Legal capacity and protection from forced interventions

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Legal capacity and protection from forced
interventions
Tirana, 18 December 2006

• Gábor Gombos
• WNUSP, MDAC

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Ackonwledgmenets

• Prof. Amita Dhanda

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Acknowledgments continued

• Tina Minkowitz, JD

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Outline

• First person stories
• Legal capacity under CRPD
• Incapacity as a socio-legal construct
• Capacity as a right not an attribute
• What is wrong with guardianship?
• What needs to be done to comply with CRPD?

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Outline continued

• Protection from forced interventions
• No disability-based discrimination in deprivation
  of liberty (incarceration)
• Right to free and informed consent to accept or
  refuse treatment
• Right to be free from torture and ill-treatment
• Right to physical and mental integrity

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First person stories

• I am a person who originally entered a mental
  hospital voluntarily, seeking help for a severe
  depression. After several months of going in and
  out of mental hospitals, where basically the only
  treatment was drugs and locked doors, I was
  told that I was being committed, against my will,
  to a state hospital. (Judi Chamberlin, in First
  person stories, WNUSP BAPU, 2006)

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First person stories continued

• One day the doctor told me that there was a good
  injection for me and he gave me ECT with
  anesthesia but without relaxation. Peers taught
  me that it was ECT. The doctor told a lie and my
  parents gave him the consent. (Mari Yamamoto,
  in First person stories, WNUSP BAPU, 2006)

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First person stories continued

• According to Lithuanian laws mentally ill
  persons become legally incapable at the moment of
  coming to the court (Lina Ciuksiene, in First
  person stories, WNUSP BAPU, 2006)
• I am a blind person from India. I wanted to
  self-operate a bank account, and was denied to do
  so. (S. Rungta, personal communication)

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These and similar situations will be illegal if
CRPD will be implemented
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Legal capacity under CRPD

• Article 12Equal recognition before the law
• 1. States Parties reaffirm that persons with
  disabilities have the right to recognition
  everywhere as persons before the law.
• 2. States Parties shall recognize that persons
  with disabilities enjoy legal capacity on an
  equal basis with others in all aspects of life.

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Legal capacity under CRPD

• 3. States Parties shall take appropriate measures
  to provide access by persons with disabilities to
  the support they may require in exercising their
  legal capacity.

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Legal capacity under CRPD

• 4. States Parties shall ensure that all measures
  that relate to the exercise of legal capacity
  provide for appropriate and effective safeguards
  to prevent abuse in accordance with international
  human rights law. Such safeguards shall ensure
  that measures relating to the exercise of legal
  capacity respect the rights, will and preferences
  of the person, are free of conflict of interest
  and undue influence, are proportional and
  tailored to the persons circumstances, apply for
  the shortest time possible and are subject to
  regular review by a competent, independent and
  impartial authority or judicial body. The
  safeguards shall be proportional to the degree to
  which such measures affect the persons rights
  and interests.

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Legal capacity under CRPD

• 5. Subject to the provisions of this article,
  States Parties shall take all appropriate and
  effective measures to ensure the equal right of
  persons with disabilities to own or inherit
  property, to control their own financial affairs
  and to have equal access to bank loans, mortgages
  and other forms of financial credit, and shall
  ensure that persons with disabilities are not
  arbitrarily deprived of their property.

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Incapacity as a socio-legal construct

• Deeply rooted prejudices against pwd-s resulted
  in a presumption of incapacity. In modern
  societies mostly persons with psycho-social
  disabilities (long-term mental health problems)
  and persons with intellectual disabilities are
  deprived of our right to make own choices.
  However, other disability groups, such as deaf,
  deaf-blind, blind, ... may also be effected.

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Incapacity as a socio-legal construct

• Social model of disability is applicable in
  relation to legal capacity It is NOT the
  individuals deficiency in decision-making that
  results in incapacity. It is the societal
  response to those persons who seek assistance in
  decision-making that legally incapacitates the
  person via guardianship systems.

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Incapacity as a socio-legal construct

• Legal capacity is NOT an objective attribute of a
  person (see women)
• Legal capacity in the disability context has
  manifested itself through its deprivation. No
  pwd-s were involved in the socio-politico-legal
  discourse on this construct
• Earlier stages at the UN CRPD negotiations
  demonstrated the prejudice-based nature of the
  incapacity presumption

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Capacity as a right not an attribute

• Inclusion International avowed its commitment to
  fight against paternalistic guardianship laws. It
  also asserted that everybody has the right to
  self determination and autonomy. And emphasized
  that it is not necessary any longer to place
  persons under guardianship by labelling them as
  being totally incapacitated and by depriving some
  or all of their rights. The fact of requiring
  assistance cannot be the basis of denying persons
  the legal capacity to act was also stressed upon
  by the World Network of Users and Survivors of
  Psychiatry .The Network therefore demanded that
  persons with disabilities who experience
  difficulty in asserting their rights
  understanding information presented to them or
  articulating or communicating their choices have
  a right to be provided with advocacy assistance
  and other reasonable accommodation with the aim
  of giving effect to the persons own decisions.
  (Quote from a draft paper by Amita Dhanda)

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What is wrong with guardianship?

• Some shocking figures
• In Hungary (population cca 10 million) there are
  66,000 adults under guardianship, deprived of
  their right to exercise their legal capacity.
  They are not entitled to decide on where and with
  whom to live, to make contracts, to vote, etc.
• In British Columbia (population cca 5 million)
  about 2,000 persons are under guardianship

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What is wrong with guardianship?

