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  • 2 - Article 12 – Context and Background

  • Julia Duffy, Queensland University of Technology
  • Book:
    Mental Capacity, Dignity and the Power of International Human Rights
    Published online:
    03 August 2023
    Print publication:
    17 August 2023, pp 32-73

  • Summary

    Chapter 2 explains the historical and contemporary policy, legal and human rights contexts for decision-making by, with and for adults with cognitive disability. It describes the dominant narrative in the literature as depicting a journey from paternalism to autonomy, from exclusion to inclusion, and from discrimination to equality, aligned with three widely recognised models of disability – the charity, medical and social models. It explains that the book’s interpretation of Article 12 is founded on the acceptance of a social model of disability that acknowledges the residual impacts of impairment. The chapter explains the limitations of arguments favouring an interpretation of Article 12 as requiring that decision-making by substitutes be abolished. Such arguments privilege autonomy at the expense of other important human rights values and privilege the civil and political right to legal capacity over other civil, economic, political, social and cultural human rights.