Transcript Guardianship - University of Melbourne

The Rights of Users and Survivors of Psychiatry
and
The United Nations Convention on the Rights of
Persons with Disabilities (CRPD)
A conversation with David Webb
psychiatric survivor and human rights advocate
&
Lesley Hall
CEO, Australian Federation of Disability Organisations (AFDO)
Friday April 23rd, 2010
The Psych Action and Training Group, (PAT)
Centre for Psychiatric Nursing, University of Melbourne
Australian Federation of Disability Organisations
CRPD Pre-History
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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).
Australian Federation of Disability Organisations
CRPD History
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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
Australian Federation of Disability Organisations
CRPD a “paradigm shift”
Old paradigm:
medical model
pwd as objects of pity deserving charity
protective, patronising, “father knows best”
substituted decision-making
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New paradigm:
social model
pwd as subjects with dignity and autonomy
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autonomy, social inclusion, rights based
supported decision-making
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Australian Federation of Disability Organisations
Social Model of Disability
CRPD preamble:
“disability 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”
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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 issue
Australian Federation of Disability Organisations
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 or degrading 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
Australian Federation of Disability Organisations
Structure of CRPD 2
20. Personal 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
Australian Federation of Disability Organisations
Psychosocial disability
One person, many labels:
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psychiatric survivor
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mental health consumer
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mental health service user (UK)
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person with psychiatric disability
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person with mental disability (yuk)
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person who experiences psychosocial disability
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mad, crazy, loopy, wacko nutter …
Australian Federation of Disability Organisations
Article 12
Equal 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”
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key principle of CRPD is prohibition of discrimination on
the basis of disability (includes medical status)
legal capacity – the right to make your own decisions
Article 12 represents the foundation of paradigm shift
from substituted to supported decision-making
Australian Federation of Disability Organisations
Substituted vs
Supported Decision-Making
Substituted:
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someone else decides on behalf of another
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with or without their consent
Supported:
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every effort made to ascertain a person’s wishes
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support to make decisions and/or communicate them
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obligation to respect the person’s wishes
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right to take risks “on an equal basis with others”
Australian Federation of Disability Organisations
Australia and the CRPD
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17 July 2008 – Australia ratifies CRPD but makes 3
“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
Australian Federation of Disability Organisations
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
Australian Federation of Disability Organisations
Does the CRPD prohibit
substituted decision-making?
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in Australia we mostly hear it assumed that the CRPD
permits substituted decision-making … but …
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this is controversial and contested around the world
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at the very least, it’s still an open question
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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
Australian Federation of Disability Organisations
The Limitation of Rights
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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)
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e.g. criminal justice systems
Australian Federation of Disability Organisations
Victoria and the CRPD
Guardianship Act
• approx 1,300 people, mostly age-related dementia
• currently under review by Law Reform Commission
Mental Health Act
• 5,000+ on Involuntary Treatment Orders
• each week in Victoria, over 100 involuntary patients
are given ECT
• currently under review by DHS !!!
Australian Federation of Disability Organisations
Victoria and the CRPD
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review of Mental Health Act nearly over
government has announced it intends to maintain
substituted decision-making
but the DHS have not (yet?) presented any justification
for this decision – as required under the Charter
also ... Disability Act (2006) discriminates against people
who experience psychosocial disability !
Australian Federation of Disability Organisations
Conclusions
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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)
Nothing About Us Without Us
www.un.org/disabilities
www.afdo.org.au
Australian Federation of Disability Organisations