• Apply the effectiveness-necessity-proportionality
  test to guardianship!
• Effective? If the purpose is protection of the
  person, then partially yes. It is though clearly
  ineffective to protect and promote rights of
  persons. Abuses are prevalent.
• Necessary? Certainly there are persons who find
  difficult to make own decisions without support.
  But, arguably there are less intrusive
  alternatives (see comparison btw Hungary and
  British Columbia)
• Proportionate? Arguably not civil death is
  hardly proportionate to the protection provided
  even if abuses are not considered.

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What is wrong with guardianship?

• Guardianship (substituted decision-making)
  arguably FAILS the effectiveness-necessity-proport
  ionality test.

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What is wrong with guardianship?

• CRPD 12 (4) excerpt Such safeguards shall
  ensure that measures relating to the exercise of
  legal capacity respect the rights, will and
  preferences of the person, are free of conflict
  of interest and undue influence
• IF guardianship respects the rights, will and
  preferences than deprivation of legal capacity is
  NOT necessary

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What is wrong with guardianship?

• CRPD Art. 25(1)
• (a) The full development of human potential and
  sense of dignity and self-worth, and the
  strengthening of respect for human rights,
  fundamental freedoms and human diversity
• (b) The development by persons with disabilities
  of their personality, talents and creativity, as
  well as their mental and physical abilities, to
  their fullest potential
• (c) Enabling persons with disabilities to
  participate effectively in a free society.
• Subsituted decision-making is contrary to all
  these! Development requires exercise of rights
  NOT deprivation!

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What is wrong with guardianship?

• CRPD Art. 26 (1) States Parties shall take
  effective and appropriate measures, including
  through peer support, to enable persons with
  disabilities to attain and maintain maximum
  independence, full physical, mental, social and
  vocational ability, and full inclusion and
  participation in all aspects of life.
• Substituted decision-making does not promote,
  rather hinder this!

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What is wrong with guardianship?

• Imagine if someone else was making decisions
  for you. They could decide to take you away, lock
  you up, not listen to you, give you medication,
  block you from doing your work and living your
  life with your body and mind the way they are.
• WOULD YOU WANT THIS TO HAPPEN TO YOU
• Wouldnt you have the feeling that you have lost
  your dignity and want it back? Wouldnt you feel
  your integrity has been violated? Wouldnt you
  want to have support in making decisions without
  being taken over and to ask for help without
  being seen any the less for it? Wouldnt you want
  to maintain your inherent dignity and be
  supported to make your decisions? Wouldnt you
  want to retain your integrity and continue to be
  you? .

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What is wrong with guardianship?

• The principles established in this Convention are
  universal and will apply to all human beings, as
  much to you as to me.
• Let us make a Convention for a world where we can
  all grow and develop with mutual support.
• IMAGINE A CONVENTION FOR ALL. (IDC Newspage
  special edition)

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What needs to be done to comply with CRPD?

• Legally recognise both independent and
  interdependent (supported) decision-making
• Abolish plenary guardianship as clearly
  contradicotry to CRPD
• Shift partial guardianship to supported
  decision-making
• Encourage (also fiancially) families, religious
  bodies and NGOs to implement supported
  decision-making

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Protection from forced interventions

• Deprivation of liberty based on disability
• Forced medical interventions (drugging, surgery,
  sterilisation)
• Medical experimentation without free and infomed
  consent

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No disability-based discrimination in deprivation
of liberty

• CRPD Art. 14. 1. States Parties shall ensure that
  persons with disabilities, on an equal basis with
  others
• (a) Enjoy the right to liberty and security of
  person
• (b) Are not deprived of their liberty unlawfully
  or arbitrarily, and that any deprivation of
  liberty is in conformity with the law, and that
  the existence of a disability shall in no case
  justify a deprivation of liberty.
• 2. States Parties shall ensure that if persons
  with disabilities are deprived of their liberty
  through any process, they are, on an equal basis
  with others, entitled to guarantees in accordance
  with international human rights law and shall be
  treated in compliance with the objectives and
  principles of this Convention, including by
  provision of reasonable accommodation.

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No disability-based discrimination in deprivation
of liberty

• Text is result of a compromise, thus there are
  textual ambiguities (existence of a disbility)
• Clear non-discrimination basis
• Requires reasonable accommodation
• Explicitly refers to objectives and principles
  thus reducing textual ambiguities in
  interpretation

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No disability-based discrimination in deprivation
of liberty

• Both civil and criminal psychiatric commitments
  will be challenged under CRPD
• Further interpretation by the treaty body and in
  consultation with DPOs will be needed
• Non-evidence-based preventative detention of
  pwd-s is being challenged

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Right to free and informed consent to accept or
refuse treatment

• CRPD Art. 25 (d) Require health professionals to
  provide care of the same quality to persons with
  disabilities as to others, including on the basis
  of free and informed consent by, inter alia,
  raising awareness of the human rights, dignity,
  autonomy and needs of persons with disabilities
  through training and the promulgation of ethical
  standards for public and private health care
• In conjunction with legal capacity on an equal
  basis with others this provision gives people
  with disabilities and their advocates a strong
  tool to combat forced medical interventions

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Right to be free from torture and ill-treatment

• CRPD Art. 15 (1) No one shall be subjected to
  torture or to cruel, inhuman or degrading
  treatment or punishment. In particular, no one
  shall be subjected without his or her free
  consent to medical or scientific experimentation.

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Right to physical and mental integrity

• CRPD Art. 17 Every person with disabilities has a
  right to respect for his or her physical and
  mental integrity on an equal basis with others.
• The important message here is the lack of an
  exception-list. Thus, arguably all unwanted
  interventions interfering with integrity are
  prohibited under this article

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Prohibition of forced sterilisation

• CRPD Art. 23(1)(c) Persons with disabilities,
  including children, retain their fertility on an
  equal basis with others.

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