The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities

2017 ◽  
Vol 13 (1) ◽  
pp. 22-38 ◽  
Author(s):  
Anna Arstein-Kerslake ◽  
Eilionóir Flynn
Keyword(s):  
Decision Making ◽  
Lived Experience ◽  
Law Reform ◽  
Cognitive Disability ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Definition Of ◽  
The Right ◽  
High Level ◽  
Republican Theory

AbstractArticle 12 of the Convention on the Rights of Persons with Disabilities has created a revolution in legal-capacity law reform. It protects the right to exercise legal agency for people with disabilities with more clarity than any prior human rights instrument. This paper explores what constitutes an exercise of legal agency and what exactly Article 12 protects. It proposes a definition of legal agency and applies it to the lived experience of cognitive disability. It also uses a republican theory of domination to argue that people with cognitive disabilities who are experiencing domination are forced to assert legal agency in even daily decision-making because of the high level of external regulation of their lives and the ever-present threat of others substituting their decision-making. It identifies Article 12 as a tool for protecting such exertions of legal agency and curtailing relationships of domination.

Legislating personhood: realising the right to support in exercising legal capacity

2014 ◽  
Vol 10 (1) ◽  
pp. 81-104 ◽  
Author(s):  
Eilionoir Flynn ◽  
Anna Arstein-Kerslake
Keyword(s):  
Decision Making ◽  
Political Philosophy ◽  
United Nations ◽  
People With Disabilities ◽  
Decision Makers ◽  
Legal Capacity ◽  
Mental Disabilities ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
The Right

AbstractThis paper examines the regulation of ‘personhood’ through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psycho-social, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers.

scholarly journals Supported Decision-Making and Paradigm Shifts: Word Play or Real Change?

2021 ◽  
Vol 11 ◽  
Author(s):  
Jill Stavert
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Legal Capacity ◽  
Paradigm Shifts ◽  
Mental Disabilities ◽  
Ongoing Debate ◽  
Persons With Disabilities ◽  
Word Play ◽  
Real Change ◽  
The Right

Article 12(3) CRPD requires states parties to provide access by persons with disabilities to the support they may require in exercising their legal capacity. This is to ensure that the rights, will and preferences of persons with disabilities are enjoyed on an equal basis with others [Articles 12(1)(2) and (4) CRPD]. Moreover, the Committee on the Rights of Persons with Disabilities has made it clear that supported decision-making must replace substitute decision-making arrangements as these are discriminatory and deny equal enjoyment of the right to exercise of legal capacity for persons. At the same time, there is ongoing debate as to whether or not the absence of substitute decision-making regimes is essential for the non-discriminatory realization of an individual's rights, will and preferences to be achieved. To resolve this debate, however, specific attention needs to be paid to the CRPD message on what it actually means to give effect to the equal and non-discriminatory enjoyment of rights for all. In the context of persons with mental disabilities this requires looking beyond human rights simply in terms of limiting unwarranted interventions to the proactive removal of obstacles to full rights enjoyment and the creation of environments that respect and support such enjoyment. With this in mind this paper will therefore critically consider the use of supported decision-making within existing substitute decision-making regimes with particular reference to Scotland's mental health and capacity laws. It will consider the challenges this poses and whether it is indeed possible to adapt existing regimes to achieve CRPD compliance. In doing so, it is suggested that a full appreciation of the overarching CRPD message about equality and non-discrimination in the enjoyment of rights is required to bring about such compliance.

scholarly journals Supported Decision Making in South America: Analysis of Three Countries’ Experiences

2021 ◽  
Vol 18 (10) ◽  
pp. 5204
Author(s):  
Alberto Vásquez Encalada ◽  
Kimber Bialik ◽  
Kaitlin Stober
Keyword(s):  
Decision Making ◽  
South America ◽  
Community Involvement ◽  
Civil Society Organizations ◽  
Legal Capacity ◽  
Middle Income ◽  
Persons With Disabilities ◽  
Essential Form ◽  
Training Community ◽  
The Right

