Global Perspectives on Legal Capacity Reform

Our Voices, Our Stories

Eilionóir Flynn, Anna Arstein-Kerslake, Clíona de Bhailís, Maria Laura Serra, Eilionóir Flynn, Anna Arstein-Kerslake, Clíona de Bhailís, Maria Laura Serra

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367473709
• eBook ISBN: 9781351579704
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This edited collection is the result of the Voices of Individuals: Collectively Exploring Self-determination (VOICES) based at the Centre for Disability Law and Policy, National University of Ireland Galway. Focusing on the exercise of legal capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities, the stories of people with disabilities are combined with responses from scholars, activists and practitioners, addressing four key areas: criminal responsibility, contracts, consent to sex, and consent to medical treatment. Sustainable law and policy reforms are set out based on the storytellers' experiences, promoting a recognition of legal capacity and supported decision-making. The perspectives are from across a wide range of disciplines (including law, sociology, nursing, and history) and 13 countries.

The volume is a valuable resource for researchers, academics and legislators, judges or policy makers in the area of legal capacity and disability. It is envisaged that the book will be particularly useful for those engaged in legal capacity law reform processes worldwide and that this grounded work will be of great interest to legislators and policy makers who must frame new laws on supported decision making in compliance with the UNCRPD.

1

Theoretical framework for the VOICES Project

Clíona de Bhailís

The right to equal recognition before the law is a key concept in international human rights law. The belief that people with disabilities have a right to legal capacity on an equal basis with others, founded on Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD), is at the core of the VOICES project’s values and overall ethos. The right to legal capacity encompasses both the ability to be the holder of rights (including legal standing) and the ability to be an actor in law (legal agency). On a fundamental level, this can be categorised as the right to make decisions which have legal consequences and to have those decisions respected by the law.

The project recognises that there are other approaches to legal capacity and has addressed some of the critiques of the approach in Article 12 and General Comment No. 1 elsewhere.¹ However, the project is founded on the CRPD as a treaty developed with the direct input of people with lived experience under the motto of ‘Nothing about us, without us’ and on the Committee on the Rights of Persons with Disabilities’ (the Committee’s) interpretation of its content as the only international body with jurisdiction to interpret the CRPD.

Article 12 CRPD and General Comment No. 1

At the outset it is important to clarify a number of key conditions regarding the application of Article 12 CRPD. The Convention adopts a broad definition of disability under Article 1. Therefore, the Convention, Article 12 and the subsequent General Comment, applies to all people with disabilities and does not distinguish based on impairment or condition. While Article 12 broadly states the right to legal capacity for people with disabilities on an equal basis with others, the General Comment, described as a roadmap for legal capacity law reform (Arstein-Kerlsake and Flynn, 2016), provides further detail on the key terms and clearly sets out States’ obligations.

Perhaps the most important statement under Article 12 and General Comment No. 1, and therefore the basis for understanding the framework, is that a person cannot be denied their right to legal capacity based on an assessment of mental capacity, and that instead people should supported to exercise their legal capacity (CRPD Committee, 2014). Legal capacity is a universal attribute inherent in all human beings and means that a person is both a holder of rights and an actor in law (CRPD Committee, 2014). In contrast, mental capacity is a person’s decision-making ability which many will recognise can be affected by a number of factors at any given time. Many people with disabilities, particularly people with cognitive or psychosocial disabilities, are denied their legal capacity based on their mental capacity. This process is often based on either the status, outcome or functional tests² and the result is that an individual is placed under a substituted decision-making regime, such as guardianship, and a third party is appointed to make some or all decisions on their behalf and in their “best interests” (CRPD Committee, 2014, para. 27). It is in response to this ongoing issue, and to the lack of understanding observed in the initial reports from States Parties, that the Committee clearly outlines States’ obligations under Article 12.

The General Comment calls for an overhaul of all existing laws concerning legal capacity and identifies three core obligations that States Parties must fulfil – 1. to abolish substituted decision-making regimes, 2. to make mechanisms available to support persons with disabilities to exercise their legal capacity and 3. to create safeguards for the exercise of legal capacity which are based on respect for the rights, will and preferences of the individual.

