Welcome to the seventh blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests. Today’s post is written by Associate Professor and Reader, Lee Ann Basser, who researches and writes on human rights, family law and disability law.
For a long time the idea of legal personhood for people with disabilities was at best aspirational and almost entirely rhetorical and in some parts of the world this remains the case. Just as a woman lost her separate legal identity on marriage until the late 19th century (her property passing to her husband along with control over her body), a person who was identified as disabled had little if any legal agency. Legal personhood depended on a person’s status as what we might now refer to as ‘able bodied’. People with disabilities could not hold property, run a business, control where they lived, marry, vote or consent to or refuse medical treatment. The right to a fair trial was denied due to a lack of ‘mental competence’ yet at the same time the disabled person could be detained indefinitely in prison or some other institution for periods that far exceeded any sentence they might receive.
Over time, particularly in the last 30 years this situation has changed. Gradually, the focus has shifted from a denial of legal personhood on the grounds of disability to a recognition that all Australians are legal persons before and under the law. Yet many of the old barriers to exercising legal personhood can still be found in our law. This is illustrated by the indefinite incarceration in prison without trial of disabled people, such as Roseanne Fulton, and Marlon Noble and by the continuing ‘community detention’ that Marlon is subject to.
Before considering what it means for people with disabilities in Australia today, I want to spend a little time teasing out the concept of legal personhood more generally. There are two aspects to legal personhood. One aspect is formal recognition of an individual as a person before and under the law. In this sense legal personhood confers status on an individual and recognizes her as a holder of legal rights (Quinn and Arstein-Kerslake, 2012). Acknowledgment of people with disabilities as rights holders with legal personality is a recent phenomenon (Jones and Basser Marks, 1999), most fully articulated in the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Article 12 of the CPRD affirms “that persons with disabilities have the right to recognition everywhere as persons before the law”, while Article 5 provides “that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law”.
The second aspect to legal personhood, legal capacity, acknowledges an individual as a legal actor, someone with agency, who is able exercise her rights, to make her own decisions, and have those decisions recognized in law (Basser, 2013). This is acknowledged in the CRPD in Article 12.2: “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. To give effect to legal personhood and legal capacity the Convention imposes an obligation on states to provide people with disabilities with the support they need to exercise their legal capacity (Article 12.3).
So what does this mean for Australians with disabilities? All Australian jurisdictions now formally recognise people with disabilities as having legal personhood and all jurisdictions prohibit discrimination on the grounds of disability (Basser, 2013; Rees et al 2014). However, there are as I alluded to earlier, numerous instances where disability continues to be a rationale for denying particular rights as in the case of indefinite incarceration without trial referred to above. Some of these situations are the result of legislation directed at people with disabilities and others are arguably a carry-over from earlier times.
Modern guardianship law, for example, acknowledges legal personhood but removes legal capacity in situations where a person is deemed to be mentally incapable of making particular decisions. These laws usually recognize that legal capacity is context specific and that there is rarely a situation where it is necessary to deprive a person of all control over their lives. Guardianship orders are targeted to situations where there is a ‘need’ for a guardian and are limited to the decisions required to meet the need. That said guardians stand in the shoes of the person with a disability and are mandated to make the decision that is in the person’s best interest rather than acting on the person’s wishes (although they are usually directed to take these into account). While Australian guardianship laws contain informal decision making mechanisms allowing for day to day decisions to be made by carers and family members these are all ‘substitute’ decision-makers and do not meet the requirements of supported decision-making set out in the CRPD as explained by the Committee on the Rights of Persons with Disabilities in General Comment 1.
The CRPD contains a restatement of the full array of human rights found in earlier UN human rights documents and spells out what each of these rights means in the context of disability. To illustrate my argument that there are areas of Australian law, in which legal capacity continues to be denied to people with disabilities I want to turn to Article 23, Respect for Home and Family.
Article 23 affirms the right of people with disabilities to marry or partner and to have children. The Marriage Act 1961 (Cth) provides that a marriage is void where either of the parties is “…mentally incapable of understanding the nature and effect of the marriage ceremony” (s 23B). On this basis people with intellectual and other cognitive disabilities have been denied the right to marry. While in practice people with cognitive disabilities are beginning to marry, the law remains unchanged although the Australian Law Reform Commission has recommended removing these specific words from the Act (ALRC Report 124).
