A conversation with David Webb psychiatric survivor and human rights advocate & Lesley Hall

Australian Federation of Disability OrganisationsAustralian Federation of Disability Organisations

The Rights of Users and Survivors of Psychiatryand

The United Nations Convention on the Rights of Persons with Disabilities (CRPD)

A conversation with David Webbpsychiatric survivor and human rights advocate

&Lesley Hall

CEO, Australian Federation of Disability Organisations (AFDO)

Friday April 23rd, 2010The Psych Action and Training Group, (PAT)

Centre for Psychiatric Nursing, University of Melbourne

Australian Federation of Disability Organisations

CRPD Pre-History

1982 – UN adopts the World Programme of Action concerning Disabled Persons

1983-1992 - UN Decade of Disabled Persons 1987 – first (failed) attempt to recommend a convention

on the human rights of persons with disabilities 1991 – UN adopts the “Principles for the protection of

persons with mental illness and the improvement of mental health care” (MI Principles)

1993 – UN adopts the “Standard Rules on the Equalization of Opportunities for Persons with Disabilities” (the Standard Rules).


CRPD History

December 2001 – Mexico proposes an international convention on the rights of persons with disabilities.

August 2002 – first session of the Ad Hoc Committee 25 August 2006 – eighth session of the Ad Hoc

Committee finalises text of CRPD 13 December 2006 – UN adopts by consensus the

Convention on the Rights of Persons with Disabilities 30 March 2007 – The Convention and Optional Protocol

opened for signing at UN Headquarters in New York. 3 May 2008 – entry into force


CRPD a “paradigm shift”

Old paradigm: medical model pwd as objects of pity deserving charity protective, patronising, “father knows best” substituted decision-making

New paradigm: social model pwd as subjects with dignity and autonomy autonomy, social inclusion, rights based supported decision-making


Social Model of Disability

CRPD preamble:

“disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an

equal basis with others”

disability is not an attribute of the person disability is discrimination (stigma) against persons with “impairments” by a non-inclusive societydisability is primarily a human rights issue


Structure of CRPD 1

Preamble

1. Purpose

2. Definitions

3. General principles

4. General obligations

5. Equality and non-discrimination

6. Women with disabilities

7. Children with disabilities

8. Awareness-raising

9. Accessibility

10. Right to life

11. Situations of risk and humanitarian emergencies

12. Equal recognition before the law

13. Access to justice

14. Liberty and security of the person

15. Freedom from torture or cruel, inhuman or degrading treatment or punishment

16. Freedom from exploitation, violence and abuse

17. Protecting the integrity of the person

18. Liberty of movement and nationality

19. Living independently and being included in the community


Structure of CRPD 2

29. Participation in political and public life

30. Participation in cultural life, recreation, leisure and sport

31. Statistics and data collection32. International cooperation33. National implementation and

monitoring34 to 40. International monitoring

mechanism41 to 50. Final clausesOptional protocol

20. Personal mobility21. Freedom of expression and

opinion, and access to information

22. Respect for privacy23. Respect for home and the family24. Education25. Health26. Habilitation and rehabilitation27. Work and employment28. Adequate standard of living and

social protection


Psychosocial disability

One person, many labels: psychiatric survivor mental health consumer mental health service user (UK) person with psychiatric disability person with mental disability (yuk) person who experiences psychosocial disability mad, crazy, loopy, wacko nutter …


Article 12Equal recognition before the law

“persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”

[countries] “shall take appropriate measures to provide access by persons with disabilities to the support they may

require in exercising their legal capacity”

key principle of CRPD is prohibition of discrimination on the basis of disability (includes medical status)legal capacity – the right to make your own decisionsArticle 12 represents the foundation of paradigm shift from substituted to supported decision-making


Substituted vs Supported Decision-Making

Substituted: someone else decides on behalf of another with or without their consent

Supported: every effort made to ascertain a person’s wishes support to make decisions and/or communicate them obligation to respect the person’s wishes right to take risks “on an equal basis with others”


Australia and the CRPD

17 July 2008 – Australia ratifies CRPD but makes 3 “interpretive declarations”, including this on Article 12:

Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards


Australia and the CRPD

... and this on Article 17, explicitly mentioning “mental disability” ...

Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards


Does the CRPD prohibit substituted decision-making?

in Australia we mostly hear it assumed that the CRPD permits substituted decision-making … but …

this is controversial and contested around the world at the very least, it’s still an open question Article 12 is considered central to the “object and

purpose” of the CRPD – invokes Article 46 CRPD Committee has set up a working group to

develop a General Comment on the interpretation of Article 12


The Limitation of Rights

not mentioned in the CRPD other human rights laws do:

• ICCPR, Victoria’s Human Rights Charter• criteria exist for when the limitation of a right can be

lawfully justified (Syracusa Principles):– “can be demonstrably justified in a free and

democratic society” (Victoria’s Human Rights Charter)

– “reasonable, necessary, justified and proportionate” (Victorian Equal Opportunity and Human Rights Commission)

– e.g. criminal justice systems


Victoria and the CRPD

Guardianship Act• approx 1,300 people, mostly age-related dementia• currently under review by Law Reform Commission

Mental Health Act• 5,000+ on Involuntary Treatment Orders• each week in Victoria, over 100 involuntary patients

are given ECT • currently under review by DHS !!!


Victoria and the CRPD

review of Mental Health Act nearly over government has announced it intends to maintain

substituted decision-making but the DHS have not (yet?) presented any justification

for this decision – as required under the Charter

also ... Disability Act (2006) discriminates against people who experience psychosocial disability !


Conclusions

CRPD (and Charter) are great advocacy tools but by themselves do not eliminate legally sanctioned

prejudice and discrimination the challenge now is awareness raising (Art 8) and

implementation and monitoring (Art 33)

Nothing About Us Without Uswww.un.org/disabilities

www.afdo.org.au

Documents

A conversation with David Webb psychiatric survivor and human rights advocate & Lesley Hall