Legal Capacity: A Tool for Personhood & Citizenship

2. 1. Whats at stake – for all citizens 2. The Past - Two Traditional Ways of Looking at Legal Capacity. 3. Where are we now – The Functional Approach. 5. The UN Disability Convention: New Paradigm Art 12 – An Evolution of the Functional Model or a Revolution???. 6. How Others see the ‘New Paradigm.’ 7. Trends - Law Reform Samples– so far……. 8. Some Lessons in the Framing of Modern Legal Capacity Law …...

3. Whats at Stake ? Oh those Germans! Personhood – a Key Political Commitment in our Culture • Assumption – Person = ‘Unit of Moral Agency’. • Assumption – Person = ‘Subject’, not ‘object’. • Assumption – Controlling Value of Auto-nomy, centering the person in all • decisions affecting his/her personal destiny. • Assumption – impermissibility of State or others imposing/substituting decisions. • therefore Legal Capacity = good in itself + serves instrumental purpose of enabling other • rights to be exercised. • Key to Personhood. • Restores Visibility & Subjectivity to PWD.

4. Legal Capacity as a Tool for Personhood & Citizenship ✗ ✗ STATE CIVIL DEATH Vindicating our rights/interests Invoking the Power\ of the State in the Courts ✗ ✗ ✗ ✗ Property Contract Personal Medicine Family Creating our Own Legal Universe of Rights + Obligations The ‘Self’’ CIVIL SOCIETY

5. …Cogito ergo Sum!!!! Heres the Catch: Is there an ESSENCE to Personhood – if so, what is it? Tends to be Cognition/Rationality: - Capable of rationally apprehending the world - Capable of rationally processing information - Capable of fully cognisant of consequences for self and others - Capable of rationally forming own preferences - clearly able to express preferences - hold an identity that is stable through time

6. But Real Life is a bit more Complex……. The Troubling Persistence Of Irrationality!!! ‘How We Decide’ – Lehrer Cognition/Emotion fused The Centrality of the Inter-Subjective Dimension We share our Personhood ‘Self Unto Mind’ – Damasio The Mind is a Function of Human Relations Dignity of Risk The Right to Make Mistakes Balanced Against the Duty to Protect But without paternalism

7. 2. The Past - Two Different Approaches. X ID = Incapable =Policy of substitute decision making A sort of FEUDALISM • Status-based • approach. X 2. ‘Irrational’ Pattern of Bahaviour. Inferring a lack of legal capacity from a pattern of ‘bad’ Behaviour. No necessary logical link No deference to dignity of risk Apt to over-interpret due to stereotype

8. 3. Where are we now – the Functional Approach. • Crystallized in • Recommendation (99) 4 Committee of Ministers, Council of Europe • On ‘principles concerning the legal protection of incapable adults’ • Respect for human Rights. • Flexibility in Legal Response. • Maximum preservation of capacity. • Publicity. • Necessity and subsidiarity. • Proportionality. • Procedural fairness. • Paramountcy of interests and welfare… • Respect for wishes and feelings of the person concerned. • Consultation

9. England: The Very Model of a Modern Major Functionalist Approach • 1) A person is presumed to have capacity unless proven otherwise; • (2) A person must be supported to make their own decisions, and given all practicable help before being treated as not having the ability to make decisions; • (3) A person should not be treated as lacking capacity because they made an unwise decision or a decision that goes against societal “norms”; • (4) If a decision is made on behalf of a person lacking capacity it must be in their best interests; • (5) Anything done on behalf of a person with limited capacity should be the least restrictive of their basic rights and freedoms.

10. 5. The UN Disability Convention – A New Paradigm. • No ‘New Rights’ – Just Equal Enjoyment of all rights • Paradigm Shift – From Object to Subject [But what does it mean to be a subject?] • Blowing away cobwebs of paternalism – rejection of ‘best interests’ standard • Sets a Floor – not a ceiling – calls for innovation • -------- • Centrality of Article 12 (goes to Object and Purpose of Convention) • 12 as a Portal to all other Rights (e.g., 19) • All Rights Interdependent/Interactive (e.g., 12 – 19) • State still has a protective role – but shorn of paternalism (Art 16)

11. What does it mean to be a human subject? Is Article 12 an ‘Evolution’ of Functionalism or a‘Revolution’. Article 12 Equal recognition before the law 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoylegal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. Asserting/Restoring Personhood/Identity Acknowledging legal Capacity ‘on an equal Basis with others’ Only Impulse of state in intervening… Is to Support in Exercising Legal Capacity? Safeguards……………………seems to Assume Functional Approach with substitute decision-making???? Or do they just apply to ‘supports’????? ££££££££££££££

12. 6. How Others see the Paradigm Shift The ‘Evolutionary’ View Art 12 Projects Functional Approach on world stage Guardianship still valid in a (shrunken) Minority of cases Supports can be added – but that doesn’t Preclude the need for Guardianship The ‘Revolutionary’ View Art 12 Forbids all Guardianship Fear of Slippery Slope Weight of History

13. Art 12 – Whats the Difference??? NOW – decision making fragility Response: Guardian to take decisions New Approach……………………. Art 12 Obligation is to SUPPORT in Exercising Legal Capacity Not just supported decision-making at one extreme SUPPORT means augmenting residual capacity Support means building capacity SUPPORT can mean connecting with social capital/community widening opportunity to share personhood and grow SUPPORT can mean support in making decisions

