Substitute Decision-Making vs. Supported Decision-Making- The great capacity dilemma

The current regime in force in the UK is centred on substitute decision making whereby decisions are made on behalf of the individual lacking capacity. The driving force which operates against this norm is contained within the UN Convention on the Rights of Persons with Disabilities (CRPD) which seeks to afford those with disabilities mental or otherwise the same right to self-determination as far as possible. We are signed up to the Convention and there is much debate at present as to whether our current mental health legislation is compliant with this supported decision making legislation.

The continual struggle in the legal landscape seems to be one that will continue for some time more. The CPRD clearly has the more facilitative regime but it does not appear take into account what should happen if the wishes and feelings of the individual cannot be clearly ascertained. The best interests’ framework contained within section 4 Mental Capacity Act does appear to attempt to achieve the same outcomes of the CPRD but substitute decision making still takes precedent.

Common law decisions made within the Court of Protection as to decisions made in relation to individuals lacking capacity seem to fluctuate depending on the Judge; there does seem to be increasing recognition of the wishes and feelings of those that are deemed to be without capacity.

It should be noted that whilst the CPRD is binding on the UK it is not yet applied with the same force as contained within domestic (primarily the Human Rights Act 1999 and the Mental Capacity Act 2005) and European legislation (the European Convention on Human Rights). It is likely that this will change in the future.

CRPD offers an alternative to the current status quo in the UK to do all that one can to support the disabled individual to realise their own decisions. In practice this is a particularly difficult goal to achieve especially when, as is often the case, the ability of the individual lacking capacity is not known and their levels of capacity fluctuate. Case law would suggest that the UK is moving closer to the supportive decision making structure despite the CPRD not being actively enforced in the courts. If and when this new way of thinking is properly adopted it could potentially require substantial levels of investment in securing the wishes and feelings of those without capacity. But the potential financial impact should be lower on the list of considerations when compared with freedom and autonomy.

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