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

1. A conversation with David Webb psychiatric survivor and human rights advocate & Lesley Hall CEO, Australian Federation of Disability Organisations (AFDO) Friday April 23rd, 2010 The Psych Action and Training Group, (PAT) Centre for Psychiatric Nursing, University of Melbourne The Rights of Users and Survivors of PsychiatryandThe United Nations Convention on the Rights of Persons with Disabilities (CRPD)

2. 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).

3. 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

4. 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

5. 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 society • disability is primarily a human rights issue

6. 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 ordegrading 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

7. Structure of CRPD 2 20. Personal mobility 21. Freedom of expression and opinion, and access to information 22. Respect for privacy 23. Respect for home and the family 24. Education 25. Health 26. Habilitation and rehabilitation 27. Work and employment 28. Adequate standard of living and social protection 29. Participation in political and public life 30. Participation in cultural life, recreation, leisure and sport 31. Statistics and data collection 32. International cooperation 33. National implementation and monitoring 34 to 40. International monitoring mechanism 41 to 50. Final clauses Optional protocol

8. 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 …

9. 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 decisions • Article 12 represents the foundation of paradigm shift from substituted to supported decision-making

10. 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”

11. 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

12. 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

13. 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

14. 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

15. 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 !!!

16. 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 !

17. 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 Us www.un.org/disabilities www.afdo.org.au