The United Nations Convention on the Rights of Persons with Disabilities (CRPD) marked a ‘paradigm shift’ for persons with mental illness by reframing persons with mental illness as rights-holders and the subjects of human rights discourse. It marks a dramatic shift from the time in which people with mental illness ‘were feared as lunatics, pitied as imbeciles and detained in rural asylums far away from public view and private conscience’ and treated without respect for their humanity and fundamental rights. That was a time when persons with mental illness were left to a fate ‘of discriminatory exclusion from vital aspects of personal, social and productive life’. The CRPD challenges the prioritisation of paternalism over the rights of persons with disabilities. It requires the international community to think about human rights anew in order to respond to the unique human rights challenges faced by persons with disabilities and the international community’s prior failure to bring them into the human rights system.
Article 12 of the CRPD
Article 12 is central to the CRPD’s paradigm shift. It states:
Article 12 Equal recognition before the law
States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measure affect the person’s rights and interests.
Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
One of the most important aspects of article 12 is the distinction drawn between legal and mental capacity. This distinction is one largely unknown to the common law world, in which ‘capacity’ is synonymous with mental capacity or the ability of an individual, rather than an inherent attribute as in the case of legal capacity in international human rights law. Legal capacity ‘is the recognition of an individual as a rights holder and legal agent on an equal basis with others’ and the ‘individual’s relationship with the state as an active subject’. Mental capacity is a distinct concept; it is ‘an individual’s decision-making ability’ which is dependent on a number of environmental and social factors external to the person. This ability may fluctuate, be well-developed or under-developed – it is the same for people with and without disabilities. The treaty body monitoring the CRPD calls out the conflation of mental and legal capacity such that ‘where a person is considered to have impaired decision-making skills, … his or her legal capacity to make a particular decision is consequently removed’. This approach is flawed, not least because it is discriminatorily applied to persons with mental illness, and is not permitted by article 12. The importance of legal capacity cannot be overstated. Gerard Quinn suggests that legal capacity ‘provides the legal shell through which to advance personhood the lifeworld’, enabling ‘persons to sculpt their own legal universe – a web of mutual rights and obligations voluntarily entered into with others’, allowing for an expression of one’s will in the world around them. Hence, denial of legal capacity has ‘catastrophic consequences’ which is akin to ‘a form of “civil death”’. Not least, its denial ‘perpetuate[s] discrimination and exclusion against persons with disabilities and pave[s] the way to different forms of corruption, coercion and exploitation’.
Australia is a state party to the CRPD and has ratified the Convention domestically. Yet, Australia has issued an interpretive declaration to the CRPD declaring ‘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 safeguards’. Such an interpretation stands in stark contrast to the views of the Committee on the Rights of Persons with Disabilities – the very body set up by the Convention to monitor compliance with the treaty. Like many other states, the CRPD remains to be fully implemented in Australian law and Victoria, with a new mental health law on the horizon is uniquely placed to set out about achieving the CRPD’s ambitious goals and create a rights-based mental health system with the voice of persons with mental illness at its centre.
From a System which has ‘Catastrophically Failed’ to a Rights-Based Mental Health System
On 2 March 2021, the Victorian Government released the final report of the Royal Commission into Victoria’s Mental Health System. The Royal Commission highlighted the strains placed on Victoria’s mental health system as a result of various factors, including serious funding neglect and found that people obtaining mental health services ‘are not treated with dignity or respect and are not involved in making decisions about their own treatment, care and support’. Through its recommendations, the Royal Commission seeks to transform Victoria’s mental health system from a system which has ‘catastrophically failed to live up to expectations’, into a system that ‘encourage[s] a human rights-based culture to flourish’. One of the key recommendations of the Royal Commission is the repeal of the Mental Health Act 2014 (Vic) and enactment the Mental Health and Wellbeing Act by mid-2022 at the latest. This is combined with the phasing out of seclusion and restraint, a greater emphasis on supported decision-making, and a commitment that compulsory treatment be only used as a last resort. However, the Royal Commission stopped short of recommending an end to compulsory mental health treatment, and while seclusion and restraint are to be phased out, the same is not to be done for compulsory treatment.
While there is more than just the issue of involuntary treatment to the rights of persons with mental illness, the impact that involuntary treatment has on the personhood of persons with mental illness means that it assumes a high degree of importance. Many arguments have been mounted in favour of the need to retain involuntary treatment mechanisms within mental health laws. Many require an unequal balancing of the rights of persons with disabilities: requiring that their health and life take precedence of their autonomy and self-determination. This is a balance that we would not pursue for persons without disabilities.
Victoria is therefore in the middle of a unique opportunity to reform the mental health system in this state. A greater emphasis on the positive right to the highest attainable standard of mental health, a commitment to early intervention, community care and non-legal advocacy are all to be welcomed. Yet, Victoria is also on the precipice of once again failing to fully implement the CRPD. Indeed, without fully confronting the ‘hard cases’ which tests article 12’s implementation and the paternalistic desire to balance other rights over the rights of persons with mental illness to legal capacity, the very core of the paradigm shift which the CRPD seeks to bring about will remain neglected in Victoria.
It is also clear that well-intentioned law reform alone can only take the system so far. A cultural shift is also needed amongst psychiatrists and the rest of the mental health workforce to embed human rights in mental health service delivery. This is because models of care and mental health service provision are ‘critical to human rights’ implementation and ‘afford an opportunity to embed human rights into the way that services care for people in distress’. Such models of care must be cognisant of the human rights engaged in the treatment decision-making process and give guidance to mental health clinicians as to how they can act compatibly with human rights. This requires wide-spread knowledge of and engagement with human rights principles, including those contained in the Victorian Charter of Human Rights and Responsibilities. If this embedding does not take place, we will look at the Mental Health and Wellbeing Act at its review in seven years’ time and find yet again that we have failed persons with mental illness.
