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Last Updated: 22 May 2019
Legal Capacity and Supported
Decision-Making:
Respecting Rights and Empowering People
Dr
Anna Arstein-Kerslake, J.D.
Melbourne Law School,
The University of
Melbourne
Author’s note
Dr Arstein-Kerslake is a lecturer at Melbourne
Law School, University of Melbourne, where she has founded the Disability Human
Rights
Clinic for Juris Doctorate students. She is also the Academic Convener of
the Hallmark Disability Research Initiative at the University
of Melbourne,
which stimulates interdisciplinary disability research using a social justice
framework.
Portions of this article are re-printed from the
author’s PhD thesis, Restoring Voice to People, which will be
published by Cambridge University Press in a forthcoming book in 2016. The
research for this article was supported
by funding from the European Union FP7
Marie Curie Initial Training Network, Disability Rights Expanding Accessible
Markets (DREAM),
in which Dr Arstein-Kerslake was a research fellow from
2011-2014 under the supervision of Professor Gerard Quinn at the Centre for
Disability Law and Policy (CDLP) at the National University of Ireland, Galway
(NUIG).
Correspondence concerning this article should be addressed to Dr
Anna Arstein-Kerslake.
Contact: anna.arstein@unimelb.edu.au
Abstract
This article presents an overview of the right to legal capacity and the accompanying state obligation to provide support for the exercise of legal capacity. It addresses the provisions of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) and the UN Committee on the Rights of Persons with Disabilities’ interpretation of Article 12 in their first General Comment. Finally, it identifies the impact of the denial of legal capacity on the lives of people with disabilities and analyses areas of the law in need of reform.
Legal Capacity and Supported
Decision-Making:
Respecting Rights and Empowering People
Sándor
Harmati is an advocate, an activist, a man with Down syndrome, and an individual
living under a plenary guardianship
that denies his right to legal capacity
(Harmati, 2010). Mr. Harmati is a Hungarian man who has worked with disability
advocacy groups
in Hungary to lobby for the reform of Hungary’s
restrictive guardianship laws which have resulted in Mr. Harmati suffering
violations of many of his human rights, such as being prohibited from voting
(Hungarian Constitution, Article 70(2)), working, and marrying (Mental
Disability Advocacy Centre, 2007, p. 45). Unfortunately, legal capacity denials
resulting
in human rights violations, are not unique to Hungary. Instead, they
are endemic across the globe.
The Convention on the Rights of People with
Disabilities (UNCRPD) is the first international treaty to recognize
that all people, including those with disabilities, should enjoy legal capacity
on
an equal basis in all areas of life. It was the fastest negotiated human
rights treaty in the history of the United Nations (Geisinger
& Stein, 2008,
pp. 1129-1142, 1142). 82 countries signed on the opening day; the highest number
of any UN Convention on its opening
day (United Nations, 2011). Disability
rights is an area that people from a broad range of political affiliations are
willing to
support. However, the resistance to Article 12 of the convention is
palpable. It has been one of the most contentious areas in the
convention.
Article 12 seems to touch a nerve. It asks us to strip away the paternalistic
instinct to protect people with disabilities.
It asks us to deconstruct
centuries old systems of substituted decision-making, such as guardianship,
conservatorship, deputyship,
wardship, and mental health law. The resistance to
Article 12 may reveal the truth behind the willingness of governments to ratify
the convention: an ever-pervasive stigma related to perceived
‘difference’ in people labeled as disabled, which is perpetuated
via
pity and a willingness to provide merely paternalistic protection and charity,
rather than real opportunities for individuals
to be respected and recognized as
full citizens.
Understanding of the right to legal capacity has steadily
developed since the adoption of the CRPD in 2006 (Committee on the Rights
of
Persons with Disabilities (CRPD), 2014; Dhanda, 2006-7, 2012; Minkowitz, 2006-7,
2010; Arstein-Kerslake, 2014; Flynn & Arstein-Kerslake,
2014a; Gooding,
2015; Series, 2015). This article provides an overview of that understanding and
additional clarity around the right
to legal capacity and the accompanying state
obligations.
