Download Legal Capacity

Legal Capacity
Tina Minkowitz
CRPD norms
• Interpretation – plain meaning, context including
purpose and principles
• Parameters for interpretation – full & equal
enjoyment, autonomy, non-discrimination,
diversity, full inclusion – should not interpret to
restrict autonomy unless it was explicitly stated,
and it is not, anywhere in the CRPD
• Read paragraph 4 as a whole & in context – either
it has to be severed from paragraph 2 (legal
capacity on an equal basis with others) and ignore
“respect will & preferences,” or read as applying to
diverse kinds of support
Right, paradigm and principle
• Right to have one’s decisions respected
as valid in all ways legal system allows
individuals to exercise personal autonomy
• Paradigm needs to be reflected in policies
and programs addressed to people with
psychosocial disabilities
• Principle of autonomy – transversal in all
rights in CRPD
Equality model of legal capacity
• Formal equality – universal legal capacity,
right to make one’s own decisions and
perform legal acts
• Inclusive design of laws regulating the
exercise of legal capacity – safeguards
against abuse that do not rely on
“incompetence” doctrine
• Accessibility of processes and services such
as health care decision-making, banking, etc.
Equality paradigm of legal capacity
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• Accommodation of individual differences in
exercise of legal capacity
• Support to exercise legal capacity when
chosen/accepted by person concerned
• Humanitarian practical support – surrounding
circumstances and approach, what kind of
support does this person find
necessary/useful?
• Individual development through education,
targeted opportunities, etc.
Challenges
• Political – willingness to abandon old
paradigm of conflict and objectification,
embrace new paradigm of cooperation and
respect
• Technical – adapting law and policy to
changed paradigm
• Practical – skills of accommodating and
supporting people in their decision-making
and legal acts
• Philosophical – answering questions and
doubts, continuing to construct new paradigm
Replacing “competence” doctrine
• Same as right to vote – fundamental rights to decide
about things done to one’s own body and mind, to
decide where to live & how to live – not conditional on
abilities
• In interactions where shared meaning/agreement is
needed, require good faith and penalties for
exploitation but respect autonomy, and hold
responsible
• Develop and share skills of how to work within new
paradigm
– Many lawyers working in this field already have the
communication skills, train others
– Mental health professionals using good practices and
refraining from coercion
Not only professionals
• Communities need awareness-raising &
training on becoming inclusive
– Disability etiquette
– Not about referring everyone to professionals
for treatment and care
– Community fellowship services – e.g. sharing
meals
Supporters
• Support workers, personal assistants,
friends and family, co-workers, neighbors,
community centers, places of worship etc.
• Mental health professionals can play a role
in supporting exercise of autonomy but
should not be the same person providing
treatment and providing support to make
decisions about that treatment
Mental health policy
• Trauma-informed – avoiding traumatization
comes before “safety” – Laura Prescott
• Narrative not diagnosis (e.g. Intentional Peer
Support)
• Everyone is worthy: “If this woman came to
your office, would you see me?” – Tonier
Cain
• Hearing Voices Network – positive/neutral
• Phenomenological and first-person-centered
approach (e.g. Soteria)
Professions – combat
discrimination
• Role as allies with skills and knowledge to contribute
• Interrogate privilege based on class, gender, race,
ethnicity, disability
• Both law and medicine construct madness/ “mental
illness”/ insanity/ psychosocial disability as “Other”
– Separately and together violate human rights
• Examples of discrimination encountered in legal and
medical settings
– ABA Journal – lawyers encouraged to reject clients with
“crazy eyes” or “borderline personality disorder”
– Hospital psychiatrists ignoring complaints of abdominal
pain, woman died from perforated IUD
Affected constituencies
• Awareness-raising about new paradigm
(within constituency and externally)
– Peer support – create the change we want to see
– Name violations and visions
– Local leadership/ worldwide community
• Think big – we won in CRPD by not giving up
principles, while allowing flexibility in detail
– Create law and policy in our own image
Key elements for success
• Faithfulness to new paradigm
• Participation and leadership of affected
constituencies
• Mainstreaming
– No segregation – no special laws where
discrimination can hide
– Inclusion – taking account of disability experience
– Framing issues to be equally relevant to all
(lesson from CRPD negotiations – IDC)
Contact information
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[email protected]
www.chrusp.org
www.wnusp.net
www.internationaldisabilityalliance.org