 Convention on the rights of Persons with Disabilities, opened for signature 13 December 2006, 2512 UNTS 2 (entered into force 3 May 2008) (‘CRPD’).
 The origin of the label ‘paradigm shift’ as applied to the CRPD seems best attributed to Don MacKay who was New Zealand’s Permanent Representative to the UN and Chair of the Ad-Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities: United Nations, ‘Ad Hoc Committee Agrees on New UN Convention to Protect Disabled Persons’ Rights’ (Media Release SOC/4716, United Nations General Assembly Department of Public Information), 25 August 2006) <https://www.un.org/press/en/2006/soc4716.doc.htm>.
 In this article it is accepted that the inclusive definition of disability in article 1 of the CRPD includes persons with mental illness. Scott uses ‘persons with mental illness’ and ‘persons with disabilities’ interchangeably depending on context. In so doing, he adopts the language used across international human rights discourse, but recognises that language in this area is contested and that persons with lived experience of disability and mental illness may reject such language and seek to adopt different terms.
 Rosemary Kayess and Philip French, ‘Out of Darkness and Into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2009) 8(1) Human Rights Law Review 1 , 2 (‘Introducing the CRPD’); Neeraj S Gill, ‘Human Rights Framework: An Ethical Imperative for Psychiatry’ (2019) 53(1) Australia and New Zealand Journal of Psychiatry 8, 8.
 PBU v NJE v Mental Health Tribunal (2018) 56 VR 141164  (Bell J).
 Annegret Kämpf, ‘Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?’ in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-Based Mental Health Laws (Bloomsbury Publishing, 2010) 129, 141.
 Frédéric Mégret, ‘The Disabilities Convention: Towards a Holistic Conception of Rights’ (2008) 12(2) The International Journal of Human Rights 261, 274. See also, Gerard Quinn, Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc A/HRC/46/27 (19 January 2021), para 11-2.
 Mégret (n 8) 263.
 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12 (Equal Recognition Before the Law), 11th sess, UN Doc CRPD C/GC/1 (18 May 2014) para 12-5 (‘General Comment No 1’).
 Michael Bach and Lana Kerzner, ‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Law Commission of Ontario, 2010) 16-7 (‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity’).
 Anna Arstein-Kerslake and Eilionóir Flynn, ‘The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A Roadmap for Equality Before the Law’ (2016) 20(4) The International Journal of Human Rights 471, 474 (‘A Roadmap for Equality Before the Law’).
 Ibid 475; Committee on the Rights of Persons with Disabilities, General Comment No 1 (n 10) para 13.
 Arstein-Kerslake and Flynn, ‘CRPD Article 12: A Roadmap for Equality Before the Law’ (n 12) 475.
 Committee on the Rights of Persons with Disabilities, General Comment No 1 (n 10) para 15.
 Gerard Quinn, ‘Personhood and Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD’, (Conference Paper, Harvard Law School Project on Disability (HPOD) Conference, Harvard Law School, 20 February 2010) 10.
 Gerard Quinn and Anna Arstein-Kerslake, ‘Restoring the "Human" in "Human Rights": Personhood and Doctrinal Innovation in the UN Disability Convention’ in Conor Gearty and Costas Douzinas (eds), The Cambridge Companion to Human Rights Law (Cambridge University Press, December 2012) 43.
 Catalina Devandas Aguilar, Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc A/HRC/37/56 (12 December 2017) para 14.
 United Nations Treaty Collection, ‘Convention on the Rights of Persons with Disabilities’, Status of Treaties (Web Page) <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4>.
 Royal Commission into Victoria’s Mental Health System (Final Report, February 2021) summary and recommendations, 18 (‘RCVMS Final Report’).
 Royal Commission into Victoria’s Mental Health System (Interim Report, November 2019) 1.
 RCVMS Final Report (n 21) vol 4, 35.
 RCVMS Final Report, summary and recommendations, 78 (recommendation 42).
 Ibid 90 (recommendation 54).
 Ibid 92 (recommendation 56).
 Ibid 91 (recommendation 55).
 Neeraj S Gill, ‘Psychiatry and the Socio-Political Order: Where Health Meets Human Rights’ (2021) 72 Griffith Review 38, 50.
 See discussion in, Piers Gooding, A New Era for Mental health Law and Policy: Supported Decision-Making and the UN Convention on the Rights of Persons with Disabilities (Cambridge University Press, 2017) ch 7; Anna Arstein-Kerslake, Legal Capacity & Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women and Gender Minorities (Springer, 2021) (‘Legal Capacity & Gender’).
 Arstein-Kerslake, Legal Capacity & Gender (n 29) 20-1.
 Ibid 21.
 Simon Katterl and Chris Maylea, ‘Keeping Human Rights in Mind: Embedding the Victorian Charter of Human Rights into the Public Health System’ (2021) Australian Journal of Human Rights DOI:10.1080/1323238X/2021/194330, 1-21, 13.
 Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).
Illustration: Anna Parini
Scott Walker is a final year LLB (Hons) student at Monash University and a Fellow of Eleos Justice, Monash University. Scott currently works as a paralegal at Kennedys in health law assisting in litigated, regulatory, and coronial matters. Scott has diverse research interests that span international human rights law, health law, disability law and mental health and is particularly interested in the embedding of human rights in mental health systems.
Scott is indebted to the feedback of his thesis supervisor, Professor the Hon Kevin H Bell AM QC, on his thesis to date and the encouragement and support of many that he has received throughout the thesis process.