Without the right to make fundamental decisions, such as
where to reside and what kind of medical care to receive, a person is relegated
to the status of an object rather than an independent human being with thoughts,
emotions, and opinions (Quinn et al., 2002). The
recognition of legal capacity
is the tool that allows an individual access to make these decisions. It is the
freedom to be a holder
of rights and obligations as well as the freedom to
exercise those rights and undertake those duties (CRPD, 2014, paragraph 12;
Office
of the United Nations High Commissioner for Human Rights, 2005, pp. 1,
13).
The recognition of a right to legal capacity in the CRPD signifies that
all people have an equal right to make decisions on their
own behalf (Bach &
Kerzner, 2010). This means that where legal capacity can be denied to an
individual, it must be done on an
equal basis for people with and without
disability. This requires both disability-neutral legislation as well as
implementation of
the legislation in such a way that ensures it is not
disproportionately applied to people with disabilities (CRPD, 2014; Flynn &
Arstein-Kerslake, 2014b).
Article 12 creates a state obligation to provide
access to support for the exercise of legal capacity. This is one of the great
innovations
in the CRPD. It implicitly recognizes that everyone uses support in
decision-making and that differing abilities call for differing
amounts of
outside aid. This acknowledges that autonomy can be exercised interdependently
and that the state has a duty to ensure
that everyone has the assistance
required to exercise their autonomy.
Article 12 demands that supported
decision-making systems replace all forms of substituted decision-making
systems, such as guardianship
and compulsory mental health treatment. This is
stated in the UN Committee on the Rights of Persons with Disabilities’
General
Comment No.1 (CRPD, 2014, paragraphs 25-28), discussed below. It is also
stated in the Committee’s Concluding Observations
in response to several
countries’ state reports. (CRPD, 2011a, paragraph 25; CRPD, 2011a,
paragraph 5; CRPD, 2012, paragraph 4; CRPD, 2013, paragraph 25). Article 12
requires States to support individuals who are
in need of it and to safeguard
against abuse within that support system (CRPD, 2014, paragraph 20;
UNCRPD, Articles 12 and 16). This calls for a system of supported
decision-making that could take many different forms including one trusted
support person or a network of support people providing assistance on a one-time
basis or consistently throughout an individual’s
life.
Essential to a
system of support is the provision of tools for augmenting decision-making
capacity (Quinn, 2011). There should be
an assumption that every individual has
decision-making potential, although may need assistance developing those skills
and expressing
their wills and preferences. No one should be forced to augment
their decision-making skills. However tools for such augmentation
should be
available. The goal of a support system should be to respect everyone’s
varying decision-making methods and skills.
It should not cater to the notion
that there is one standard of ‘good’ decision-making that everyone
should try to achieve.
Article 12 requires more than merely reforming
current legal capacity law to make it disability neutral on its face. This would
likely
not remedy the disproportionate application of legal capacity denials to
people with disabilities. It would also not adequately protect
the rights, will
and preferences of people with disabilities as required in Article 12(4). The
replacement of substituted decision-making
regimes with supported
decision-making regimes is intented to provide the opportunity to remedy current
unequal treatment of people
with disabilities in the denial of legal capacity
and also the opportunity to re-evaluate the systems that exist and ensure that
all individuals faced with legal capacity denials have their rights, will and
preferences respected.
In April 2014, the CRPD
Committee adopted General Comment (GC) No. 1 on the Right to Equal Recognition
Before the Law. The author
of this article supported the Committee in the
drafting and adoption of the GC in Geneva. The GC is an authoritative
interpretation
of Article 12. It was created because of a concern that the
rights and obligations in Article 12 were being misinterpreted. The GC
outlines
the rights and obligations and begins to provide guidance on the implementation
of the various provisions of the Article.
Two of the most important
contributions of the GC are the definition of impermissible substituted
decision-making regimes and the
guidelines on support for the exercise of legal
capacity. The GC defines substituted decision-making as any system in which the
individual’s
legal capacity is denied, an outside decision-maker is
appointed against the will of the individual, and that decision-maker makes
decisions in the ‘best interests’ of the individual without an
obligation to uphold the will and preference of the individual
(CRPD, 2014,
paragraph 27). A denial of legal capacity occurs, when an individual is either
not respected as a person before the
law or is not permitted to exercise legal
agency. An outside decision-maker is anyone that is not the individual
themselves. An appointment
occurs against the will of the individual when the
individual is expressing that they do not want an outside decision-maker and
such
an appointment is made regardless. Best interests decision-making occurs
where the outside decision-maker is empowered to make whatever
decision she or
he believes would be in the best interests of the individual. A system is
incompliant with Article 12 if it denies
legal capacity and appoints an outside
decision-maker against the will of the individual and permits that
decision-maker to use a
best interest paradigm.
