Michael Bach Visiting Research Fellow, Centre for Disability Law and Policy,

What does Article 12 of the CRPD Require?Theoretical starting points, and Questions/Implications for Law and Policy Michael Bach Visiting Research Fellow, Centre for Disability Law and Policy, National University of Ireland Galway & Executive Vice-President, Canadian Association for Community Living July 2009

Outline • The Questions/Concerns • Key Terms and definitional challengeS • Law and Policy Reform Agenda – Article 12 CRPD • Re-defining capacity • Reasonable Accommodation – 2-step test • Reforming substitute decision making • Arrangements for Supported Decision Making • ‘Freedom of contract’ and contract law

The Question • What steps should be taken in law and policy reform to enable people with significant intellectual, communicational and/or psycho-social disabilities the opportunity to enjoy full legal capacity, so they can enjoy all the rights of the CRPD? • What does Article 12 require of States Parties in this regard?

UN Convention – ARTICLE 12: EQUAL RECOGNITION BEFORE THE LAW • Non-discrimination in recognizing personhood and legal capacity • Access to supports to exercise legal capacity – in all areas • Safeguards for legal measures that limit/remove legal capacity

Persons are those individuals who are accorded the status of adult personhood on the basis that they have personal identity, life plans and can act reasonably and with capacity to pursue those plans – by making decisions and entering legal agreements to give effect to those decisions personhood is made in relationship with others who come to recognize and know us as persons, and who on that basis engage with us as persons in personal, social and legal relations (contract, consent, etc.). Definition of Terms – ‘Persons and Personhood’

‘Disability’ • CRPD Article 1: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

‘Legal Capacity’ and ‘Personal Decisions’ Article 12: a legally recognized status shared on an equal basis with all other persons to have rights and to exercise those rights, with support as needed – i.e. to enter agreements that give effect to personal decisions that one wishes to make, in the pursuit of life goals

Decision-Making ‘Capacity’ Ability to understand the nature and consequences of a decision within the context of the available range of choices; and Ability to communicate that decision.

Types of capacity needed to enter agreements to give effect to these decisions: Contractual capacity Capacity to make health care decisions Testimonial capacity (to be a witness) Testamentary capacity (to make a will)

Types of personal decisions Health Care Decisions CRPD Articles: 15, 25, 26 Financial/Property Decisions (purchase, sale, credit, investment, will)CRPD Articles: 12(5),28 Personal Life Decisions (where to live, relationships, participation, access, employment, mobility and supports)CRPD Articles: 13, 14, 15, 18, 19, 20, 23, 25, 26, 27, 28, 29, 30

Types of Decision Making Status Autonomous – with assistance as needed Substitute Supported

‘Autonomous Decision Making’ Making decisions and entering agreements by oneself, with informal assistance (from personal advisors), or formal assistance as needed/requested (plain language, assistive devices

A legally-authorized removal of personhood from an individual, and a vesting of their ‘person’ in another authority, for the purposes of making a decision about that individual’s health care, personal care/welfare, or property/finances. A set of ‘measures’ related to the exercise of legal capacity that I think is likely protected by Article 12.4 of the Convention, albeit with ‘safeguards’ on its administration. ‘Substitute Decision Making’

‘Assisted Decision Making’ 1. Assistance provided to people to make their own decisions and meet the usual definition of capacity Plain language Assistive devices Interepreters and translators Advocates 2. Supported Decision Making Networks Assistance to those who don’t meet usual test of capacity

Supported decision making via a Network… • A group of trusted others an individual chooses, to assist in: • Expressing and acting on a person’s will and intent • Personal identity/story • Based on a ‘fiduciary’ relationship

Principles • All individuals have a will – which can be expressed by the individual… or interpreted by others • A person’s will or intention forms the basis for competent decision making… • People are not inherently incompetent or incapacitated – Decision-making processes are… • All individuals have potential to evolve capacities • Other party’s interests and liability concerns do not, on their own, justify removing a person's decision-making rights.

