Mental health law reform in the new and old paradigm of legal capacity, Prof Amita Dhanda
Amita Dhanda Professor and HeadCentre for Disability Studies, NALSAR, Hyderabad
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
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.
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
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 ?
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 ?
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
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
Need to see the commonalities between persons with and without disabilities Examine the possibilities of reasonable accommodation Evaluate norms for accessibility
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
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?
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.