Guardianship Julia Duffy, Lawyer ADA Conference Human Rights and - - PowerPoint PPT Presentation

Towards a Human Rights Framework for Guardianship

Julia Duffy, Lawyer ADA Conference – Human Rights and Social Justice – Shifting Client Control 23 to 24 March 2017, Gold Coast

Overview

 History of guardianship in a human rights context  Human rights or social justice?  Challenges to the notion Western notion of the individual, autonomy and

“choice and control”

 To achieve just outcomes for decision making for and by adults with impaired

decision making capacity we need to balance and interrogate competing rights

 Importance of upholding, economic and cultural rights in protecting the lives

• f the disadvantaged

Guardianship in an historical context

 The only benevolent framework for considering the rights of adults with

disability had been the charitable model

 With de-institutionalisation guardianship legislation moves to a rights based

model in the late 20th and early 21st century

 Functional or social definition of capacity, means the person is capable of -

(a) understanding the nature and effect of decisions made about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way.

Guardianship and Administration Act 2000 (Qld)

United Nations Convention on the Rights

• f Persons with Disabilities

Article 12 - “Equal recognition before the law”:

• 1. States parties reaffirm that persons with disabilities have the right to recognition

everywhere as persons before the law.

• 2. States parties shall recognise that persons with disabilities enjoy legal capacity
• n an equal basis with others in all aspects of life.
• 3. States Parties shall take appropriate measures to provide access by persons with

disabilities to the support they may require in exercising their legal capacity, and

• 4. “States Parties shall ensure that all measures that relate to the exercise of legal

capacity provide for appropriate and effective safeguards to prevent abuse…

The National Disability Insurance Scheme

“As the words choice and control become the mantra of service policy and principles, important questions need to be asked. What is choice and the conditions for it and when do we really have it?”

Chartres, Diane. “Choice – what is it and how can it be expanded.” AGAC Conference October 2016. www.agac.org.au/images/stories/2016nsw/chartres-choice-whatisit-exp.pdf

Human rights or social justice?

“In a social justice framework, a major focus is on the person in community, on the relationships between people, and the interaction between individuals, community and the state.” “Rather than emphasising individual rights and freedom from interference by the state, the social justice approach is based on the state’s active responsibility to meet the needs of its members.”

Barbara Carter. “Adult Guardianship: Human rights or social justice?” (2010) 18 JLM pp 143-155, at p148

The Australian Law Reform Commission “Equality, Capacity and Disability in Commonwealth Laws”

Differentiates in guardianship between:

(a)Actual appointment and method of appointment, and (b)Standard by which appointee is to act.

Recommends a “new lexicon” – replacing “guardian” with “representative.”

Questioning the concept of “capacity”

 “…ethicists have long disputed whether persons with

intellectual disabilities are ‘morally considerable’ or possess ‘full moral status’ to be considered the fitting subjects of justice” - Gerard Quinn, AGAC Conference, Sydney 2016

 “Rawls himself acknowledged that according to the

principle of need – citizens’ basic needs (e.g. food, shelter, and access to social and cultural opportunities) should be met prior to applying both the liberty and equality principles of justice” Flynn & Arstein-Kerslake

 Rejecting ‘binarism” and replacing “capacity” with

“vulnerability” – Margaret Isabel Hall

Questioning the Enlightenment concept

• f “autonomy”

 “…a highly atomized conception of the person – the

proverbial masterless man with no organic ties to others and wandering abroad seeking (self-seeking) his own

• fortune. …” - Gerard Quinn

 The feminist challenge of “relational autonomy” – Laura

Davy and Jennifer Nedelsky

What of “collective rights” or the right to community?

United Nations Convention on the Rights of Persons with Disability -

 The right to family life – article 23  The right of participation in public life - article 29 

The right to participate in cultural life, recreation, leisure and sport - article 30 International Convention on Civil and Political Rights

 “In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language” – article 47 International Convention on the Rights of Indigenous Peoples

What of economic, social and cultural rights?

United Nations Convention on the Rights of Persons with Disabilities

 To live independently and be included in the community, to choose their place

• f residence -article 19

 The right to education - article 24  Enjoyment of the highest attainable standard of health -article 25  Habilitation and rehabilitation services in the areas of health, employment,

education and social services - article 26

 Work and employment - article 27  Adequate standard of living and social protection - article 28  Participation in cultural life, recreation, leisure and sport - article 30

AND - International Covenant on Economic, Social and Cultural Rights

Conclusion

“When we talk about the struggle to achieve human rights, we should not just be referring to the global struggle, but also to the necessity of a struggle at the individual decision making level to interpret and apply the range of human rights in a way that achieves a just outcome for the individual – those with impaired decision making and others - as a member of the wider community.”

