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Principal Solicitor Bill Mitchell delivers second intervention statement at United Nations Open-Ended Working Group on Ageing

Townsville Community Legal Service Principal Solicitor, Bill Mitchell, has delivered a second intervention statement on behalf of the National Association of Community Legal Centres (NACLC) at the 9th session of the United Nations Working Group on Ageing.

23-26 JULY 2018 - Day 2, Item 6

Intervention statement by Bill Mitchell

I thank the Chair.

Let me tell you a story.

An older woman was transferred to a dementia ward because she would not agree to stay in hospital for further testing after treatment for a minor health issue. She wanted to return home where she had been living independently after her husband’s death. She had no cognitive impairment of any kind. Her general health was good. Legal interventions established that she had been held against her will, for no good or lawful reason and she was allowed to return home.

Her case exemplifies how easily autonomy is lost.

She was denied autonomy because she sought to assert her autonomy. The system’s response was to place her in a setting that justified denial of autonomy. That she sought to act as agent of her own will and preferences was what caused her will and preferences to be denied. She was repeatedly told the forced admission was in her best interests. Her rights were only upheld once she had access to legal representation.

I know many of you have heard a similar story before.

Had she remained in that ward, even after diagnosis, her autonomy would have been in absolute peril. Inside Dementia wards and some long-term care facilities, restrictive interventions further deny autonomy by locked doors, physical restraints that cause injury and deprive liberty, and chemical restraints that sedate older persons into a state of convenient compliance.

Member states across the world, including Australia, allow restrictive interventions that breach human rights and cause harm. These practices are used to facilitate control, and they remove the right to communicate freely. It is a key human rights issue that cuts across all areas we are discussing here this week, autonomy, long term care, equality and non-discrimination, and violence, abuse and neglect. It reveals how human rights are interrelated and are interdependent in order to guarantee freedoms. Needs do not exist in a vacuum and nor can the rights themselves.

Autonomy is a central, underpinning human right. Its fundamental importance cannot be overstated. If we imagine human rights as steps in a ladder, autonomy is surely the bottom step, which if missing, essentially bars access to all others. Or at best provides a precarious and unstable footing.

You cannot substitute that step for something else, only support progress towards legal rights.

A reframing of rights to autonomy demands the abolition of “ability” as the basis for denial of legal capacity. We must build on the work of CRPD and the General Comment to article 12 to address the intersections between ageing and disability. We must be alert to the nuances older persons require.

Autonomy literally means "having one’s own laws". And yet to say someone is “a law unto themselves” has typically implied they were acting selfishly or outside convention.

Older persons must be a law unto themselves and our global standards must support this ideal without reservation. Thank you.

William Mitchell for and behalf of National Association of Community Legal Centres (NACLC), Australia.

Bill Mitchell's intervention statement at UNOEWGA9 day 2