The impact of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on Victorian guardianship practice

Abstract

Purpose: Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) emphasises full and equal legal capacity of all citizens to participate in decisions. This paper examines whether the principles of Article 12, also reflected in other reform documents, were evident within 12 guardianship hearings conducted in Victoria, Australia from 2001 to 2016 involving adults with cognitive disability. The issues this study raises resonate loudly across the globe as multiple signatory nations to the CRPD grapple with the complexities of implementing Article 12. Methods: Reports of VCAT decisions with written reasons of Guardianship List hearings from 2001 to 2016 were selected from the Australasian Legal Information Institute site and analysed thematically. Results: Thematic analysis of proceedings revealed three consistent trends. Firstly, a presumption of incapacity based on disability excluded Proposed Represented Persons (PRP) from involvement in decision-making. Secondly, external perceptions of PRPs best interest were dominated by safeguarding concerns and conflict between supporters. Finally, in multiple cases, although a PRP's preference had been established, it was considered immaterial to the final decision. Conclusions: The paper concludes with a promising discussion of the new Guardianship and Administration Act 2019 (Vic), which came into force on 1 March 2020, and recommendations for guardianship practice both locally and internationally. ä IMPLICATIONS FOR REHABILITATION Legal capacity should be recognised as inherent in all people, and therefore decision making incapacity should not be assumed based on a person's cognitive and/or communication disability; The supported decision making mechanisms, born from Article 12 of the CRPD, that facilitate acknowledgment, interpretation and acting upon a person's expression of will and preference need to be recognised and promoted within the context of Guardianship proceedings and by health professionals when assessing decision making capacity of people with cognitive disability; Significant knowledge and attitudinal changes are required within the Tribunal and incorporated into the practice of health professionals informing the Tribunal, in order to counter many conceptual underpinnings embedded within current guardianship legislation across the globe; Ascertaining the will and preference of the proposed represented person should be prioritised by Guardianship tribunal members' rather than the management of conflict between interested parties.

Israeli social workers’ recommendations on guardianship and supported decision-making: Examination of client and social worker factors.

“…Conversely, their support for maintaining the status quo was higher for individuals with mental rather than intellectual disabilities. Supporting H1, this finding resonates with previous studies (Gibson, 2011; Jayes et al, 2019; Melamed et al, 2007; Watson et al, 2020), showing that regardless of other factors, diagnosis is frequently a key justification for questioning people’s mental capacity and for appointing a substitute decision maker.…”

“…Such justification is deeply entrenched in the traditional “status approach” to guardianship (Browning et al, 2014; Devi, 2013; McSherry, 2015), according to which having a particular diagnosis proves lack of decision-making capacity (Dhanda, 2007), and questions the right to legal capacity. Conversely, recent approaches stress the need to uncouple impairment and the ability (and right) to make decisions (Watson et al, 2020), arguing that basing guardianship appointment on disability is discriminatory. Hence, even if we assume, as the Israeli law does (Ministry of Justice, n.d.), that the appointment of guardianship is necessary when the person is unable to make decisions, it still does not follow that the assessment of decision-making capacity should be diagnosis-informed.…”

“…However, these findings should be interpreted with caution. Studies (e.g., Watson et al, 2020) have shown that even when the preference of individuals with disabilities regarding guardianship was considered, it was often not explored in depth. As our study was limited to the question of whether the individual expressed agreement to guardianship, it remains to be ascertained how social workers go about deciphering client preferences, what information they provide on possible alternatives, and how they decide when the individual communicates nonverbally.…”

Between the convention and conventional practice: Israeli social workers' recommendations regarding the legal capacity of people with disabilities

“…Another example is people with disabilities, whose legal capacity continues to be denied in contemporary times. This denial is evident in diverse jurisdictions around the globe, from Australia (Watson et al, 2020) and Germany (Fallon‐Kund & Bickenbach, 2017; Müller, 2018) to Ethiopia (Marishet, 2017) and Ghana (Combrinck & Chilemba, 2021). Further, it has penetrated into various decision‐making spheres and life stages, such as marriage, reproductive choices, legal contracts, medical treatments, ageing and end of life care (Arstein‐Kerslake, 2021; Bloomer et al, 2019; Marishet, 2017; Quinn et al, 2018; Watson et al, 2019).…”

The Rule of Law for the Exercise of Marriage and Reproductive Rights for Women with Intellectual Disabilities in China

“…32 However, the opportunity for self-determination has been restricted for women with severe or extremely severe intellectual disabilities. 33 Women with severe or extremely severe intellectual disabilities lack the fundamental ability to care for themselves and express their own will. They are unlikely to be able to assume the responsibilities of marriage or consent to be married.…”