There has been continued
misinterpretation of what constitutes impermissible substituted decision-making
under Article 12. There
will situations in which someone else needs to make a
legal decision on behalf of another person, for example where the will and
preference of the individual cannot be ascertained. The demand to replace
substituted decision-making regimes with support paradigms
leaves room for such
decisions. If it did not, it would be unworkable and impractical. The need for
such decision-making will occur
in nearly everyone’s lives and the law
must provide a response for when that situation arises. Article 12 merely
requires that
when the situation arises, the law’s response does not
amount to ‘substituted decision-making,’ as defined by the
GC and
discussed above (CRPD, 2014, paragraph 27). This disallows many pieces of
legislation and practices that currently exist,
including much of mental health
law. However, it does not disallow all decisions that are made on behalf of
another person. Instead,
it demands that the law responds differently to such
situations. It demands that the law respect the right to legal capacity of all
on and equal basis and implement a paradigm of support.
The guidelines
provided in the GC on the implementation of a support paradigm for the exercise
of legal capacity are as follows:
(a) Supported decision-making must be available to all. A person’s level of support needs, especially where these are high, should not be a barrier to obtaining support in decision-making;
(b) All forms of support in the exercise of legal capacity, including more intensive forms of support, must be based on the will and preference of the person, not on what is perceived as being in his or her objective best interests;
(c) A person’s mode of communication must not be a barrier to obtaining support in decision-making, even where this communication is non-conventional, or understood by very few people;
(d) Legal recognition of the support person(s) formally chosen by a person must be available and accessible, and States have an obligation to facilitate the creation of support, particularly for people who are isolated and may not have access to naturally occurring support in the community. This must include a mechanism for third parties to verify the identity of a support person as well as a mechanism for third parties to challenge the action of a support person if they believe that the support person is not acting in accordance with the will and preferences of the person concerned;
(e) In order to comply with the requirement, set out in article 12, paragraph 3, of the Convention, for States parties to take measures to “provide access” to the support required, States parties must ensure that support is available at nominal or no cost to persons with disabilities and that lack of financial resources is not a barrier to accessing support in the exercise of legal capacity;
(f) Support in decision-making must not be used as justification for limiting other fundamental rights of persons with disabilities, especially the right to vote, the right to marry, or establish a civil partnership, and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty;
(g) The person must have the right to refuse support and terminate or change the support relationship at any time;
(h) Safeguards must be set up for all processes relating to legal capacity and support in exercising legal capacity. The goal of safeguards is to ensure that the person’s will and preferences are respected.
(i) The provision of support to exercise legal capacity should not hinge
on mental capacity assessments; new, non-discriminatory indicators
of support
needs are required in the provision of support to exercise legal capacity.
(CRPD, 2014, paragraph 29)
The primary goal of these guidelines is to
ensure that the rights, will and preferences of individuals using support are
protected.
This means that the will and preferences of the individual must be
central to any system related to the exercise of legal capacity.
It also means
that such a system must include safeguards to protect the full gamut of rights,
including rights to autonomy (UNCRPD, Articles 12 and 19(a)) and rights
to health and physical integrity (Articles 17 and 25).
The denial of decision-making power to
individuals with disabilities is a pervasive and harmful form of discrimination
(Winick, 1992).
Article 12 of the CRPD recognizes that every person has a will,
desires, and needs - and that every person is capable of making choices
accordingly. Not every person is able to express her choices in ways that are
conventionally accepted communication. Some people
communicate through words,
others through signs, others through writing, and others through simple smiles.
When a person communicates
with the world in unconventional ways, others may not
recognize that she is communicating and expressing her likes and dislikes,
needs
and desires. Whichever way an individual communicates, conventional or not,
Article 12 requires that their desires not be ignored.
