Green eyed about Australia

This week the Australian Law Reform Commission (ALRC) published a discussion paper on Equality, Capacity and Disability in Commonwealth Laws (hat tip to Piers for flagging it up).  After Australia had signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD), the Attorney-General, Mark Dreyfus referred the ALRC to examine laws and legal frameworks within the Australian Commonwealth jurisdiction ‘that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity’ and to consider what changes, if any, could be made to address these matters.


The inquiry was set up last year, and has already published a number of discussion papers – including in Easy English – and consulted on the issues.  This discussion paper draws together that work.  I confess I have only read the first few chapters, but what I have read so far is very interesting and exciting indeed, and I really recommend taking a look at it – even if you only read the Commission’s proposals.  A bit like the Irish Assisted Decision-Making (Capacity) Bill (blogged about here), the actual proposals contain a mixture of the familiar (something looking very similar to the functional test of mental capacity under the Mental Capacity Act 2005 (MCA)) and the new (detailed provisions about providing and recognising support, supporters and supported decisions; detailed provisions about the paramountcy of the person’s ‘will and preferences’ – not ‘best interests’ – and their human rights).

I’ve only read Chapters 1-3 so far and some passages on access to justice (which, if you are interested in litigation capacity issues, you must read), but my initial impression is that the ALRC have conducted a very comprehensive study – spanning not only ‘guardianship’ regimes, but also issues like giving evidence in court, fitness to plead, banking services, and more.  The chapters I read were very well researched, citing extensively from the research literature.  It struck me as a very sincere and genuine attempt to try to understand the spirit of Article 12 CRPD – especially in light of General Comment No 1, which was recently adopted by the CRPD Committee – and to think about how it could be better reflected in Australian law.  It looks as if the ALRC have consulted and involved a wide range of participants, including many notable figures in disability rights law (Australia has something of a glut of disability rights law academics), and disabled people’s organisations.

I’m really looking forward to reading the rest of this discussion paper, and the proposals that I have scanned through look very interesting indeed.  I confess to a degree of green-eyedness about the approach taken to Article 12 CRPD in Australia in contrast with the response it is encountering over here.

Until about a year ago, there seemed to be general ignorance of Article 12 CRPD in the UK (some notable exceptions aside).  I still frequently come across books and articles about ‘mental capacity’, and even supported decision making, by well regarded academics making literally no mention of the CRPD (bizarrely, many of these mention other international human rights instruments, such as the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Hague Convention, and so on…).  But in the wake of the adoption of General Comment No. 1, more people are starting to wake up to the implications of Article 12 CRPD.  But instead of grasping the nettle – as Australia are doing – and engaging in a critical analysis of what can be done to realise Article 12 CRPD, it is too often met here with suspicion, hostility, resistance.  Sometimes it is met with a desire to find any available means to discredit the CRPD and so not have to grapple with what it is trying to do and how it might illuminate flaws in our current approach to legal capacity.  Upon finding that some questions posed by the CRPD do not – as yet – have any answers, the response is often less ‘how can I contribute to finding those answers?’ or ‘what tools does the CRPD offer for how we should find those answers’, and more ‘well, if it can’t answer every single question I have then I’m not going to bother with it’.  Upon finding that some elements of the CRPD may resemble some practices under the MCA, there is a sometimes a sense of triumphalism, almost as bizarre as if – having discovered that the French drink tea, France must ‘really’ be the same as Britain.

To those who recognise themselves in this: think it possible that the CRPD may pose some very important questions about our present ways of doing legal capacity, and that it may offer some very useful tools for thinking about how we can improve our approach to legal capacity.  Be aware that the CRPD represents a profound philosophical departure from existing ways of doing things, and requires a very different way of thinking about legal subjectivity.  Because of this, when people first encounter it, it can be extremely difficult to understand precisely what it ‘wants’, and the truth is that some questions remain unanswered.  But instead of setting up straw men based on your first encounters with the CRPD and taking flight, why not look to the broad literature that is developing around it and see what that has to say about the kinds of questions you may have?  The CRPD also contains several ‘terms of art’, and your first impressions of what ‘substitute decision making’ and ‘supporting legal capacity’ and ‘supported decision making’ mean may not be entirely accurate, so take care to ensure that you are understanding those terms as they are meant in the literature.  You can approach it, if you want to, as a threat to your worldview, or you can approach it with a spirit of engagement and connection and try to understand what it is (and isn’t) saying.

Speaking personally, when I first encountered the literature around Article 12 CRPD, even thought I was already very disillusioned with the MCA, I found it very frustrating and struggled with many questions.  Over time, I came to see that some of those questions were in fact already addressed in the literature, and to view those which remained to be answered as a creative opportunity to develop new approaches for which the CRPD itself offers useful tools through its focus on equality, inclusion and participation.  I still think there are some hard cases and serious issues to be reckoned with, but since I am unsatisfied with our current approach to legal capacity the only solution seems, to me, to be engage with the CRPD as an opportunity to refresh our approach, rather than retreat into the past.   For me, the focus on recognising, building and strengthening relationships of support and engaging with a person’s ‘will and preferences’ offer a much more satisfying way of thinking about legal subjectivity than our current approach.  Which is not to say that I don’t think intervention is never appropriate (some might, but I’ve never found this explicitly stated anywhere in the CRPD literature), or that ‘will and preferences’ are always straightforward, it is simply to say that I think we can find better ways of approaching these issues than we currently have.  There are already signs of the MCA developing in that direction, with judgments like Manuela Sykes’ case, or the growing emphasis on subjective elements of the ‘best interests’ test since Aintree (on which, see the recent judgment on TH).  There are some (limited) signs of a growing emphasis on supporting people to make their own decisions.  But we can go much, much, further in this regard, and the CRPD can only foster that process.

Anyway, I’ll climb off my soapbox now, and just finish with this: that there are still questions to be asked and answered in relation to the CRPD is no reason at all not to engage with it in good faith, it is simply a reason to get involved and start talking, thinking, reading and sharing, with a spirit of engagement and connection.  That spirit has to work both ways though: many of the ‘hard cases’ and questions people pose for the CRPD are not posed out of a desire to undermine it, but because people will bring their own experiences and predicaments to the law in hope of answers, and those experiences and predicaments deserve to be taken seriously.  I think that we need to think more about the ethics of how to behave in this space, where some of the answers are waiting to be found.  I think we can learn a lot about how this can be done by taking a look at what the ALRC have produced, and how they got there.


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