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

1. Amita Dhanda
Professor and Head
Centre for Disability Studies, NALSAR, Hyderabad

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 Safeguards
Old Paradigm New Paradigm

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.  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.  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.  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.  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.  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.  Need to see the commonalities between
persons with and without disabilities
 Examine the possibilities of reasonable
accommodation
 Evaluate norms for accessibility

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. if someone else was making decisions for you. They
could decide to take you away, lock you up, not listen
to you, give you medication, block you from doing
your work and living your life with your body and
mind the way they are.
WOULD YOU WANT THIS TO HAPPEN TO YOU?
Wouldn't you have the feeling that you have lost you
dignity and want it back? Wouldn't you feel your
integrity has been violated? Wouldn't you want to have
support in making decisions without being taken over
and to ask for help without being seen any the less
for it? Wouldn't you want to maintain your inherent
dignity and be supported to make your decisions?
Wouldn't you want to retain your integrity and
continue to be you?

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.