Testing Equality: Insanity, Treatment Refusal and the CRPD

The Convention on the Rights of Persons with Disabilities is considered to be a radical international treaty that affords persons with disability recognition and protection of equal rights in socio-cultural, political, medical and legal arenas. Drawing from the Convention's core principles of equality and non-discrimination, the High Commissioner for Human Rights and the Convention's Committee have called for a replacement of the insanity defence with a disability-neutral doctrine. The rationale is that retaining this special defence is, in itself, discriminatory, given its function is necessarily based on the presence of mental disability and the assumption that such disabilities impair capacity and reasoning. This article interrogates the rationale behind 'abolitionist' views, and asks whether equality necessarily means treating all persons identically regardless of capacity to reason about conduct.