Background. Following the adoption of the UN Convention on the Rights of Persons with Disabilities, there has been increased interest in supported decision making (SDM) as a strategy to realize the right to legal capacity of persons with intellectual and psychosocial disabilities. Support for decision making has been delivered formally through SDM services as well as informally through interpersonal networks. Various SDM programs have made efforts to systematize informal support, showcasing a variety of SDM delivery models that could benefit SDM implementation in low- and middle-income countries. Methods. This article examines and discusses three SDM projects in South America (Colombia, Peru, and Argentina) that have been directly implemented by civil society organizations, including organizations of persons with disabilities and their families. Analyzed program components include person-centered planning, the nature of support relationships, the presence of supporter training, community involvement, and the utilization of quality assurance measures such as monitoring and program evaluation. Conclusions. The results and learning from these initiatives constitute a valuable source of information for legislators and policymakers for the future development of supported decision-making programs, which are an essential form of support and a mechanism for fulfilling the right to legal capacity in low resource settings.

Legal capacity for people with dementia: a human rights approach

2018 ◽  
Author(s):  
Eilionóir Flynn
Keyword(s):  
Human Rights ◽  
Law Reform ◽  
Legal Capacity ◽  
Strong Base ◽  
Persons With Disabilities ◽  
People With Dementia ◽  
The World ◽  
The Right ◽  
Rights Issue

This chapter explores the right to legal capacity for people with dementia. The analysis focuses on General Comment 1 of the UN Committee on the rights of persons with disabilities. The chapter also provides some examples of law reform around the world on the issue of legal capacity and considers how these reforms may impact on people with dementia. Finally the chapter considers how the right to legal capacity may be framed in any new UN Convention on the rights of older persons. The chapter argues that legal capacity is a critical human rights issue in the context of dementia and that Article 12 (CRPD) and the general comment 1 provide a strong base for respecting the autonomy and self determination of people with dementia

scholarly journals Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms

Laws ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 4 ◽  
Author(s):  
Antonio Martinez-Pujalte
Keyword(s):  
Decision Making ◽  
Best Interests ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
State Laws ◽  
Legal Reforms ◽  
Change Of Perspective ◽  
Legislative Reforms ◽  
Legislative Changes ◽  
The Right

Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention.

scholarly journals Can the World Health Organisation’s ‘QualityRights’ initiative help reduce coercive practices in psychiatry in Ireland?

2020 ◽  
pp. 1-4
Author(s):  
R. M. Duffy ◽  
B. D. Kelly
Keyword(s):  
Decision Making ◽  
Paradigm Shift ◽  
Training Programme ◽  
World Health ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Decision Making Capacity ◽  
The World ◽  
Advance Planning ◽  
The Right

The treatment of mental illness is undergoing a paradigm shift, moving away from involuntary treatments towards rights-based, patient-centred care. However, rates of seclusion and restraint in Ireland are on the rise. The World Health Organisation’s QualityRights initiative aims to remove coercion from the practice of mental health care, in order to concord with the Convention on the Rights of Persons with Disabilities. The QualityRights initiative has recently published a training programme, with eight modules designed to be delivered as workshops. Conducting these workshops may reduce coercive practices, and four of the modules may be of particular relevance for Ireland. The ‘Supported decision-making and advance planning’ and the ‘Legal capacity and the right to decide’ modules highlight the need to implement the Assisted Decision-Making (Capacity) Act, 2015, while the ‘Freedom from coercion, violence and abuse’ and ‘Strategies to end seclusion and restraint’ modules describe practical alternatives to some current involuntary treatments.

Religious freedom and the ‘right to discriminate’ in the school admissions context: a neo-republican critique

Legal Studies ◽  
2011 ◽  
Vol 31 (4) ◽  
pp. 615-643 ◽  
Author(s):  
Eoin Daly ◽  
Tom Hickey
Keyword(s):  
Public Education ◽  
Religious Freedom ◽  
Religious Discrimination ◽  
Religious Schools ◽  
The Public ◽  
Definition Of ◽  
The Uk ◽  
The Right ◽  
Republican Theory ◽  
Faith Schools

In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools' ‘ethos’, as an imperative of religious freedom. We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context. We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools' ‘right to discriminate’. We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.

scholarly journals Hierarchical decision processes that operate over distinct timescales underlie choice and changes in strategy

