Abstract: There has been a marked shift away from social liberalism in many parts of the world which has profound ramifications for women, whose status remains contingent on the good graces of public institutions that remain resolutely masculinist. Neoliberalism, with its focus on the privatisation of public goods and promotion of the self within the market has become the dominant political ideology everywhere and is further undermining the interests of the majority of women. This essay will address the changing fortunes of sex discrimination legislation as a specific example of an initiative designed to improve the status of women. Australia will be used as a case study because of its passionate embrace of, first, social liberalism, and then, neoliberalism. Issues pertaining to affirmative action (positive action), intersection with human rights instruments, reporting requirements and incentives will also be addressed. Although Australia is a multi-jurisdictional federation, the essay will focus primarily on the federal arena in terms of legislative initiatives, policy and jurisprudence.
Abstract: Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their mental health and incapacity laws with mental capacity. This is most notable in terms of the General Comment’s requirement that substitute decision-making regimes must be abolished. Notwithstanding this, it also offers the opportunity to revisit conceptions about the exercise of legal capacity and how this might be better supported and extended through supported decision-making. This article will offer some preliminary observations on this using Scottish mental health and incapacity legislation as an illustration although this may also have relevance to other jurisdictions.
Abstract: This article examines the central but neglected principle of solidarity in human rights, health and bioethics, a concept subject to contention, evasion and confusion. It addresses the general ambivalence toward solidarity within law, philosophy and politics by discussing solidarity’s co-evolution with inegalitarian encapsulations and divisions of human rights. It argues that a renewed conception of solidarity is essential to meet increasingly salient ethical demands, as gender equality and the individualization of responsibilities coincide with deficits of care and collective responsibility. Questions of embodiedness, (inter)dependence, care and asymmetry are neglected by dominant liberal approaches, but are key to rethinking solidarity.
Abstract: Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law.
Abstract: Central to the Mental Capacity Act 2005 (MCA) is the claim that a conferral of incapacity may not be based on the wisdom of a decision alone. This paper problematizes this position. Values-based medicine is drawn on to explore the process of capacity assessment, highlighting the presence of preconceptions throughout assessment. Two cases before the Court of Protection are examined to bring into focus the complexity of conducting assessment without reference to wisdom. The paper proposes that every stage in the assessment of capacity is undertaken with reference to preconceptions and that an acknowledgement of these, along with transparency about when they are to be employed, would allow for greater clarity about what the MCA demands of practitioners.
Abstract: This article discusses the nature of “house demolitions” as used by the State of Israel in the West Bank and East Jerusalem. In our opinion, and in contrast to the view of Israel’s Supreme Court, such demolition orders constitute a penal sanction. As a penal sanction, we argue that this measure violates the basic principles of criminal liability. Even if this conclusion is not accepted, it will be argued that making innocent people homeless is an illegal collective measure. Even if assuming arguendo that it is not an illegal collective measure, it violates the basic principle of personal responsibility. The general conclusion of the article is that the examination of the nature of sanctions should go beyond the labels that are attached to them. Labeling sanctions as either penal or civil may not always reflect its true nature, and labels are sometimes deliberately used or rather misused in order to escape from the requirements stemming from the true essence of a sanction.