14. What does Support for Supported Decision-Making look like…. The Michael Bach Tri-partite distinction. ….with…. Classic Case: Use Supports to Get to the Will & Preference: Put Supports in place to help PWD to form/express own wishes. ‘Supported’ Decision-Making with a Twist - Ascribing a Will: ‘Support’ by wrapping A ‘community of interpretation’ - people who know background, Culture – can intelligently ‘impute’ wishes…. ….with…. …for…. But with New obligations ‘Facilitated’ Decision-Making e.g., minority whose whose social connectedness is ‘lost’… substitute Decision making - but with added obligations to enable person gain capacity to exercise rights

15. Representation Agreement Legislation

16. Viva the Revolution - The International Disability Alliance View. • Capacity means both capacity to Hold and to Exercise a Right • It includes both Identity (12.1) and Agency (12.2). • 12.2. non-negotiable – bearing in mind Art 3 principles. • 12.3 underlines this by speaking of support • 12.4 safeguards apply to this ‘support’. • The traveaux reveals hesitancy only because ‘it did not adequately address • the concerns of those with high support needs’. That’s why 12.3 (support) was added. And • that’s why 12.4 was added (safeguards with respect to ‘supports’). • “what the convention requires is that is that the support should be based on • trust, be provided with respect and not against the will of the person with disabilities.” • Reservations (or disguised reservations) to Art 12 are not permissible as they undermine the • object and purpose of the convention’.

17. Unlikely Revolutionaries: Opinion of the Office of the UN High Commissioner, 2009

19. More Revolutionaries – Organization of American States OAS Convention for the Elimination of all Forms of Discrimination Against Persons with Disabilties General Observations of the Committee on Art 12 – May 2011 [the CRPD]….requires a change of paradigm away from substitution of a persons will…to the new paradigm beased on decision-making with support and safeguards… “Unlike substitute protective systems I which people are entrapped And objectified as wards, support guided by the new human rights Approach is geared toward increasing personal freedom in peoples lives Broadening the spheres in which they can decide for themselves And enhance recognition of the value of their contribution to society” WATCHING BRIEF – Council of Europe Commissioner for Human Rights Major paper due November 2011.

20. Article 12 – Declarations & Reservations. Australia - expressed its understanding that Art 12 permitted substitute decision-making as a last resort and subject to safeguards Egypt lodged an ‘interpretive declaration’ to Article 12 expressing its understanding that the concept of legal capacity in Article 12 applies to the capacity to hold rights and not the capacity to exercise them. Mexico also lodged an ‘interpretive declaration’ to Article 12 is to the effect that, in cases of conflict between Article 12. 2 (assuring a right to legal capacity) and Mexican law, then the provision that contains the ‘greater level of protection’ will prevail. Since withdrawn. UK – Reservation to 12.4.
The United Kingdom’s arrangements, whereby the Secretary of State may appoint a person to exercise rights in relation to social security claims and payments on behalf of an individual who is for the time being unable to act, are not at present subject to the safeguard of regular review, as required by Article 12.4 of the Convention and the UK reserves the right to apply those arrangements. The UK is therefore working towards a proportionate system of review.”-

21. CANADA Declaration and reservation: 
    “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law. 
    To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada  reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal. 
    Canada interprets Article 33 (2) as accommodating the situation of federal states where the implementation of the Convention will occur at more than one level of government and through a variety of mechanisms, including existing ones.”

22. 6. Trends - Law Reform Samples – so far. Functionalism: England & Wales – Mental Capacity Act 2007, 5 Core Principles Scotland – Incapacity Act 2000, Functional Approach Ireland – Law Reform Commission Blueprint follows Functional Approach Mixed: Germany – 1992 Act, Absolute presumption of capacity. Spain – Civil Code, Guardianship & Supported Guardianship. Sweden – Guardianship replaced with supported decision making, Denmark – Coexistence of capacity with guardianship. Canada – BC: Representaton Agreements. Courts are now Taking a close Interest: ECtHR – Shtukaturv v Russia (2008) DD v Lithuanina – decision expected soon See amicus brief of European Group of NHRIs. Czech – Constitutional Court decision 2007

23. 7. Lessons for Modern Legal Capacity Law UN CRPD and Art 12 Re-Frames the Issues BUT still Left with Tensions

24. Lessons……. • This is not primarily a Technical Debate • It is about Personhood and Citizenship • Personhood must be salvaged from the Essentialists who fixate on Cognition • It is not just about fragile decision making ability at one extreme • it is about a wider commitment to nurture capacity in the Lifecourse • by connecting people to social capital, augmenting residual capacity • and sparking the will and preference • It involves opening up space in the lifeworld (contracts, property, medical care) • It involves balancing with legitimate interest of 3rd parties (but always nudging them • to open up) through, e.g., representation agreements. • It involves a re-balancing with the duty to protect (on an equal basis with others’ • shorn of paternalism and giving space to the dignity of risk) • - No single model….but the accent is on affirmative legislation that expands capacity.

25. My View……. • Ireland should not go forward with a deficits-oriented statute first. • That is likely to attract censure from the UN Committee • Ireland should take a small bit more time to explore support regimes, • options, tensions, safeguards as well as Representation Agreements – • 1 year is enough. • This does cause a slight delay in ratification – but the prize is very big. • Ireland should come forward with a capacity-oriented policy menu • (acknowledging circles of support, enforcing outcomes of representation • Agreements). • The incapacity legislation might be tweaked as a form of facilitated • decision-making in which supports still play a role.