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KMID : 1001320210480030181
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Social Welfare Policy
2021 Volume.48 No. 3 p.181 ~ p.206
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A Critical Review of Decision-making Support Factors in the Korean Law ≪Act on Guarantee of Rights of and Support for Persons with Developmental Disabilities≫ - with a Focus on the English Law ≪Mental Capacity Act 2005≫ -
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Shin Jin-Ho
Lee Ah-Young
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Abstract
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The purpose of this study is to suggest a legislative direction which can realistically guarantee the right of self-determination of persons with developmental disabilities by analyzing the key elements of decision making support factors contained within the Korean law ≪Act on Guarantee of Rights of and Support for Persons with Developmental Disabilities≫(the “Developmental Disabilities Act”). For this, the contents of the Developmental Disabilities Act and its enforcement decree and enforcement rules were analyzed based on the five key principles of the English law ≪Mental Capacity Act 2005≫.
The analysis revealed that the Developmental Disabilities Act provided, in principle, a presumption of capacity, as well as a legal foundation for decision-making support through clauses which guarantee the right of self-determination of persons with developmental disabilities. It also established the premise of decision-making support by including provisions on communication support. However, if ‘reasonable grounds’ exist, the law also allowed room for the person’s intention to be substituted by a guardian or other person’s decision, and the detailed process regarding the supporting evidence and judgment of such reasonable grounds was lacking in the process. In addition, the maximum support was not afforded to utilize the person’s residual capacity before the decision-making ability of the person was determined.
Furthermore, the desires and preferences of the disabled were not reflected when determining ‘the person’s best interests’.
The implications of these results are as follows. First, in order to guarantee the right of self-determination of persons with developmental disabilities, considerations have to be made to introduce systematic steps and detailed standards prior to proxy decision making. Second, discussions on the ability to exercise self-determination should not be held without granting sufficient support to make use of the person’s residual capacity, and differentiated support should be provided based on individual cases. Third, even in the event of proxy decision making, in order to represent ‘the best interests’ of the person, preceding steps must be taken to reflect the needs and preferences of the disabled. Fourth, the spirit of the law should be upheld when enacting any sub-legislation.
Hopefully, the results and implications of this study will be sufficiently addressed during the legislative process of revising the Developmental Disabilities Act and the enactment of the Decision-Making Support Act.
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KEYWORD
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people with developmental disabilities, right to self-determination, support for decision-making, Act on Guarantee of Rights of and Support for Persons with Developmental Disabilities, Mental Capacity Act 2005
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