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.”

New Legal Capacity Laws and the United Nations Convention on the Rights of Persons with Disabilities: An Overview of Five Countries in Europe

2017 ◽  
Vol 24 (3) ◽  
pp. 285-310 ◽  
Author(s):  
Marie Fallon-Kund ◽  
Jerome E Bickenbach
Keyword(s):  
Decision Making ◽  
Czech Republic ◽  
United Nations ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
The Czech Republic ◽  
Realistic Interpretation ◽  
United Nations Convention ◽  
The United Nations ◽  
Main Components

AbstractSeveral state parties to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) undertook recent revisions of their national legal capacity laws. These revisions aim to promote the autonomy of persons with disabilities as set forward by the CRPD. At the same time, the CRPD Committee calls for the abolishment of all forms of substitute decision-making through its first General Comment on Article 12 of the Convention. We thus describe the main components of new legal capacity laws of Belgium, the Czech Republic, France, Germany, and Switzerland and assess those in light of the General Comment. We argue that none of these countries completely abolished substitute decision-making regimes and align with the views that a more realistic interpretation should be given to the CRPD. Such interpretation would provide better guidance for countries in the implementation of Article 12.

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 Canada Should Retain Its Reservation on the United Nation’s Convention on the Rights of Persons with Disabilities

2018 ◽  
Vol 63 (12) ◽  
pp. 809-812
Author(s):  
Mathieu Dufour ◽  
Thomas Hastings ◽  
Richard O’Reilly
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Human Rights ◽  
United Nations ◽  
Psychotic Disorders ◽  
Persons With Disabilities ◽  
Not Criminally Responsible ◽  
The United Nations ◽  
The Right

The United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD) in 2006. When Canada ratified the CRPD, it reserved the right to continue using substitute decision making schemes even if the CRPD was ‘interpreted as requiring their elimination’. This was a prescient decision because the CRPD Committee, which is tasked with overseeing the interpretation and implementation of the CRPD, subsequently opined that all legislation supporting substitute decision making schemes contravene the CRPD and must be revoked. The CRPD Committee insists that every person can make decisions with sufficient support and that if a person lacks capacity to make a decision, we must rely on their ‘will and preferences’. Many international legal scholars have called this interpretation unrealistic. We agree and, in this article, describe how this unrealistic approach would result in extensive harm and suffering for people with severe cognitive or psychotic disorders. The reader should also be aware that the CRPD Committee also calls for the elimination of all mental health acts and the United Nations Commissioner for Human Rights for the abandonment of the not criminally responsible (NCR) defence.

scholarly journals Intellectual Disability Nursing

2019 ◽  
Vol 3 (2) ◽  
Keyword(s):  
Decision Making ◽  
Mental Retardation ◽  
Intellectual Disability ◽  
Developmental Disabilities ◽  
Intellectual Disabilities ◽  
Special Needs ◽  
Negative Attitudes ◽  
Persons With Disabilities ◽  
The Social ◽  
The World

Persons with mental retardation enter a group of persons with disabilities. We also use the term “persons with developmental disabilities” and “persons with special needs” but recently, for persons with mental retardation, we use the term “persons with intellectual disabilities”. Sometimes negative opinions and negative attitudes, violence and discrimination were not directed against them, but such practices were advancing to the social pattern of behavior towards them. Even today we are witnessing that there is still a pattern of behavior toward them. Although society has been educating and expanding its vision and understanding of the world around it, it often happens that their abilities and their abilities create superficial conclusions. The presence of mental retardation does not justify any form of discrimination. Although more and more institutions dealing with improving the lives of persons with intellectual disabilities, they are in some ways deprived of their own choice and decision-making.