The first element of this is expanding Article 12 paragraph 3 to clarify that States must stop denying legal capacity and instead provide support to exercise legal capacity. Support to exercise legal capacity is the support a person receives when they are making a decision which has legal consequences and must respect the rights, will and preferences of the person (CRPD Committee, 2014). However, there is no exhaustive definition of support, recognising that each individual will have their own preferences and needs in this regard. Instead, the General Comment provides examples of both formal and informal arrangements which can be used to fulfil this right, including peer support, advocacy, recognition of non-traditional communication methods and universal design or accessibility accommodations. The lived experience of support described in later chapters of this volume also provides examples of the diverse nature of support and how people must be given the opportunity to choose what works best for them based on the decision they need to make. The Committee also note that people should be free to not use support. Therefore, supported decision making cannot be imposed on the person against her will nor can it only be provided based on assessments of mental capacity.

The second element of States’ obligations outlined in the General Comment is the requirement to abolish all substituted decision-making regimes. As noted above, examples of substituted decision making include plenary or partial guardianship. Substituted decision making was defined in the General Comment as when:

1. a person has her legal capacity removed, even for a single decision, and
2. where a substituted decision maker is appointed by a third party against the person’s will and
3. where decisions made by this appointee are supposed to be based on the person’s “best interests”. (Committee on the Rights of Persons with Disabilities, 2014, para. 27; 2018).

States are only obliged to abolish substituted decision-making regimes that meet the definition above. Therefore as argued by members of the project team elsewhere, some situations which may come within the common understanding of substituted decision making may not be covered by the definition (Arstein-Kerslake and Flynn, 2016). For example, where someone is appointed to discover, or make a best interpretation of the will and preferences of a coma patient, or where a person chooses to delegate decision-making powers to those they trust in certain areas of their lives, under a power of attorney or similar mechanisms, these do not constitute human rights violations and do not need to be abolished.

Finally, States Parties have an obligation to create safeguards to ensure people can exercise their legal capacity. Safeguards should be designed to ensure that the individual’s will and preferences are respected and that they protect the individual from abuse (CRPD Committee, 2014). The safeguards must be proportional and tailored to the person’s circumstances³ and as with all aspects of Article 12, must be applied to persons with disabilities on an equal basis with others. This marks a shift from the paternalistic safeguards of the past and prevents persons with disabilities having their legal capacity restricted to safeguard their interests. It states that the ‘best interests’ principle does not comply with Article 12 (CRPD Committee, 2014, para. 36) and therefore, that many existing safeguards are no longer appropriate.⁴ Examples of safeguards which comply with Article 12 include methods to verify a support person’s identity or methods for third parties to challenge a support person if they believe they are not acting on the person’s will and preferences.

Unanswered questions

Following the adoption of the CRPD, and particularly the publication of General Comment No. 1, much of the literature and commentary focused on what legal capacity meant in general or abstract terms, who should or could exercise this right and on how supported decision making and substituted decision making should be defined. As a result, there was a significant gap in the literature regarding how States should apply the right to legal capacity in key areas. To address this gap, the project examined three foundational questions which were as follows:

1. What constitutes an exercise of legal agency from an individual?
2. What are the justifiable limits on individual agency which can be imposed by the State and apply to everyone, regardless of disability or decision-making ability?
3. How can we ascertain whether an individual is giving free and informed consent (necessary to make an action legally binding), without engaging in a functional assessment of that person’s mental capacity?

Below we summarise the concepts developed and the reasoning behind the questions addressed in an effort to provide a background for readers of the responses in later chapters. However, those interested in detailed accounts of the concepts discussed should refer to the project’s special issue of the International Journal of Law in Context (Degener, 2017).

1. What constitutes an exercise of legal agency from an individual?

Legal agency is one element encompassed in the overarching right to legal capacity. Also known as the ability to be an actor in law, it is distinct from legal standing or the ability to be the holder of rights. Historically, legal agency has been denied to individuals (for example, women, slaves etc.) based on varying factors and even the most recent scholarship in the area links agency and cognitive capacity (Nussbaum, 2006; Brammer, 2012). As outlined above, Article 12 rejects any links between legal capacity, and by extension legal agency, and cognitive ability. However, neither Article 12 in itself, General Comment No. 1, nor the Committee in any of its reports define legal agency. What constitutes legal agency is fundamental to the understanding of how to operationalise Article 12 in practice as we must determine what exactly is an exercise of legal agency in order to know which decisions are protected under Article 12 and as a result when States are obliged to provide support (Arstein-Kerslake and Flynn, 2017).

