A report commissioned by the Disability Royal Commission has recommended a policy overhaul to ensure that all people living with cognitive disability are empowered to make decisions about their lives. The research aimed to understand the significance of supported decision-making to the lives of people with cognitive disabilities, identify elements that are common to anyone with cognitive disabilities in any context, and locate key implementation issues in law, policy and practice.
Diversity, dignity, equity and best practice: a framework for supported decision-making was released last week by a research team led by Professor Christine Bigby from the Living with Disability Research Centre, La Trobe University. Professor Shih-Ning Then and Dr Julia Duffy from the Australian Centre for Health Law Research (ACHLR) were co-authors of the report.
A framework for supported decision-making
The report proposes a framework for supported decision-making. The framework is a guide to making sure supported decision-making is available to all people with cognitive disability wherever they are and whatever the decision is.
The report builds upon principles recommended by the Australian Law Reform Commission and recommends nine universal principles that should inform the framework for supported decision-making:
- Principle 1: The equal right to make decisions
All adults have an equal right to make decisions that affect their lives and to have those decisions respected.
- Principle 2: Support
All people who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.
- Principle 3: Will, preferences and rights
The will, preferences and rights of people who may require decision-making support must direct decisions that affect their lives.
- Principle 4: Safeguards
Laws, legal and policy frameworks must contain appropriate and effective safeguards in relation to interventions for people who may require decision-making support, including to prevent abuse and undue influence.
- Principle 5: Principled approach to supported decision-making
A principled approach to the concept and practice of supported decision-making should be adopted that keeps an individual’s stated or perceived ‘will and preferences’ at the centre of decision-making. This approach recognises the realities of the practice of providing supported decision-making, particularly for those with severe cognitive disabilities.
- Principle 6: Best interpretation of will and preferences
In the very limited circumstances where a supporter has not been able to elicit a person’s will and preferences a decision should be based on their best interpretation of what the person’s will and preferences would be.
- Principle 7: Dignity and risk
The dignity and importance of taking risks is acknowledged and supported. In very limited circumstances, where a person’s stated or inferred will and preferences involve risk of serious, imminent physical or financial harm with lasting consequences to themselves (including incurring civil or criminal liability), and that person is unable to understand that risk even with support, personal and social wellbeing substitute decision-making is applied as a last resort with the person’s personal and social wellbeing at the centre.
- Principle 8: Distributional equity
All supported decision-making reform and initiatives should be premised on the ethical principle of a commitment to distributional equity of access to supported decision-making. Those experiencing disadvantage in access to support for decision-making should be given priority in new programs.
- Principle 9: Co-leadership of people with cognitive disabilities
People with cognitive disabilities and supporters of people with severe cognitive disabilities should lead consultation and design processes for supported decision-making reform and initiatives.
The Framework also includes 8 essential elements that are necessary for operationalising the principles and developing supported decision-making law, policy, programs and practice.
Diversity, dignity, equity and best practice: a framework for supported decision-making was funded by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. You can download the report from their website.