Summary

2.1          This chapter discusses the principles, language and theory behind debates about decision-making processes that concern persons with disability. The ALRC considers international human rights law and key concepts in the literature concerning disability and issues of ‘capacity’. This provides the conceptual background to the ALRC’s recommendations in this Report.

2.2          The ‘paradigm shift’ in approaches to persons with disability is discussed, outlining the transition from ‘best interests’ approaches to ones that emphasise the will and preferences of the individual in models of ‘supported’ decision-making. The tensions around the meaning and application of art 12 of the United Nations Convention on the Rights of Persons with Disabilities^[1] (CRPD) are analysed in the light of the historical development of decision-making models for people who may require decision-making support. The ALRC identifies significant conceptual confusion that is affecting the development of a focus on support and the acknowledgement of the need, at times, for a person to act on behalf of another—particularly in relation to what is called ‘substitute’ decision-making. In this context, Australia’s Interpretative Declaration in relation to art 12 is considered.

2.3          The chapter concludes by summarising the implications for the paradigm shift towards supported decision-making. This provides a prelude to Chapter 3, where the ALRC sets out National Decision-Making Principles as the basis for modelling supported decision-making in Commonwealth laws.