Legal Capacity from Perspective of Users and Survivors of Psychiatry

1. Legal Capacity from Perspective of Users and Survivors of Psychiatry Tina Minkowitz Feb. 20, 2010 NHRI Meeting

2. Development of CRPD Article 12 • PWD drove the creation of Article 12 • International Disability Caucus (IDC) • People with psychosocial & intellectual disabilities experienced greatest violation of legal capacity • Converged on: full legal capacity plus right to support in making decisions

3. Support Not Substitution • From the time of the Working Group text (first text presented for negotiation), IDC agreed: support cannot undermine autonomy • This is still reflected in 12.4 – Safeguards shall ensure that measures “respect the rights, will and preferences of the person.”

4. Support Not Substitution 2 • Same issue arose with footnote placed in 12.2 and finally removed from the text: • Is legal capacity the “capacity for rights” only or also the “capacity to act”? • “If other people in a society have the capacity to act, PWD have to have it too. That is the meaning of equality.” - government delegate • Capacity to act is the right to make one’s own decisions. This includes some degree of responsibility for those decisions.

5. Why Support is a Breakthrough • All PWD want full legal capacity • Many PWD also want some support in decision-making, but don’t want to have to give up their autonomy to get support • Social model of disability allows us to separate provision of support from restriction of autonomy – e.g. consumer-directed personal assistance, etc. • Social solidarity supports the autonomy of each individual, no need to sacrifice one or the other

6. Challenges • Political: raising awareness of PWD, families, carers, public, legislators, lawyers, human rights community • Technical: identifying and solving problems in drafting non-discriminatory law on legal capacity, and identifying good support practices • Practical: how to “provide access to support”? Defining support, and role of government, NGOs etc. • Philosophical: are there any situations where PWD do not want to give up substituted decision-making? Is there any reason to reconsider the fundamental principles of our advocacy?

7. Rejection of “Functional” Approach • A comment on “functional” approach to legal capacity and “mental capacity” laws: • This refers to individual determination of capacity to make particular decisions, rather than denying legal capacity for all purposes to a whole group of PWD • Since limitation in functional ability is one of the elements of disability, a “functional” approach to legal capacity discriminates against PWD • Some instances of this approach specify that “mental capacity” standard only applies to PWD • Especially problematic in mental health field as it amounts to endorsing compulsory treatment if a person “lacks the capacity” to refuse

8. Technical Challenges • There is a technical problem: how should the law deal with decisions that may be harmful? That may be the result of exploitation? That the person later regrets? • Traditional approach is, that we can all make bad decisions and have to live with the consequences: except, if we lack the “competence” to make the decision • What are the alternatives? • DPOs have begun to promote disability-neutral approach, e.g. strengthen rights-based approach to informed consent; education; allow people to nullify decisions motivated by need, inexperience, recklessness (as already provided in some countries)

9. Further Information • tminkowitz@earthlink.net • www.chrusp.org • www.wnusp.net • www.internationaldisabilityalliance.org