Legal Capacity

This article will provide a brief historical background to mental health law in order to gain a greater sense of the significance of international human rights law to civil commitment legislation today. Historical context will help to identify the purpose and objectives of mental health law, which in turn assist in weighing into the major debates currently underway. The United Nations Convention on the Rights of Persons with Disability (CRPD), in particular, has brought major changes to the way mental health law is understood, including strengthening longstanding critiques, and adding novel critical perspectives. Three 'eras' of mental health law are examined: the pre-modern origins of mental health law and 19th century regulation; the 'medicalising' shift of the 20th century; and deinstitutionalisation and 'rights-based legalism'. These distinct periods of thought will help to critically assess what appears to be a new reform era in which international human rights law will set a new agenda for transforming or even abolishing mental health law as it currently stands.

Este artigo analisa o problema do consentimento médico informado das pessoas com deficiência intelectual e psíquica no Peru. Em 2018 Perú modificou o Código Civil e reconociou a capacidade jurídica das pessoas com deficiência mental. No entanto, as regras do consentimento informado não foram modificadas. Nesse sentido, este documento constitui uma primeira tentativa de interpretar o consentimento médico informado no Peru à luz do Código Civil. O documento aborda como apoios e salvaguardas podem interagir nesses processos de tomada de decisão.

“Disabilità, giustizia, diritto” è uno studio finalizzato a comprendere se nel panorama gius-filosofico contemporaneo le persone con disabilità siano annoverate tra i soggetti di giustizia e di diritto. Data la complessità del tema, gli itinerari percorsi a tal fine sono molteplici: essi spaziano dal neo-contrattualismo rawlsiano all’approccio delle capacità, dall’etica della cura a quella della vulnerabilità, dal percorso foucaultiano a quello dell’età dei diritti, fino a indagare quale possa essere la compatibilità tra l’astratto soggetto di diritto razionale ed i concreti soggetti con disabilità, che reclamano il proprio diritto all’inclusione. “Disabilità, giustizia e diritto” percorre tali itinerari valorizzando la prospettiva dei Disability Studies che, avendo favorito quel passaggio da una visione “medico-individualista” ad una “sociale” della disabilità oggi recepita anche in ambito normativo – in particolare, si pensi alla Convenzione Onu sui diritti delle persone con disabilità (2006) –, aprono scenari in parte ancora inesplorati, costituendo una sfida difficile, ma al contempo interessante ed indifferibile, per la riflessione filosofico-giuridica contemporanea.

The Draft Bill amending civil and procedural legislation on disability, presented on 21 September 2018, seeks to comply with the right to equal recognition as a person before the law of all persons with disabilities. To this end, it proposes to introduce changes in the regime of legal capacity of adults with impairments in their decision-making abilities, as well as in the institutions aimed at their protection. In spite of keeping the name (curatela), the Draft Bill entails a transformation of the concept of curatorship. The purpose of this work is to examine the main elements of this new curatorship, how it connects or separates from the case law elaborated by the Spanish Supreme Court in the last years, and what is likely to happen in case the Draft Bill becomes law. The results are analysed in the light of the international debate on the obligations arising for the States Parties from the United Nations Convention on the Rights of Persons with Disabilities.

El Anteproyecto de Ley por la que se reforma la legislación civil y procesal en materia de discapacidad, de 21 de septiembre de 2018, persigue dar cumplimiento al derecho al igual reconocimiento como persona ante la ley de todas las personas con discapacidad. A tal fin, propone introducir cambios en el tratamiento de la capacidad de obrar de las personas mayores de edad que padecen alguna forma de discapacidad que impide su autogobierno, así como en las instituciones que tienen como finalidad su protección. Pese a mantener el nomen de la institución, el Anteproyecto de ley incide de lleno en el concepto de la curatela. El objeto de este trabajo es analizar en qué consiste esta nueva curatela, cómo conecta o se separa de la jurisprudencia elaborada por el Tribunal Supremo en los últimos años, y qué puede esperarse que suceda en caso de que esta iniciativa legislativa resulte aprobada. Todo ello a la luz del debate internacional sobre las obligaciones que la Convención de las Naciones Unidas sobre los derechos de las personas con discapacidad impone a los Estados Partes.

