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 2

• 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

• • • • [email protected]

www.chrusp.org

www.wnusp.net

www.internationaldisabilityalliance.org