A new United Nations ‘disability’ convention

2017 ◽  
Author(s):  
George Szmukler
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
United Nations ◽  
Involuntary Treatment ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
The United Nations

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) presents in a tailored form the rights of such persons. Mental health disabilities are included. While the Convention is most welcome, it is hugely challenging when it comes to involuntary treatment. Important authorities have interpreted it as excluding all forms of ‘substitute decision-making’. The Convention demands ‘respect for the rights, will and preferences’ of persons with disabilities. This chapter examines the meaning of ‘will’ and of ‘preference’. A problem arises when a person’s currently expressed ‘preference’ (or desire or wish) diverges from the person’s ‘will’ (taken to mean a person’s relatively enduring and deeply held value commitments). Both cannot be respected at the same time. Which should have precedence? The method of ‘interpretation’ discussed in Chapter 7 allows such a determination to be made, and aligns the ‘fusion law’ proposal with the objectives of the Convention.

scholarly journals The United Nations Convention on the Rights of Persons with Disabilities and its Implications for the Equality Rights of Canadians with Disabilities: The Case for Education

2011 ◽  
Vol 29 ◽  
pp. 73 ◽  
Author(s):  
Ravi Malhotra ◽  
Robin F. Hansen
Keyword(s):  
United Nations ◽  
People With Disabilities ◽  
Disability Rights ◽  
Persons With Disabilities ◽  
Equality Rights ◽  
Road Map ◽  
Personnes Handicapées ◽  
History Of ◽  
United Nations Convention ◽  
The United Nations

In this paper, we examine the history of Article 24 of the United Nations Convention on the Rights of Persons with Disabilities and its implications for the equality rights of people with disabilities in education. We specifically consider leading recent cases in the area such as Eaton, Auton, Wynberg and Moore in order to provide a road map to advocates of people with disabilities as to potential strategies that will empower people with disabilities. While disability rights advocates lost all four cases, we suggest ways in which Article 24 might shift the balance in favour of disability rights advocates.Dans cet article, les auteurs tracent l’historique de l’article 24 de la Convention des Nations Unies sur les droits des personnes handicapées et examinent ses conséquences sur les droits à l’égalité des personnes handicapées au regard de l’enseignement. Ils examinent tout particulièrement certaines décisions récentes faisant autorité dans le domaine comme Eaton, Auton, Wynberg et Moore pour attirer l’attention des défenseurs des droits des handicapés sur les stratégies susceptibles de renforcer les positions des handicapés. Bien que le tribunal n’ait pas retenu les arguments des défenseurs des droits des handicapés dans aucune de ces quatre causes, les auteurs proposent des façons dont l’article 24 pourrait faire pencher la balance en faveur des défenseurs des droits des handicapés.

Art.12 CRPD Equal Recognition before the Law

2018 ◽  
Author(s):  
Nilsson Lucy Series and Anna
Keyword(s):  
Decision Making ◽  
United Nations ◽  
Legal Capacity ◽  
Legal Systems ◽  
New Paradigm ◽  
Citizenship Rights ◽  
Persons With Disabilities ◽  
United Nations Convention ◽  
Equal Recognition ◽  
Disability Movement

This chapter examines Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Article 12 of the CRPD is concerned with how legal systems enable and disable people as legal actors. In the view of the UN Committee on the Rights of Persons with Disabilities and many of those involved in negotiating Article 12, it introduces a new paradigm of ‘universal legal capacity’ that cannot be limited on grounds of disability or mental incapacity. The Committee maintains that this requires the abolition of all forms of substitute decision-making. This interpretation of Article 12 is contested in the literature, but for many involved in the disability movement, ending guardianship and other forms of substitute decision-making is central to wider advocacy goals of ending institutionalization, forced treatment, and loss of fundamental citizenship rights such as the ability to vote, marry, and own property.

Disability and Capability: Exploring the Usefulness of Martha Nussbaum's Capabilities Approach for the UN Disability Rights Convention

2013 ◽  
Vol 41 (4) ◽  
pp. 768-780 ◽  
Author(s):  
Caroline Harnacke
Keyword(s):  
Human Rights ◽  
United Nations ◽  
People With Disabilities ◽  
Capabilities Approach ◽  
Disability Rights ◽  
Disabled People ◽  
Persons With Disabilities ◽  
Cultural Rights ◽  
United Nations Convention ◽  
The United Nations

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) aims at empowering people with disabilities by granting them a number of civil and political, but also economic, social, and cultural rights. This is a groundbreaking agreement for all persons with disabilities, especially because it is the first human rights agreement for disabled people, and it is legally binding. For those states who signed it, it also brings various governmental obligations. Implementing the CRPD will clearly be politically challenging and also very expensive for all states, but even more so for poor ones.

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