Gábor Gombos From civil death to full personhood: Ireland's challenges to implement the CRPD
From civil death to full personhood: Irelands challenges to implement the CRPDGábor GombosAdjunct professor, NALSAR Law University, Hyderabad, India and NUI Galway
CRPD Article 12• Legal capacity: right in and of itself as well as a precondition for enjoyment of many other rights• Paradigm shift for persons with disabilities by making them subjects of rights from objects of charity• Legal capacity as evolving concept (in line with Preamble e)• Legal capacity as accessibility
CRPD Article 12 para 1• Article 12(1) reaffirms the right to recognition everywhere as persons before the law (ICCPR Art. 16) . Such a statement is needed because certain systems of social oppression such as racism; casteism; sexism and ableism have subsisted by denying legal personhood to the oppressed group.
CRPD Article 12 para 1• Persons with disabilities are right holders and duty bearers. • They are entitled to, inter alia- registration of birth; - name; - nationality; - and all other incidents of legal personhood and identity. (COB Peru para 23, 2011)• All laws and procedures regarding the recognition of the identity of persons should be made in a disability inclusive manner ensuring accessibility and providing reasonable accommodation.
CRPD Article 12 para 2: to have vs toenjoy• Declares or proclaims that all persons with disabilities have legal capacity. AND• Have the right to enjoy the subtsance of that legal capacity. The requirement of enjoyment makes it necessary that suitable arrangements be made to ensure the exercise of legal capacity by persons with disabilities.
CRPD Article 12 para 2: In all aspectsof life• In the absence of legal capacity the realization of many other rights guaranteed by the Convention cannot be achieved. • Denial of legal capacity often results in - institutional placement without free and informed consent; - forced medical treatment including psychiatric treatment; - denial to live independently and in the community;- sterilization without free and informed consent;- denial of the right to marry and parenthood;- deprivation of the right to vote, stand for election and participate in public life.
CRPD Article 12 para 2: Is it really forall persons and all rights?• Any interpretation of article 12(2) which excludescertain persons with disabilities, inter alia based on- “severity” ;- “nature of impairment” or- “difference in functioning and communication” is incontradiction with article 1 (“promote, protect andensure the full and equal enjoyment of all humanrights and fundamental freedoms by all persons withdisabilities”.• Article 1 encompasses the stated purpose of theConvention, any interpretation which is in breach ofthat article is totally impermissible.
Committee on all persons• Recognition of all persons’ legal capacity andright to exercise it (COB China, para 22 a,2012)
Committee on Legal Capacity andsome of the often denied rights• Respect to the individuals right, in his/her owncapacity, to give and withdraw informed consent formedical treatment, to access justice, to vote, to marry,to work, and to choose a place of residence. (COBHungary, para 26, 2012)• Adopt measures to ensure that all health care andservices provided to persons with disabilities, includingall mental health care and services, is based on thefree and informed consent of the individual concerned,and that laws permitting involuntary treatment andconfinement, including upon the authorization of thirdparty decision-makers such as family members orguardians, are repealed. (COB China, para 38, 2012)
Committee on Legal Capacity andsome of the often denied rights• The Committee is concerned that persons withdisabilities whose legal capacity is not recognizedmay be subjected to sterilization without theirfree and informed consent.• The Committee urges the State party to abolishthe administration of medical treatment, inparticular sterilization, without the full andinformed consent of the patient; and ensure thatnational law especially respects women’s rightsunder articles 23 and 25 of the Convention. (COBSpain, paras 37-38, 2011)
CRPD Article 12: Special protection asaffirmative measure?• Article 5(4) allows for affirmative actions to achieve defacto equality.• Any special measure which results in the segregationor exclusion of persons with disabilities on grounds of“severity”; “nature of impairment” or “difference infunctioning and communication” would be against theletter and spirit of affirmative action.• Any measure which interferes with the autonomy ofthe person with disabilities including the freedom tomake their own choices cannot be deemed affirmativeaction under article 5(4) of the Convention.
