Legal capacity and law: why it matters Tina Minkowitz CHRUSP Psych Out May 7-8, 2010

Legal capacity: the invisible wound Non-person Social death/ civil death You cant dial 911 in here Silencing Compliance/ learned powerlessness The capacity standard for forced treatment Guardianship: so silencing, not talked about in survivor movement

WNUSP advocacy on legal capacity in Disability Convention Disability Convention: Convention on the Rights of Persons with Disabilities Human rights treaty – international law We didnt start out emphasizing legal capacity – but it became center of paradigm shift From non-person/ everyone else knows best to equal rights/ autonomy to freely develop self and life-project

WNUSP Advocacy 2 From substituted decision-making to supported decision-making: u/s networks thought OK to help in decision-making but not to take away control, ever People with intellectual disabilities & their advocates agreed Social model of disability, non-discrimination taken to full extent – Change society not the person – Legal capacity is civil/social status and right to exercise all other rights

Capacity standard Capacity standard in right to refuse treatment has been a sham: we all think we are capable of making a decision and justifying it rationally – but psychs & judges disagree Logically/linguistically there is overlap between concept of decision-making incapacity, and labels of mental illness and other mental disability – Scotland & UK mental capacity laws Functional diversity Equal rights vs. limitation of rights based on assessment of functional capacity

Why this is important Capacity or competence as a prerequisite for valid consent is fundamental to traditional legal doctrine But it violates equal rights of people with disabilities to make our own decisions Need to reframe laws and legal doctrine to be inclusive of all people – legal capacity is a right not a privilege Human rights higher than domestic law – CRPD requires countries to change laws

Legal capacity and law Legal capacity is the relation a legal system creates between its subjects and itself What people can do within a legal system – creation of relationships, undertaking responsibilities, asserting rights Limitation or restriction of legal capacity is one of the most radical forms of discrimination Agency and personhood: how law constructs social relationships, identity, freedom

Legal capacity and law 2 Law is social construct and can be changed Deconstruct – what are the premises of old paradigm, what social needs does it serve? Which do we reject, and are there any we accept as legitimate? How can we build a new paradigm of personhood that includes all of us, and create the laws to reflect it?

Substitution premises Some people cant look after themselves and need others to manage their lives Involuntary protective measures – such as guardianship, and civil commitment – protect the persons best interests People who cant manage their own lives have no use for autonomy and are better served by others taking care of their best interests No need to respect, or even pay attention to, the persons self-expressed wishes and needs

Support model as critique and alternative Substituted decision-making and involuntary protective measures replicate dominance/submission in social relations – inconsistent with human rights and democratic values How much should we acknowledge vulnerability and need for extra help in decision-making? Inclusive design and equality-based supportive measures, vs. supported decision-making as a separate protective status

My beliefs/suggestions For users and survivors of psychiatry, any reflection in law of particular vulnerability will put us back in discrimination Inclusively designed laws: stronger free and informed consent, consumer protection, rights of criminal defendants, can protect us in altered states or distress – Higher level of protection needed depending on seriousness/potential intrusiveness e.g. ECT Reasonable accommodation, accessibility training for law enforcement, doctors etc., and creation of our own chosen support relationships

Working with other disability groups People with intellectual disabilities – Self- Advocates/People First & family organizations People with dementia… self-advocacy groups?... Seniors organizations? People with brain injury, people with autism, etc. All issues at once? Tension between family organizations and self-advocacy? – Family as supporters for self-advocate participation

User/survivor legal advocacy Repeal of mental health laws – stand-alone, only affects us, clear discrimination – OHCHR says abolition required by CRPD (no deprivation of liberty for preventive detention or care and treatment linked to apparent or diagnosed mental illness) Involuntary inpatient and outpatient torture – invoke torture prevention framework in advocacy for moral strength and legal remedies – Special Rapporteur on Torture, other UN bodies – National prevention mechanisms under OPCAT

To take away Appreciation of significance of legal capacity for users & survivors of psychiatry and the challenges posed by CRPD to traditional legal doctrine Need to educate our own lawyers and engage them in helping to change paradigm Grass-roots advocates play a role by not accepting anything less than full equality, freedom, personhood, integrity

Resources www2.ohchr.org/english/issues/disability