Types of Decision Making Status • community Substitute Autonomous Supported

‘mental incapacity’, ‘mental disorder’, ‘mentally incompetent defenses in contract, tort and criminal law – that limit liability and responsibility Ascriptions made by others – on the basis of which they may choose not to enter an agreement, or accept consent A legally-imposed status – on the basis of which substitute decision making can be imposed

Is ‘disability’=‘mental incapacity’‘mental disorder’‘mental incompetence’ ?In some instances, but not necessarily so… disability is long-term, mental incapacity is decision or act-specific

Criteria of personhood on which to found legal capacity • Individual Decision-making abilities • Ability to express your intention to do or not do something • Ability to show that you have a ‘personal identity’ that should be respected by others

Individual Decision-making abilities – to give consent, contract • Understand relevant information • Appreciate consequences • Act voluntarily, autonomously • Able to communicate decision

Ability to Express Intent and Will • A person expresses intention, and demonstrates a will to do or not do something. Expressing intention and will projects a person into the future, and provides the basis for others to act. I don’t want to… I want to…

Ability to show Personal identity An individual is recognized as being the same person through time – often through personal knowledge of others - with a life story or ‘narrative identity’ that makes sense

Justifying a more inclusive conception of personhood • Moving beyond a narrow ‘natural rights’ and ‘natural law’ based on individual reason and capacity (Aristotle, Kant, Rawls) • Towards a ‘social recognition’ grounding of moral rights to personhood – ‘pre-political’ rights as a basis for legal rights. • People are seen by others as persons, their intention and identity is a basis for trusted others to act. • Reflects the recognition accorded to people with significant disabilities by trusted networks

Article 12: Towards a Law and Policy Reform Agenda • Re-defining capacity • Reasonable Accommodation – 2-step test • For accommodations for autonomous decision making status • For accommodations for supported decision making status • Reforming substitute decision making • Arrangements for Supported Decision Making • ‘Freedom of contract’ and contract law

Re-Defining Capacity – 2 steps • First and foremost, capacity is the ability, with assistance as needed, to understand the nature and consequences of a decision within the context of the available range of choices; and to communicate that decision, with assistance as needed.

Re-Defining capacity.. • Where a person may not be able to meet these tests even with assistance, capacity can also mean the ability to express one’s intention and to communicate one’s personhood (wishes, vision for the future, needs, strengths, personal attachments and field of care) to a trusted group of others chosen by the individual who, in a fiduciary relationship of trust, confidence and responsibility recognize the individual as a full person, and commit to acting on and representing that person’s agency in accordance with his/her intentions and personhood.

Accommodations for autonomous decision making • Assistance in making a particular decision • Communication (including assistive technologies, assistance to other parties) • Interpretation • Translation

Accommodations for supported decision making • Assistance to make, communicate and act on decisions about: • personal care • finances • health care • to make an oath, give evidence, direct legal counsel • Respect from others (physicians, etc.) for supported decision making

System for Supported Decision Making Networks • Community 3. Law/policy protects parties; funds ctty capacity for support & advocacy 1. Law/policy recognize right to DM supports, protection from abuse, advocacy, & appeals 5. Personal network: listens, advises, helps communicate and connect 4. Person chooses network members 2. Law and policy provide for status to network, back-up support, registration, appeals

Elements of the ‘System’ • Support Networks • Recognition of Representation Agreements (and test of incapacity to enter agreements) • Registration System • Community Resource to assist network development and sustainability • Independent monitoring and advocacy • Legal confirmation of representation, capable agreements/decisions, etc. – as needed • Constitutional/Legislative/Policy Framework

Representation Agreements • A form indicating: • Who will be representatives • Who will be a monitor of the representatives and decision making process • Particular ways of communicating, expressing

(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions; (b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others; (c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult; (d) whether the adult has a relationship with the representative that is characterized by trust. Test of ‘incapacity’ for entering a representation agreement

‘Reasonable Accommodation’ CRPD Article 5 Equality and non-discrimination, para 3: “In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” CRPD Article 2: “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;” A support as provided for in Article 12.3 to assist an individual in being recognized as a person before the law, and as ‘second to last resort’ prior to the imposition of substitute decision making.

