The following are a selection of abstracts or summaries of articles and reports concerning legal capacity:
Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN Disability Rights Convention (2014)
1. People like That: Realising the Social Model in Mental Capacity Jurisprudence, Medical Law Review (2014)
Article written by B Clough and published in Medical Law Review (2014, Volume 23 Issue 1)
Through critically analysing the law’s traditional response to mental disorders, this article argues that a medical model of disability dominates and influences jurisprudence in this area. The article suggests that insights from the social model and a relational understanding of rights can highlight ways in which wider contextual and structural relations impact upon the lived experiences of individuals with mental impairments. Moreover, an understanding of the various dimensions of mental illness can help elucidate ways in which the law can respond to structural, institutional, and contextual factors and thereby facilitate the enjoyment of purported rights and values. The article argues that traditional legal precedents, which are given to a narrow medical view of cognitive impairment, are outmoded in view of the recent emergence of a more textured understanding of cognitive impairments. The CRPD has harnessed insights from the social model of disability and capabilities approach to justice. This article seeks to build upon the definitions of disability and social justice set out in the CRPD. It also argues that States Parties and their judiciaries must be more responsive in addressing the concerns highlighted by the CRPD by addressing such concerns in their national judicial discourse.
Citation: B Clough, People like That: Realising the Social Model in Mental Capacity Jurisprudence, Med Law Rev (2014) 23 (1): 53-80
2. Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future (2007)
Article written by Amita Dhanda and published in Syracuse Journal of International Law and Commerce (2007, Volume 34 Issue 2)
This article examines how the legal capacity of persons with disabilities is constructed in national legislations across jurisdictions, reform efforts initiated to offset disadvantages created by such laws, and the limitations of those reform efforts. The article examines how legal capacity was deliberated by the Ad Hoc Committee and the different types of texts and reasoning that evolved from the First to the Eighth Sessions of the Ad Hoc Committee. It then reviews the final text of the CRPD and discusses how the deliberations influenced the content of the text. The article propounds that these deliberations explain the attempts for conservative strangleholds attempted to be placed on a forward-looking text (i.e. legal capacity). The article concludes by expanding on the interpretation of legal capacity in the light of the entire text of the CRPD and measures that States Parties must initiate in order to ensure the full legal capacity of persons with disabilities.
Citation: Amita Dhanda, Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future, 34(2) Syracuse J. Int’l L. & Com. 429 (2007)
3. Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making (2012)
Article written by Robert D. Dinerstein and published in Human Rights Brief (2012, Volume 19 Issue 2)
After setting out the background of Article 12 and its relationship to core values in the CRPD , the article describes the characteristics of guardianship (the primary form of substituted decision making employed around the world) and its alternatives. The article explores the concept of supported decision making and ways in which that has or might function. Finally, the article discusses some early efforts to reconcile supported decision making with engagement by States Parties, NGOs, and the Committee on the Rights of Persons with Disabilities. Preliminary indications show substantial confusion, at least by States Parties, in respect of the definition of supported decision making. Further, it is noted that some States Parties experience difficulties in changing laws to provide for this form of assistance. The article concludes with observations on steps which persons with disabilities, NGOs, policy-makers, and others may take to expedite supported decision making and ensure that the exciting promise of the CRPD becomes a reality for persons with disabilities.
Citation: Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making,Human Rights Brief 19, no. 2 (2012): 8-12
4. Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond (2012)
Article written by Kristin Booth Glenn and published in Columbia Human Rights Law Review (2012, Volume 44)
This article maps paradigm shifts in society’s view of legal capacity, the law’s responses to the guardianship system, and the potential abolition of the guardianship system. For each paradigm shift, the article describes the contributions of social and political changes. The article also traces the contemporaneous growth of international human rights discourse and the application of United Nations machinery by disability advocates and persons with disabilities in enacting the CRPD. The article proceeds to describe the various legal and practical efforts behind supported decision-making by surveying supported decision-making laws in Europe and North America. Lastly, the article describes the CRPD’s mandate for change, structural innovations within the CRPD for accomplishing that mandate, and “next steps” on the abolition of the guardianship system taken by States Parties and non-states Parties to the CRPD.
