scholarly journals Towards supported decision-making: Article 12 of the convention on the rights of persons with disabilities and guardianship law reform

2017 ◽  
Vol 35 (2) ◽  
pp. 21-43
Author(s):  
Bruce Alston
Keyword(s):  
Decision Making ◽  
Law Reform ◽  
Major Focus ◽  
Policy Makers ◽  
Persons With Disabilities ◽  
Full Effect ◽  
Guardianship Law ◽  
The Will ◽  
The Individual ◽  
Equal Right

In 2014, a set of National Decision-Making Principles (the Principles) was recommended by theAustralian Law Reform Commission as a legal policy guide for reform of Commonwealth, State and Territory laws. The Principles were aimed to encourage supported decision-making; make the appointment of representatives only a last resort; and to ensure that the will, preferences and rights of individuals direct decisions affecting their lives. This article discusses the sources of the Principles and their relationship to Art 12 of the Convention on the Rights of Persons with Disabilities. The article then examines the steps that are needed to give the Principles full effect in Australian laws to regulate decision-making by individuals who require support. A major focus in implementing a paradigm shift towards supported decision-making is reform of State and Territory guardianship and administration laws. The article examines how guardianship laws should be reformed consistently with the Principles - to ensure that guardianship is invoked only as a last resort and after considering the availability of support to assist people in decision-making. Further, guardianship should be as confined in scope and duration as is reasonably possible; subject to accessible mechanisms for review; and decision-making should respect the will, preferences and rights of the individual. At Commonwealth level, the National Disability Insurance Scheme legislation incorporates some elements of supported decision-making. However, these should also be augmented by providing legal recognition for supporters, and associated safeguards. The author suggests that the Principles can be a catalyst for facilitating important law reform over following decades. The article examines how the Principles may be used by communities, policy-makers and governments to promote world-leading legal changes to ensure that individuals with disability have an equal right to make decisions for themselves.

scholarly journals The Limitations of Comparative Institutional Analysis

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 255-260
Author(s):  
Sadie Blanchard
Keyword(s):  
Decision Making ◽  
Cognitive Processing ◽  
Foreign Investment ◽  
Simple Technique ◽  
Institutional Analysis ◽  
Law Reform ◽  
Policy Makers ◽  
Nation States ◽  
Comparative Institutional Analysis ◽  
Investment Law

Atul Gawande's Checklist Manifesto became a sensation in 2009 because it promised that a simple technique could powerfully discipline decision-making. Gawande had saved lives using hospital checklists, and he argued that checklists could improve outcomes in other complicated endeavors. Checklists, he explained, “provide a kind of cognitive net. They catch mental flaws.” Neil Komesar's method of comparative institutional analysis is by necessity messier than the checklist and does not claim to produce faultless policy-making. But Komesar similarly seeks to improve cognitive processing by imposing a disciplining framework on decision-making. Sergio Puig and Gregory Shaffer's effort to introduce Komesar's technique to the debate about foreign investment law reform is welcome. Their emphasis on tradeoffs among institutional alternatives helps us to appreciate the different contexts facing different nation states, the value of regime competition, and consequently, the importance of implementing reforms in ways that preserve a variety of options for states. If they persuade commentators and policy-makers to take stock of the tradeoffs among institutional alternatives, Puig and Shaffer will have made a meaningful contribution. Still, their analysis illustrates some of the weaknesses of comparative institutional analysis. In this essay, I identify those weaknesses and suggest that they also weigh in pluralism's favor.

