Convention on the Rights of Persons with Disabilities opened for signature 13 December 2006, 46 ILM 443 (entered into force 12 May 2008) (‘Disabilities Convention’).
2.
For a comprehensive discussion of the drafting of the Convention see: LawsonAnna, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34(2) Syracuse Journal of International Law and Commerce563.
3.
ArbourLouise (UN High Commissioner for Human Rights), Press release on the Ad Hoc Committee's adoption of the International Convention on the Rights of Persons with Disabilities, New York, 5 December 2006.
4.
McSherryBernadette (ed), ‘International Trends in Mental Health Laws’ (2008) 26(2) Law in Context.
Australia's Interpretative Declaration of 17 July 2008 relevantly provides that ‘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… 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 safeguard.’
7.
For discussion of Article 17, see McSherryBernadette, ‘Protecting the Integrity of the Person: Developing Limitations on Involuntary Treatment’ (2008) 26(2) Law in Context1.
DhandaAmita, ‘The Convention on the Rights of Persons with Disabilities’, Paper presented at the Conference Workshop at ANZAPPL Annual Congress, October 2008; LawsonAnna, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34(2) Syracuse Journal of International Law and Commerce563, 608.
10.
Experimental treatment may be deemed unacceptable on the basis that it constitutes torture or cruel, inhuman or degrading treatment even when consent has been provided.
11.
In this case, informed consent must include information about the secondary effects and related risks such as heart complications, confusion, loss of memory and even death.
12.
Involuntary detention may be arbitrary where the criteria for involuntary admission includes only the diagnosis of mental disability coupled with additional arbitrary criteria such as being a ‘danger to oneself and others’ or in ‘need of treatment’.
13.
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Special Rapporteur on Torture), Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, delivered to the General Assembly, UN Doc A/63/175 (28 July, 2008), 52–69.
14.
CovellNancy, ‘Distress with Medication Side Effects Among Persons with Severe Mental Illness’ (2007) 34Administration and Policy in Mental Health and Mental Health Services Research435.
15.
Dhanda, above n 9, 432. See also DhandaAmita, ‘The Right to Treatment of Persons with Psychosocial Disabilities and the Role of the Courts’ (2005) 28International Journal of Law and Psychiatry155, 157.
16.
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402; Secretary, Department of Health and Community Services v JMB and SMB (1992) 175 CLR 218 (Marion's case); In Re A (1993) 16 Fam LR 715, 719 (Aus).
17.
Dhanda, above n 9, 432.
18.
McSherryBernadette, ‘Opening Minds not Locking Doors’, Address at the 50th Anniversary Public Lecture, Education 08 for Monash University, Melbourne, 9 October 2008 at <http://www.law.monash.edu.au/rmhl/50-anniversary.html>. Law reform strategies that address the limitations of the outcome test include the promotion of advance directives. Advance directives are valued in this context because they assert the legal validity of decisions that are made while a person is demonstrably competent.
19.
Dhanda, above n 9, 432.
20.
Tina Minkowitz (Co-Chair, World Network of Users and Survivors of Psychiatry), Submission to the Committee on the Rights of Persons with Disabilities, Day of General Discussion on CRPD Article 12, 21 October 2009 at <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGD21102009.aspx>.
21.
Ibid.
22.
WellerPenny, ‘Psychiatric Advance Directives and Human Rights’ (2010) Psychiatry, Psychology and Law (forthcoming).
23.
See SkeneLoane, Law and Medical Practice: Rights, Duties, Claims and Defences (2nd ed, 2004).
24.
Article 4(2) indicates that the economic, social and cultural rights in the Convention are subject to the principle of progressive realization.
25.
Whether or not ‘reasonable accommodation’ has been provided is also relevant to a determination of whether the conduct in question was discriminatory, thereby involving Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
26.
United Nations Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities, From Exclusion to Equality: Realizing the Rights of Persons with Disabilities (2007) 60.
27.
Ibid.
28.
The term ‘alternative decision-making’ is used in contradistinction to the term ‘substituted decision-making’ which refers to processes where another or substitute person makes the decision on behalf of the person with a disability.