En septiembre de 2018, se reformó el Código Civil peruano para reconocer la capacidad jurídica de las personas con discapacidad. En atención a esta modificatoria, el artículo presenta una revisión general de las principales características de esta modificatoria, a la luz del modelo social de la discapacidad y la Convención sobre los Derechos de las Personas con Discapacidad. El artículo, además, identifica los pasos previos, a nivel legislativo y jurisprudencial, que permitieron a la modificación normativa se materialice, así como los retos aún pendientes para implementar un sistema de apoyo en la toma de decisiones, como son los alcances de la las salvaguardias, la responsabilidad civil y la reconfiguración de la voluntad.

This is an author's original manuscript of a paper that has been published in International Journal of Law in Context, 13,1 pp. 77–86 (2017) © Cambridge University Press 2017 doi:10.1017/S1744552316000483.

This reflection responds primarily to the articles on legal agency and state intervention in the same issue of the journal, with brief comments on the two other papers.  The concept of transformative equality, developed in jurisprudence under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), can promote a deeper understanding of the rights of persons with disabilities.  In particular, it is useful to address power relations between disabled and non-disabled persons not only with respect to family members and medical professionals, but also in the institutions of law and the state.

Supported decision-making replaces clinical/medicalized service framework as overall approach to mental health crisis; non-discriminatory violence prevention and non-discriminatory conflict resolution replace the conjoint medicalized repressive power delegated by the state to psychiatry; practical support, defense and advocacy to maintain safety and well-being according to one’s own perspective, will and preferences replaces medicalized repressive coercive paternalism delegated by the state to psychiatry. Medicalization of repression dehumanizes people experiencing distress and weaponizes ‘treatment’ as torture, for which reparations are due along with comprehensive human rights guarantees based on formal and substantive equality.

This version may be supplemented later with footnotes, particularly to CRPD jurisprudence and related materials.

Reimagining Crisis Support: Matrix, Roadmap and Policy aims to shift the conversation about personal crisis from one based in mental health discourse to one based in a social model of disability and human rights.

The book's primary thesis is that crisis support can be reimagined as support for decision-making and maintaining an independent life in the community - as provided for under Articles 12 and 19 of the Convention on the Rights of Persons with Disabilities.  Community-based, non-discriminatory conflict resolution and violence prevention are complementary to crisis support but are distinct as they involve more than one person's needs and interests at the same time.

The book explains its key premises and sets out some elements of decision-making support for personal crisis, then explores the Matrix of rights and implementation measures set out in the Convention that provide a scaffolding for a social, human rights-based approach to crisis support.

It then provides a Roadmap of aspirational transformations and strategies that are needed to create the conditions in which reimagined crisis support can be meaningfully realized.  These range from large-scale social justice aims such as Democratize Knowledge and Strengthen Communitarian Practices to Tools such as 'Pilot projects' and 'Evaluate existing support practices'.

A section on Policy addresses key issues for translating the model presented into national policy.  This should be read in conjunction with the chapter on Implementation: Legislative Reform that is included in the Matrix section.

This book is intended for diverse audiences from policymakers to grassroots activists.  It is grounded in both a US context (inevitably as the personal informs the political) and wider perspectives from global networking. 

ISBN 978-1-7377370-2-5
To order paperback or epub version see https://www.reimaginingcrisissupport.org