The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities

2017 ◽  
Vol 13 (1) ◽  
pp. 22-38 ◽  
Author(s):  
Anna Arstein-Kerslake ◽  
Eilionóir Flynn
Keyword(s):  
Decision Making ◽  
Lived Experience ◽  
Law Reform ◽  
Cognitive Disability ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Definition Of ◽  
The Right ◽  
High Level ◽  
Republican Theory

AbstractArticle 12 of the Convention on the Rights of Persons with Disabilities has created a revolution in legal-capacity law reform. It protects the right to exercise legal agency for people with disabilities with more clarity than any prior human rights instrument. This paper explores what constitutes an exercise of legal agency and what exactly Article 12 protects. It proposes a definition of legal agency and applies it to the lived experience of cognitive disability. It also uses a republican theory of domination to argue that people with cognitive disabilities who are experiencing domination are forced to assert legal agency in even daily decision-making because of the high level of external regulation of their lives and the ever-present threat of others substituting their decision-making. It identifies Article 12 as a tool for protecting such exertions of legal agency and curtailing relationships of domination.

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

2021 ◽  
pp. 096853322110447
Author(s):  
Joanna M Manning
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Case Law ◽  
Best Interests ◽  
Family Court ◽  
Persons With Disabilities ◽  
Court Judge ◽  
Mental Capacity Act 2005 ◽  
The Will ◽  
Mental Capacity Act

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

How the statutory health attorney provision in Mental Health Act 2016 (Qld) is incompatible with human rights

2020 ◽  
pp. 103985622096840
Author(s):  
Neeraj S Gill ◽  
Kathryn Turner
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Conflict Of Interest ◽  
Compulsory Treatment ◽  
Persons With Disabilities ◽  
Mental Health Act ◽  
The Will ◽  
United Nations Convention ◽  
Equal Recognition ◽  
The Individual

Objective: Mental Health Act 2016 (Qld ) (MHA 2016) includes many ‘less restrictive ways’ to minimise involuntary/compulsory treatment. One such measure, the statutory health attorney, has been adopted from the Powers of Attorney Act 1998 (Qld). This paper analyses the statutory health attorney provision against the human rights framework adopted by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Method: The statutory health attorney provision was analysed against the CRPD article 12 (equal recognition before the law). Results: The statutory health attorney provision is not based on the will and preferences of the individual, is not free from conflict of interest and is not subject to the required safeguards. Conclusion: The use of a statutory health attorney brings mental health and physical health under the same provision (the fusion law/proposal). However, the statutory health attorney provision is not compatible with the contemporary human rights framework adopted by the CRPD.

scholarly journals ‘They need to … ’: Exploring practitioners’ attitudes in relation to newcomer migrant children’s needs in Norwegian day care

Childhood ◽  
2017 ◽  
Vol 24 (3) ◽  
pp. 366-380
Author(s):  
Kris Kalkman ◽  
Gry Mette D. Haugen ◽  
Marko Valenta
Keyword(s):  
Decision Making ◽  
Day Care ◽  
Migrant Children ◽  
Policy Makers ◽  
Individual Agency ◽  
Democratic Practice ◽  
Decision Making Processes ◽  
The Individual

Taking a critical stance on day care as a social site for democratic practice, this article focusses on practitioners’ attitudes regarding including newcomer migrant children in the assessment of their needs and decision-making processes in Norwegian day care. Considering the needs-discourse as a way of conveying both policy-makers’ and practitioners’ conclusions about the requirements of migrant children’s childhoods, we reveal how the individual agency of practitioners is captured by developmental culture-bound norms regarding what an ideal childhood should be.

scholarly journals Supported decision-making in Australia: Meeting the challenge of moving from capacity to capacity-building?

2017 ◽  
Vol 35 (2) ◽  
pp. 44-63
Author(s):  
Terry Carney
Keyword(s):  
Decision Making ◽  
Current Control ◽  
Law Reform ◽  
Control Group ◽  
Persons With Disabilities ◽  
Group Evaluation ◽  
Training Materials ◽  
Methodological Rigor ◽  
A Current