Article 23.2 imposes an obligation on states to ensure the rights and responsibilities of parents with disabilities and requires states to “render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.” However, in practice, parents with disabilities are more likely to have their children removed from their care whether they find themselves in the family law (OPA, 2013) or child protection systems (Llewellyn et al 2003). What is more, where parents with disabilities come into contact with the family justice system, it is likely that they will find that rather than supporting their legal capacity the system will deny it, at least where they have a cognitive disability. The Family Law Rules require the appointment of a case guardian where one of the parties is a person with a disability. Under the rules a person with a disability is defined as:
a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
The effect of the rules is to pass the conduct of the case to the case guardian who acts ‘in the interests’ of the party but who has total discretion in relation to the conduct of the case. The case guardian may or may not act in accordance with the wishes of the person they represent and there is no obligation to consult the person. The case guardian decides whether or not to initiate or continue proceedings and when to settle a case. In a recent Federal Circuit Court case divorce proceedings were brought by the wife’s mother, acting as case guardian. In this case the husband had disappeared some time before and there was evidence that, at an earlier time, the wife (who had a mild disability) had expressed a wish to divorce the husband. At the time the application was made the wife had experienced a severe brain injury and was not involved in the decision to make the application. Nevertheless, the divorce was granted, the judge holding that the grounds for divorce were evidenced by the separation and the wife’s earlier expressed intention (McKenzie & McKenzie (2013) FCCA 1013).
While in the McKenzie case it is arguable that the outcome was one that the wife had desired, Rebecca’s case highlights the pitfalls of substitute decision making and illustrates a denial, not just of legal capacity but of legal personhood. This was a ‘parenting dispute’ between Rebecca, a woman with mild intellectual disability and the elderly relatives of her former partner. There was no concern about Rebecca’s parenting ability and there was ample evidence from the expert reports that she was a loving, dedicated and capable parent. Nevertheless she lost the care of her eight year old daughter because her legal advisers believed that a court was likely to find that her former partner’s family would make ‘better parents’. One of the reasons that the case guardian settled was concern about potential legal liability if the case went to a hearing. Rebecca was not consulted and when she spoke out about the decision she was threatened with contempt of court.
Over the last few years, since Australia signed and ratified the CRPD, there have been a number of reviews of current laws relating to guardianship, legal capacity and mental health. These include Australian Law Reform Commission review of legal capacity under Commonwealth laws referred to earlier. Amongst the recommendations are the inclusion of supported decision making tools and a shift from a ‘best interests’ approach to alternate decision making to one that is guided by the “will, preferences and rights of persons who may require decision making support”. (ALRC Report 124). While a spectrum of supported decision-making options is advocated for in these reports, substitute decision-making in the form of the appointment of a guardian or an administrator remains the tool of last resort.
To date no steps have been taken to implement the ALRC report or to systematically address the various laws which deny legal capacity to people with disabilities. While there has been very significant progress over the last thirty years much remains to be done.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws Report 124 (2014)
Basser, L, ‘Are we there Yet? Is Australia Respecting the Rights of People with Disabilities?’ in P Gerber and M Castan (eds), Contemporary Perspectives on Human Rights in Australia (Thomson Reuters, 2013)
Flynn, E and Arstein-Kerslake, A, ‘Legislating Personhood: Realizing the Right to Support in Exercising Legal Capacity’ (2014) 10 International Journal of Law in Context 81
Jones, M and Basser Marks, L, ‘Law and the Social Construction of Disability’ in M jones and L Basser Marks (eds), Disability, Divers-ability and Legal Change (Martinus Nijhoff, 1999)
Llewellyn, G, McConnell, D and Ferronato, L, ‘Prevalence and Outcomes for Parents with Disabilities and their Children in an Australian Court Sample’ (2003) 27 Child Abuse & Neglect 235
Office of the Public Advocate, Whatever Happened to the Village? The Removal of Children from Parents with a Disability (2013)
Quinn, G and Arstein-Kerslate, A, ‘Restoring the “Human” in “Human Rights” – Personhood and Doctrinal Innovation in the UN Disabilitiy Convetion’ in C Gearty and C Douzinas (eds), The Cambridge Companion to Human Rights Law (Cambridge University Press, 2012)
Rees, N, Rice, S and Allen, D, Australian Anti-Discrimination Law (The Federation Press, 2nd ed, 2014)
Lee Ann Basser, ‘Legal Personhood #7: Disability’, Law and Justice, 10 June 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)