JCPSLP Vol 21 No 1 2019

Dute, Nys, & van Wijmen, 2005). These tools are structured around the premise that decision-making capability is characterised by a set of individual cognitive abilities serving as prerequisites for decision-making capability. The use of such tools are thought to be on the increase, particularly within jurisdictions that maintain guardianship law (Bach, 2015). These tools are commonly used to generate various types of specialist psychology reports (usually neuropsychology) which form a central component of the evidence guardianships tribunal consider when deciding whether someone is capable of making a decision. Such reports are written to assess and report on a person’s capability at a particular time, predominantly taking into consideration an individual’s cognitive attributes such as problem-solving, memory function, rationality and language (Shiraishi, 2007). These reports have obvious value in communicating to a guardianship tribunal a person’s cognitive capacity and therefore their ability to independently make decisions. However, they are not based on an evaluation of a person’s decision-making capacity within the context of how humans generally made decisions, that is, with the support of people in their lives who know them well. Rather, their decision-making skills are predominantly assessed independent of environmental factors such as support from family, friends and support staff (Victorian Law Reform Commission, 2012). Due to the arguably narrow nature of these assessments, people with severe intellectual or cognitive disability, who come before a guardianship tribunal, are regularly assessed as having no or very limited mental or decision-making capability (Dearn, 2010). In most jurisdictions, the legal response to this assessment is to deny legal capacity, and permit a third party (e.g., a legal guardian) to make decisions on behalf of the concerned person. Donnelly (2010), discussing approaches to guardianship in current western society, suggests that one of the reasons for such a black-and- white view of legal capacity within the guardianship arena is “the ease with which this particular ethical concept can be converted into legal doctrine” (Donnelly, 2010, p. 47). However, as argued by Clough (2014, p. 131) “this ease comes at the cost of nuance, and that the individualistic conception of the person fails to accord with the reality of human interdependence”. An interdependent rather than a cognitive view of human decision- making There is growing evidence that optimal human decision- making is not individual, but relational in nature. This view challenges the belief that personal autonomy can only be realised independently. Bach and Kerzner (2010, p. 40) articulate this view promoting “a positive liberty view of autonomy [whereby] we do not exercise our self- determination as isolated, individual selves, but rather relationally, interdependently and intersubjectively with others”. The concerns expressed by proponents of universal legal capacity claim that individual cognitive assessments widely used as evidence to deny legal capacity fail to account for the substantial role of environmental support in human decision-making. Beamer and Brooks (2001, p. 4) articulate this view in their reference to supported decision-making, stating that: The starting point is not a test of capacity, but the presumption that every human being is communicating

person’s right to be recognised as a full person before the law, able to participate in decisions about their life. In many jurisdictions, including Australia, adults can lose their legal capacity, as a result of cognitive-based assessments determining they are unable to make decisions on their own. When this happens they are placed under a state- appointed substituted decision-making arrangement such as guardianship. Article 12 of the convention calls for an end to such laws, instructing signatory nations to replace them with supported decision-making arrangements. Such arrangements are designed to provide citizens with the support they may require to exercise their right to legal capacity. In 2014 the United Nations monitoring body for the convention (the UNCRPD Committee) provided clarification of Article 12, adopting a general comment. Within the context of the United Nations a general comment is a considered interpretation of the provisions of aspects of a particular treaty. In doing so, the committee called for the recognition of “universal legal capacity”. The UNCRPD Committee’s interpretation of Article 12 presents a clear challenge to existing systems of substitute decision- making or guardianship. Australia has responded to this challenge by retaining an interpretative declaration, in relation to Article 12 (United Nations General Assembly, 2007). An interpretative declaration is, “a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions” (United Nations, 2011, p. 26). Australia’s declaration allows for the use of substitute decision-making or guardianship in situations where a person is assessed as having no or limited decision-making capability, an assessment outcome often the case for people with intellectual or cognitive disability. The United Nations Committee on the Rights of Persons with Disabilities has expressed clear opposition to Australia’s interpretative declaration. The committee has articulated that while the declaration is in place, the Australian government is not recognising the universal right to legal capacity and personhood, and is not acting within the spirit of the convention (United Nations Committee on the Rights of Persons with Disabilities, 2013). The Australian Law Reform Commission (ALRC) has mirrored the committee’s concerns in its 2014 Inquiry and Report, Equality, Capacity and Disability in Commonwealth Laws (Australian Law Reform Commission, 2014). The commission emphasises the universality of decision-making capability, explicitly focusing on the relevance of supported decision-making for people with severe intellectual or cognitive disability. The ALRC’s view, coupled with findings from a study focused on supported decision-making for people with severe or profound intellectual (Watson, 2016a), calls for an emphasis on policy and practice guidance that aims to enhance supporters’ capacity to deliver supported decision-making practice, rather than deny legal capacity, and therefore legal personhood, through guardianship. The denial of legal capacity through cognitive assessment Perhaps the greatest concern raised by human rights scholars regarding state-sanctioned removal of personhood through denials of legal capacity is that these removals are fuelled by the results of isolated assessments of an individual’s cognitive performance (Darzins, 2010; Welie,

26

JCPSLP Volume 21, Number 1 2019

Journal of Clinical Practice in Speech-Language Pathology