This is a study of ahliyya (legal capacity) that examines how femaleness features as a category of law and how sex difference determines the legal capacities of women. It originates in concerns for equality in South African debates on state recognition of Muslim marriage. Theoretically and methodologically it is located in the interdisciplinary field of feminist studies and Islamic law; it draws on feminist theories of sex difference and employs feminist methods of reading texts to theorise the differential treatment of women in classical and contemporary legal theory (uṣūl  al-fiqh) and positive law (furū‘ al-fiqh). Reading classical legal theory and positive law texts taught in a Ḥanafī madrasa curriculum and contemporary adaptations thereof, I make apparent the ‘imaginary configurations’, ‘metaphoric networks’ and points of tension through which the texts convey ideas about the woman of Islamic law.
In the resultant complex formulation of the female legal subject I find that classical Ḥanafī legal theory does not explicitly distinguish female legal capacity from male legal capacity; femaleness does not feature amongst the nineteen impediments to legal capacity. Nonetheless classical legal theory and positive law both distinguish between male and female legal subjects. The challenge in studying the intersection of legal capacity and sex difference is to ponder upon the theoretical non-distinction of women’s legal capacity from other forms of legal capacity and legal distinctions between men and women in positive law generally. I find that the normative legal subject of the classical law (the combination of legal theory and positive law) is a free adult male yet, unlike the enslaved male and the infant or minor male, the female legal subject is not similarly distinguished by virtue of a differentiated category of legal capacity. Theoretically, sex difference is not an explicit distinguishing legal category of the legal subject. Implicitly however, sex difference results in differential legal treatment of women. this is to some extent because scholars employ social norms and categories as natural conditions that support ideas of femaleness. Accordingly, it is incorrect to assume the absence of a distinctive theoretical category of femaleness results in the absence of distinctive legal subjectivity for women. Rather, distinctive legal capacity does not necessarily arise from a distinct category of legal incapacity. Instead, the law locates bodies in a matrix of other social categories, viz. reason, age, social class, life experience and marital status, which qualify female legal subjectivity. ‘Social facts’ are attached to women’s bodies, they take the place of ‘the real woman’ and inform us of the ‘ideological apparatus’ that produces the female subject of the legal text. Importantly, these categories also disrupt the symmetry of biology and sex differentiated legal capacity. As a result, the law relies on a discursive construction of femaleness that formulates uneven legal capacities for women.
Compared to its classical precursor, contemporary legal theory either imposes severe restrictions upon women as legal subjects or pretends to the absence of distinction between female and male legal subjects. The pretense denies the differential treatment of women in the law while the restrictions result in a category of ‘imperfect legal capacity’ for women. Further, comparing classical and contemporary approaches, the former frames a distinct but discursive female legal subject, multiply and situationally constituted. The latter is explicit about the location of women’s legal capacity.
However, both historical and modern approaches occlude the obvious impediment to legal capacity that marriage effects on female legal subjects, notably limitations on a wife’s legal capacities within the marriage and the marital authority of husbands to manage the sociality, mobility, and spirituality of wives, ownership of the marital bond being a uniquely male legal capacity.
Finally, contemporary legal theory frames inflexible determinates of female legal subjectivity and eventually produces essentialist and existential understandings of women. This illustrates the modern representation of women’s legal capacity as not merely a modern manifestation of historical legal thought, but indeed modern in its origin and formation. The challenge in the South African context is for an approach to women’s legal subjectivity that is not existentialist but discursive and fluid.

The Convention on the Rights of Persons with Disabilities (CRPD) prohibited deprivation legal capacity of persons with disability based on assessment of mental capacity. The assertion is that, persons with disabilities shall exercise their legal capacity in all aspects of life without any restrictions that are based on mental incapacity (such as, unsoundness of mind, deficit in mental capacity, dotage, etc. This approach signifies a shift from substituted decision making, where another person act on behalf of persons with mental disabilities, to supported decision making where the person with mental disability is assisted in decision making. The rationale for the move lies on the recognition that the right to legal capacity embodies the inherent meaning of what it meant to be human. Without legal capacity a person cannot exercise all other rights and entitlements. Accordingly, States parties to CRPD are required to reform domestic legislations that are based on substituted decision making model and recognize full legal capacity of persons with disabilities in line with supported decision making model. As a Sate party to CRPD, Ethiopia assumed the same obligation. Nonetheless, in its initial report to the Committee on CRPD, the country denies existence of legislation that restricts legal capacity on the grounds of mental incapacity. This research found out that there are restrictions imposed on legal capacity of persons with disabilities on the basis of mental incapacity/disability. The research analyzed the approach employed to restrict legal capacity under the existing legal frameworks of Ethiopia vis-à-vis supported decision-making regime under CRPD. The research is doctrinal and, as such, limited to content analysis of general and specific legal capacity laws of the country (such as, marriage, divorce , will, work and employment, political participation, access to justice and others).

