Transcript The UN Convention on the Rights of Persons with Disabilities (CRPD) and Psychosocial Disability in Australia David Webb Australian Federation of Disability Organisations (AFDO) Unfinished Business.

The UN Convention on the Rights of
Persons with Disabilities (CRPD)
and
Psychosocial Disability in Australia
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
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 mental disability (disorder, illness)
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person with psychiatric disability
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person who experiences psychosocial disability
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mad, crazy, loopy, wacko nutter …
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
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does not create new rights for pwd
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pwd have rights on an equal basis with others
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based on social model of disability
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underlying principle is prohibition of all discrimination on
the basis of disability (incl medical status)
must modify or abolish incompatible domestic laws
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
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
Australian Federation of Disability Organisations
Committee of CRPD
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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
Australian Federation of Disability Organisations
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
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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
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”
legal capacity = the right to make your own decisions
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without legal capacity, all other rights meaningless
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Article 12 represents the foundation of paradigm shift from
substituted to supported decision-making
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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
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
Australia and the CRPD
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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
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
Australia and the CRPD
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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)
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National Disability Strategy due ... real soon now ...
National Disability Insurance Scheme is on the agenda
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global dismay among pwd at Australia’s declarations
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• but barely a mention in Australian media
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CRPD supersedes the MI Principles
Australian Federation of Disability Organisations
Australia’s Shadow Report
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government must report to CRPD Committee by August
• supposedly in consultation with pwd and their DPOs
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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
Australian Federation of Disability Organisations
Victoria, CRPD and Psychosocial
Charter of Human Rights and Responsibilities (2006)
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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
Australian Federation of Disability Organisations
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
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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
Australian Federation of Disability Organisations
Conclusions – Unfinished Business
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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)
cannot be social inclusion without rights (esp legal
capacity)
Nothing About Us Without Us
www.un.org/disabilities
www.afdo.org.au
Australian Federation of Disability Organisations