Reforming Responses to the Challenges of Judicial Incapacity

Abstract

Judicial incapacity, while under-researched, presents unique challenges for supporting and responding to issues of judicial performance. In this article, we argue for a reconceptualisation of this topic based on contemporary theories of socially-constructed disability and principles of anti-discrimination law. While assisting and supporting judicial officers who are attempting to work with a disability or ongoing health issue will always be complex, this reconceptualisation offers heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only better serve the individual concerned, affording them greater agency and dignity than has traditionally been the case, but also protect the principle of judicial independence.