The UN Convention on the Rights of Persons with Disabilities: 'Rights, will and preferences' in relation to mental health disabilities

The UN Convention on the Rights of Persons with Disabilities spells out in the most up-to-date and specific manner the rights of persons with disabilities. In doing so the Convention presents serious challenges to many conventional practices in respect of people with disabilities, especially those with mental health disabilities. According to a number of authorities, most notably the UN Committee on the Rights of Persons with Disabilities, 'substitute decision-making' is not consistent with the Convention. 'Respect for the rights, will and preferences' is to be regarded as the touchstone for compliance with the Convention. However 'will and preferences' is nowhere defined. This paper examines the meaning of these terms, and draws attention to instances where a contemporaneous 'preference' may be at variance with a person's 'will'. In such cases, it is argued, that 'substitute decision-making' - or giving effect to the person's 'will' - may be justified.