Human Rights Law and the Defence of Mental Impairment

This article provides an overview of recent scholarship calling for the defence of mental impairment to be abolished on the grounds that it breaches international human rights law. It outlines how differing interpretations of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) suggest that arguments for abolition will continue to be contested. On a practical level, no Australasian law reform body has called for the abolition of the defence and it seems unlikely that government policy will shift towards this in the absence of such a recommendation from these bodies. However, highlighting the obligations on States Parties to the CRPD to ensure the right to equal treatment before the law necessitates a careful consideration of whether the defence of mental impairment is still fit for purpose.