we urge the NSW Law Reform Commission to urgently address the following key divergences from the CRPD. Legal capacity is concerned that in some instances, references to decision-making ability do not reflect a CRPD compliant understanding of legal capacity. As we have outlined in numerous submissions, everyone has the right to equal recognition before the law. We have also previously advocated that making capacity’ should never be a term used to describe an individual. to ability’ throughout the submission are still ‘decision-making rooted in the framework of determining and assessing the individual, rather than assessing the quality and appropriateness of the supports with which they are provided. Changing the word to does not mean ‘capacity’ ‘ability’ anything unless the measure of that is clearly defined. This means that ‘ability’ the question is not whether the person has decision-making but rather ‘ability’, what supports does the person require to exercise decision-making. a CRPD compliant legal capacity framework all people are recognised to equally have legal capacity. Similarly, it is recognised that all people require different support to make decisions at different times in their lives. Therefore, the measure of or is dependent on the quality, ‘capacity’ ‘ability’ appropriateness and availability of support. This must be clearly defined in the new Act. The use of the term ability’ must therefore be ‘decision-making reconceptualised throughout the draft proposals to clearly articulate that any assessment regarding decision-making is focused on assessing and critiquing the adequacy of decision-making supports, as opposed to assessing the individual’s ‘ability.’ references to whether someone is likely to decision-making ‘recover ability’ must be reframed in relation to the supports they are provided. For instance, decision-making ability’ could be changed to and ‘recover ‘adequate appropriate supports are available for a particular decision.’ the use of the phrase and social wellbeing’ appears to ‘personal merely replace the term interests’ in the current Act. This is used ‘best numerous times throughout the draft proposals, for instance, referring to decisions that promote or maintain the person’s personal and social wellbeing. As this phrase is not defined in the draft proposals, any judgements about and social wellbeing’ would be subjective (as are judgements ‘personal about best interests).
we urge the NSW Law Reform Commission to urgently address the following key divergences from the CRPD. Legal capacity is concerned that in some instances, references to decision-making ability do not reflect a CRPD compliant understanding of legal capacity. As we have outlined in numerous submissions, everyone has the right to equal recognition before the law. We have also previously advocated that capacity’ should never be a term used to describe an individual. to ‘decision-making ability’ throughout the submission are still rooted in the framework of determining and assessing the individual, rather than assessing the quality and appropriateness of the supports with which they are provided. Changing the word ‘capacity’ to ‘ability’ does not mean anything unless the measure of that ‘ability’ is clearly defined. This means that the question is not whether the person has decision-making ‘ability’, but rather what supports does the person require to exercise decision-making. a CRPD compliant legal capacity framework all people are recognised to equally have legal capacity. Similarly, it is recognised that all people require different support to make decisions at different times in their lives. Therefore, the measure of ‘capacity’ or ‘ability’ is dependent on the quality, appropriateness and availability of support. This must be clearly defined in the new Act. The use of the term ‘decision-making ability’ must therefore be reconceptualised throughout the draft proposals to clearly articulate that any assessment regarding decision-making is focused on assessing and critiquing the adequacy of decision-making supports, as opposed to assessing the individual’s ‘ability.’ references to whether someone is likely to ‘recover decision-making ability’ must be reframed in relation to the supports they are provided. For instance, ‘recover decision-making ability’ could be changed to ‘adequate and appropriate supports are available for a particular decision.’ the use of the phrase ‘personal and social wellbeing’ appears to merely replace the term ‘best interests’ in the current Act. This is used numerous times throughout the draft proposals, for instance, referring to making decisions that promote or maintain the person’s personal and social wellbeing. As this phrase is not defined in the draft proposals, any judgements about ‘personal and social wellbeing’ would be subjective (as are judgements about best interests).
2018-Access-to-Justice-Guardianship-Review-Draft-Proposals-to-NSWLRC.docx