title: An international comparison of legal frameworks for supported and substitute decision-making in mental health services.
abstract: There have been important recent developments in law, research, policy and practice relating to supporting people with decision-making impairments, in particular when a person's wishes and preferences are unclear or inaccessible. A driver in this respect is the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the implications of the CRPD for policy and professional practices are currently debated. This article reviews and compares four legal frameworks for supported and substitute decision-making for people whose decision-making ability is impaired. In particular, it explores how these frameworks may apply to people with mental health problems. The four jurisdictions are: Ontario, Canada; Victoria, Australia; England and Wales, United Kingdom (UK); and Northern Ireland, UK. Comparisons and contrasts are made in the key areas of: the legal framework for supported and substitute decision-making; the criteria for intervention; the assessment process; the safeguards; and issues in practice. Thus Ontario has developed a relatively comprehensive, progressive and influential legal framework over the past 30 years but there remain concerns about the standardisation of decision-making ability assessments and how the laws work together. In Australia, the Victorian Law Reform Commission (2012) has recommended that the six different types of substitute decision-making under the three laws in that jurisdiction, need to be simplified, and integrated into a spectrum that includes supported decision-making. In England and Wales the Mental Capacity Act 2005 has a complex interface with mental health law. In Northern Ireland it is proposed to introduce a new Mental Capacity (Health, Welfare and Finance) Bill that will provide a unified structure for all substitute decision-making. The discussion will consider the key strengths and limitations of the approaches in each jurisdiction and identify possible ways that further progress can be made in law, policy and practice.
authors: School of Sociology, Social Policy and Social Work, Queen's University Belfast, Belfast, Northern Ireland, United Kingdom. Electronic address: g.davidson@qub.ac.uk.
authors: Gavin
authors: G
authors: Davidson
authors: Mind Australia and the School of Population and Global Health, University of Melbourne, Melbourne, Australia.
authors: Lisa
authors: L
authors: Brophy
authors: School of Social Policy, Social Work and Social Justice, University College Dublin, Dublin, Ireland.
authors: Jim
authors: J
authors: Campbell
authors: Royal Ottawa Mental Health Centre, Ottawa, ON, Canada; University of Ottawa, Ottawa, ON, Canada.
authors: Susan J
authors: SJ
authors: Farrell
authors: Centre for Disability Law and Policy, National University of Ireland, Galway, Ireland.
authors: Piers
authors: P
authors: Gooding
authors: Royal Ottawa Mental Health Centre, Ottawa, ON, Canada; Royal Ottawa Mental Health Centre and Adjunct Faculty, Carleton University, Ottawa, ON, Canada.
authors: Ann-Marie
authors: AM
authors: O'Brien
mesh_terms: D003134:Commitment of Persons with Psychiatric Disorders / Q000331:legislation & jurisprudence; D003657:Decision Making; D006233:Persons with Disabilities / Q000331:legislation & jurisprudence*; D006806:Human Rights / Q000331:legislation & jurisprudence*; D006801:Humans; D016743:Mental Competency / Q000331:legislation & jurisprudence*; D014480:United Nations
keywords: Guardianship; Mental capacity law; Mental health law; Substitute decision-making; Supported decision-making; UNCRPD