Legal Capacity

1
Legal Capacity

• Tina Minkowitz

2
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

3
Right, paradigm and principle

• Right to have ones 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

4
Equality model of legal capacity

• Formal equality universal legal capacity, right
  to make ones 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.

5
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.

6
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

7
Replacing competence doctrine

• Same as right to vote fundamental rights to
  decide about things done to ones 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

8
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

9
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

10
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)

11
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

12
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

13
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)

14
Contact information

• tminkowitz_at_earthlink.net
• www.chrusp.org
• www.wnusp.net
• www.internationaldisabilityalliance.org