Action - Ensure disabled people can exercise their legal capacity

The action outlined below will help achieve this outcome. This work was started under the existing Disability Action Plan.

7. Priority: Reduce barriers to disabled people making decisions to determine their own lives

7 A: Ensure disabled people can exercise their legal capacity, including through recognition of supported decision making.

Progress update to September 2018

Status: On track - Green

A report was provided to the Minister for Disability Issues in May 2018 presenting work undertaken on promoting a shared understanding of supported decision making and consideration of the people most likely to be directly affected by it. MSD will develop an engagement plan by December 2018 on a proposed consultation with the community on the shared understanding, which is intended to be run in early 2019. MSD will consult with key stakeholders on the engagement plan.

Connecting with individuals and organisations with an interest and responsibility in relation to Article 12 [on-going]

Information on supported decision-making (July 2016) [complete]

Auckland Disability Law completed information from its hui on supported decision making held on 20-21 April 2016, including information summarising the hui's discussions and three information resources (part funded by the Office for Disability Issues).

Literature review (September 2016) [complete]

Donald Beasley Institute reports on a literature review on evidence and insight from around the world, as well as New Zealand, on implementation of Article 12. For the purposes of this work, priority will be given to exploring practice and practical thinking to support for disabled people's exercise of legal capacity, over examinations of historical approaches/practice (funded by the Office for Disability Issues).

Roundtable discussion (20 February 2017) [complete]

ODI organised a roundtable of key stakeholders active in the legal capacity space to enable sharing of activities planned for 2017 and help maintain relationships.

Report to the Minister for Disability Issues (August 2017) [complete]

Report to the Minister for Disability Issues on progress towards a shared understanding of Article 12 for New Zealand and recommendations for next steps, informed by the February 2017 roundtable discussion.

Read report summary

Further work dependent on decision by the Minister for Disability Issues [unknown]

By December 2018, MSD will develop a plan for community engagement on a shared understanding of supported decision making, which is intended to run in early 2019. MSD will consult with key stakeholders on the engagement plan.

Lead: Office for Disability Issues

DPOs contact: People First

Others: Ministry of Health, and the Human Rights Commission

Scope of action

A revised scope of this action was approved by the governance meeting of the Chief Executives' Group on Disability Issues and Disabled People's Organisations on 19 August 2016.

1 Lead

Office for Disability Issues

2 Context: brief background, what is this action intended to achieve?

This action has been carried over from the 2014 Disability Action Plan. The main changes to the previously agreed scope are updating the milestones and the addition of risks.

Support for the exercise of legal capacity is considered a fundamental right that underpins the exercise of most other human rights. This issue particularly affects people with difficulty with communication and/or understanding information.
The population most likely to need support for the exercise of legal capacity generally includes, but not limited to:

o people with learning disabilities

o people with experience of mental illness

o people with experience of dementia

o people with other kinds of impairment that limits their ability to communicate, understand or retain information necessary for decision making.

3 Proposed scope

What is the purpose of this action and how will it be implemented?

This action will explore what is needed to be done in New Zealand to ensure disabled people can experience their rights under the Convention on the Rights of Persons with Disabilities’ Article 12: Equal recognition before the law.

Analysis and recommendations from the exploration will be presented to the Minister for Disability Issues, in advance of consideration by the Ministerial Committee on Disability Issues.

4 What is included in the scope of this action?

This action seeks to develop a shared understanding for New Zealand on:

what are the expectations of Article 12?
which disabled people are affected by Article 12, and what are their experiences with realising their rights under Article 12?
how do domestic arrangements (including legislation, policies and practice) compare to the expectations of Article 12 and are there any gaps?
what are examples of leading practice (domestic and international) in relation to Article 12?
what is needed to achieve better implementation of Article 12, including options for implementation?

5 What is excluded from the scope of this action?

Implementation of any activity by government agencies or non-government stakeholders in relation to Article 12 is excluded from this action.

6 What are the timeframes for implementation?

Work on this action is expected to be progressed from July 2016 to June 2017.

7 What resources will the lead and partners contribute?

The Office for Disability Issues will dedicate staff time to work on this action.

The Office for Disability Issues has also contributed funding for Auckland Disability Law (in 2015/2016) and the Donald Beasley Institute (in 2016) to carry out work that advances this action.

Reasonable accommodation will be provided to support engagement with stakeholders, such as meetings or travel or their participation in this action’s development.

8 What governance arrangements are in place for this project?

Guidance on this work will be particularly sought from the:

Director, Office for Disability Issues
Ministry of Justice
Ministry of Health
Disabled People’s Organisations involved with this action.

Reports on progress will be made as part of the ordinary Disability Action Plan monitoring process.

9 Is there a need for a reference group to advise on progress with this action?

Key stakeholders will be invited to feedback at key stages of this work. A reference group is not initially expected to be necessary.

