This is the first of two posts about the UN Convention on the Rights of Persons with Disabilities and ‘supported decision-making’. This one is called ‘supported decision-making is not a revolution’, and the next one will be called ‘supported decision-making is a revolution’.
That might seem odd, but I don’t think they contradict one another. Hopefully, the reason why will become clear in part two.
Article 12(2) of the Convention says that ‘ States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. There has been a lot of debate about what this means, but that doesn’t really matter for this post. Most people agree that it means that the state cannot make legal decisions for someone with a disability until it has made every possible effort to support them to make their own decision. The debates are about how much the Convention goes beyond this.
‘Supported decision-making’ is the process of helping someone to reach their own decision. It does not include making a decision for them.
The idea that the state cannot make decisions for disabled people unless it has tried to help them to make their own decision is revolutionary. Most states in the world have guardianship laws that allow a person to be stripped of their ability to make any legally effective decisions. Even when countries do have provisions for support, such as England and Wales, they are generally weak, limited, and unenforced.
So when activists and scholars describe Article 12 as ‘revolutionary’, ‘a paradigm shift’, or ‘entirely new’, then they are right. What worries me is the lack of precision with which they sometimes do it. The tendency is to talk about the newness of ‘the Convention’ or ‘the Article’ without specifying very carefully what is new about it. That means that if, after saying something like ‘a revolution’, they launch into a discussion of supported decision-making, then it looks like supporting people to make decisions is a revolutionary idea. That worries me.
The Convention promises a new legal relationship between the state and the disabled citizen (digression: philosophy geeks with a historicist bent might see it as a late example of what Charles Taylor calls the move from a ‘mediated access’ to a ‘direct access’ society). What is not new is helping another person to decide. We do it all the time. It is part of being a human being. None of us gets to adulthood without being helped to decide, and none of us can manage as an adult in society without being helped to make decisions all the time. Supported decision-making for people with disabilities isn’t different to this. It boils down to communicating with someone, respecting them, and listening to them. That is not a revolutionary idea. What would be revolutionary would be if it consistently happened.
All that is obvious, but it is important. As soon as supported decision-making for people with disabilities gets thought of as ‘revolutionary’ or a ‘paradigm shift’, then it makes people with disabilities different to everyone else. That will just feed stigma. Stigma is sneaky, stubborn, and creeps back when you aren’t looking. It is especially good at turning good intentions into bad practices.
In this case, the stigma can be dodged. So this is my plea to people writing about Article 12 of the Convention: don’t say ‘it is a revolution’ or ‘it is a paradigm shift’ and leave it at that. Say something like ‘it promises a revolution in the legal relationship between the state and the disabled citizen’ instead.
Just to complicate matters, part two will argue that supported decision-making might, in some ways, be more of a revolution than is usually assumed.