The support paradigm is a
system in which people work together to understand an individual’s desires
and choices and then provide
the means for that person to exercise legal
capacity and live life in the way she or he chooses as opposed to a way imposed
by someone
else’s decision made on her or his behalf (Flynn and
Arstein-Kerslake, 2014a).
The support paradigm reflects the social model of
disability (Jesperson, n.d.). The social model perceives disability as a
creation
of a society that is unwilling to make the slightest bend to address
the needs of those that may be outside of the ‘norm.’
It says that
if a person with a ‘disability’ is unable to function, it is because
society is unwilling to interact with
the person in a way that allows the person
to function (Kayess & French, 2008; Barnes & Mercer, 2005). The support
paradigm
demands that society adjust to individuals’ differing needs and
act in a way that eliminates the barriers to legal capacity
by providing
adequate assistance for the exercise of that legal capacity.
Article 12
requires that, in any support system, the individual is the core decision-maker.
The support persons or people are there
to explain details, when necessary, and
interpret the signs and desires of the individual when it is needed (CRPD, 2014,
paragraphs
16-19; United Nations, 2007). The onus is on the supporter to ensure
that he or she is accurately and completely comprehending and
interpreting the
will and preferences of the individual. This applies to all people, including
individuals experiencing significant
disability that may greatly affect
cognitive process and communication (Watson et al., 2014). Supporters may play a
more significant
role in decision-making. However, their primary purpose is
discovering the will and preference of the individual and supporting the
individual to realize that will and preference.
Positive Effects of
the Support Paradigm
The legal recognition of an individual as a
decision-maker has significant effects. It fosters equality across many areas of
life
such as employment and personal relationships. It also affirms the power of
choice thereby enabling individual development (Winick,
1995; Deci & Ryan,
2000; Ryan & Deci, 2000). When the law permits support for individuals when
making decisions, there are
also significant effects. The support paradigm
fosters social solidarity without sacrificing the recognition of equal legal
capacity.
By offering the choice of assistance, the supported decision-making
paradigm removes the illusion that legal capacity can only be
exercised through
self-sufficiency. This opens the door for a societal dialogue about the
interdependence of all individuals (Quinn,
2011; Quinn & Arstein-Kerslake,
2012).
The support paradigm’s humanistic approach – adapting to
the needs of all individuals and not allowing the law to sanction
one person
taking control of the decisions of another person – has the potential to
provide a much lower risk of exploitation
than guardianship and other
substituted decision-making systems. Studies have shown that where autonomy is
fostered and where individuals
are given meaningful choices, intrinsic
motivation is increased and the overall well-being of the individual is enhanced
which is
supported by the self-determination theory (Ryan & Deci, 2000; Deci
& Ryan, 2000). Therefore, it can be argued that legal
capacity systems that
recognize every individual as a decision-maker, may serve to foster autonomy and
create stronger individuals
who are better able to protect themselves from abuse
and exploitation. Of course, meaningful safeguards are still necessary to ensure
an effective system of support that is free from abuse – as required by
Article 12(4).
The support paradigm requires a presumption that all
individuals have decision-making ability. It then explores what support each
individual needs in exercising her decision-making ability and expressing her
preferences (Quinn, 2010). The paradigm of support
applies to a wide range of
abilities and adjusts itself to meet the needs of those different abilities
(Bach & Kerzner, 2010;
Flynn & Arstein-Kerslake, 2014a). It is not a
binary model of capacity or incapacity. It does not create a separate category
of people who are ‘legally incapacitated,’ which may amount to
institutionalized discrimination and subordination (Herr,
2003; Dhanda, 2006-7).
Such categorization is procedurally problematic (Owen et al., 2009) and can be
disempowering for those labeled
‘incapacitated’ (Winick, 1995;
Stefan, 1993).
Concluding Remarks on the Support
Paradigm
Self-determination may be daunting for many people. Families
of individuals with disabilities may fear that their family member with
a
disability will not be able to make the best decisions for him or herself.
People with disabilities may themselves be fearful of
a new responsibility to
make important decisions about their own lives that they may have never been
faced with before. However,
no person is an island (Donne, 1624). People with
disabilities and people without disabilities are faced with decisions everyday
and are assisted in varying ways in making those decisions. The support paradigm
is not proposing a radical change in how an individual
makes decisions. It is
merely requiring that the freedom to make decisions is not removed from an
individual. It recognizes that
many people need more assistance than others in
making decisions and that assistance should be provided to the fullest extent
desired
by the individual.
