There are a range of other related matters that should be considered in reform to guardianship law.
Firstly, the criminal law is one area worthy of further investigation in light of the CRPD. Flynn and Arstein-Kerslake note current criminal law concepts of consent and mens rea (or the mental elements of offences) may be particularly influenced by the requirements of the Convention. Already, the Australian Human Rights Commission noted in its 2014 Report, Equal Before the Law, that there are a range of issues for people with a disability in the justice system.
In Response to this Report, the Commission continues to advocate that the ACT Government implement many of its proposals in the form of a Disability Justice Plan, the development of which should include consultation with people with a disability in the local ACT community.
As detailed above, the issue of restrictive practices is a matter of concern. There remains confusion over whether guardians can ‘consent’ to restrictive practices (locks on doors, etc), and we submit that to be consistent with human rights, new legislation should clarify this issue. There also needs to be a comprehensive consideration of how restrictive practice should be monitored and regulated in the ACT.
Finally, since the review of the ACT’s mental health legislation, General Comments under the CRPD have been released and subjected to significant discussion, much of it focussed on mental health law. That Bill was always intended as a ‘bridge’ to new legislation based even more so on capacity questions. It is doubtful there is community or Government support for such a significant review so soon after the introduction of new mental health law, but this is an area worthy of ongoing consideration.