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Forum on Best Interest Advocacy, Good Advocacy and the Review of the Guardianship Act

Guardianship and Mental Health Laws in the New Era of Human Rights for People with Disabilities David Webb. Forum on Best Interest Advocacy, Good Advocacy and the Review of the Guardianship Act Hosted by DARU and VDAN 15 September 2009, Ross House, Melbourne. Mental Health Act Review.

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Forum on Best Interest Advocacy, Good Advocacy and the Review of the Guardianship Act

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  1. Guardianship and Mental Health Laws in the New Era of Human Rights for People with DisabilitiesDavid Webb Forum on Best Interest Advocacy, Good Advocacy and the Review of the Guardianship Act Hosted by DARU and VDAN 15 September 2009, Ross House, Melbourne

  2. Mental Health Act Review • Commenced May 2008 • Consultation Paper December 2008 • Submissions and community forums closed February 2009 • Report on consultations and government response July 2009 • New Act mid-2010? • Review conducted by DHS

  3. Guardianship Act Review • Commenced recently • To be conducted by Law Reform Commission • Broad terms of reference • But do they include people with psychosocial disabilities?

  4. Some numbers • Guardianship Act • Approx 1,300 people, mostly dementia • Mental Health Act • 5,000+ on Involuntary Treatment Orders

  5. Human Rights Laws • Victorian Charter of Human Rights and Responsibilities (2006) • not disability specific but still relevant • UN Convention on the Rights of Persons of Disabilities (CRPD) • legally binding international law • ratified by Australia July 2008

  6. CRPD • prohibits discrimination on the basis of disability • legislation, policies, services, funding etc • equal recognition before the law • legal capacity • “on an equal basis with others” • paradigm shift from substituted to supported decision-making

  7. Legal Capacity • not to be confused with mental or cognitive (decision-making) capacity • legal capacity is a rightnot an ability • diminished mental/cognitive capacity does not diminish legal capacity

  8. Substituted decision-making • Someone else decides on behalf of another • with or without their consent • supposedly only for “rare and extreme” cases • Does CRPD prohibit substituted decision-making? • Australia has lodged “interpretive declaration” that it is – contested and controversial

  9. Supported Decision-Making • Every effort is made to ascertain what a person’s wishes are • Support to make decisions • Support to communicate wishes/decisions • Support network is obliged to respect the person’s wishes • Includes the right to take risks and make mistakes and bad decisions … “on an equal basis with others”

  10. Fully Supported Decision-Making • When someone needs “100% support” • Not to be confused with substituted • Obligation remains to respect the person’s wishes • Australia’s declaration appears to confuse the two – but is ambiguous

  11. Australia’s legal capacity declaration “Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards”

  12. Where to from here? • Already much debate worldwide on interpreting these key ideas of CRPD • With CRPD, onus now shifts to advocates of substituted to justify their reasons • i.e. rather than people with disabilities being obliged to defend their rights • If substituted decision-making is judged a limitation of a person’s rights, then can only be permitted “on an equal basis with others”

  13. Guardianship vs Mental Health? The same principles – and laws – apply

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