Amita Dhanda                               Professor and HeadCentre for Disability Studies, NALSAR, Hyderabad
   Passive                          Active   Selective                        Universal    Varied According to    Con...
   The altered construction of legal capacity in the    CRPD should guide mental health law reform.   Post CRPD Mental H...
   Movement from a Status or Outcome Based    test of Competence to a Functional Approach   Movement from routine instit...
   All persons recognized to possess legal    capacity but the search for the ultimate test    continues   In those rare...
   Are they different ?   If not, then has the rounded nature of the    new paradigm of legal capacity been missed?   H...
   A total acceptance of the presumption of    legal capacity i.e., all humans possess legal    capacity by the fact of b...
   It is not the mental capacity to make a choice   It is the existence of a choice or choices.   Optimum performance o...
   Need to see the commonalities between    persons with and without disabilities   Examine the possibilities of reasona...
   Cannot create relationships of trust through    the procedures of mistrust   To develop skills of persuasion the lega...
if someone else was making decisions for you. Theycould decide to take you away, lock you up, not listento you, give you m...
   The principles established in this Convention    are universal and will apply to all human    beings, as much to you a...
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Mental health law reform in the new and old paradigm of legal capacity, Prof Amita Dhanda

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Mental health law reform in the new and old paradigm of legal capacity, Prof Amita Dhanda, NUI Galway, 23 June 2012. Mental health law reform: new perspectives and challenges

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Mental health law reform in the new and old paradigm of legal capacity, Prof Amita Dhanda

  1. 1. Amita Dhanda Professor and HeadCentre for Disability Studies, NALSAR, Hyderabad
  2. 2.  Passive  Active Selective  Universal Varied According to Context  Applied to All Areas Peculiar to Persons with of Life Disabilities  Equal basis with others Static Understanding of  Evolving nature of Legal Capacity Legal Capacity Support if loss of Capacity Loss Externally Monitored  Support with Capacity through Fair Process  Will Respecting Safeguards SafeguardsOld Paradigm New Paradigm
  3. 3.  The altered construction of legal capacity in the CRPD should guide mental health law reform. Post CRPD Mental Health law Reform needs to be different from the incapacity driven pre-CRPD effort. Equality and non discrimination; reasonable accommodation and real choice needs to drive the CRPD prompted mental health law reform.
  4. 4.  Movement from a Status or Outcome Based test of Competence to a Functional Approach Movement from routine institutionalization to the least restrictive alternative Induction of Fair process safeguards to prevent abuse of the compulsory care provision
  5. 5.  All persons recognized to possess legal capacity but the search for the ultimate test continues In those rare cases of lack of capacity how should decision-making happen? Should force be barred in all situations? What about emergencies ?
  6. 6.  Are they different ? If not, then has the rounded nature of the new paradigm of legal capacity been missed? Has the new paradigm gone flat ?
  7. 7.  A total acceptance of the presumption of legal capacity i.e., all humans possess legal capacity by the fact of being human Right is accompanied with a State obligation to provide support Yes it is a legal fiction but a fiction which like all fiction opens up possibilities for creation
  8. 8.  It is not the mental capacity to make a choice It is the existence of a choice or choices. Optimum performance of the State Obligation to create choice
  9. 9.  Need to see the commonalities between persons with and without disabilities Examine the possibilities of reasonable accommodation Evaluate norms for accessibility
  10. 10.  Cannot create relationships of trust through the procedures of mistrust To develop skills of persuasion the legal permission to use force needs to be ousted Need to distinguish between force sanctioned by the law and the force of persuasion
  11. 11. if someone else was making decisions for you. Theycould decide to take you away, lock you up, not listento you, give you medication, block you from doingyour work and living your life with your body andmind the way they are.WOULD YOU WANT THIS TO HAPPEN TO YOU?Wouldnt you have the feeling that you have lost youdignity and want it back? Wouldnt you feel yourintegrity has been violated? Wouldnt you want to havesupport in making decisions without being taken overand to ask for help without being seen any the lessfor it? Wouldnt you want to maintain your inherentdignity and be supported to make your decisions?Wouldnt you want to retain your integrity andcontinue to be you?
  12. 12.  The principles established in this Convention are universal and will apply to all human beings, as much to you as to me. Let us make a Convention for a world where we can all grow and develop with mutual support. IMAGINE A CONVENTION FOR ALL.

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