Empowering a Person’s Decision Making - Legalwise Seminars

Michael Perkins, Director and Co-Founder at Autonomy First, shares his insights into empowering a person’s decision making. He will delve further into this topic at the upcoming NDIS Law Conference on 24 February 2021.

By ratifying the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2008 and 2009, the Australian Government accepted on behalf of all its residents and citizens, an obligation for Australia as a civil society to recognise that people with disability enjoy the right to exercise decision making capacity on an equal basis with others in all aspects of life.[1] The operation of the National Disability Insurance Scheme (NDIS) is one expression In Australia of how our society is implementing responses to the CRPD.

The CRPD provides a set of aspirational standards to which various elements of Australian society is responding. Of particular note is the implementation of supported decision-making legislation in Victoria and Human Rights Acts in the ACT and Queensland. NDIS remains a Commonwealth body that can champion national standards when dealing with implementation of CRPD in this country.

In my opinion, when dealing with decision making capacity and ability certain precepts first need acceptance, viz:

1. That decision making ability is a function of the communication and cognitive ability of a person to which physical ability may be irrelevant.
2. To assume the decision-making ability of a person, there needs to be a reasonable basis of that assumption. The Courts are littered with examples of the inappropriate assumption of decision-making ability. Better evidentiary standards for this assumption are needed to mitigate the risk of abusive conduct.
3. A key attribute of decision-making capacity is the ability to advocate what is in your own best interest. Research released by the Centre of Excellence in Population Ageing Research (CEPAR)[2] in 2018 teaches us that around 10% of the overall population have no ability to contribute to the administration of their affairs. About 60% of the population are fully autonomous decision makers who have the ability to take full responsibility for their actions and for whom is reasonable to assume decision making capacity. This leaves around 30% of the population who may be affected by Mild Cognitive Impairments that limits the scope of decision making a person can safely undertake.
4. The incidence of mild cognitive impairment as a contributing factor to abusive behaviour is under-researched.
5. Research tells us that for every dementia diagnosis this is on average one to 2 decades of cognitive decline that needs to be managed.
6. Supported Decision Making provides a normative framework for working with people of all abilities to identify and manage the safe exercise of their will and preference.

In this CRPD driven world, we need to be thinking about optimising people’s abilities, not responding to their disabilities. Supports and safeguards are the modern way to respond to disability.

Autonomy First is focused on using Supported Decision Making as a methodology in it blended medico legal practice that operates the Capacity and Capability Clinic  at Macquarie University Hospital  and its private client legal practice.

Michael  Perkins is one of the Founders and will be speaking at the NDIS and Law conference on 24^th February 2021 on the topic of “Empowering Participant Decision Making”.

[1] See www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-ip-44/equality-capacity-and-disability-in-commonwealth-laws/legislative-and-regulatory-framework/#:~:text=The%20United%20Nations%20Convention%20on%20the%20Rights%20of,and%20Australia%20became%20one%20of%20the%20original%20signatories.

[2] CEPAR | The ARC Centre of Excellence in Population Ageing Research AND Cognitive Ageing and Decline V13.indd (cepar.edu.au)

Michael Perkins TEP is a lawyer, author and educator with over 30 years’ experience in trusts, estates and private client practice. He has worked in boutique and large firms helping families across generations to preserve and manage their wealth, family and community connections. He is a founder of Autonomy First and is focused on helping empower and evidence the decision making ability of his clients. He is focused on building cognitive responsive workplaces and workers so professional and commercial service providers alike can work more effectively to help their clients and patients age well. Connect with Michael via LinkedIn