Decision-making in mental health: replacement or support?

We all make decisions throughout our lives. Sometimes, we need someone to support us in making them at some point or in a specific area. At these times, we may ask someone we trust to help us make our own decision. People with mental health problems also make decisions and sometimes need someone to accompany them in making these decisions.

Decision-making by substitution

It can happen that a person with a mental health problem is deprived of their right to decide and someone else makes decisions for them; a fact that we call substitute decision-making . The people who make substitute decisions can be family members or professionals, usually mental health professionals, who systematically make decisions for the person ( informal substitution ) or they can be someone appointed by a judge ( formal substitution , whether temporary or permanent). Some examples of stable formal substitutions are the figure of a legal guardian or an extended or rehabilitated parental authority.

Generally, decision-making by substitution is based on misconceptions and stereotypes about people's ability to decide: they may think that the person is incapable of making important decisions, that this provides clarity, that it is more practical and faster, that they know what is most convenient for them or that they do it out of their own best interests.

Substitutional decision-making is usually based on misconceptions and stereotypes about people's decision-making capacity.

At the same time, it can generate a vicious circle in which the person never tries to make decisions, because there is always someone else who makes them for them, or they lose confidence in their own ability to do so, and finally stop trying.

On the other hand, substitute decision-making violates the right to legal capacity . The Convention on the Rights of Persons with Disabilities states that all persons have the right to exercise their legal capacity on an equal basis with others, despite having different capacities or abilities, in all aspects of life, and that they must be provided with the relevant measures so that they can access the support they may need in the exercise of their legal capacity (Art. 12).

Decision-making support

That is, all people must be able to access different support options, including support from people they trust (such as family members or peers).

Let's talk, then, about decision-making support , a support that must be:

• Adapted and flexible: it must adapt to the needs of each person at all times, since their capacity to make decisions and the degree of support they may need may vary (while their right to exercise legal capacity never varies or fluctuates).
• Voluntary: supports cannot be imposed on the person, who can reject them if they wish.
• Based on the person's will and preferences , even the most intensive supports.
  

What is a support plan and how is it developed?

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There may be situations where, even after making the best efforts, a person is unable to convey their preferences or wishes. In this case, decision-making support can be provided based on the most accurate interpretation of their wishes or preferences . It will therefore be necessary to consult the information available about the person or, if they have previously prepared one, their advance decision document .

We need to move from the decision-making model by substitution to a model of support for decision-making, and value forms of support such as the personal mediator or support networks and communities.

Thus, the QualityRights of the World Health Organization (WHO) point out that it is necessary to move from the decision-making model by substitution to a model of support for decision-making , and emphasizes forms of formal support, such as the personal mediator (Sweden) or independent advocacy (Scotland), and informal ones, such as support networks and communities , personal assistance, peer support and support from family and friends.

In Spain, Law 8/21 has meant making this paradigm shift:

• It abolishes incapacity and judicial procedures for modifying the capacity to act.
• It requires reviewing and updating the measures agreed upon prior to the entry into force of the new legislation.
• It modifies the catalogue of support figures available in the Spanish Civil Code. For example, the figures of guardianship, extension and rehabilitation of the parental homeland cease to exist, and curatorship (assistance or representative) is established as the main measure of formal support, and also de facto guardianship for specific supports. In the case of Catalonia, Decree Law 19/21 establishes only the assistant as a stable formal support figure in the exercise of legal capacity, whether it is an accompanying, collaborative or representative assistance, and, as a specific measure, the judicial defender.