Concepts and terminology

The challenge of language

2.20 This Inquiry tackles issues of great significance in contributing to the framing of legal policy responses for persons with disability. The ALRC recognises the importance of careful definition of terms and a need to clarify precisely how certain concepts are being described. The language concerning disability has demonstrated great shifts over time, for example:

  • the distinction between ‘lunatics’ and ‘idiots’ in William Blackstone’s day in the mid-18th century;[32]

  • the language of ‘unsound mind’ of the early 20th century, as evident for example in the Commonwealth Electoral Act 1918 (Cth);[33]

  • the use of the terms ‘mentally retarded persons’ and ‘disabled persons’ in United Nations Declarations of 1971 and 1975;[34] and

  • ‘persons with disabilities’ in the CRPD in 2007.

2.21 As words have become associated with negative connotations, or used pejoratively, a new lexicon has been developed.[35] As the ALRC commented in its 1989 report, Guardianship and Management of Property:

There is a problem of language when dealing with people with disabilities. Some expressions which used to be common are no longer used by those working in the field because they are regarded as having connotations which tend to lower the dignity of people with disabilities.[36]

2.22 The ALRC therefore took an approach in that report which was to adopt usages ‘current among people who are disabled and those who work with them’.[37]

2.23 The present Inquiry takes place 25 years later and the language has shifted further in the intervening years. In this Inquiry the ALRC seeks to frame concepts and choose terms in ways that reflect the framing principles—in particular that of ‘dignity’. Consistent with the approach identified by the ALRC in 1989, words and terms should not be used that ‘tend to lower the dignity of people with disabilities’. Even where terms have an established usage,[38] the ALRC considers that the development of a new lexicon serves to signal the paradigm shift reflected in the CRPD. This Inquiry provides an opportunity to contribute to that process.[39]

Definitions of disability

2.24 ‘Disability’ may be defined in different ways and for different purposes. Approaches to defining disability have also shifted over time—particularly from a ‘medical’ to a ‘social’ approach. A ‘medical’ approach is one in which a diagnosis or categorisation of condition leads to consequences—for example, the imposition of guardianship.[40]

2.25 The CRPD does not include detailed definitions of ‘disability’ or ‘persons with disabilities’ in its definition section. Rather, art 1 states that

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

2.26 For the purposes of this Inquiry, the ALRC is taking a broad encompassing approach to definitions of disability, as reflected in the CRPD.[41] This definition includes: sensory, neurological, physical, intellectual, cognitive and psychosocial disability.

2.27 The social approach to disability, reflected in the CRPD, requires a policy focus on the person and their ability, with the support they require to interact with society and their environment—placing the policy emphasis not on ‘impairment’ but on ‘support’. This approach informs the supported decision-making focus of the ALRC’s proposals in this Discussion Paper.

Recognition as ‘persons’

2.28 The Terms of Reference require a consideration of the recognition of people with disability ‘as persons before the law’.[42] This language reflects art 12(1) of the CRPD, that ‘States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law’.[43]

2.29 To be recognised ‘as persons’ is the first question in any consideration of legal capacity. Historically, certain people have been denied recognition of their ability to act in law, or to have ‘legal standing’, at all.[44] Professor Bernadette McSherry explains that,

at various times in different societies, certain groups have been viewed as not having legal ‘personhood’ or standing. The extinction or suspension of legal standing, sometimes referred to as ‘civil death’, was once seen as a necessary consequence of conviction. Similarly, women, children under the age of majority and those with mental and intellectual impairments have been and continue to be viewed in some societies as not having legal standing.[45]

2.30 The shift in language from ‘disabled persons’ to persons or people ‘with disability’ reflects an emphasis on personhood, rather than disability. It also reflects a social model of disability.

