The Right to Independent Living and being included in the Community: Lessons from the United Nations

This review will consider recent United Nations activity on article 19 of the Convention on the Rights of Persons with Disabilities (CRPD) concerning the right to live independently and be included in the community. The Committee on the Rights of Persons with Disabilities adopted its ‘General Comment’ No. 5 in August 2017, which offers guidance to governments on art 19 implementation. This review critically examines content relevant to mental health and capacity law, policy and practice. It considers the strengths and potential limitations of the General Comment with reference to key issues in the field. Gaps include commentary on the rising marketisation of disability services globally and a focus on low and middle-income countries. Yet overall, the General Comment offers useful guidance on implementing this unusual right, including concepts that may help resolve controversies about the role of coercion in mental health and capacity law

Strengthening Connection for People with Intellectual Disability in Emergencies: Social Media and Access to Essential Information

Climate change is increasing the rate and severity of emergency events globally which is having disproportionate impacts on the most marginalised community members, including people with intellectual disability. In an emergency many people with intellectual disability do not have access to the information they need, in formats they understand, to utilise vital services and survive. Concurrently social media has become a vital tool for sharing information and building connections for people with and without disability. This research aims to build a better understanding of how people with intellectual disability engage with social media in an emergency to identify gaps in response efforts and improve emergency messaging

Supported decision-making: a disability and human rights-based concept for mental health law

This thesis examines whether or not the supported decision-making model provides a conceptual and practical alternative to the traditional substituted decision-making approach to mental health laws. Advancements in international human rights law, in particular the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), have generated new ideas and standards in law, policy and practice governing the provision of healthcare and disability support. One of these ideas, ‘supported decision-making,’ is advanced by the CRPD as the preferred response when the legal capacity of a person with a disability is potentially compromised. However, its operation in mental health law and policy and in practical support for people with psychosocial (mental health) disabilities remains unclear. This thesis seeks to identify what form supported decision-making may take, or may already take, in mental health law, policy and practice. The thesis concludes that supported decision-making, as it is advanced in the CRPD, addresses many but not all persistent issues in contemporary mental health laws. In particular, it provides people with psychosocial disabilities with substantive rights to access support services, as well as protecting against substituted decision-making under current laws. Ultimately, as a human rights concept that is embedded in the CRPD, supported decision-making holds promise as a alternative for the substituted decision-making approach of current mental health law. This thesis sets out to refine the conceptual understanding of supported decision-making in protecting the rights of persons with psychosocial disability in legal capacity-related laws, and offers recommendations for creating a ‘supported decision-making regime’ in domestic law and policy.Awards: Vice-Chancellor’s Commendation for Doctoral Thesis Excellence in [2014]

The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities : Human Rights Brinksmanship or Evidence It Won’t Work?

The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law

Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?

Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law

Disability and social inclusion ‘Down Under’: A systematic literature review

This article provides a systematic literature review investigating how the social inclusion of adults with disability is conceptualised in research concerned with policy and service provision in Australia. The review will summarise this literature, and clarify its relative strengths and weaknesses. The findings from the literature review are grouped into recurring themes, namely: deinstitutionalisation; the changing nature of paid support; different forms of ‘community engagement’; and socially valued roles, particularly in the realms of employment, volunteering, and consumer transactions. The literature mostly concerns people with intellectual and cognitive disability, more so than persons with sensory, psychosocial (mental health) and physical disabilities. Several gaps emerge in the literature, such as the experiences of Indigenous people with disabilities, both in terms of exclusion they may face, and solutions being developed by Indigenous communities; ambiguous understandings of social inclusion; and a lack of acknowledgement of prominent critiques of social inclusion. The review builds on these findings to make recommendations for policy, practice, and further research

Submission on the Attorney-General's Department Privacy Act Review Report 2022: Exceptions for 'Socially Beneficial Content'

This is a submission to the Attorney-General's Department Privacy Act Review Report 2022. We focus on the proposed exception to the prohibition of advertising based on sensitive personal information where the targeting concerns 'socially beneficial content'. </p

Alternatives to Coercion in Mental Health Settings: A Literature Review

   This systematic literature review examines empirical research on efforts to reduce, end and prevent coercion in the mental health context, whether in hospitals in high-income countries, or in family homes and remote communities in rural parts of low- and mlddle-income countries. We will use the term, 'persons with mental health conditions or psychosocial disabilities', as adopted in the aforementioned Human Rights Council Resolution. We have sought to undertake a comprehensive review of the scholarly research drawn from a range of different disciplinary backgrounds and experiences. However, the review cannot claim to be exhaustive. For example, time and language limitations prevented a more expansive inquiry. Indeed, we recommend that a more expansive inquiry is required to uncover empirical research and exploratory reports of progressive efforts, particularly in non-English-speaking regions. Nevertheless, this review encompasses 169 studies from many parts of the world (including 48 reviews and notable grey literature reports), offering valuable insights into the state of research on finding alternatives to reduce, end and prevent coercion of people with mental health conditions and psychosocial disabilities. </p