Kirby, Michael --- "Book Review: Who Can Decide? The Six Step Capacity Assessment Process" [2003] ElderLawRw 7; (2003) 2 Elder Law Review 10
BOOK REVIEW: WHO CAN DECIDE? THE SIX STEP CAPACITY ASSESSMENT PROCESS
Michael Kirby[1]
Who Can Decide? The Six Step Capacity Assessment Process, Dr Peteris Darzins, Dr D William Molloy, Dr David Strang, Memory Australia Press, South Australia, 2000. 150 pages. ISBN 0-646-40343-5. RRP $39.95
One of the most remarkable legal developments of our time is the growth of the international law of human rights. It is one of the three pillars of the United Nations. Its impetus derived from the horrors and dislocations of the Second World War, the discovery of the Holocaust and other war crimes, the subsequent dismantling of colonialism and concern about economic inequality and environmental degradation. At the heart of the principles of universal human rights is a concept of the autonomy, worth and inalienable dignity of the human being.
The common law of England, one of the world’s great legal systems, which has been adapted in Australia, Canada, the United States and elsewhere, also protects fundamental human rights. Indeed, all legal systems, to some extent, strive to do so. But there are times in the journey of each human being when the subject is particularly vulnerable and even unable to assert his or her human rights. This is the situation at birth and in infancy and childhood. It can also be the position in mature years, where there is mental or physical impairment. It is certainly the case when, usually in advanced years, there is mental decline and the individual is unable to make all the complex decisions that are necessary for life in modern society.
In earlier times, human life was typically shorter. The family or the village would gather round the vulnerable with support. In modern times, physical life may be much longer. But the old social supports are commonly missing. These facts necessitate assessments by medical and paramedical personnel about the capacity of individuals to fend for themselves. Such decisions can be of the greatest importance. They may require dislocation from much-loved surroundings and friends, loss of privacy and dignity and even institutionalisation.
This book shows how important is the decision-making in such circumstances. Cases still come before the courts involving disputed testamentary capacity and the steps taken by lawyers to ensure that the individual concerned has the necessary understanding to make a will. But for every such case there are thousands of decisions, made every day, which are never scrutinised by a lawyer, let alone a court. This is why, if we take fundamental human rights seriously, the subjects of this book are so important. Decisions made by individuals with great power and responsibility affect in practice the rights of many. Getting those decisions right is therefore of prime significance.
There are five features of this book that I specially commend. First, there is a clear recognition that decisions about human capacity have profound and highly personal impacts on individuals, respect for whose dignity and basic rights is a professional, as well as a legal and moral obligation. Secondly, there is a clear recognition that such decisions are made in a context of legal norms, protective of such rights. These norms may not always be readily enforced. But woe betide the professional who forgets that law hovers above such decisions. Thirdly, the six step approach described here is posited upon minimal interference in individual autonomy. Institutionalisation, like imprisonment for the convicted criminal, is a measure of last resort. Health professionals must always first strive to avoid doing needless harm. Fourthly, there is a clear awareness of the puzzling dilemmas and the inescapable significance of the individual attitudes and predilections of decision-makers. Hence the admirable endeavour to discipline such decisions by imposing on them a systematic and rigorous approach. Fifthly, there is a warning of the dangers of having too much faith in orthodox wisdom. This is a warning to be recalled in the papal treatment of Galileo. In our own time, it was illustrated in psychiatry as it was practised in the former Soviet Union. Dissidents were simply labelled mentally ill. In some places such orthodoxy still works havoc. Homosexuals are still subject to electro compulsive therapy, deprivation of liberty and other horrors. In judging what society, or relatives or own professions call mental illness or incapacity, we must therefore retain a healthy scepticism.
The authors are to be congratulated for approaching this subject in such a right-respecting way. I hope that their instruction has the impact it deserves.
[1] Justice of the High Court of Australia