Righting legal capacity?: Disability, law reform and human rights

Disability legal capacity issues are increasingly prominent in Australian law reform activity. The UN Committee on the Rights of Persons with Disabilities has argued for non-discrimination in relation to people with disability and opposed Australian substituted decision making regimes. We identify key themes in domestic law reform in light of such international human rights developments. These include: a focus on legal incapacity, discriminatory application of mental capacity standards to people with disability, continuation of substituted decision making, and failure to question the disabling effects of the concept of mental capacity. These issues point to problems with the extent to which Australian law reform is realising human rights for people with disability, and raise deeper questions around the meaning of disability (and ‘ability’) and the epistemic de-authorisation of people with disability. If considered in relation to future law reform processes, these issues could result in more radical reforms to the foundations of the legal system.