A. What is supported decision-making?
While there is no agreed-upon definition of supported decision-making, there are common themes. As the LCO points out, supported decision-making models generally aim to enable persons to “exercise control over decisions that affect them through supports… without any loss of legal capacity. Indeed, a central intent of supported decision-making is to avoid any assessment of capacity or label of incapacity. And, relatedly, most models specify that the supported person retains legal responsibility for their decisions, and that those decisions are legally binding (a point returned to below). Most definitions also emphasize that supported decision-making should take place within “relationships of trust and intimacy”. Beyond this, however, there is more variability, particularly with respect to the degree of “control” or agency that the supported person must exercise, and the specific roles of supporters.
Some use the term “supported decision-making” broadly to encompass situations in which there is a process in place to discern the person’s preferences. Thus, the supported person is the legal decision-maker, “but is provided support from one or more persons who explain issues to the individual and, where necessary, interpret the individual’s words and behavior to determine his or her preferences”. For example, Bach and Kerzner and the Coalition on Alternatives to Guardianship recommend a “will and preferences” approach that requires that the person be “able to express their will and preferences in a manner that at least one other person can understand”. They suggest that supporters be subject to a standard of “best interpretation”, acknowledging that there may be disputes over how to interpret a person’s will and preferences. They also argue that in some circumstances, the law should allow for individuals to have decision-making supporters appointed for them.
Other writers appear to impose a more stringent agency requirement, both with respect to establishing and ending the decision-making process (for instance, ensuring that the person has “voluntarily entered into the arrangement”) and the process itself. Thus, some argue that the person must enter the arrangement freely and with consent. Others emphasize that the person must “actively participate in decision making” and be able to “terminate the relationship at any point in time”. For instance, the Office of the Public Advocate in Victoria, Australia, states that “[c]onsultation, respect for a person’s wishes and the promotion of a person’s rights are not, of themselves, supported decision-making.” Rather, “any supported decision-making arrangement must have the free agreement of the person”, and the person must be able to terminate the arrangement at any time. Kohn, Blumenthal and Campbell also appear to be in this latter camp of writers when they specifically consider what would be required for personal support networks to qualify as supported decision-making:
To the extent that a circle of support helps a person understand various life choices and choose among them, or that a microboard is structured to allow the person with a disability to direct its actions (e.g., such as by having that individual serve as the President of the Board), both approaches can be mechanisms for implementing supported decision-making. By contrast, if the members of a micro-board or circle of support ultimately make decisions on behalf of the person with a disability—even if they consult with that person and consider the person’s wishes—then such arrangements should not be classified as supported decision-making.
These different definitions of supported decision-making reflect a tension. On the one hand, writers are aware of the need for clear indicia that a person is being empowered and permitted autonomy to “make decisions for themselves” rather than being coerced in the name of ‘supports’ On the other hand, many argue that supported decision-making mechanisms are most needed by people who do not meet traditional, or even more flexible, capacity standards and methods of participation. (For instance, some informants expressed concern that supported decision-making under British Columbia’s Representation Agreement Act, with its continued use of a capacity threshold, “leaves people out”.)
Finally, to assess whether personal support networks are providing “supported decision-making”, requires a position on what counts as ‘support’, and how narrowly we define the decision-making process. Bach and Kerzner argue that “decision-making supports” for the purpose of Article 12(3) of the CRPD should be interpreted to include “life planning supports” (such as the person directed planning and facilitation tools discussed above ); advocacy; and “relationship-building supports”, among other things. For example, they observe that “the outcome of relationship-building supports is the development of relationships and support networks which can provide representational supports at some point in the future”. This broad definition of “supports” would seem to require that all personal support networks be classified as supported decision-making because they are building relationships on which a person could draw in the future. The approach taken in this paper is, however, narrower. Recognizing that there may be many important background conditions for supported decision-making, to which networks might contribute, it nonetheless focuses on the more immediate process of decision-making at a particular time and place.
B. Are personal support networks playing this role?
As noted above, every informant who was directly involved in a personal support network said his or her particular network was engaged in supported decision-making. At the same time, a significant theme among some informants was skepticism about whether all networks are providing supported decision-making, or at least, recognition that it might not be done uniformly well.
Some participants referred to personal support networks that are created without any intention of engaging in supported decision-making. For instance, a lawyer in Ontario said some families incorporate networks with administrative functions – such as managing funding – in mind. A lawyer in British Columbia said that he tries to talk to his clients about supported decision-making, but that sometimes people just want a result. An independent facilitator in Ontario said that that some networks are intended to address social ends, and do not make supported decision-making a central focus.
Others observed that networks and members intending to engage in supported decision-making have varying levels of skill and understanding, and that supporters may slip between supported and substitute decision-making. A lawyer said he was concerned that family members, while well meaning, sometimes favour safety and protection over autonomy and freedom. He cautioned that, without the necessary safeguards, giving sanctioned decision-making roles to networks could devolve into a means for families to reinforce each other and engage in substitute decision-making by another name.
Whether personal support networks are providing supported decision-making will obviously vary, both with one’s definition of supported decision-making, and the particular network under study. However, many of the personal networks discussed by informants are, at least on the broader definition of supported definition described above, apparently engaged in supported decision-making. The discussion below briefly analyses the professional and lay participants’ statements about network decision-making in the context of the following factors, drawn from definitions of supported decision-making: (i) concepts of capacity; (ii) the supported person’s consent to create the network; (iii) whether networks members are in relationships of trust and intimacy with the person; (iv) the supported person’s participation in decision-making processes; and (v) legal responsibility for decisions. As discussed above, the scope of this study was such that it can only provide some initial impressions. Further work could build on these findings, for instance, by asking the whether these processes are experienced as empowering.
1. Concepts of capacity
Every informant who spoke to the issue rejected traditional concepts of capacity, consistent with principles of supported decision-making. Indeed, the most common sentiment was that everyone can benefit from personal support networks and supported decision-making. Where capacity was referred to, it was in statements to the effect that there must always be a presumption of capacity; that a network can help maximize, or “supply… whatever is missing” in, a person’s capacity; and that a person with capacity might need others to help him or her carry out wishes. One informant (whose son is generally recognized by third parties as having capacity with supports) said her son sometimes lacks legal capacity for medical reasons, and that in these situations it can be useful to pair supported decision-making with a Ulysses agreement. The majority of informants, however, preferred to avoid any context in which there might be a finding of legal incapacity.
2. Entered into freely and with consent?
If one were to make it a strict requirement that a person ‘consent’ (following the conventional meaning of that term) to network formation, most of the networks described in this study would fall short. This is not surprising, as traditional ideas of consent go hand-in-hand with traditional legal capacity. Only one informant discussed a network in which the supported person expressly chose to enter into a network arrangement, and that person apparently met conventional capacity standards when supported. One other informant talked about a supported person ‘owning’ his Microboard such that he was free to terminate the arrangement should he wish. Th