The Law Commission has launched a review on the legal powers people are given to make decisions for others – a welcomed decision by New Zealand’s disability community.
The current law - the Protection of Personal and Property Rights Act - affects many in New Zealand’s disabled community and has remained largely unchanged for decades.
The review will look at the balance between helping affected people make decisions for themselves while protecting them from harm which disability advocate and disabled lawyer Dr Huhana Hickey told Breakfast on Friday is a serious issue.
“I’ve seen [the law harm people instead of protect them] a few times,” Hickey said.
“What we have in New Zealand at the moment is a substituted decision-making model which means people make decisions on your behalf.”
Hickey said a supported decision-making model, like that featured in the UN Convention on the Rights of Persons with Disabilities.
Under a supported decision-making model, Hickey said the approach is much more collaborative-driven and focuses on the subject’s desires rather than what others think are best.
“This is long overdue, it’s about time but we need to see that they engage with disabled lawyers and with other disabled because the other issue we have is that there’s a big difference between mental health and someone who is intellectually disabled or someone who has acquired a brain injury where they might need support.
“We need that supported decision-making model where we’re working with the clients as much as possible so they can make choices they want to make and not be excluded from decisions made for them.”
Hickey added a supported decision-making system would mean lawyers and other advisors would have to “walk along side” their clients rather than just make a call on their own judgement.
“You can’t just say, ‘the attorney or the guardian can make those decisions’,” she said.
“It has to be working with the client.”
Even in instances where the client is non-verbal, Hickey said there are still ways to ensure their desires are understood. Where a client is unable to communicate at all though, that’s when care and thoughtfulness has to be applied.
“If they lack all capacity, then you make the decision based on what you believe would be in their best interest,” she said.
“Supported decision-making is about working with family as well so if the individual can’t make the decision then the family can assist but it’s about supporting as much as possible so the individual doesn’t lose some of their autonomy which is what happens under the substituted model.
“It’s about making decisions that work with what that client wants to live their best life.”
The Law Commission said it aims to present a report to the Minister of Justice by the end of 2023 after conducting the review.
SHARE ME