By Prof. Anne-Marie Callus from the Department of Disability Studies within the Faculty for Social Wellbeing
Persons with disabling conditions which can affect mental capacity, such as cognitive or psychosocial disabilities, may need support to take decisions about their own life and/or to act on decisions they have taken.
These can be major decisions (whether to take up a job) or minor ones (what to wear).
Since at least the time of the Roman Empire, such persons have had their right to legal capacity, that is the right to take and act on such decisions, taken away from them. This is done through substitute decision-making legislation, such as Malta’s guardianship law.
When a person with disability has a guardian appointed, the latter can decide how much money the person has access to. Money is needed to do just about anything in life, so that the person with disability is left with few decisions, if any, which they can take and act on freely, thus having much of their legal capacity taken away.
The affirms legal capacity as a fundamental human right.
The proposed moves Malta from substitute to supported decision-making, in line with the Convention’s requirements. The question is whether the wording in the current Bill is strong enough.
For Malta to fully embrace and implement supported decision-making:
- the law clearly needs to state that the exceptionality of instances where the support person acts on behalf of the person with disability, relying on the best interpretation of the person’s will and preferences, are the exception. It should not be assumed that the person with disability won’t be able to express their will and preferences, through wording such as the following: ‘the support person… will act according to the will and preferences of the person being accorded personal autonomy safeguards, in as far as said will and preferences are able to be communicated by the person’. Most people with cognitive or psychosocial disabilities can express their will and preferences with support.
- legal requirements for support persons need to go beyond presenting receipts and accounting for how the money of the person with disability was spent. They also need to show how they are supporting decision-making. Requirements listed in the Bill are important, but not enough to provide safeguards for the proper exercise of personal autonomy.
- clarity is needed regarding what is meant by ‘standards of behaviour expected of a person of ordinary prudence’. Given the very long history of appointing others to take decisions on behalf of persons with reduced mental capacity, it is substitute decision-making that can be perceived as prudent, even if it goes against fundamental human rights.
- In addition to this legislation, guidelines and training are needed to ensure that support persons really understand how to go about supporting a person’s decision-making and tread carefully the fine line between respecting the person’s autonomy and safeguarding their wellbeing.