References



A Human Rights Act for Queensland Campaign. Submission to the Human Rights Act Inquiry. Queensland, 2016. http://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/past-inquiries/14-HumanRights



Anti-Discrimination Commission Queensland. “Human Rights Inquiry: Anti-Discrimination of Queensland Submission to the Queensland Parliament, Legal Affairs and Community Safety Committee, April 2016. http://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/past-inquiries/14-HumanRights



Brolan, Claire E, Robert S Ware, Miriam Taylor Gomez and Nicholas G Lennox. “The right to health of Australians with intellectual disability.” Australian Journal of Human Rights 17(2) (2011) pages 1 to 32



Carne, Greg. “Charting Opposition to Human Rights Charters: New Arguments or Recycled Objections?” University of Tasmania Law Review vol. 28, no.1 (2009), pages 82 to 124.



Carter, Barbara. “Adult guardianship: Human Rights or Social Justice?” Journal of Law and Medicine (2010) pages 1 to 32.



Carter, Barbara. “Seeking the essence of guardianship: beyond anship, Melbourne, October 2012, at page 4



Chartres, Diane. “Choice – what is it and how can it be expanded.” Australian Guardianship and Administration Council Conference October 2016. www.agac.org.au/images/stories/2016nsw/chartres-choice-whatisit-exp.pdf



Chesterman, John. “The Review of Victoria’s Guardianship Legislation: State Policy Development in an Age of Human Rights.” The Australian Journal of Public Administration vol. 69, no.1 pages 61 to 65.



Croucher, Rosalind F . “Modelling Supported Decision Making in Commonwealth Laws – the ALRC’s 2014 Report and Making it Work. AGAC 2016 National Conference, Sydney 18 October 2016. http://www.agac.org.au/conference- papers/94-2016-conference-papers



Davidson, J. S. “East versus West: Human Rights and Cultural Difference.” Canterbury Law Review vol.3 (2001) at page 37ff



Davy, Laura. “Philosophical Inclusive Design: Intellectual Disability and the Limits of Individual Autonomy in Moral and Political Theory.” Hypatia vol. 30 (1) 2015, pages 132 to 148.

References (cont.)



Debeljak, Julie. “Balancing Rights in a Democracy: the Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006.” Melbourne University Law Review vol.14 (2008).



Devereaux, Annemarie. “Australia and the right to adequate housing.” Federal Law Review vol.20 (1991) pages 223 to 239.



Endeavour Foundation. Human Rights Inquiry, 14 March 2016. http://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/past- inquiries/14-HumanRights



Flynn, Eilionoir and Anna Arstein-Kerslake. “Legislating personhood: realising the right to support in exercising legal capacity.” AGAC, Melbourne 2012. http://www.agac.org.au/conference-papers/72- 2012-oct-2nd-world-congress-melbourne



Hall, Margaret Isabel. “Mental Capacity in the (Civil) Law: Capacity, Autonomy and Vulnerability.” McGill Law Journal – Revue de Droit de McGill vol.58, no.1 (2012), pages 61 to 94.



Hartley, Jackie. “Indigenous Rights under the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).” Australian Indigenous Law Review (2007) 11 (3), pages 13 to 27



Malcolm, the Honourable Justice David AC. “Human Rights at the End of the 1990s: challenges to universality.” Murdoch Electronic Journal of Law vol. 5 no.4 (December 1998).



McMurdo, the Honourable Justice Margaret, “An Australian Human Rights Act: Quixotic Impossible Dream or Inevitable Natural Progression?” Southern Cross University Law Review vol.13 no. 10 (2009) pages 37 to 55.



Office of the Public Advocate (Qld). “Submission to the Senate Standing Committee on Community Affairs: Violence, abuse and neglect against people with disability in institutional and residential settings.” (Brisbane: Office of the Public Advocate, 2015). http://www.justice.qld.gov.au/public- advocate/submissions

References (cont)



Office of the Public Advocate (Vic). Submission to the Review of the Victorian Charter of Human Rights and Responsibilities Act (2006).



Office of the Public Advocate (Vic). Submission to the review of the Charter of Human Rights and Responsibilities Act 2006, 9 June 2015.



Office of the Public Guardian (Qld). Submission to the Legal Affairs and Community Safety Committee on the Human Rights Inquiry. April, 2016. http://www.publicguardian.qld.gov.au/about- us/publications/submissions



Queensland Advocacy Incorporated. “The Appropriateness and Desirability of Legislating for a Human Rights Act in Queensland.” April 2016. See also SUFY’s submission. http://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/past- inquiries/14-HumanRights



Quinn, Gerard. “From Civil Death to Civil Life – The Decay and rebirth of Legal Capacity Law around the world.” AGAC 2016 Conference, Sydney. http://www.agac.org.au/conference-papers/94-2016- conference-papers