Currently, people without disabilities are
generally free to make decisions on a much wider scale than people with
disabilities. People
without disabilities are free to make decisions that serve
their interests or their loved ones interests or, in the alternative,
do not
serve their interests. Article 12 is merely requiring that a person with a
disability should be equally free to exercise his
or her legal capacity and make
his or her own decisions whether or not the outside world views them as
‘good’ or not
(Quinn, 2010).
Autonomy and interdependence can
and should coexist in the support paradigm. An individual with a disability
should be free to make
his or her own decisions and concurrently she should be
offered the support she needs to fully understand the decision that she is
making and to make her desires and choices known to the world. The supported
paradigm enables self-determination while encouraging
communal involvement and
support. (Quinn, 2011)
One of the reasons that
Article 12 has been so contentious is that it requires real changes to existing
legal systems and challenges
people’s notion of people with disabilities
as lacking decision-making skills. This notion has fostered the paternalistic
legal
capacity systems that dominate the world today, violate Article 12 of the
CRPD, and must be reformed. Although there is debate about
what Article 12
exactly requires of States Parties, there is some consensus on a few key issues,
including: the recognition of legal
capacity on an equal basis for all (Flynn
& Arstein-Kerslake, 2014a, 2014b; Minkowitz, 2006-7; UNCRPD, Article
12(2)), the primacy of the will and preference of the individual,
(Arstein-Kerslake, 2014; Centre for Disability Law &
Policy, 2011, p. 6;
Bach & Kerzner, 2010, p. 61; UNCRPD) and the construction of adequate
safeguards (National Guardianship Network, 2013, recommendation no. 2;
UNCRPD, Article 12(4); CRPD, 2014, paragraphs 20, 22, 29, and 50).
Currently, there are very few jurisdictions that fulfill these requirements.
For example, as in many jurisdictions (Ashton, 2012,
p. 113; Mental Capacity
Act 2005, Ch 9), in New York State, a diagnosis of developmental disability
can be used as evidence to deny an individual her legal capacity. The
individual
also has no statutory right to be at the hearing that determines whether to
remove legal capacity from that individual
(Matter of Chaim A. K,
2009;[1] New York
Surrogate’s Court Procedure Act (Article 17-A) § 1750). There is
also no further reporting process required in New York after the individual is
placed under
a guardian (Matter of Mark C. H.,
2010[2]). In Wisconsin, an individual
can be denied legal capacity and, once under a guardianship, loses her right to
vote, to marry, or
to consent to sterilizations without a court specifically
finding otherwise (Wisconsin Department of Health Services, 2008, sections
1-3).
In California, by statute, the court can grant a conservator the power to
consent to the sterilization of the conservatee (California
Probate Code §
1950-69) and to specify that a consertavor has control over the social and
sexual contacts of a conservatee (California
Probate Code § 2351.5(b)(6)).
These particular examples are all within the United States, which is thought of
as having some
of the most progressive protections for the rights of the people
with disabilities (Thornburgh, 2012, p. 8) – some countries
that have less
developed protections, have even more oppressive legal capacity laws (Mental
Disability Advocacy Centre, 2006, 2007).
England and Wales, like the United
States, have been lauded for having a robust system of rights protections for
people with disabilities
and England has been listed as one of the countries
with the most comprehensive definitions of disability discrimination (Degener
& Quinn 2002). However, although their legal capacity system was relatively
recently reformed in 2005 in response to a finding
by the Law Society’s
Mental Health Sub-Committee that legislation was lacking in this area (Ashton,
2012, p. ix), when compared
with the standards established in Article 12, it
falls short in several aspects (Series, 2013). Although there is not space in
this
article to do a thorough analysis of the 2005 Mental Capacity Act
(MCA) (Ch. 9, UK Public General Acts (England and Wales)), a few key flaws can
be highlighted. Most significantly, it can be argued
that the MCA’s mere
categorization of individuals as ‘incapacitated’ is a violation of
Article 12 simply because
it denies those individuals their right to legal
capacity. This raises the issue of the MCA’s conflation of the concepts of
‘legal capacity’ and ‘mental capacity.’ It is important
to distinguish between decision-making ability (mental
capacity) and legal
capacity. All individuals have varying levels of decision-making ability.
