Decision-Making for Persons with Impaired Capacity

A Background Paper

Summary: This report contextualises the issue of decision-making for persons with impaired capacity for an Indian audience and sets out the role that a legal framework on capacity and decision-making plays in this regard

Impairment of capacity occurs for a number of reasons. These range from intellectual disabilities to mental illness and include acute illnesses, brain injuries and conditions such as dementia, affecting persons of old age. While the ability to make decisions about one’s life is usually taken for granted, this presumption gets disturbed in the context of persons with impaired capacity who may need support and, in a few cases, even require others to make decisions on their behalf. Laws governing capacity and decision-making become relevant in this context.

Such laws, however, represent great complexity at both the conceptual as well as design level since they involve difficult decisions about determining when decision-making interventions become necessary due to lack of capacity. Not allowing decision-making when a person may possess the capacity to make a decision or allowing decision-making when the person does not possess capacity for a particular decision are both ethically fraught matters. In our research, we analysed the concept of decision-making capacity, where capacity is contextual and decision-specific. This is distinct from legal capacity which refers to the law’s recognition of personhood and its related rights and obligations. All persons are ordinarily recognised as possessing legal capacity even though they may not possess decision-making capacity, with the lack of decision-making capacity necessitating decision-making interventions. Determining decision-making capacity, however, is complex and in the past has often resulted in the discriminatory denial of legal personhood to individuals. Distinguishing between legal capacity and decision-making capacity is, however, necessary if laws on capacity and decision-making are to truly further the rights of persons with impaired capacity.

The right to individual autonomy provides the principled basis for recognising the decision-making capacity of all persons. However, in determining the scope of laws on capacity and decision-making, values of well-being and distributive justice must also be considered. Decision-making approaches for persons with impaired capacity range from supported decision-making where the person is the ultimate decision-maker even though they may be supported in various ways in reaching a decision, to substituted decision-making where the decision is taken by a surrogate or is based on advance directives.  Different jurisdictions with laws on capacity and decision-making emphasise the importance of realising the autonomy of persons with impaired capacity while adopting diverse approaches for doing so. The Indian legal framework on capacity and decision-making is scattered and fragmented since it comprises a number of population-specific laws and judicial decisions that try to fill the gap in these laws. A holistic approach to the problem of capacity is lacking. Further, it does not go into sufficient detail regarding the rights of all persons with impaired capacity and lacks various conceptions of decision-making that are well-recognised in both academic literature and in developed jurisdictions. Therefore, it does not fully promote the rights of persons with impaired capacity and often leaves them vulnerable. This calls for reform.

Based on our research, we identify the following key features of an Indian legal framework on capacity and decision-making which policymakers should consider:

  1. Identifying Target Population Groups and the Nature of Decisions
  2. Guiding Objectives
  3. Approach to Decision-Making Capacity
  4. Approach to Decision-Making
  5. Safeguards to Prevent Abuse
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