An Evolving Revolution: Evaluating Australia's Compliance with the Convention on the Rights of Persons with Disabilities in Mental Health Law

University of New South Wales Law Journal, Vol. 39, No. 2, pp. 596-624, 2016

Sydney Law School Research Paper No. 16/73

30 Pages Posted: 18 Aug 2016

See all articles by Sascha M. Callaghan

Sascha M. Callaghan

The University of Sydney Law School

Christopher Ryan

University of Sydney - Centre for Values, Ethics, and the Law in Medicine

Date Written: August 14, 2016

Abstract

In mid-2016 all but one of Australia’s eight states and territories have undertaken substantial reviews of their mental health legislation. Each jurisdiction acknowledged the impact of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) as a major driver for reform, and to varying degrees sought to make amendments that would improve compliance with human rights obligations. This article reviews and contextualises those reform efforts and evaluates the extent to which new laws comply with the CRPDs requirements. To do so, we review some aspects of the intense and occasionally divisive debate around the interpretation the CRPD, and establish a set of criteria to evaluate compliance particularly around contested concepts such as ‘substituted’ and ‘supported’ decision making. Using these criteria, we argue that even on a conservative interpretation of the requirements of the CRPD, most Australian jurisdictions have not fully achieved compliance.

Keywords: CRPD, Legal Capacity, Mental Illness, Involuntary Treatment, Supported Decision Making, Human Rights, Law Reform

JEL Classification: K10, K30, K32

Suggested Citation

Callaghan, Sascha M. and Ryan, Christopher, An Evolving Revolution: Evaluating Australia's Compliance with the Convention on the Rights of Persons with Disabilities in Mental Health Law (August 14, 2016). University of New South Wales Law Journal, Vol. 39, No. 2, pp. 596-624, 2016, Sydney Law School Research Paper No. 16/73, Available at SSRN: https://ssrn.com/abstract=2823227

Sascha M. Callaghan (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Christopher Ryan

University of Sydney - Centre for Values, Ethics, and the Law in Medicine ( email )

Australia

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