Key concepts

44. There are several key conceptual issues that underpin this Inquiry:

  • definitions of disability;

  • the meaning of ‘equal recognition’;

  • recognition as ‘persons’ before the law;

  • legal capacity; and

  • supported and substitute decision-making.

Definitions of disability

45. ‘Disability’ may be defined in different ways and for different purposes. However, definitions of disability are not static and approaches to defining disability have shifted over time—particularly from a ‘medical’ to a ‘social’ approach. The medical model of disability ‘uses biomedical explanations which locate disability within the individual in terms of pathology’.[41] The social model describes disability in terms of the interaction between a person’s disability and the external world. It is evident in the Preamble of the CRPD

Disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.[42]

46. The CRPD does not include detailed definitions of ‘disability’ or ‘persons with disabilities’ in its definition section. Rather, article 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.

47. For the purposes of this Inquiry the ALRC will take a broad encompassing approach to definitions of disability, as reflected in the CRPD.[43] This definition includes: sensory, neurological, physical, intellectual, cognitive and psychosocial disability.

Equal recognition before the law

48. 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 people with disability.

49. Professor Terry Carney states that equality, in the sense used in article 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’).[44]

50. The United Nations Committee on the Rights of Persons with Disabilities (UNCRPD)[45] emphasised that the idea of equality reflected in article 12 is essentially about the exercise of human rights: ‘equality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’.[46] Rather than providing additional rights, article 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’.[47]

51. In this Inquiry, the ALRC is considering how equal recognition of people 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. This requires a consideration of the thresholds of legal capacity across the range of areas set out in the Terms of Reference. It also focuses on the exercise of decision-making. The key element in equal recognition as understood in the CRPD is the embracing of a human-rights based model of disability that involves a supported decision-making paradigm rather than a substituted decision-making one.

Recognition as ‘persons’ before the law

52. The Terms of Reference require a consideration of recognition of people with disability ‘as persons before the law’. This language reflects article 12(1) of the CRPD, that ‘States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law’.[48]

53. To be recognised ‘as persons’ is the first question in any consideration of legal capacity. Certain people may be denied recognition of their ability to act in law, or to have ‘legal standing’.[49] 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. Paragraph (1) of Art 12 states that ‘persons with disabilities have the right to recognition everywhere as persons before the law’, thereby requiring states parties to ensure that those with disabilities are not treated differently when it comes to legal standing.[50]

54. In its Draft General Comment on article 12, the UNCRPD emphasised that ‘there are no circumstances permissible under international human rights law where a person may be deprived of the right to recognition as a person before the law, or in which this right may be limited’.[51]

Legal capacity

55. The Terms of Reference require consideration of Commonwealth laws and legal frameworks that deny or diminish the ability of people with disability to exercise ‘legal capacity’. This language reflects article 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.

56. 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; legal agency is the ability to exercise these rights and duties to perform acts with legal effects. 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]

57. Legal capacity sets the threshold for undertaking certain actions that have legal consequences. For example, legal capacity to enter into a range of transactions may have 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’. Legal capacity also includes cognitive abilities with respect to understanding that have been developed both through the common law and by statute.

58. There are other examples of levels of understanding for legal transactions that have been developed through the common law, such as with respect to contracts and wills.[53] The definitions in these contexts focus on the nature of the transaction and the level of understanding required for legal agency. They are usually invoked when a transaction is later challenged on the basis of a lack of capacity. The common law—including doctrines of equity—also includes protective doctrines for vulnerable people such as undue influence and unconscionable transactions.[54] These are distinct questions from formal arrangements for decision-making support.

59. The starting point at common law is a presumption of legal capacity.[55] This common law approach is now reflected in some guardianship legislation.[56] The NDIS Act also includes an assumption of capacity in s 17A(1)

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.[57]

60. Article 12 of the CRPD reinforces the assumption of legal capacity. While legal capacity is a distinct concept from mental capacity,[58] 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’.[59] Rather, its focus is on the support that may be needed for the exercise of legal capacity. Defining capacity for decision-making purposes in this Inquiry arises principally in the context of making formal arrangements for decision-making under state and territory guardianship laws and the question of what kind of models are appropriate in light of the CRPD.

Supported and substituted decision-making

61. In the consideration of arrangements to assist people with disability in areas of decision-making, the principal concern in the discussion surrounding the meaning and effect of article 12 of the CRPD is the distinction made between the concepts of ‘substitute’ and ‘supported’ decision-making.