Supported decision-making models are widely commended, but legislation is scant; and, while various programs of decision-making support have been tried, evaluations are few and methodological rigor is largely absent. This article reviews Australian law and practice, law reform proposals, and trials of decision support programs, to assess what has been achieved so far in realising the aspirations of the Convention on the Rights of Persons with Disabilities of providing 'support' with 'safeguards'. Taking the example of a current control group evaluation of impacts of experientially derived training materials for supporters, the article discusses the role of evidence-based approaches to transitioning from substitute to supported decision-making through capacitybuilding programs for supporters of people with cognitive impairments.

scholarly journals Economic Evaluation of Adaptation Pathways for an Urban Drainage System Experiencing Deep Uncertainty

Water ◽  
2019 ◽  
Vol 11 (3) ◽  
pp. 531
Author(s):  
Filip Babovic ◽  
Ana Mijic
Keyword(s):  
Climate Change ◽  
Decision Making ◽  
Drainage System ◽  
Economic Assessment ◽  
Adaptation Strategies ◽  
Climate Change Scenarios ◽  
Deep Uncertainty ◽  
Policy Makers ◽  
The Individual ◽  
Urban Pluvial Flooding

As Decision Making under Deep Uncertainty methodologies are becoming more widely utilised, there has been a growth in the use and generation of Adaptation Pathways. These are meant to convey to policy makers how short-term adaptations can act as elements of longer-term adaptation strategies. However, sets of Adaptation Pathways do not convey the individual pathway’s relative costs and benefits. To address this problem in relation to urban pluvial flooding, an economic analysis of a set of Adaptation Pathways was conducted. Initially, a methodology to conduct an economic assessment for deterministic climate change scenarios is developed. This methodology is then modified, using methods that underpin real options to assess how a pathway performs across a bundle of possible futures. This delivered information on how the performance of adaptations can vary across different climate change scenarios. By comparing the deterministic analysis to the new method, it was found that the order in which options are implemented greatly affects the financial performance of an Adaptation Pathway, even if the final combination of options is identical. The presented methodology has the potential to greatly improve decision making by informing policy makers on the potential performance of adaptation strategies being considered.

scholarly journals How Goes the Battle? An Exploration of Guardianship Reform

2012 ◽  
Vol 50 (1) ◽  
pp. 115
Author(s):  
Doug Surtees
Keyword(s):  
Decision Making ◽  
Law Reform ◽  
Guardianship Law ◽  
History Of

This article attempts to evaluate the success of guardianship law reform in Saskatchewan through a study of 446 guardianship applications made since the 2001 enactment of The Adult Guardianship and Co-decision-making Act. It begins by providing a brief history of guardianship law and details the development of the modern legislation. The author examines granted guardianship orders and surveys participants in the guardianship process in order to determine if the principles underlying the modern legislation have been upheld by the courts.

DECISION-MAKING ON INVESTMENT OF IT-INNOVATION BASED ON FUZZY EXPERT INFORMATION

2018 ◽  
pp. 103-111
Author(s):  
Olga Olegovna Eremenko ◽  
Lyubov Borisovna Aminul ◽  
Elena Vitalievna Chertina
Keyword(s):  
Decision Making ◽  
Individual Characteristics ◽  
Production Model ◽  
Investment Management ◽  
It Projects ◽  
Product Model ◽  
Project Cost ◽  
Reasoning System ◽  
Managerial Decisions ◽  
The Individual

The subject of the research is the process of making managerial decisions for innovative IT projects investing. The paper focuses on the new approach to decision making on investing innovative IT projects using expert survey in a fuzzy reasoning system. As input information, expert estimates of projects have been aggregated into six indicators having a linguistic description of the individual characteristics of the project type "high", "medium", and "low". The task of decision making investing has been formalized and the term-set of the output variable Des has been defined: to invest 50-75% of the project cost; to invest 20-50% of the project cost; to invest 10-20% of the project cost; to send the project for revision; to turn down investing project. The fuzzy product model of making investment management decisions has been developed; it adequately describes the process of investment management. The expediency of using constructed production model on a practical example is shown.

Sign in / Sign up

Export Citation Format

Share Document