Citation: Kristin Booth Glenn, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond, 44 Colum. Hum. Rts. L. Rev. 93 2012-2013
5. Navigating the ‘Flashing Amber Lights’ of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns (2015)
Article written by Piers Gooding and published in Human Rights Law Review (2015, Volume 15 Issue 1)
In recent years, the right to legal capacity in the CRPD has caused considerable controversy. The adoption of General Comment No. 1 by the UN Committee on the Rights of Persons with Disabilities (“CRPD Committee”) in April 2014 sheds new light on major debates in the field, particularly regarding implementation measures to fulfil the obligation of States Parties to provide persons with disabilities with ‘support to exercise legal capacity’ on an equal basis with others. This interpretive guidance builds upon the CRPD’s framework for achieving equal recognition before the law for persons with disabilities. Yet commentators have criticized both the CRPD Committee’s interpretation of Article 12 and the enumeration of Article 12itself as wanting in key respects. This article draws on General Comment No. 1 to address major concerns raised about the obligation of States Parties to provide persons with disabilities the support required in exercising legal capacity. The concerns and counter-arguments are pitted against a broad range of implementation measures from domestic laws and policies around the world.
Citation: Piers Gooding, Navigating the ‘Flashing Amber Lights’ of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns, Human Rights Law Review, 2015, 15(1), 45–71
6. Advancing Legal capacity jurisprudence (2011)
Article written by Oliver Lewis and published in European Human Rights Law Review (2011, Issue 6)
This article addresses the role of strategic litigation on the right to legal capacity of persons with disabilities. The article places legal capacity within an international human rights law framework and sets out how it is particularly resonant in the context of disability where withdrawal can lead to the arbitrary removal of rights (such as rights to property, health care decision-making, employment, and voting). The article examines Article 12 of the CRPD, a treaty which at the time of writing, was signed by all 27 Member States of the European Union (“EU”) and ratified by 18. The CRPD is also the first UN human rights treaty to which the EU acceded. The article opens up areas for advocacy and reform by reviewing European jurisprudence on legal capacity and suggesting that litigation can play a valuable role in highlighting the problems of guardianship systems.
Citation: Oliver Lewis, Advancing Legal capacity jurisprudence, (2011) European Human Rights Law Review, 6, 700-714
7. Mental health law and the UN Convention on the rights of persons with disabilities (2014)
Article written by G. Szmukler, Rowena Dawb, Felicity Callar and published in International Journal of Law and Psychiatry (2014, Volume 37 Issue 3)
The article argues that a form of mental health law which aims at eliminating discrimination against persons with mental illness, such as the Fusion Law proposal, is consistent with the principles of the CRPD. This law covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness and only allows for involuntary treatment when a person’s decision-making capability (“DMC”) for a specific treatment decision is impaired. This applies regardless of the health setting or cause of impairment and where supported decision making has failed. In addition to the existence of impaired DMC, involuntary treatment requires an assessment that the person’s values and perspectives are given paramount importance.
G. Szmukler, Rowena Dawb, Felicity Callar, Mental health law and the UN Convention on the rights of persons with disabilities, International Journal of Law and Psychiatry 37(3) (2014) 245–252
8. The Support Model of Legal Capacity: Fact, Fiction, or Fantasy? (2014)
Article written by Elionoir Flynn and Anna Arstein-Kerslake and published in Berkeley Journal of International Law (2014, Volume 32 Issue 1)
This article explores a plausible legal framework for grounding a support model of legal capacity and fully replacing substituted decision-making. The article grounds its argument in the lived experience of people labelled with disabilities. The article focuses on individuals with cognitive disabilities as such individuals are generally more likely to have their decision-making ability called into question (and consequently, to have their legal capacity denied). The article claims that such a system of support will ultimately benefit all individuals and not only persons with disabilities. The article further examines ongoing reform efforts and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments are clearly trending towards the recognition of support to exercise legal capacity.
