Thursday, June 9, 2011

Day 3: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony & Noelín Fox

Professor Gerard Quinn & Professor Michael Stein began morning 3 with a presentation on Article 12 (legal capacity) of the Convention on the Rights of Persons with Disabilities. Professor Quinn noted that even before the advent of the Convention there had been an evolution of thinking on reforming laws on legal capacity. The Council of Europe led the way for a time by way of Recommendation (99) 4E on Principles Concerning the Legal Protection of Incapable Adults. However, the CRPD by way of Article 12 now leads the way. It was noted that theories of personhood might cause difficulties in restoring legal capacity to persons with disabilities.

Professor Quinn spoke about the status approach to legal capacity that linked "deficits" to legal capacity. He suggested that the Convention dissolves these assumptions and presumptions. He then spoke about the outcome approach to legal capacity, which involves an assessment of unwise choices as a test for removal of capacity. He noted that everyone makes unwise choices and repeats unwise choices but that does not result in the loss of legal capacity. The Convention now requires that outcome approaches to the assessment of legal capacity be inconsistent with Article 12. The tensions and concern with risk have led to restricting persons with intellectual disabilities from having intimate relationships and Article 12 requires a move away from this approach.

Professor Stein noted that many voices crafted Article 12 of the Convention on the rights of Persons with Disabilities. At the negotiation of the CRPD there was a suggestion by some State Parties that persons with disabilities could hold rights but not exercise them in the same way that a child could hold rights but not exercise them. Professor Quinn then facilitated a discussion of the different sections of Article 12. He suggested that Article 12(2) is pregnant with ambiguity. There was then a discussion around Article 12(3) and its requirement of supported or facilitated decision making to assist persons with disabilities to exercise their legal capacity.

The discussion then moved to the safeguards provided for in Article 12(4), which might imply that substitute decision making remains. Professor Quinn referred to this as the “co-mingling of two different ideologies”. He suggested that in order to resolve the co-mingling ideologies between supported and substitute decision-making there was a need to look at the object and purpose the CRPD. However, Professor Quinn noted that there is no neat prepackaged answer in relation to questions thrown up by Article 12. There was a discussion around the International Disability Alliance’s position on Article 12. (You can access the IDA’s legal opinion here).

There was then a discussion of the UN Office of the High Commissioner for Human Rights Thematic Study on the Convention (2009). Charles O’Mahony was asked to give an overview of the OHCHR’s statements on the insanity defence. He noted that the OHCHR suggested in the document that Article 12 requires State Parties to the Convention to repeal defences in their criminal law such as the insanity defence and replace them with disability neutral doctrines. He suggested this statement was surprising not least because that issue did not appear to be raised at the negotiations on Article 12. He noted that the defence was linked to many other defences in criminal law such as provocation and infanticide and that reform of the law would be extremely complex and that State Parties would in all likelihood institutively resist this proposal. Eric Rosenthal also made a contribution in relation to the OHCHR’s statements in the same document on Article 14. The OHCHR stated that Article 14 prohibited laws on involuntarily detention and treatment unless they were disability neutral. A participant asked Eric whether Article 12 was relevant to involuntary psychiatric detention and involuntary treatment. He responded that it was profoundly relevant to involuntary psychiatric detention and involuntary treatment.

Dr. Mary Keys from the School of Law at NUI Galway was asked to give an overview of the Irish law reform process on legal capacity. Dr. Keys gave an overview of the current law reform process and the key aspects of the proposed legal capacity legislation that will replace the archaic wardship system. Dr. Keys referred to the review of the Mental Health Act 2001 and suggested that there was a great opportunity to achieve compliance with the Convention. Professor Quinn ended the session by asking participants to consider the following puzzles emanating from Article 12 in a participatory exercise. The puzzles posed are as follows:

  1. What does “on an equal basis with others” mean in Article 12(2)?
  2. Does Article 12(2) contain an irebuttable presumption of legal capacity to exercise rights?
  3. Is substitute decision making ever permissible under Article 12?
  4. Is there some elusive point where “supported decision making” amounts to “substitute decision making”? How do you know? Can you successfully guard against it?
  5. Is a reservation to Article 12(2) (or a disguised reservation in the form of a declaration of understanding) ever acceptable?
  6. Can bits of Article 12 be “progressively achieved”? If so, which parts?

Janet Lord and Rosemary Kayess led the afternoon session. The session considered the development and meaning of Article 19 of the CRPD – the Right to Independent Living and Community Inclusion. The background to this right was outlined including the policy antecedents at UN and European level and the views of various state parties to the debate prior to agreement on the final text. There was discussion on whether the right to independent level represents a new right and the linking by the drafters of the core elements of the right to other international human instruments articles and comments. The independent living right was eventually linked to Article 13 of the Universal Declaration of Human Rights - Freedom of Movement - in order to validate its place as a right. A discussion about whether Article 19 prohibits institutional care in different cultural contexts ensued. The conclusion was that the right is about creating supports in the community, which enable people to live independently, rather than dictating any particular models of housing. Central to this is the need to ensure that families have the supports needed to enable them and their disabled family member live at home.

Participants engaged with an exercise of translating the effects of individual impairments and the societal barriers, which limit participation, into concrete policy proposals to enable people, realise the core elements of Article 19. The feedback on this exercise gave rise to a lively debate about the use of terminology – in particular what constitutes a disability and what constitutes impairment. In working with people from many different cultural backgrounds it was acknowledged that the words used in the CRPD might represent a compromise for some. Whether one uses “person with a disability” or “disabled person” is reflective of the particular standpoint and historical development of the disability movement in different countries. Agreeing on a final wording will not be fully reflective of any one standpoint, but represent a compromise that we all can live with - this is the essence of negotiation.