2.31 In its Draft General Comment on art 12, the UNCRPD emphasised that ‘there are no circumstances permissible under international human rights law in which a person may be deprived of the right to recognition as a person before the law, or in which this right may be limited’.[46] In this Discussion Paper, the ALRC proposes a model that emphasises ability and support to exercise legal agency, consistent with a full recognition of personhood. In Chapter 3, where the ALRC introduces the National Decision-Making Principles, there is a deliberate use of ‘persons’ rather than ‘people’ in the phrase ‘persons who may require decision-making support’. The choice reflects a number of elements: the direction of the Terms of Reference on recognition ‘as persons’; an understanding of legal capacity issues as individualised, task-specific and fluctuating; and a focus on an individual’s ability rather than a generic, status-based approach.

‘Equal recognition’

2.32 The Terms of Reference state that, for the purposes of this Inquiry, equal recognition before the law and legal capacity are to be understood as they are used in the CRPD, ‘including to refer to the rights of people with disability to make decisions and act on their own behalf’. The concept of equality therefore emphasises independent decision-making by persons with disability.

2.33 Professor Terry Carney stated that equality, in the sense used in art 12, ‘can be variously formulated’:

It can be expressed as a purely formal concept (ie an ‘opportunity’) or in more substantive terms, as an achievement of distributive equity. It can be conceived as a universal right of citizenship for all, or as a special standard for particular groups (such as the disabled aged). And it also raises notoriously complex issues about respect for diversity and the right to make poor choices (the so-called ‘dignity of risk’).[47]

2.34 The UNCRPD emphasised that the idea of equality reflected in art 12 is essentially about the exercise of human rights: ‘[e]quality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’.[48] Rather than providing additional rights, art 12 of the CRPD ‘simply describes the specific elements required to ensure the right to equality before the law for people with disabilities on an equal basis with others’.[49]

2.35 In this Inquiry, the ALRC is considering how equal recognition of persons with disability as persons before the law and their ability to exercise legal capacity is denied or diminished in laws and legal frameworks within the Commonwealth jurisdiction.

2.36 The key element in equal recognition, as understood in the CRPD and the discourse that has developed around it, is the embracing of a supported decision-making paradigm so that persons with disability are acknowledged as having the right to make decisions on an equal basis with others and are supported in exercising that right. The linking of support with equality was made in submissions. For example, Hobsons Bay City Council, while supporting the framing principles, said that

equality should also recognise that in some instances people with disabilities need to be treated with equity in order to create equality. For example, needing additional assistance with some elements of the law in order to fully participate.[50]

Legal capacity

2.37 The Terms of Reference require consideration of Commonwealth laws and legal frameworks that deny or diminish the ability of persons with disability to exercise ‘legal capacity’. This language reflects art 12(2) of the CRPD, that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. The Terms of Reference state that, for the purposes of this Inquiry, legal capacity is to be understood as it is used in the CRPD.

2.38 Capacity in a general sense refers to decision-making ability. Decisions may cover a wide range of choices in everyday life. They may relate to personal matters, financial and property matters, and health and medical decisions. The concept of legal capacity in the CRPD contains two aspects: ‘legal standing’ and ‘legal agency’. Legal standing is the ability to hold rights and duties—to be recognised as legal persons. Legal agency is the ability to exercise these rights and duties to perform acts with legal effects. Dr Mary Donnelly commented that

A presumption of agency underlies the liberal conception of autonomy. Our choices are autonomous because they are, in a fundamental sense, our choices.[51]

2.39 The UNCRPD explains that ‘legal capacity to be a holder of rights entitles the individual to the full protection of her rights by the legal system’.[52]

2.40 Legal capacity sets the threshold for undertaking certain actions that have legal consequences. For example, a range of transactions may involve an age threshold as a benchmark of when a person is regarded as being able to act independently and with binding effect—to have legal agency to make ‘legally effective choices’.[53] Legal capacity goes to the validity, in law, of choices and being accountable for the choices made. As Carney states:

Those who make the choice should be able to provide valid consent, and make decisions for which they can be held accountable. They should, in short, be legally competent.[54]

2.41 There are examples of tests of legal capacity—in terms of levels of understanding for particular legal transactions—that have been developed through the common law:[55]

Legal incapacity means that, in law, a person is not competent to enter into legal transactions, such as making a contract, executing a will, or giving a legally-recognised consent, for example to an operation.[56]