However, Article 12 suggests that decision-making
ability is not something that
should have any impact on an individual’s right to legal capacity (UNCRPD,
Article 12(3)). Irrespective
of decision-making ability, according to Article
12, every person has an inherent right to legal capacity and equal recognition
before
the law (Minkowitz, 2006-2007, pp. 408). The MCA provides a functional
assessment of mental capacity – denying legal capacity
to those that do
not pass the test. Article 12, instead, requires that a system never deny legal
capacity, and instead provide appropriate
assessments limited to what type of
supports a particular individual needs in order to be able to exercise her legal
capacity.
The Act requires a two-stage test of capacity, which begins with
determining whether the person has an impairment of the mind or brain
(Department for Constitutional Affairs, 2007, p. 41; Ashton, 2012, p. 113). This
automatically places individuals with intellectual disabilities or mental
illnesses on unequal standing with all others
being assessed for legal capacity,
violating Article 12(2) of the Convention which states that persons with
disabilities shall enjoy
legal capacity on the same basis as others and in all
aspects of life (UNCRPD, Article 12(2)). The second step of the capacity
test in the MCA is to ask whether the person is able to make the specific
decision
in question at the time it needs to be made (Department for
Constitutional Affairs, p. 41; Mental Capacity Act (2005), Ch. 9, UK
Public General Acts, Part 1 (2)(1) & Part 1 (3)(1)). However, in order to
recognize legal capacity for all, there should
not be an assessment of
whether a person is able to make a decision, but simply an assumption
that they can and an effort to determine their wishes. Furthermore,
the MCA
places the power to assess capacity in the hands of almost any third party who
needs a decision to be made – without
significant procedural protections
(Ashton, 2012, p. 126, sec. 2.100). Article 12(4) requires that any assistance
provided in decision-making
must be accompanied with appropriate procedural
safeguards, which are lacking when doctors, lawyers, and others are permitted to
make ad hoc determinations of whether an individual has sufficient
decision-making skills. Finally, while the MCA does mention the
importance of
giving weight to the wishes of the individual (Mental Capacity Act 2005,
Ch. 9, Part 1 (3)(6)(a)), it still maintains the best interest standard as the
primary means for decision-making. Article 12 makes no mention
of best
interests, and instead requires States to “respect the rights, will and
preferences” of the individual (UNCRPD, Article 12(4)).
The MCA
was a step in the right direction and is a distinct improvement upon the prior
guardianship system in England and Wales.
Gordon R. Ashton (2006) describes how
the previous guardianship system was more restrictive, provided the individual
with very little
control, and did not provide an assumption of capacity).
However, with the UK’s signature of the Convention and its ratification,
England and Wales must modify their system further to come into compliance with
the Convention and to uphold the human rights of
individuals with disabilities.
As is evident from these examples, there is an immediate need for legal
capacity reform around the globe.
Article 12 has significant implications
for mental health law (Minkowitz, 2006-7). It may require mental health law, in
the form it
currently exists, to be dismantled (Arstein-Kerslake, 2015;
Minkowitz, 2010). Most mental health law specifically allows for the
denial of
legal capacity of people with a mental health diagnosis (McSherry & Weller,
2010; Morse, 1977-8, p. 532). This is denial
of legal capacity on the basis of
psycho-social disability, directly contravening the Article 12(2) requirement
that people with
disabilities enjoy legal capacity on an equal basis in all
areas of life.
Furthermore, most mental health law violates Article 12(4),
which requires that states, “... ensure that measures relating to
the
exercise of legal capacity respect the rights, will and preferences of the
person ...” In a human rights instrument, the
term ‘respect’
requires that the state not interfere with or impair individual rights (Steiner
et al., 2008, p. 187).
In Article 12(4), this means that the state is obligated
to not interfere or impair the rights, will and preferences of individuals
with
disabilities through measures related to the exercise of legal capacity. Mental
health law qualifies as a measure related to
the exercise of legal capacity,
because one of its primary functions is the denial of the legal capacity of the
individual with psycho-social
disability in order to circumvent the requirement
of consent from the individual for treatment, restraint, and detention (McSherry
& Weller, 2010).