2016 ◽  
Vol 113 (31) ◽  
pp. E4531-E4540 ◽  
Author(s):  
Braden A. Purcell ◽  
Roozbeh Kiani
Keyword(s):  
Decision Making ◽  
Neural Mechanism ◽  
Decision Processes ◽  
Response Strategy ◽  
Limited Information ◽  
Decision Strategy ◽  
Stimulus Response ◽  
Hierarchical Decision ◽  
The Right ◽  
High Level

Decision-making in a natural environment depends on a hierarchy of interacting decision processes. A high-level strategy guides ongoing choices, and the outcomes of those choices determine whether or not the strategy should change. When the right decision strategy is uncertain, as in most natural settings, feedback becomes ambiguous because negative outcomes may be due to limited information or bad strategy. Disambiguating the cause of feedback requires active inference and is key to updating the strategy. We hypothesize that the expected accuracy of a choice plays a crucial rule in this inference, and setting the strategy depends on integration of outcome and expectations across choices. We test this hypothesis with a task in which subjects report the net direction of random dot kinematograms with varying difficulty while the correct stimulus−response association undergoes invisible and unpredictable switches every few trials. We show that subjects treat negative feedback as evidence for a switch but weigh it with their expected accuracy. Subjects accumulate switch evidence (in units of log-likelihood ratio) across trials and update their response strategy when accumulated evidence reaches a bound. A computational framework based on these principles quantitatively explains all aspects of the behavior, providing a plausible neural mechanism for the implementation of hierarchical multiscale decision processes. We suggest that a similar neural computation—bounded accumulation of evidence—underlies both the choice and switches in the strategy that govern the choice, and that expected accuracy of a choice represents a key link between the levels of the decision-making hierarchy.

How Persons with Intellectual Disabilities Are Fighting for Decision-Making Rights

2022 ◽  
Vol 121 (831) ◽  
pp. 30-35
Author(s):  
Chester A. Finn ◽  
Matthew S. Smith ◽  
Michael Ashley Stein
Keyword(s):  
Decision Making ◽  
Intellectual Disability ◽  
United Nations ◽  
Intellectual Disabilities ◽  
Legal Capacity ◽  
Disability Rights ◽  
Persons With Disabilities ◽  
New Approach ◽  
The United Nations

Paternalistic attitudes about what is in the interests of a person with an intellectual disability have long led to abuses, and are embedded in the guardianship laws still in place in most countries. Self-advocates, who identify as people with intellectual or other disabilities and are committed to demanding their rights and educating others about them, are calling for a new approach. They have found support for reforms in the Convention on the Rights of Persons with Disabilities, adopted by the United Nations in 2006 and since acceded to by 182 countries. By supporting the fundamental right of those with disabilities to make decisions, it has enabled disability rights advocates to successfully challenge legal capacity restrictions and push for “supported decision-making.”

scholarly journals Overview Of The Rights Of Person With Disabilities: A Human Rights Approach

2021 ◽  
Vol 5 (IV) ◽  
pp. 34-42
Author(s):  
Dr. Ram Charan Meena,
Keyword(s):  
Human Rights ◽  
Human Beings ◽  
Social Approach ◽  
Persons With Disabilities ◽  
Psychological Barriers ◽  
Contemporary Situation ◽  
The Law ◽  
The Government ◽  
Definition Of ◽  
The Right

Persons with disabilities have the right to enjoy the human rights to life, liberty, equality, security and dignity as human beings. However, due to social apathy, psychological barriers, a limited definition of “disability” entitled to the protection of the law and lack of proper data, persons with disabilities in India remain an invisible category. Although many laws set out to ensure their full and effective participation in society, they remain inadequate as they are based primarily on the discretion of the government. Also, the judiciary acts as the real protector of persons with disabilities whenever an opportunity arises, but it is not possible to approach the judiciary for every request. Unless the foundation of the law is strengthened, persons with disabilities cannot fully exercise their rights. The present research paper mentions the contemporary situation of people with disabilities with the current laws and concepts, and also the researcher believes that it is not only the law that will provide a solution to this problem, it is the change in the outlook of the society which may provide a solution to this problem. Thus, the horizons of the law should be expanded to provide a “human friendly environment” for all persons with disabilities to remove the barriers that impede their development. With timely implementation the time has come for effective legislation to protect their interests and empower their capabilities which are based on “rights–based approach” rather than charity, medical or social approach.

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