David Webb Australian Federation of Disability Organisations (AFDO)

1. David Webb Australian Federation of Disability Organisations (AFDO) Unfinished Business – Pathways to Social Inclusion VICSERV 2010 International Mental Health Conference Melbourne Cricket Ground Friday April 30, 2010 The UN Convention on the Rights of Persons with Disabilities (CRPD)and Psychosocial Disability in Australia

2. Psychosocial disability One person, many labels: • psychiatric survivor • mental health consumer • mental health service user (UK) • person with mental disability (disorder, illness) • person with psychiatric disability • person who experiences psychosocial disability • mad, crazy, loopy, wacko nutter …

3. CRPD Pre-History • 1982 – UN adopts the World Programme of Action concerning Disabled Persons • 1983-1992 - UN Decade of Disabled Persons • 1987 – first (failed) attempt to recommend a convention on the human rights of persons with disabilities • 1991 – UN adopts the “Principles for the protection of persons with mental illness and the improvement of mental health care” (MI Principles) • 1993 – UN adopts the “Standard Rules on the Equalization of Opportunities for Persons with Disabilities” (the Standard Rules).

4. CRPD History • December 2001 – Mexico proposes an international convention on the rights of persons with disabilities. • August 2002 – first session of the Ad Hoc Committee • 25 August 2006 – eighth session of the Ad Hoc Committee finalises text of CRPD • 13 December 2006 – UN adopts by consensus the Convention on the Rights of Persons with Disabilities • 30 March 2007 – The Convention and Optional Protocol opened for signing at UN Headquarters in New York. • 3 May 2008 – entry into force

5. CRPD • does not create new rights for pwd • pwd have rights on an equal basis with others • based on social model of disability • underlying principle is prohibition of all discrimination on the basis of disability (incl medical status) • must modify or abolish incompatible domestic laws

6. Structure of CRPD 1 Preamble 1. Purpose 2. Definitions 3. General principles 4. General obligations 5. Equality and non-discrimination 6. Women with disabilities 7. Children with disabilities 8. Awareness-raising 9. Accessibility 10. Right to life 11. Situations of risk and humanitarian emergencies 12. Equal recognition before the law 13. Access to justice 14. Liberty and security of the person 15. Freedom from torture or cruel, inhuman ordegrading treatment or punishment 16. Freedom from exploitation, violence and abuse 17. Protecting the integrity of the person 18. Liberty of movement and nationality 19. Living independently and being included in the community

7. Structure of CRPD 2 20Personal mobility 21. Freedom of expression and opinion, and access to information 22. Respect for privacy 23. Respect for home and the family 24. Education 25. Health 26. Habilitation and rehabilitation 27. Work and employment 28. Adequate standard of living and social protection 29. Participation in political and public life 30. Participation in cultural life, recreation, leisure and sport 31. Statistics and data collection 32. International cooperation 33. National implementation and monitoring 34 to 40. International monitoring mechanism 41 to 50. Final clauses Optional protocol

8. Committee of CRPD • 12 independent experts elected by “State Parties” • current Chair is Prof. Ron McCallum (Aust) • will expand to 18 in September (80+ ratifications) • still finding its feet, mostly procedural matters so far • can guide interpretation – “General Comments” • can hear complaints through Optional Protocol • Day of General Discussion on Article 12 (Oct 2009) • have already expressed concern at how little legislative change has yet occurred around the world • linkages with other UN agencies – e.g. OHCHR

9. Social Model of Disability CRPD preamble: “disability is an evolving concept ... results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others” • disability is not an attribute of the person • disability is discrimination (stigma) against persons with “impairments” by a non-inclusive society • disability is primarily a human rights, social inclusion issue

10. CRPD a “paradigm shift” Old paradigm: • medical model • pwd as objects of pity deserving charity • protective, patronising, “father knows best” • substituted decision-making New paradigm: • social model • pwd as subjects with dignity and autonomy • autonomy, social inclusion, rights based • supported decision-making

11. Article 12Equal recognition before the law “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” [countries] “shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” • legal capacity = the right to make your own decisions • without legal capacity, all other rights meaningless • Article 12 represents the foundation of paradigm shift from substituted to supported decision-making

12. Substituted vs Supported Decision-Making Substituted: • someone else decides on behalf of another • with or without their consent Supported: • every effort made to ascertain a person’s wishes • support to make decisions and/or communicate them • obligation to respect the person’s wishes • right to take risks “on an equal basis with others”

13. Does the CRPD prohibit substituted decision-making? • in Australia we mostly hear it assumed that the CRPD permits substituted decision-making … but … • this is controversial and contested around the world • at the very least, it’s still an open question • Article 12 is considered central to the “object and purpose” of the CRPD – invokes Article 46 • CRPD Committee has set up a working group to develop a General Comment on the interpretation of Article 12

14. The Limitation of Rights • not mentioned in the CRPD • other human rights laws do: • ICCPR, Victoria’s Human Rights Charter • criteria exist for when the limitation of a right can be lawfully justified (Syracusa Principles): • “can be demonstrably justified in a free and democratic society” (Victoria’s Human Rights Charter) • “reasonable, necessary, justified and proportionate” (Victorian Equal Opportunity and Human Rights Commission) • e.g. criminal justice systems

15. Australia and the CRPD • 17 July 2008 – Australia ratifies CRPD but made three “interpretive declarations”, including this on Article 12: 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

16. Australia and the CRPD ... and this on Article 17, explicitly mentioning “mental disability” ... Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards

17. Australia and the CRPD • CRPD is the hot issue in disability • ... except in psychosocial disability ... • most of disability comes under FaHCSIA (social) • psychosocial (mental health) still under DoHA (medical) • National Disability Strategy due ... real soon now ... • National Disability Insurance Scheme is on the agenda • global dismay among pwd at Australia’s declarations • but barely a mention in Australian media • CRPD supersedes the MI Principles

18. Australia’s Shadow Report • government must report to CRPD Committee by August • supposedly in consultation with pwd and their DPOs • Committee genuinely wants “shadow reports” from civil society, esp DPOs • Australian Shadow Report Project well under way • consortium of DPOs, incl AFDO, with pro bono support from DLA Philips Fox • community consultations have been held • online survey closes April 30 (actually May 6) www.disabilityrightsnow.org.au

19. Victoria, CRPD and Psychosocial Charter of Human Rights and Responsibilities (2006) • weak, but step in right direction • prohibits medical treatment without consent • recognises international law • allows for “limitation” of rights when it “can be demonstrably justified in a free and democratic society” Disability Act (2006) • blatant discrimination against psychosocial disability • very deliberately exclusion from its definition of disability

20. Victoria, CRPD and Psychosocial Guardianship Act • approx 1,300 people, mostly age-related dementia • currently under review by Law Reform Commission • CRPD and Charter taken seriously Mental Health Act • 5,000+ on Involuntary Treatment Orders • involuntary ECT over 100 times per week !!! • currently under review by DHS !!! • CRPD and Charter not taken seriously • government already announced it intends to maintain substituted decision-making

21. Conclusions – Unfinished Business • CRPD (and Charter) are great advocacy tools • but by themselves do not eliminate legally sanctioned prejudice and discrimination • the challenge now is awareness raising (Art 8) and implementation and monitoring (Art 33) • cannot be social inclusion without rights (esp legal capacity) Nothing About Us Without Us www.un.org/disabilities www.afdo.org.au