The CRPD Committee and legal capacity – a step forwards?

The CPRD Committee issued its most recent concluding observations in September 2019, on Albania, Australia, Ecuador, El Salvador, Greece, India, Iraq, Kuwait, and Myanmar.  For those wanting a primer about the CRPD and the role of the Committee, see here; for those who have been following the debate over the past few years in relation to precisely what Article 12 CRPD means, the concluding observations upon the second report of Australia upon its compliance with the CRPD make very interesting reading indeed.  In material part the concluding observations read as follows:

Equal recognition before the law (art. 12)

23. Despite the recommendations of the Australian Law Reform Commission, the Committee is concerned about the lack of progress to abolish the guardianship system and substituted decision-making regime, particularly in decisions concerning forced psychiatric treatment, and at the lack of a timeframe to completely replace that regime with supported decision-making systems.

24. Recalling its general comment No. 1 (2014), on equal recognition before the law, the Committee recommends that the State party:

 (a) Repeal any laws and policies, and end practices or customs, which have the purpose or effect of denying or diminishing the recognition of any person with disabilities as a person before the law;

 (b) Implement a nationally consistent supported decision-making framework, as recommended in the Australian Law Reform Commission’s 2014 report, “Equality, Capacity and Disability in Commonwealth Laws”.

What is particularly interesting about this is that the Australian Law Reform Commission’s report does not recommend supported decision-making in the form set out in General Comment 1. Paragraph 27 of General Comment 1 (in the corrected form issued in 2018) provides that:

27.Substitute decision-making regimes can take many different forms, including plenary guardianship, judicial interdiction and partial guardianship. However, these regimes have certain common characteristics: they can be defined as systems where: (a) legal capacity is removed from a person, even if this is in respect of a single decision; (b) a substitute decision maker can be appointed by someone other than the person concerned, and this can be done against his or her will; or (c) any decision made by a substitute decision maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences.

The ALRC report advocates a model that moves to respect for rights, will and preferences, but ultimately does allow for (1) a decision-maker to be appointed by another, and to take that decision on their behalf; and (2) allows overriding of a person’s will and preferences.  It therefore represents substituted, rather than supported decision-making.

The Commission proposes four National Decision-Making Principles and Guidelines to guide reform of the legal framework:

Principle 1: The equal right to make decisions

All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2: Support

Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights

The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards

Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

For present purposes most materially, recommendation 3(3), the guideline for wills, preferences and rights, contains the following

(2) Representative decision-making

Where a representative is appointed to make decisions for a person who requires decision-making support:

(a) The person’s will and preferences must be given effect.

(b) Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.

(c) If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights.

(d) A representative may override the person’s will and preferences only where necessary to prevent harm.

The ALRC considers that the last of these reflects the human rights approach, and is:

consistent with the CRPD in that, for example, art 17 of the CRPD may require the representative to make a decision that protects the person’s ‘physical and mental integrity’, notwithstanding the decision conflicts with the person’s expressed will and preferences. A qualification of this kind tests the limits of autonomy, particularly where the limitation concerns harm to oneself. Examples are seen usually in the context of mental health legislation: to save a patient’s life, or to prevent a patient from seriously injuring themselves or others. Safeguards may be included in terms of ensuring that the course of action proposed is the ‘least restrictive’ option.

The ALRC’s report is – by some margin – the most detailed law reform proposal advanced to date to seek to ‘operationalise’ the CRPD. That the Committee endorses the ALRC’s proposals as compliant with the CRPD is a major change in their position (possibly reflecting the fact that there has been a change in its composition since the Committee that promulgated General Comment 1). It is also very helpful in terms of progressing law reform efforts for two reasons:

  • The ALRC proposals are detailed and ‘gritty,’ and can be contrasted with those reforms which lead to laws asserting full legal capacity but which, on further analysis, offer very much less, for instance because they maintain ‘emergency’ provisions in ‘general health laws’ (Peru is a very good example of this);
  • They represent a set of principles and guidelines which build upon but take forward laws in jurisdictions such as England & Wales in which ‘hard cases’ are brought before the courts for determination on an almost daily basis. They therefore are capable of ‘selling’ to policymakers in such jurisdictions on the basis that are providing responses to those hard questions.

Finally, by recommending the implementation of the ALRC proposals, the CPRD Committee might be thought tacitly have to accepted the force of the ALRC’s observation (at para 3.48 of its report) that, contrary to the position adopted in General Comment 1:

with appropriate safeguards, and a rights emphasis, there is no ‘discriminatory denial of legal capacity’ necessarily inherent in a functional test [of decision-making capacity, or ‘ability’ as the ALRC proposed] —provided the emphasis is placed principally on the support necessary for decision-making and that any appointment is for the purpose of protecting the person’s human rights.

It is a long way, of course, from law reform proposals to actual law reforms, but it may just be that we now have some clear endorsement of the path to take.


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