10 Contributors/partners with lead – who is involved in this action?

Advice on this action will be sought particularly from:

DPOs: Balance, People First, DPA
Auckland Disability Law
Government agencies: Ministry of Justice, Ministry of Health.

Other stakeholders that could be involved include, as well as others:

IHC Advocacy
Dementia Collective
Age Concern New Zealand
Donald Beasley Institute
Human Rights Commission
Office of the Ombudsman
Lawyers with experience and expertise in cases involving disabled people and their legal capacity.

It is important with this action to reach out to the wide diversity of organisations representing people needing support to exercise legal capacity, as well as experts and professionals with experience of how it works every day.

11 Which organisations, including DPOs, have been involved in drafting this scope? How was the draft scope developed?

This scope has been largely carried over from that previously agreed under the 2014 Disability Action Plan.

12 Which organisations, including DPOs, will be involved in implementing this action?

A wide range of stakeholders will be included in the development of the shared understanding of Article 12, reflecting the diversity of people needing support to exercise their legal capacity.

The Office for Disability Issues will explore whether it will support and/or contribute to a community of interest in relation to Article 12, in order to sustain relationships amongst interested people and enable ongoing discussion.

13 Reporting – key milestones/deliverables

Ongoing	Connecting with individuals and organisations with an interest and responsibility in relation to Article 12.
July 2016	Auckland Disability Law completes information from its hui on supported decision making held on 20-21 April 2016, including information summarising the hui’s discussions and three information resources (part funded by the Office for Disability Issues).
September 2016	Donald Beasley Institute reports on a literature review on evidence and insight from around the world, as well as New Zealand, on implementation of Article 12. For the purposes of this work, priority will be given to exploring practice and practical thinking to support for disabled people’s exercise of legal capacity, over examinations of historical approaches/practice (funded by the Office for Disability Issues).
December 2016	report to the Minister for Disability Issues on progress towards a shared understanding of Article 12 for New Zealand and recommendations for next steps.

Further work will depend on decisions by the Minister for Disability Issues.

14 Risks

What are the risk to progressing this action, and what mitigations will be put in place against those risks?

Risk	Mitigation
The diversity of people covered by Article 12 and the wide range of areas of life impacted on may stall agreement on a shared understanding about Article 12. The different stakeholders may not reach consensus on the value in having a shared understanding.	The point of starting with a high-level shared understanding is to set out a consistent approach to thinking about how Article 12 is applied in different contexts, and to enable identification of areas of commonality across otherwise diverse populations.
Discussion could focus solely on legislative options instead of considering the ordinary life impact on the disabled people.	Discussion could focus solely on legislative options instead of considering the ordinary life impact on the disabled people.
Discussion on the shared understanding could be diverted towards a binary argument of for/against substitute decision making.	A focus on practice, thinking and experience around the world and in New Zealand will help keep the discussion on a shared understanding about Article 12 focused on what is practically beneficial for disabled people, which is situated in a rights-based approach.
Even if a shared understanding is achieved, progress with implementing next steps may not be mandated	The sharing of experiences with this work on Article 12 and by others, as part of supporting a community of interest, will help increase understanding across New Zealand on the need for support for the exercise of legal capacity.

15 Impact – what are we trying to achieve?

What are indicators of the action’s intended result/outcomes desired? There is a shared understanding of the expectations of Article 12 and what is needed to achieve better implementation so that disabled people are better able to exercise their legal capacity on an equal basis with others.

How will these indicators be measured or evaluated? The shared understanding is supported key government agencies, Disabled People’s Organisations, NGOs, and service professionals.

16 Evidence base

What information or data is available that supports the focus of this action? How do you know there is a problem?

There is a lot of information about Article 12, but there is not so much about how support to exercise legal capacity is mandated by governments nor about individuals’ experiences in practice. The United Nations Committee on the Rights of Persons with Disabilities expects New Zealand to progress work on better implementing Article 12.

United Nations Committee on the Rights of Persons with Disabilities, 2014. “General comment number 1 (2014) Article 12: Equal recognition before the law”
Australian Law Reform Commission, May 2014. “Equality, Capacity and Disability in Commonwealth Laws: Discussion paper”.

17 Related work

Is there any other activity, in the Disability Action Plan or other work by government agencies or NGOs that relates to this action?

There are two related actions in the Disability Action Plan:

Action 9 D: Explore how the Mental Health (Compulsory Assessment and Treatment) Act 1992 relates to the New Zealand Bill of Rights Act 1990 and the CRPD.
Action 7 B: Explore the framework that protects the bodily integrity of disabled children and disabled adults against non-therapeutic medical procedures, including the issue of consent. This action will focus initially on options to protect against non-therapeutic sterilisation without the fully informed consent of the individual.

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Page last updated: 2.03.2019