Transcript 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.

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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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
Guardianship Act Review
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Commenced recently
To be conducted by Law Reform Commission
Broad terms of reference
But do they include people with psychosocial
disabilities?
Some numbers
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Guardianship Act
 Approx
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1,300 people, mostly dementia
Mental Health Act
 5,000+
on Involuntary Treatment Orders
Human Rights Laws
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Victorian Charter of Human Rights and
Responsibilities (2006)
 not
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disability specific but still relevant
UN Convention on the Rights of Persons of
Disabilities (CRPD)
 legally
binding international law
 ratified by Australia July 2008
CRPD
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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”
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paradigm shift from substituted to supported
decision-making
Legal Capacity
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not to be confused with mental or cognitive
(decision-making) capacity
legal capacity is a right not an ability
diminished mental/cognitive capacity does not
diminish legal capacity
Substituted decision-making
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Someone else decides on behalf of another
 with
or without their consent
 supposedly only for “rare and extreme” cases
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Does CRPD prohibit substituted decision-making?
 Australia
has lodged “interpretive declaration” that it is
– contested and controversial
Supported Decision-Making
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Every effort is made to ascertain what a person’s
wishes are
 Support
to make decisions
 Support to communicate wishes/decisions
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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”
Fully Supported Decision-Making
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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
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”
Where to from here?
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Already much debate worldwide on interpreting
these key ideas of CRPD
With CRPD, onus now shifts to advocates of
substituted to justify their reasons
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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”
Guardianship vs Mental Health?
The same principles – and laws – apply