RECOMMENDATIONS Article 9 -
That the National Disability Strategy incorporates measures, such as licensing requirements or mandatory codes to address the lack of enforcement of the Disability Standards.
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That the National Disability Strategy incorporates measures to address the full range of accessibility obligations under CRPD Article 9.
Article 10 — right to life STATUS IN AUSTRALIA No Legislated Right to Life -
Australian domestic law does not recognise or guarantee a right to life. Australia has ratified the International Convention on Civil and Political Rights (ICCPR) which guarantees the right to life, and the Convention on the Rights of the Child (CRC) which contains obligations on the right to life and the related right to survival. However, international treaties do not automatically become part of domestic law and as yet there has been no specific legislation enacted to incorporate the right to life into Australian law.
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Securing conditions under which people can realise their rights to life and survival will, to a large extent, depend on their ability to effectively access goods, services, employment and an adequate standard of living. To this end, the Disability Discrimination Act 1992 (Cth) (DDA) makes it unlawful to discriminate on the basis of disability in areas including employment, education, the provision of goods and services (including health), access to premises and accommodation.79 The right to life does manifest to some degree in criminal law, through the prohibition on intentional or reckless killing. Each State and Territory has its own legislation80 making any unlawful killing a criminal act. Theoretically, the law applies to all persons and victims equally.
Lower Life Expectancy -
While people with disability in Australia are living longer,81 they still have a life expectancy up to 20 years lower than a person without disability.82
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Aboriginal and Torres Strait Islander people have a life expectancy about 17 years lower than the general population,83 and the rate of disability is almost twice as high as that among the general population.84 This suggests that the lower life expectancy for people with disability has a significantly greater impact on Aboriginal and Torres Strait Islander people with disability.
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Reduced life expectancy is a result of a number of factors, including lower levels of education, lack of access to health care, lower socioeconomic status, lack of access to community services and support, lower levels of employment and other factors. (See also Articles 24, 25, 27 and 28)
Deaths in Residential Disability and Aged Care Facilities -
Reviews of deaths of people with disability in residential disability facilities have revealed that there are a number of troubling issues contributing to premature deaths.85 The most recent New South Wales report revealed the average age upon death was 54, which is 25 years younger than the life expectancy of the general population. It would appear that the problems faced in New South Wales are similar to those in other states and territories.86 The main issues concern:
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problems in meeting complex needs, including identification of nutrition and swallowing risks,87 inadequate action to address emerging health concerns, inadequate guidance to staff as to how to meet the needs of some individuals and a lack of effective interagency work to provide coordinated support;
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first aid not being provided or provided ineffectively and delays in seeking medical assistance; and
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‘Do not resuscitate’ directives placed on files when it was not clear if the person had provided informed consent for such directives.
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There are many younger people with disability living in residential aged-care facilities. (See also Article 19). Although there are mandatory reporting requirements for ‘unexpected’ and ‘accidental’ deaths, evidence suggests that most deaths of people under 50 years of age in residential aged care are not reported. For example, in June 2007, there were 210 people with disability under 50 years of age living in residential aged care in Victoria. There were an average of 21 deaths per year in this group, yet very little is known about the causes of the deaths, and three “preventable” deaths in this group were not reported to the coroner.88
Denial of Life Saving Measures -
While active euthanasia is not legal in Australia, passive euthanasia (the withdrawal of life sustaining treatment, nutrients or medication), is legal,89 as is administering pain relief in the knowledge that it may hasten death.90 Doctors can withhold or withdraw treatment if there is an Advance Directive or Do Not Resuscitate order in place or if the doctor believes the treatment is futile or the burden of the treatment will outweigh the benefit.91 In the absence of a definition of futility, doctors often make decisions based on what is considered to be in ‘the best interest’ of the patient.
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The term ‘best interests’ is an incredibly vague and value laden concept, often accompanied by statements regarding quality of life or overwhelming burden of treatment and may reflect certain presumptions, value judgements and narrow medical, rather than holistic, views on life quality. This raises concerns under both Articles 10 and 25.
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There is legitimate concern that the general prejudices held about the quality of life of people with disability have led doctors to more readily consider treatment futile for people with disability.92 Reports on deaths of people with disability in residential care suggest that ‘poor quality of life’ as perceived by medical professionals is a key factor driving the decision to limit treatment.93
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Evidence also suggests that lack of training and awareness of disability issues leads to unequal treatment for people with disability and a greater likelihood that doctors will refuse treatment on the basis of futility if the patient has a disability.94
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The withdrawal or withholding of life prolonging and life-saving treatment is a significant issue for newborn children and infants with disability. It is a common practice to withhold or limit treatment to newborn children with disability with the intention of allowing them to die, on the basis that treatment is not in the child’s ‘best interests’, as perceived by the medical practitioner.95
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Intentional killing in Australia is a criminal offence. Judges have a wide discretion in sentencing to take into account aggravating and mitigating factors in determining the offender’s culpability. For example, in New South Wales aggravating factors may include whether the victim had any particular vulnerability, such as a disability, or whether the accused abused a position of trust or authority.96
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However, a number of court cases97 demonstrate that the tendency of the court is to treat the severe impairment of the victim as an ameliorating, rather than mitigating, factor. The outcomes do not appear to be reflective of the inherent dignity and value of the lives of people with disability or of their equality with others.98
Case Study
Both Jason Dawes and Matthew Sutton were intentionally killed by their parents. In both cases the parents were found guilty of the reduced charge of manslaughter. In sentencing, the court took into account the daily emotional burden of full time care of their child, the failure of a system to provide alternative support to the families, portraying the victim’s disability as a cause of emotional and relationship breakdown. In each case the parents received a five year good behaviour bond.
High Rates of Suicide -
Suicide in Australia is the leading cause of death among men aged 16–44 and among women 16–34 years of age. Every day more than seven people in Australia die as a result of suicide and more than one third of those were discharged too early or without care from hospitals. Over 330 people with serious psychosocial disability are turned away from emergency departments each day and 1,200 people are refused admission to a public or private psychiatric unit.99 The lack of available services for people with psychosocial disability is in stark contrast to the universal health care provided for other health care concerns such as cancer. The lack of mental health and suicide prevention services indicates an inequality on the basis of disability in the ability to enjoy the right to life and survival. (See also Articles 25 and 26)
Case Study
“My youngest daughter committed suicide three years ago. She had three young children who she loved. After experiencing post-natal depression, she was not referred to an appropriate service. Before she died she told me ‘Mum, I wish I had cancer, then people would be more understanding and caring’.”100
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