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Giving substance to ‘the best interpretation of will and preferences’

Research output: Contribution to journalArticle

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Publication details

JournalInternational Journal of Law and Psychiatry
DateAccepted/In press - 5 Dec 2018
DatePublished (current) - Jan 2019
Volume62
Number of pages10
Pages (from-to)125-134
Original languageEnglish

Abstract

In General Comment No. 1, the UN Committee on the Rights of Persons with Disabilities calls for ‘the best interpretation of will and preferences’ to replace best interests determinations in decision-making law, but it has given little guidance on the content of this new standard. As a result, ‘best interpretation’ is sometimes treated as synonymous with ‘true interpretation’. On this reading, ‘the best interpretation of will and preferences’ is just whatever interpretation most accurately represents the interpreted person’s will and preferences.
This article shows that the conflation of the word ‘best’ with the word ‘true’ must be avoided. Interpretative processes contribute to changes in the interpreted person, including changes in their will and preferences. There are both supportive and abusive forms of these contributions, but conflating ‘best interpretation’ with ‘true interpretation’ removes both from view. An alternative reading of ‘best interpretation’ should therefore be preferred: one that requires the process of interpretation to be responsive to both truth and the detailed substantive rights found in the UN Convention on the Rights of Persons with Disabilities.

Bibliographical note

© 2018 The Author.

    Research areas

  • Best interpretation, Will and preferences, UNCRPD, Convention on the Rights of Persons with Disabilities, General Comment No. 1, Best interests

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