The Committee on Article 12 para 2• Repeal the laws, policies and practices whichpermit guardianship and trusteeship for adults(COB China, para 22, 2012)• Abolish the practice of judicial interdiction andreview the laws allowing for guardianship andtrusteeship to ensure their full conformitywith article 12 (COB Peru, para 25, 2012)• Take immediate steps to derogateguardianship (COB Hungary, para 26)
CRPD Article 12 para 3: the duty toprovide access to support• Besides abolishing norms that violate the dutyof states parties to respect the human right oflegal capacity, it is equally important thatlegislative, judicial, administrative and anyother measures that protect and fulfill thisright are also adopted.
Committee on enabling measuresregarding access to support• Take legislative action to replace regimes of substituteddecision-making by supported decision making, whichrespects the person’s autonomy, will and preferences, inthe exercise of one’s legal capacity in accordance witharticle 12 of the Convention.• Legislate and implement, in consultation with organizationsof persons with disabilities, a blueprint for a system ofsupported decision-making, which includes:- Accommodations and access to support where necessaryto exercise legal capacity;- Arrangements for the promotion and establishment ofsupported decision-making. (COB China, para 22b and d)
Committee on enabling measuresregarding access to support• Provide training, in consultation andcooperation with persons with disabilities andtheir representative organizations, at thenational, regional and local levels for allactors, including civil servants, judges, andsocial workers, on the recognition of the legalcapacity of persons with disabilities and onmechanisms of supported decision-making.COB Hungary, para 26, 2012)
CRPD Article 12: What if no supportavailable?• Provision of access to support is an enablingmeasure to ensure that persons with disabilitiesenjoy their legal capacity on an equal basis withothers.• Legal capacity cannot be denied by reason ofobtaining such support; at the same time theabsence of such support cannot be a reason todeny the exercise of legal capacity to personswith disabilities; nor can persons with disabilitiesbe obligated to obtain such support to exercisetheir legal capacity.
CRPD Article 12 para 3: Supporteddecision making or support to exerciselegal capacity?• To provide access to support that enables persons withdisabilities to exercise their legal capacity. The diversenature of this support is also acknowledged in severalother articles of this Convention. (E.g. Articles 9(2) (f);19(b);23 (2); 24 (2) (d); 26 (1) (b) and 29(iii))• Both article 12 (3) and all the aforementioned articlesrefer to support to enable persons with disabilities toexercise the particular right. Hence any systemwhereby persons with disabilities are prevented fromexercising the right cannot be termed support.
CRPD Article 12 para 3: Supporteddecision making or support to exerciselegal capacity?• Any support to enjoy the substance of any otherright in the Convention may be support underarticle 12(3).• Of particular relevance are support to:- exercise informed consent to medicaltreatment;- to own and manage property and exercisefinancial autonomy and management;- to choose where and with whom to live.
CRPD Article 12 para 3: Provision ofsupport or access to support?• The duty is to provide access to support as distinctfrom provision of support.• Access to support in contradistinction to supportwould require states parties to take a range ofinitiatives:- for some persons it would be a recognition of anexisting support arrangement;- for others it may necessitate the launch of schemeswhich assist in the creation of networks of support;- for still others the states parties may need toestablish the support networks.
CRPD Article 12 para 4: Can restrictionof legal capacity be a safeguard/• Article 3 is an integral part of the object andpurpose of the Convention. Hence the safeguardsshall be interpreted to advance the full and equalenjoyment of all rights by respecting the personsautonomy including the freedom to make one’sown choices, will and preferences.• Safeguarding substitution to decision-makingpresumes an interference with a person’sautonomy and hence is in conflict with article12(4) as interpreted by this Committee in itsconcluding observations.
CRPD Article 12 para 4: Safeguards• Suitable measures to prevent the abuse andexploitation of persons with disabilities. Suchmeasures should as far as be disability neutral.Furthermore wherever disability specificmeasures are needed, it would be moreappropriate to devise them under article 16which is the dedicated article on the issue.
Committee on Safeguards• Supported decision making, which respectsthe person’s autonomy, will and preferences;• Regulations to ensure that support respectsthe person’s autonomy, will and preferencesand establishment of feedback mechanisms toensure that support is meeting the person’sneeds. (COB China, para 22 and 22c)