Legal Capacity Tina Minkowitz

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

Right, paradigm and principle Right to have one’s 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

Equality model of legal capacity Formal equality – universal legal capacity, right to make one’s 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.

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.

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

Replacing “competence” doctrine Same as right to vote – fundamental rights to decide about things done to one’s 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

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

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

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)

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

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

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)

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