Therefore, based on our understanding of the drafters’ of Article 12 intentions and the application of the concept of legal agency in domestic legal systems we have developed the following definition – ‘an action or inaction that the individual intended and which has legal consequences; or creates, modifies, or extinguishes a legal relationship’ (Arstein-Kerslake and Flynn, 2017, p. 25). We believe that everyone is capable of forming some level of intention including those with significant or complex disabilities and that some level of intention is necessary to exercise legal agency. While a full exploration of the concept of intention is beyond the scope of this chapter, we argue that that intention is an expression of inner will and preferences and that there should not be a requirement that the individual demonstrate a certain level of “understanding” or “mental capacity” to prove intention. That is a person can intend an action without understanding the nature or consequences of her action or inaction. An example of this is when a person signs a contract without understanding the terms. The individual intended to sign the document and enter into the agreement but did not understand the consequences of not meeting the obligations for example. We view her signing of the contract as an exercise of legal agency.

Based on our proposed definition of legal agency, a wide range decisions now come within the scope of legal agency, and therefore, must be recognised as part of exercising legal capacity which is protected by Article 12. As a result, individuals are also entitled to support for these decisions. This is particularly relevant when people with disabilities make decisions in the informal sphere, for example making day-to-day decisions within a service environment or the family. These decisions do not typically have legal consequences but may be when the most damaging decision-making denials occur. For example where people with disabilities are prevented from making decisions in their daily lives in relation to meals, clothing, or schedules, this will not usually come within the definition of creating, modifying, or extinguishing a legal relationship. However, in some cases, people with disabilities may have to assert their legal agency (for example by initiating legal action) to have their decision respected.

A clear example of this is individuals living in an institutional setting.⁵ Policies govern the day-to-day schedules in these settings and individuals are deprived of the opportunity to make decisions about some of the most basic aspects of their life including for example getting up, washing, and meals. Take for example a man who had lived with his parents until they died and then decided to move into a group home to get the daily support he felt he needed. He had developed his own routines in life such as staying up late to watch a movie on television on a Friday evening, attending religious services on a Sunday and working part time in a local grocery shop. When he moved into the group home he had to adhere to a strict bedtime routine and they could not provide support for him to attend church on a Sunday or drive him to work due to a shortage of staff. He complained but nothing changed and so he began to refuse food and stated that he would eat again when he was allowed to go to work, attend church and choose his own bedtime. In our view, his refusal to eat is an exercise of legal agency and he is therefore entitled to protection under Article 12 CRPD. Leaving the fact that some of his wishes may not be practical aside for this purpose, this example highlights how someone who lives in an institutional setting may need to assert their legal agency to have their decisions respected.

2. What are the justifiable limits on individual agency which can be imposed by the State and apply to everyone, regardless of disability or decision-making ability?

The level of state intervention that should be allowed into the private lives of individuals is an age-old question. The extent to which States may intervene in the private lives of individuals in emergency situations or where there is a perception of risk is often one of the first questions States pose when faced with reforming their legislation to comply with Article 12 of the CRPD. People with disabilities experience a disproportionately higher level of state intervention in their private lives than people without disabilities and the denial of legal capacity is one of the most serious forms of intervention faced. With all this in mind, we endeavoured to provide a disability neutral basis for state intervention which recognises an individual’s legal capacity and respects her will and preferences.

On this basis, we defined state intervention as “an intervention that is taken by the state or an agent of the state, which constitutes an interference with personal autonomy and may have the purpose or effect of denying the legal capacity of an individual” (Flynn and Arstein-Kerslake, 2017, p. 40). We propose that the State should be allowed to intervene in the private lives of all individuals (with or without disabilities) in the event of a risk of imminent and serious harm to the individual’s life, health or safety and argue for the abolition of all disability specific forms of state intervention. We recognise that other commentators⁶ have also addressed this issue and set the threshold for intervention at a different level however, we felt that ‘risk of imminent and serious harm t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• Foreword
• About the project
• Acknowledgements
• Notes on contributors
• 1 Theoretical framework for the VOICES Project
• 2 Project methodology and background
• PART 1 Criminal responsibility – diversion and the insanity defence
• PART 2 Contractual capacity – inheritance, property and everyday decision making
• PART 3 Relationships and consent to sex
• PART 4 Consent to medical treatment – mental health and forced treatment
• Index