Disability no justification for inequality

I see the Australian approach as being overly cautious. It seems to be concerned with the very small number of situations where unconscious patients and people with very profound disabilities are unable to be assisted with the making of any type of decision at all. While it is true that a very small number of people with will be incapable of any decision making, the overwhelming number of people, even with an considerable intellectual disability, can, with some degree of assistance, make decisions to do with our they wish to live their lives.

This is an important matter because the Disability Convention sets the benchmark for state parties to work towards. Moreover, Article 12 should set the ideal: an goal, which is not totally unattainable, but that is a compass to guide future efforts.

It would be worrying if Australia was using interpretation declarations to avoid being seen as having significant work to do. In the Shadow Report, the Project team states that in Australia:

38. A number of laws, policies and practices deny or diminish recognition of people with disability as persons before the law, or deny or diminish a person's ability to exercise legal capacity. Substitute decision-making arrangements vary from jurisdiction to jurisdiction and are a key source for significant and widespread breaches of human rights, especially against those who may need support in decision-making.

I suggest that the Australian interpretation declaration is unnecessary.

The purpose of Article 12, and in deed the Disability Convention, is to mitigate the effects of a person's impairment or disability. In Article 12(2), for instance, the right is to be able to enjoy legal capacity 'on an equal basis with others'. Clearly, this means that if my brother (who is not disabled) and I are brought into a hospital unconscious after a car accident, the general law of torts should determine the type of medical treatment that the doctors can administrate to each other of us. My physical disability or someone's intellectual disability should have no bearing on whether we get treated and who consents to want.

Short of being unconscious or totally lacking all capacity, people with impaired decision‑making capacity should be given the support described in Article 12. This seems to be consistent with the rules in equity law around undue influence and the like. Furthermore, it is consistent with the approach most rational individuals take when they require specialist expert advice.

Concluding comments

Legal capacity is often thought of as being bestowed upon us when we reach the age of majority: eighteen in Australia. And, while this is generally true with respect to voting and non-essential legal contracts, in practice our legal capacity grows with our maturity. Mature, though young in years, teenagers can consent to minor medical treatments and no one would seriously try to stop a teenager from entering into a legal contract to purchase a T-shirt. At the other end of the spectrum, the law courts have warned banks and other financial institutions that they have a positive duty of care to potential borrowers to ensure that they are informed of the consequences of entering into legal contracts.

The Australian legal system is not unfamiliar with the notion of supported decision-making and notions of conflicts of interest and duty of care.

Article 12 does not replace the Australian legal system in relation to this notion of supported decision-making: if anything, it builds upon it by dovetailing in with it.

There is also a risk that a developing state party may follow Australia's lead without having the other safeguards in place. Furthermore, by opting out of Article 12, Australia significantly reduces its opportunity to shape international law in this respect.

I support the Shadow Report in its call for Australia to withdraw its interpretative declaration.