Legal Capacity and Protection From Forced Interventions

Legal capacity and protection from forced interventions

Gábor Gombos

WNUSP, MDAC

Tirana, 18 December 2006

Ackonwledgmenets

• Prof. Amita Dhanda

Acknowledgments continued

• Tina Minkowitz, JD

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?

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

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)

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)

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)

These and similar situations will be illegal if CRPD will be implemented

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.


• 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.


• 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 person’s 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 person’s rights and interests.


• 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.

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.


• Social model of disability is applicable in relation to legal capacity: It is NOT the individual’s „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.


• 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

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 person’s own decisions”. (Quote from a draft paper by Amita Dhanda)

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


• 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.


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


• CRPD 12 (4) excerpt: [S]uch 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


• 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!


• 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!


• “ 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• Wouldn’t you have the feeling that you have lost your

dignity and want it back? Wouldn’t you feel your integrity has been violated? Wouldn’t 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? Wouldn’t you want to maintain your inherent dignity and be supported to make your decisions? Wouldn’t you want to retain your integrity and continue to be you? ….


• 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)

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

Protection from forced interventions

• Deprivation of liberty based on disability

• Forced medical interventions (drugging, surgery, sterilisation)

• Medical experimentation without free and infomed consent

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.


• 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


• 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

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

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.

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

Prohibition of forced sterilisation

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

Documents

Legal Capacity and Protection From Forced Interventions