JCPSLP Vol 21 No 1 2019

The role of speech-language pathologists in the justice system

The role of speech-language pathology in supporting legal capacity Jo Watson

The United Nations Convention on the Rights of Persons with Disabilities, specifically Article 12, has instigated a paradigm shift in the way people with intellectual and cognitive disability are viewed in terms of their right to autonomy. Despite the legislative strength of this paradigm shift, people with severe intellectual and cognitive disability are routinely placed under guardianship orders. Supported decision-making is emerging as a viable alternative to guardianship for many people with cognitive disability; however, there remains a lack of focus on the practice for people with the most severe intellectual or cognitive disability. Speech-language pathologists have specialised skills and knowledge in communication and human interaction, both central elements of supported decision-making practice. These skills and knowledge make speech-language pathologists ideally placed to facilitate practice in this area. Autonomy in the 21th century: Is everyone invited to the party? Today in Australia, concepts related to autonomy such as freedom, choice, individualism and self-determination are highly valued. Within neoliberal cultures, exercising autonomy through the making of decisions is ubiquitous to everyday life. However, this is not the case for everyone. Many Australians with intellectual and cognitive disability have their legal right to autonomy denied through substituted decision-making in the form of guardianship. Substitute decision-making involves the legal appointment of a guardian to make decisions on behalf of a person with disability where they are assessed as unable to do so themselves. These legal appointments are partly driven by a widely held assumption that concepts relating to self-determination and autonomy are irrelevant to people with intellectual or cognitive disability, due to perceived limited decision-making capability (Ward & Stewart, 2008; Wehmeyer, 2005). “Historically, people with an intellectual or cognitive disability have been assumed

to be incapable of exercising the sort of control over their own lives which others take for granted” (Jenkinson, 1993, p. 362). Jenkinson and Nelms (1994) made the point: “since by definition intellectual disability is characterized by significant impairments in adaptive behaviour, discretion, social competence, and comprehension of own self- interest, the temptation has been to presume total incompetence in decision-making” (Jenkinson & Nelms, 1994, p. 199). Ward and Stewart (2008), referring to people with intellectual disability, stated “it is often assumed that they are eternal children, unable to speak on their own behalf and therefore not competent to make their own decisions” (Ward & Stewart, 2008, p. 305). This negative perception of decision-making capability is particularly apparent for people with the most severe intellectual or cognitive disability. Wehmeyer, Agran and Hughes (2000) surveyed over a thousand teachers regarding their perception of self-determination and decision-making capability of their students. They reported that the severity of a student’s cognitive disability influenced teachers’ perceptions of the decision-making capability of their students. Specifically, teachers working with students with more severe intellectual disability rated the capacity of their students to make decisions significantly lower than their colleagues working with students with milder intellectual disability (Wehmeyer et al., 2000). Watson (2016b) found that a significant factor in communication partners’ view that people with severe or profound intellectual disability are incompetent decision-makers is a belief that they are unable to communicate their will and preference (Watson, 2016b). This belief exists despite consensus within the literature that “all people, no matter how severe their level of disability, can and do attempt to communicate” (Mirenda, Iacono, & Williams, 1990 p. 3), and this communication has inherent value. The United Nations Convention on the Rights of Persons with Disabilities Article 12 of the The United Nations Convention on the Rights of Persons with Disabilities(UNCRPD) is arguably the most revolutionary of the convention’s articles. Its revolutionary nature lies in its commitment to the universal right to legal capacity. Article 12(2) recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (United Nations General Assembly, 2006). Legal capacity can be translated as a

KEYWORDS GUARDIANSHIP INTELLECTUAL DISABILITY PERSONHOOD SELF- DETERMINATION SUPPORTED DECISION- MAKING UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES THIS ARTICLE HAS BEEN PEER- REVIEWED

Jo Watson

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JCPSLP Volume 21, Number 1 2019

www.speechpathologyaustralia.org.au