There are mental health laws that include consideration
for the will and preference of the individual with psycho-social disability.
However, it is often only consideration that is required and there is no
obligation to refrain from interfering or impairing the
will and preference of
the individual, as is required in Article 12(4). Instead, the will and
preference of the individual is often
easily overridden by a psychiatrist or
another actor. For example, the Mental Health Act in Victoria, Australia was
reformed in 2014
and states,
“(3) The authorised psychiatrist may make a treatment decision for the patient if the authorised psychiatrist is satisfied that there is no less restrictive way for the patient to be treated other than the treatment proposed by the authorised psychiatrist.
(4) In determining whether there is no less restrictive way for the patient to be treated, the authorised psychiatrist must have regard, to the extent that is reasonable in the circumstances, to all of the following—
(a) the patient's views and preferences about treatment of his or her mental illness and any beneficial alternative treatments that are reasonably available and the reasons for those views and preferences, including any recovery outcomes that the patient would like to achieve;
(b) the views and preferences of the patient expressed in his or her advance statement;
(c) the views of the patient's nominated person;
(d) the views of a guardian of the patient;
(e) the views of a carer, if the authorised psychiatrist is satisfied that the treatment decision will directly affect the carer and the care relationship;
(f) the views of a parent of the patient, if the patient is under the age of 16 years;
(g) the views of the Secretary to the Department of Human Services, if the person is the subject of a custody to Secretary order or a guardianship to Secretary order;
(h) the likely consequences for the patient if the proposed treatment is not performed;
(i) any second psychiatric opinion that has been given to the authorised
psychiatrist.” (Mental Health Act (Victoria) 2014, section
71(3-4)).
Here, there is no obligation for the psychiatrist to respect the
will and preference of the individual with psycho-social disability,
as would be
required by Article 12(4). There is, however, a duty for the psychiatrist to
‘have regard’ for the individual’s
views and preferences to
the extent that is ‘reasonable in the circumstances.’ This is only
an obligation to consider
the views and preferences of the individual and not to
respect them. Furthermore, it seems that the psychiatrist is given quite broad
discretion to determine that it is not ‘reasonable’ to give regard
to such views and preferences. This provision gives
psychiatrists substituted
decision-making power over individuals with psycho-social disability, which was
interpreted by the General
Comment to be a violation of Article 12 (CRPD, 2014,
paragraphs 25-28).
This is just a brief analysis of some of the obvious
contradictions between mental health law and Article 12. However, the principle
difficultly lies in the foundations of mental health law itself. Mental health
law is premised on the differential treatment of people
with psycho-social
disabilities (Morse, 1977-8, pp. 530-532). It’s primary purpose is to
create special legal rules that only
apply to people with psycho-social
disability (Morse, 1977-8, p. 531). All the autonomy restrictions in mental
health law are, therefore,
restrictions on autonomy – and often legal
capacity – on the basis of the individual having a disability. It is also
problematic that the aim of mental health law is often to regulate the
procedures by which autonomy can be removed from people with
psycho-social
disabilities. This is fundamentally at odds with the goal of Article 12, which
is to protect the autonomy rights of
people with disabilities by disallowing any
denials of legal capacity that are made on the basis of disability (CRPD, 2014,
paragraphs
12-15). If there is to be any legislation related to mental health
that is Article 12 compliant, its theoretical foundation must
be turned
up-side-down. Instead of protecting the procedure by which autonomy can be
removed, it must protect the legal capacity
of the individuals that use mental
health services by ensuring that all services have an obligation to respect the
rights, will and
preferences of all service-users including those with diagnosed
psycho-social disability.
Without
the recognition of the human right to legal capacity, individuals are treated as
mere objects of the state and may not have
the opportunity to explore their own
will and desires. Substituted decision-making systems, as defined in the General
Comment, are
paternalistic and highly restrictive systems that do not allow
individuals to exercise their right to legal capacity and often do
not foster
development or self-determination. The support paradigm offers a system that
meets the goals of the CRPD, protects the
right to legal capacity, and allows
for individuals to be empowered to develop their own capabilities as full
members of society
– in this way, respecting a right to legal capacity is
not only a human rights imperative, it is also smart policy.
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