62. Decision-making supports and arrangements for people with disability take many forms along a spectrum, including:

  • informal arrangements—usually involving family members, friends or other supporters;

  • formal pre-emptive arrangements—anticipating future loss of legal capacity through enduring powers of attorney (financial), enduring guardianships (lifestyle) and advance care directives (health); and

  • formal arrangements—where a court or tribunal appoints a private manager or guardian, or a state-appointed trustee, guardian or advocate to make decisions on an individual’s behalf.

63. For Aboriginal and Torres Strait Islander people with disability and those from culturally and linguistically diverse backgrounds, decision-making may also have a collective quality.

64. In September 2013, the UNCRPD focused attention on the distinction made between the concepts of substitute and supported decision-making in its Draft General Comment on Article 12.

65. What is meant by the distinction? As the Committee explained, ‘support’ is a broad term—‘capable of encompassing both informal and formal support arrangements, and arrangements of varying type and intensity’.[60] It then spelled out its understanding of the difference between a ‘support’ model and a ‘substitute’ one.

66. A supported model includes ‘a cluster of various support options which give primacy to a person’s will and preferences and respect human rights norms’ and, while supported decision-making regimes ‘can take many forms’, they must incorporate key provisions to ensure compliance with article 12.[61] Supported decision-making processes prioritise personal autonomy and recognise that individuals should be empowered with information to make decisions—even bad ones (acknowledging the dignity of risk).[62]

67. A substituted decision-making regime has different characteristics and can also take many forms. The common defining elements, as understood by the UNCPRD, are where

1) legal capacity is removed from the individual, even if this is just in respect of a single decision, 2) a substituted decision-maker can be appointed by someone other than the individual, and this can be done against the person’s will, and 3) any decision made by a substitute decision-maker is bound by what is believed to be in the objective ‘best interests’ of the individual—as opposed to the individual’s own will and preferences.[63]

68. In the Draft General Comment, the UNCRPD suggested that substitute decision-making regimes should be abolished and replaced by supported decision-making regimes and the development of supported decision-making alternatives. Most importantly, the Committee commented that ‘[t]he development of supported decision-making systems in parallel with the retention of substituted decision-making regimes is not sufficient to comply with Article 12’.[64] Central to the Committee’s understanding of article 12, is that support for persons with disabilities ‘must never amount to substitute decision-making’.[65]

69. The Draft General Comment of the UNCRPD was prompted by what it described as ‘a general misunderstanding of the exact scope of the obligations of States Parties under Article 12’.[66] Australia’s view, as expressed through its Interpretative Declaration in respect of article 12, is that the CRPD allows for fully supported or substituted decision-making arrangements. However, the Declaration notes that such arrangements may only be made where they are necessary, as a last resort, and subject to safeguards.[67] The UNCRPD commented on the Interpretative Declaration in its concluding observations on the initial report of Australia to the Committee in September 2013. The Committee noted the referral to the ALRC of this Inquiry, but expressed concern ‘about the possibility of maintaining the regime of substitute decision-making, and that there is still no detailed and viable framework for supported decision-making in the exercise of legal capacity’.[68]

70. The appointment of substitute decision-makers in Australia occurs under state and territory laws. Guardians and administrators are vested with power to make decisions on behalf of people deemed unable to make decisions for themselves.[69] A key issue for States Parties is what amounts to a substitute decision-making regime within the understanding of the UNCRPD as expressed in the Draft General Comment. For example, would a regime that contains elements 1 and 2 in paragraph 67 above, but which has a subjective focus and not an objective lens in element 3, be regarded as an acceptable supported decision-making model, and not a substituted decision-making model as understood by the UNCRPD?

71. A subjective focus is one that takes the view of the person—what the person would have wanted—rather than an objective ‘best interests’ assessment. A subjective focus is one that reflects the autonomy of the individual; an objective focus may be seen to be paternalistic.

72. A critical evaluation of all assisted decision-making models is called for in light of the UNCRPD’s comments. This Inquiry provides an opportunity to contribute to this process and the ALRC will watch with interest the final General Comment in due course. Key issues will involve:

  • the language of the model—the extent to which the terminology itself reflects older paternalistic concepts;

  • the practice of the courts and tribunals in appointing guardians—the time period and scope of the appointment, and the accountability and review mechanisms with respect to any decision-making assistance given; and

  • the characterisation of the duties of the appointees—are they objective (‘best interests’) models, or subjective (what the person wants/would have wanted)?