of Bioethics and Health Law (AABHL) was formed in 2009.

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