Is the person perceived as able to make and communicate this decision on his/her own, without support (functional test)? If not, is the person able, with support, to meet the tests of mental capacity sufficient for him/her to be recognized as a legally capable person for the purposes of this decision/action? If so, what type of support is necessary for this purpose? Test of reasonable accommodation for legal capacity

2a) Is the person able to demonstrate capacity (for contract, testimony, informed consent) sufficient to be recognized as a legally capable person, with function-specific accommodations, or accommodations that are needed to manage this particular decision/act – interpreter, translator, augmentative communication device, communication assistance to other parties, decision-making assistant? 2b) If not, is the person able to engage representatives in a fiduciary relationship (as in a supported decision making network) who can communicate and represent the individual’s personhood to others, based on their trusted relationship and personal knowledge of the person (accommodations for personhood/personal representation)? Test of reasonable accommodation

3. Have reasonable efforts been made, to the point of undue hardship, to provide these accommodations including, where it is determined that 2b accommodations are required – investment in development of personal relationships and personal knowledge that would make personal representation possible? … Test of reasonable accommodation

As per recommendations of MDAC and others – partial only, function-specific, time-limited, reviewable, procedural justice, independent advocacy support Must incorporate a ‘bridge’ to continued access to reasonable accommodations to demonstrate legal capacity Implications of Article 12 – for Reforming Substitute Decision Making

Usual concern – protection from unfair bargaining But capacity to contract – essential for giving effect to personal decisions (e.g direct funding and personal care, housing and labour markets, etc. How might we reform contract law to enable the ‘freedom of/to contract’ in the market for those who might at first be considered without mental or contractual capacity? On what grounds does the state reform/intrude on contract law to enable contracting by those who might be seen as not having the ‘contractual capacity’ to do so? Implications of Article 12 – for Contract Law – preliminary ideas

How might we reform contract law to enable ‘freedom of/to contract’? • The issue: • Contracts can be voidable, in whole or in part, on the basis that a party to the contract claims and is found to be ‘mentally incapacitated’ • A defense that it would be hard to argue should be completely removed from contract law

What about??? • Providing statutory protection for exclusion clauses in contracts – that parties could include in a contract on mutual consent – that would exclude mental incapacity as a defense for breaching the terms of the contract, on the part of a party who is making the agreement with the assistance of an authorized representative. • This would remove the standard liability concern for parties to enter contracts

How might the exclusion be established? • UK Unfair Contract Terms Act 1977 • A positive provision – a person can exclude liability for breach of contract where… • ‘Principles of European Contract Law’ “Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles.”

Principles of European Contract Law • Chapter 2:102 Intention “The intention of a party to be legally bound by contract is to be determined from the party’s statements or conduct as they were reasonably understood by the other party.” • Chapter 3 – Authority of Agents “Direct Representation” – “The principal’s grant of authority to an agent to act in its name may be express or may be implied from the circumstances”

On what grounds does the state intrude to restrict liability and use of the mental incapacity defense? • On what grounds does the state provide for protection against voidability of contracts on a defense of mental incapacity, where a party to the contract (the principal) makes the contract via the representation of a supported decision making network, a person who might otherwise be seen as not having the capacity to contract?

Possible Grounds • Freedom to contract is a basic liberty, an expression of autonomy and will, essential in according equal respect and dignity especially to those socially and economically disadvantaged (e.g. ‘freedom to contract’ in first US Civil Rights Act 1866) • To have one’s promises recognized as a basis of trust in future action and delivery, is a mark of respect of personhood – this opportunity to be trusted in economic relations, should not be denied to people with disabilities (will theory and promise theory of contract)

Possible Grounds… • Contract – defined ‘relationally’ – brings people into relations not only of self-interest, but of solidarity – one comes to be recognized as a member of the community (relational theory of contract) • People with disabilities have a right to have others reasonably rely on them to deliver on their obligations – as productive, contributing members of society

Possible Grounds • Utilitarian/welfare economics and efficiency theory – contract is a means by which people can maximize their economic and other benefits in markets – as a group who is hugely disproportionately living in poverty, this opportunity should not be denied to people with disabilities.

Michael Bach Visiting Research Fellow, Centre for Disability Law and Policy,