last update: 20151125
■Introduction
Article 12 Paragraph 3 of the UN Convention on the Rights of Persons with Disabilities prescribes the support persons with disabilities may require in exercising their legal capacity.
This regulation is meant to deal with the issue that is faced by persons with disabilities in many countries, Japan included, through which the conditions of such individuals are arbitrarily interpreted by specialists and other personnel. If this issue is not carefully reviewed, particularly in interpersonal support, such interpretations could be potentially detrimental to persons with disabilities.
◇Committee on the Rights of Persons with Disabilities, General comment, No. 1 para.17
Support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making. Article 12, paragraph 3, does not specify what form the support should take. “Support” is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity. For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for certain types of decisions, or may call on other forms of support, such as peer support, advocacy (including self-advocacy support), or assistance with communication.
Interpersonal support is presumed to be the primary form of support? Is that really enough?
The objective of this report is to clarify the issues surrounding how person to person support assists persons with disabilities to exercise their legal capacity.
■When support deemed necessary to exercising legal capacity does not move forward
I. Reception of the UK Mental Capacity Act in Japan
* The UK Mental Capacity act serves as a precedent for the “support required to exercise legal capacity” and “supported decision making” concepts.
* As the complete abolishment of mental capacity advocates is considered impossible, the Mental Capacity Act is seen as a reasonable option for minimizing the advocate role.
* The system supports the right to self-determination.
* The Act states that support must be done in the best interests of the person in question.
After the implementation of the Mental Capacity Act in the UK, in contrast to the intent of the law to minimize decision-making on the part of advocates, it was seen that advocates tended to make more decisions. The Committee on the Rights of Persons with Disabilities advised the UK government that they were in breach of Article 12 of the Convention.
II. The process of adopting support for autonomous decision making in Japan.
* Social worker organizations misinterpreted the adult guardianship system as a system that supports the right to self-determination.
* As the Convention on the Rights of Persons with Disabilities became more well-known, the majority of people felt that the perceived issues with the adult guardianship system were impossible to do away with.
* A theory on how to combine the adult guardianship system with support for autonomous decision making was put forward.
“Support for autonomous decision making” is misinterpreted as a form of “supported decision making” system, and thereby could shut off the possibility of introducing other forms of support that persons with disabilities may require in exercising their legal capacity.
III. The system supporting autonomous decision making under the Japanese Disability Act
* The Japanese government is reviewing a system that supports the right to autonomous determination for those person for whom self-determination is difficult.
* The discussions is focused on who is appropriate as a supporter of autonomous decision making, and the expectations on social workers are increasing.
* Expectations are also increasingly high for having supporters of autonomous decision making be individuals close to the person with disabilities.
The only difference between this and the adult guardianship system is the lack of restrictions on legal capacity, indicating the possibility that a supporter of autonomous decision making could hamper a person with disabilities in exercising their legal capacity.
□ A supporter of autonomous decision making, in having no restrictions on legal capacity, could potentially interfere with the exercise of legal capacity on the part of the person with disabilities.
□ For that reason, it has been determined that persons must be allowed to refuse support potentially necessary to exercising legal capacity. (General comment para. 19)
■Discussion and Conclusion
The offering of necessary support to exercising legal capacity is based in the “supported decision making” paradigm, and it is accepted that person to person support is also necessary. However, it has been confirmed that the following problems remain.
i. The perspective of a safety net based in environmental and legal development becomes invisible.
ii. Requirements such as having the supporter be someone who is “close” are understood as fixed qualifications.
iii. Restrictions on legal capacity are misinterpreted as a part of support.
Interpersonal support is one of the persons with disabilities may require in exercising their legal capacity.
However, interpersonal support, there is a possibility that interfere with the exercise of legal capacity.
＊作成：Kirihara Hisayuki