Citation: Elionóir Flynn, Anna Arstein-Kerslake, The Support Model of Legal Capacity: Fact,Fiction, or Fantasy?, 32(1) Berkeley J. Int’l Law.124 (2014)
B. By region
1. Guardianship of the Elderly with Diminished Capacity: The Chinese Challenge (2015)
Article written by Rebecca Lee and published in International Journal of Law, Policy and the Family (2015, Volume 29 Issue 1)
China’s elderly, traditionally revered, have become a forgotten population amid the nation’s rapid economic development. Stories of caregiver neglect, financial exploitation, physical and psychological abuse and neglect are not uncommon. The country’s one-child policy, implemented in the 1970s, drastically changed China’s demography and traditional family structure. Responding to this ageing challenge is an imminent task. This article examines critically the adult guardianship laws in China, which were modernized in 2013 as part of the reforms on elder law. First, it seeks to show that Confucian values are rooted in guardianship provisions in China. However, the deficiencies of the existing law to respond to the ageing challenge are also apparent. The article goes on to discuss how, against a background of diminishing significance of the Confucian ethic of responsibility in China, recent reforms have attempted to preserve and enrich the Confucian tradition. Ultimately, China faces challenges both in devising an adult guardianship system to protect the elderly and reinvigorating Confucianism with modern relevance.
Citation: Rebecca Lee, Guardianship of the Elderly with Diminished Capacity: The Chinese Challenge, International Journal of Law, Policy and the Family, Vol. 29, Issue 1 (April 2015), pp. 1-14
1. Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN Disability Rights Convention (2014)
Written by Nicholas Caivano and published in Western Journal of Legal Studies (2014, Volume 4 Issue 1)
During the negotiations leading up to the CRPD, States Parties vigorously debated the scope of Article 12 which establishes legal capacity for persons with disabilities “on an equal basis with others in all aspects of life.” The ambiguity of Article 12 has led to many interpretations which in turn have been the subject of debate among human rights activists and academics. Developments in the jurisprudence and legislative reforms across several jurisdictions indicate that governments and courts have begun to grapple with the requirements of this right. The purpose of this article is to examine whether Article 12 imposes an obligation on States Parties to use supported decision-making as an alternative to substituted decision-making (the system in place in most jurisdictions throughout the world). The article argues that the drafters of Article 12 intended to set out a strong presumption of capacity and to permit substituted decision-making only in rare circumstances. Canada is reviewed as an example of a jurisdiction that needs to reconcile the legislative implications of Article 12 with its existing domestic laws.
Citation: Caivano, Nicholas, Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN Disability Rights Convention, (2014) 4:1 UWO J Leg Stud 3
1. Equal Recognition and Legal Capacity for Persons with Disabilities: Incorporating the Principle of Proportionality (2014)
Article written by Willene Holness and published in South African Journal on Human Rights (2014, Volume 30 Issue 2)
The new approach to legal capacity legislation (promoted by the CRPD) maintains that although persons with disabilities may require support in certain decision-making, they have full legal capacity on an equal basis with others. Any restrictions on legal capacity must incorporate safeguards in line with Article 12(4), including that the restriction must be tailored to the individual’s circumstances and proportionate to their needs. The South African Law Reform Commission has embarked on law reform in this regard and recommended the Assisted Decision-making Bill. The Assisted Decision-making Bill seeks to provide support measures as an alternative and parallel mechanism to the current curatorship system.
Proportionality is not only a standard of judicial review for ascertaining whether a legislative measure justifiably limits the right to equality and legal capacity but also a necessary guiding principle for providing support to persons with disabilities. In this respect, proportionality serves to ensure that support relating to decisions on welfare or finances remains proportional to the supported individual’s circumstances and needs. As such, the support must not be excessive or negate the autonomy of the individual; even in difficult cases, the will and preferences of the individual must be sought. The article advances that the Assisted Decision-making Bill requires revision as it does not sufficiently incorporate the principle of proportionality and other safeguards for persons with disabilities.
Citation: Willene Holness, Equal Recognition and Legal Capacity for Persons with Disabilities: Incorporating the Principle of Proportionality, 30(2) S. Afr. J. on Hum. Rts. 313 (2014)