Human Rights and Disability Systems: International and Australian Perspectives?

On Tuesday 6 May, Health Law and Ethics Network at Melbourne Law School, University of Melbourne held their monthly lunchtime seminar. This seminar was presented by Dr Kay Wilson and Associate Professor Anna Arstein-Kerslake.

Royal Commissions (‘RCs’) are considered the most prestigious, independent, and powerful form of Australian public inquiry. Between 2021 and 2023 Australia has had reports from three different RCs (two federal and one state) into Australian social care systems for Aged Care, Disability and Mental Health. These three RCs were massive once-in-a-generation inquiries which will likely set the agenda for law and policy reform in each sector for the foreseeable future. Dr Kay Wilson’s paper provides a high-level overview of each of the three RCs and what they tell us about the systemic failures in the mental health, disability and aged care systems in Australia and how each sector should be reformed. The paper has a select synthesis of some of the more cogent and interlinked themes which have emerged across reports: lack of choice and control (absence of consumer voice); negative social attitudes and discrimination; overuse of restrictive practices (eg. seclusion and restraint); difficulty accessing services and supports; an undertrained and underpaid workforce; problems with oversight and complaints processes; and chronic under-funding. The paper considers the proposed reforms and argue that despite differences between sectors, there is a very similar vision for how such services ought to be delivered and what good aged care, mental health and disability systems look like, taking into account developments international human rights law. While the paper is general, it focusses more on findings with implications for health and mental health law.

This seminar also examined the right to autonomy in international human rights. The paper by Associate Professor Anna Arstein-Kerslake focussed on the right to legal capacity, the right to live in the community, and the right to liberty. It looks at some key advances in these rights over the last 20 years, especially highlighting reform since the entry into force of the UN Convention on the Rights of Persons with Disabilities in 2006. It also discussed ways forward – looking at gaps that continue to exist in the field and how to fill those gaps to ensure ‘choice and control’ becomes a reality for disabled people.

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