Key Challenges of the CRPD

1
Key Challenges of the CRPD

• Amita Dhanda
• Presentation made at IDA Asia Pacific Alliance
  Manila
  
• 11-12th Feb 2009

2
How to understand the Challenge?

• Moved from Paradigm of Welfare to Paradigm of
  Rights
  
• Implementation Needs to be Informed with Spirit
  of CRPD
  
• Text in Context
• Need to Interpret both Speech and Silence

3
How to Meet Challenge?

• Change Legislations to bring in Conformity with
  CRPD
  
• Create Services to Fulfill Mandate
• Generate Discourse to inform, alter, sensitize

4
Legal Capacity in CRPD

• Created Paradigm of Universal Legal Capacity
• - recognized that all persons with
  disabilities are persons before the law
  
• - are bearers of rights and have agency to
  act
  
• - can access support to exercise legal
  capacity
  
• - and accessing of support does not negate
  legal capacity
  
• -standards for providing support specified

5
Interpretation Disputes

• Whether the article recognize the legal capacity
  to act for all persons with disabilities?
  
• Whether the article prohibits the use of
  guardianship?

6

• SUBSTITUTION MODEL

• SUPPORT MODEL

• Measures relating to exercise of legal capacity
• - respect the rights will and preferences
  of the person
  
• - free of conflict of interest and undue
  influence
  
• - are proportional and tailored to the persons
  circumstances

• Apply for the shortest time possible
• Subject to regular review by a competent,
  independent and impartial authority or judicial
  body
  
• Safeguards shall be proportional to the degree
  to which such measures affect the persons rights
  and interests.

7

• Harmonize text or pursue spirit
• Address Deficits or Nurture Potential
• Homogenize or Recognize Difference
• Be Aspirational or Pragmatic

8

• No does not have to be
• However a smaller box cannot hold a bigger one
  
  
• Full Legal Capacity Requires Ouster of Incapacity

9

• All encompassing
• Does not help challenge stereotypes
• Denies diversity of the mind
• No Dignity of Risk
• Cannot learn from mistakes
• Continues with the mythical paradigm of human
  autonomy and independence
  
• Fair Process cannot take care of it.

10
Challenge of Legal Capacity

• Generate Discourse so that the necessity of
  Universal Legal Capacity is Understood
  
• Change laws to recognize Universal Legal Capacity
  and Support
  
• Float Schemes and Policies Which Provide for
  Support
  

11
CRPD Debate on Forced Interventions

• Autonomy Driven
• Prohibit Forced Interventions
• Categorize Forced Interventions as torture
• Take on board the costs of force

• Protection Prompted
• Treatment intervention not torture
• Recognize right to physical and mental
  integrity
  
• Endorsement of Involuntary treatment

12
The Scene of Battle

• Liberty and Security of Person
• Freedom from torture or cruel, inhuman or
  degrading treatment or punishment
  
• Freedom from exploitation, violence and abuse
• Protecting the integrity of the person

13
Two Sides of the Divide

• Protection

• Autonomy

• Right to physical and mental integrity
• Agree to embargo as general rule
• Forced Intervention for persons with
  disabilities on an equal basis with others
  
• However admit to the exception and allow for it
  with safeguards
  

• Right to physical and mental integrity
• An explicit embargo on forced intervention
• Agree that emergency intervention s made for
  others can also be made for persons with
  disabilities
  
• No explicit support to force whether with or
  without safeguards.

14
CRPD Resolution

• Strategy of Silence Force neither prohibited
  nor permitted
  
• Recognition accorded to
• - Right to Life
• - Right to Liberty
• - Full Legal Capacity
• - Right to Mental and Physical Integrity
• - Prohibitions against Cruel and Unusual
  treatment
  
• - Protection against Violence and
  exploitation
  
• - and Right to Informed Consent

15
Interpretation of the Silence

• CRPD has leaned towards the autonomy driven
  aspirations of the DPOs
  
• Insofar as where it speaks it speaks for
  autonomy not protection
  
• Silence is equilibrium

16
What is the Challenge of the Silence ?

• That it can be used to develop alternatives to
  force
  
• - in policies and programs
• - in professional and social practice
• - in public and family education
• - and by empowering persons with
  disabilities
  
• And these developments can then be used to wipe
  existing forced care and treatment laws from the
  statute book
  

17
Interconnectedness of the Rights

• Legal Capacity and Living Independently and in
  the Community
  
• Right to Liberty and No Force
• Legal Capacity and Respect for Home and Family
• Right to Health and No Force
• Legal Capacity and Right to Health