Chapter 4 explains how in traditional liberalism, autonomy as the ability to reason has been recognised as the foundation for personhood, thereby excluding adults with cognitive disability. Interpretations of Article 12 that require the abolition of decision-making by substitutes refashion autonomy from being marked by rationality and independence to being marked by shared personhood and interdependence so as to include adults with cognitive disability. I argue that these refashionings ultimately fail because despite avowals to the contrary, they perpetuate the privileging of rationality and of the bounded, independent individual. They also fail to recognise the interdependency of Article 12 with other rights in the CRPD, especially socio-economic rights. I argue that a concept of autonomy as achievement, as the development of autonomy competencies, as demanding the availability of a range of options and as demanding recognition of the indivisibility of human rights is the autonomy underpinning Article 12 and the CRPD.

Chapter 5 proposes an interpretation of Article 12 that allows for decision-making by substitutes as a last resort through relocating personhood from recognition of autonomy to recognition of dignity. It settles on a concept of dignity as inherent, as a legal principle (not a right) that underpins human rights and the CRPD, and as having five dimensions. The first dimension recognises the equal worth or value of all human beings. The second recognises autonomy as an important component of dignity for people who have autonomy but seeks to position autonomy as only one very valuable good amongst others. The third recognises dignity as reflexive and acknowledging the interdependent, interpersonal and social nature of being human. The fourth recognises personhood as embodied and particular, thereby acknowledging the residual impacts of impairment and the materiality of our lives. The fifth dimension demands an understanding of rights as interdependent and indivisible.

Chapter 3 explains the principle of the indivisibility and interdependence of human rights (‘the principle of indivisibility) as recognising: (a) the equal importance of economic, social and cultural rights with civil and political rights, and (b) the interdependence of rights within and across categories. It explains how the privileging of civil and political rights, including the right to legal capacity, erroneously frames state restraint as always rights-affirming; such framing, in turn, demands the abolition of decision-making by substitutes. It argues that depending on how an adult with cognitive disability is contingently situated even after all supports are provided, they may require a decision to be made by a substitute to fulfil an immediate socio-economic need and to claim their human rights. It argues that Article 12, in requiring supports for legal capacity, is a ‘hybrid’ civil and political and socio-economic right, illustrating and driving the principle of indivisibility in the CRPD.

Chapter 7 summarises the book’s findings and explains their implications for advocacy and law reform. It argues that recognition of the indivisibility of human rights is important to ensure that targeted services are provided for people with disability to address their disproportionate levels of socio-economic disadvantage. It decries the privileging of civil and political rights especially the right to legal capacity over all other rights, for encouraging the ‘lazy state’ that erroneously justifies its neglect of marginalised people in the name of upholding their human rights. It provides the example of personalised or individualised services premised on simplistic notions of choice and control, which often fail to uphold the rights of people with cognitive disabilities. It stresses the importance for the state and community of acknowledging difference to promote services that ensure civil, economic, political, social and cultural inclusion in all cases.

Chapter 6 argues that in interpreting the right to legal capacity ‘on an equal basis with others’, a substantive notion of inclusive equality must be applied. In doing so, it applies but also critiques General Comment No 6: On Equality and Non-Discrimination, published by the United Nations Committee on the Rights of Persons with Disabilities. Inclusive equality demands recognition of the difference of impairment and associated disadvantages. Once difference is acknowledged, either supported decision-making or decision-making by substitutes may be required to recognise an adult’s legal capacity ‘on an equal basis with others’ and to promote inclusion. This chapter draws on existing commentary explaining the ‘hybrid’ nature of the right to equality in bridging both socio-economic and civil and political rights and driving the principle of indivisibility.

This chapter introduces the research problem – how to interpret Article 12 of the Convention on the Rights of Persons with Disabilities (‘CRPD’) – the right to legal capacity on an equal basis with others. There is contention as to whether Article 12 allows for decision-making by substitutes as a last resort in ‘hard cases’, or whether people with cognitive disability can always be supported to make their own decisions and have their legal capacity recognised. The chapter explains how the CRPD developed against a history of people with disability being excluded as subjects of human rights, so that the convention was hailed as a ‘paradigm shift’. It introduces the book’s argument that interpreting Article 12 through the principle of the indivisibility and independence of human rights means that in ‘hard cases’ decision-making by a substitute may be required to recognise an adult’s human dignity and achieve inclusive equality.

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.