2.42 The common law starts from a presumption of legal capacity—‘the law’s endorsement of autonomy’.[57] Common law definitions of legal capacity are generally invoked after the event, when a transaction is later challenged on the basis of a lack of capacity (in the sense of agency) to rebut the presumption of legal capacity.[58] The definitions in these contexts focus on the nature of the transaction and the level of understanding required for legal agency. The common law—including doctrines of equity—also includes protective doctrines for vulnerable people, such as the doctrines concerning undue influence and unconscionable transactions.[59] Where a lack of the required level of understanding is proven in the particular circumstances, the transaction may be set aside. Such doctrines focus on a transaction and the circumstances surrounding it. They are decision-specific and involve assessments of understanding relevant to the transaction being challenged. As Bruce Arnold and Dr Wendy Bonython commented,

It is axiomatic that in some instances differences in capability will be recognised in law. Lack of capacity is one [of] those instances, and is not inherently discriminatory on the basis of disability.[60]

2.43 Capacity assessments have been made as the trigger for formal arrangements for decision-making support through the appointment of, for example, guardians and administrators—or for the commencement of enduring powers of attorney and advance directives. They are also made in the context of a range of health care decisions.

2.44 The common law presumption is embodied in some guardianship legislation.[61] In the Commonwealth context, the National Disability Insurance Scheme Act 2013 (Cth) includes an assumption of capacity:

People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.[62]

2.45 Legal capacity is a different concept from ‘mental capacity’ and should not be confused with it.[63] The UNCRPD commented that the CRPD ‘does not permit perceived or actual deficits in mental capacity to be used as justification for denying legal capacity’.[64]

2.46 Stakeholders emphasised the distinction between legal capacity and mental capacity. For example, People with Disability Australia (PWDA), the Australian Centre for Disability Law (ACDL) and the Australian Human Rights Centre (AHRC) commented that any proposal for a uniform approach to legal capacity

must remove any notion that the assessment of mental capacity is also an assessment of legal capacity, that assessing mental capacity is a mechanism through which to limit legal capacity, and that the existence of a cognitive impairment creates a limit to the exercise of legal agency. Concerns with the provisions in, and operation of, legislation …cannot be ameliorated or rectified without an acceptance of this premise.[65]

2.47 This reflects two concerns: first, that legal capacity assessments should not simply be equated with mental capacity; and, secondly, that people with cognitive impairment should not be assumed to have limited legal capacity, in the sense of being able to exercise legal agency.

2.48 Similarly, stakeholders pointed to the danger of defining legal capacity on the basis of disability—of those who have legal capacity; and those who have not. Such a ‘binary model’ does not reflect how legal capacity should be represented. Arnold and Bonython submitted that

[Legal capacity] may be context-dependent, and fluctuate, rather than static and permanent. In many instances, the primary focus of the law is not whether the individual has a disability; rather, it considers whether that disability impairs the individual’s ability to act as a legally recognized entity, with the powers and obligations such recognition attracts. A person who is physically disabled, therefore, is entitled to exactly the same presumption of capacity at law as someone without a physical disability. … For many disabled people, the question of capacity is no more relevant to them than it is [to] the remainder of society.[66]

2.49 What is clearly not appropriate in the context of the CRPD is a disqualification or limitation on the exercise of legal capacity because of a particular status, such as disability. As National Disability Services remarked, ‘[t]he crux of the issue is seen in historic legal frameworks that place constraints on the exercise of legal capacity based solely on disability status’.[67] The approach should therefore be on the support needed to exercise legal agency, rather than an assumption or conclusion that legal agency is lacking because of an impairment of some kind.

2.50 In this Inquiry the ALRC suggests that even the word ‘capacity’ may carry some of the connotations of previous times. ‘Capacity’ is regularly confused with ‘legal capacity’, and ‘legal capacity’ is regularly conflated with ‘mental capacity’. To avoid such confusion and to focus the reform direction towards support in decision-making, the ALRC uses ‘ability’.[68]