Australia: Lessons from a Reformist Path to Supported Decision-Making

Piers M. Gooding (University of Melbourne),  Terry Carney (University of Sydney), Australia: Lessons from a Reformist Path to Supported Decision-Making, SSRN (2021):

This chapter reviews Australia’s gradualist approach to implementing the ‘supported decision-making regime’ called for by article 12 of the UN Convention on the Rights of Persons with Disabilities. It critically evaluates statutory and non-statutory supported decision-making developments, the growing stock of conceptual and empirical research on the topic, and policy developments that challenge the ‘best interests’ principle behind substituted decision-making laws. While legislative reforms are modest and mainly confined to adult guardianship and mental health laws, the accumulated body of contributions is found to be extensive by global standards. The chapter shows that these efforts have proceeded – some more successful than others – to guarantee the legal capacity of persons with disabilities, expand the duties of third parties to recognise legal capacity, and adjust decision-making processes. It argues that Australia’s federal system of government enabled multiple ‘incrementalist’ reform initiatives to be developed, which time may or may not demonstrate to be effective in advancing the CRPD reform agenda regarding legal capacity, equality and disability