ANOTHER inquiry into legal capacity legislation (this time from Oz…)

Another week, another inquiry into legal capacity legislation…  This month, the UK House of Lords and the Equality and Human Rights Commission have both announced forthcoming inquiries or post-legislative scrutiny into the Mental Capacity Act 2005 and the deprivation of liberty safeguards.  Now the Australian government’s Attorney-General Mark Dreyfus QC has announced a ‘Consultation on draft terms of reference for ALRC inquiry into equal recognition before the law and legal capacity for people with disability’.    Hat tip to Piers Gooding for flagging this up.  The Australian inquiry will consider:
  • Commonwealth laws and legal frameworks that deny or diminish the rights of people with disability to make their own decisions and act on their own behalf, and
  • what, if any, changes could be made.

The press release states:

“I want to make sure that existing Commonwealth laws and legal frameworks do not create barriers to people with disability exercising their rights and legal capacity,” Mr Dreyfus said.

“Most of us take for granted the independent decisions we make about our lives. People with disability deserve the same opportunity.

“This inquiry is about maximising choice and autonomy for Australians with disability.”
Minister for Disability Reform Jenny Macklin said that people with disability are entitled to the dignity that comes from being able to make choices over their own lives.

“Ensuring that people with disability have access to the same rights and opportunities as Australians without disability is a hallmark of a just society,” Ms Macklin said.

“As we celebrate the twentieth anniversary of the Disability Discrimination Act, it is fitting that we consider whether our laws are adequately supporting people with disability.

“The announcement of this inquiry coincides with the upcoming launch of DisabilityCare Australia, the national disability insurance scheme, a significant reform that will transform the way people with disability are supported and put choice and control in the hands of people with disability.”

The phrasing of the inquiry suggests that it will look into both legal capacity and access to justice issues, and could potentially be very interesting.

Throw into the mix that the Scottish Law Reform Commission will be publishing their report on the ‘Adults with Incapacity’ work program next year, the legislative changes afoot in Canada (sorry, no links, but will post when I have some), Ireland and India, and there do seem to be a lot of questions being asked about legal capacity and disability rights at present.  I think that Article 12 of the UN Convention on the Rights of Persons with Disabilities has a significant catalysing role to play in this.  Certainly the discourses of fulfilling people’s rights to equal recognition before the law have influenced the ways in which the Australian inquiry and the Indian and Canadian law reforms are being framed (it certainly hasn’t influenced the Scottish work program though – which uncritically takes the title ‘adults with incapacity’, thus accepting at the outset the category of ‘incapacity’ contested by the UN CRPD).  Since the ruling in Shtukaturov v Russia there have been a steady stream of legal capacity cases before the ECtHR, which although more conservative than the CRPD approach are still pretty challenging for the way we do legal capacity under the Mental Capacity Act 2005 in terms of procedural safeguards and court processes.

It will be interesting to see how far these different inquiries take up the challenge of the CRPD, and how far they are in agreement about their conclusions…  Watch this space!


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