Grounded in my personal experience as a survivor of psychiatric violence, I take a historical approach to the recent development of norms that support a demand for reparations for psychiatric violence. I introduce the reader to the advocacy by the World Network of Users and Survivors of Psychiatry (WNUSP) that led to the establishment of norms in international law that require the abolition of forced psychiatric interventions, and discuss the confirmation by international human rights mechanisms of our position that such interventions are acts of ill treatment and/or torture. Following that, I share key advances and challenges in national implementation, and my proposal for a social model of crisis support to fill a gap in our advocacy and to respond to current challenges. Finally I set out the argument for reparations and indicate the forms it might take.

Legal capacity of persons with mental disabilities was a contentious issue during the process of drafting the Convention on the Rights of Persons with Disabilities. The Arab Group, consisting of Muslim-majority countries, in the United Nations expressed reservations about the formulation of the Article related to this issue. However, their reservations were dismissed because they arguably had to do with language-specificity. The author revisits these deliberations and argues that the reservations of the Arab countries have to do with religious aspects rooted in the Islamic tradition. By ignoring these religious aspects, the Disability Convention missed a rich source of wisdom provided by a world religion like Islam. On the other hand, the innovative insights provided by the Disability Convention can be of value to improve contemporary discussions on legal capacity within the Islamic tradition. Unlike the previous studies, which either focused on the approach of the Disability Convention or that of the Islamic tradition, this study examines both approaches and highlights the points of agreement and disagreement and finally proposes suggestions for narrowing the existing gap between these two approaches.

This article addresses the right to legal capacity to consent to sex of people with intellectual disabilities. Article 12 of the Convention on the Rights of Persons with Disabilities guarantees the right to legal capacity on an equal basis in all areas of life. This article discusses sex as an area of life in which people with intellectual disabilities are frequently not being granted legal capacity on an equal basis. The article examines current capacity to consent to sex law in Ireland, England and Wales in light of Article 12. It proposes an 'agreement model' as a potential alternative that would be Article 12 compliant.

Resumen: El artículo 12 de la Convención Internacional de Derechos de las Personas con Discapacidad reconoce la igual capacidad jurídica de las personas con discapacidad y aborda la cuestión de la capacidad jurídica desde la perspectiva de los derechos humanos. Dicha capacidad es la puerta de acceso no sólo a la titularidad sino también al ejercicio de los mismos, tal y como se muestra en el ámbito de la investigación clínica.

To provide a valid consent to – or refusal of – medical intervention, a patient must be legally capable to decide. This dissertation evaluates and compares when the assessment of mental abilities to refuse – or consent to – somatic medical intervention is required in England, Russia and Sweden, and what criteria must be applied to assess the ability to decide about somatic medical interventions in these legal orders. Two standards are used for evaluation and comparison. These standards are consistency with scientific knowledge of the decision-making process, and compliance with the United Nations and the Council of Europe human rights law requirements. The evaluation and comparison of the national legal orders seek to highlight the solutions and the potential difficulties that the domestic legal systems face when they attempt to realise the two standards.

The analysis in the thesis indicates that the United Nations and the Council of Europe treaty bodies have chosen different approaches as to permissibility of capacity assessment procedures. It is argued that after adoption of the Convention on the Rights of Persons with Disabilities (CRPD), the capacity assessments of adults should not be allowed in healthcare.

A number of common problems within the selected legal systems are identified and analysed in the thesis. The question of when capacity assessments must start has not yet received much attention at national levels, which results in an absence of foreseeability and a possibility for discriminating against patients on the grounds of disability or health. The thesis highlights the fact that the national law requirements to draw a distinction between mental and somatic disorders/care are particularly problematic, and may lead to arbitrariness. The questions as to the legal classification of capacity assessment procedures (whether they are medical interventions or the collection of personal data), and accordingly, the legal status of refusal or absence of consent are also poorly foreseeable, which may lead to a violation of the patient’s right to privacy.

The analysis shows that the criteria for capacity assessments are regulated in a manner that inevitably leads to arbitrariness when deciding whether a patient can make healthcare decisions. It was shown that the criteria are interpreted differently by various actors, and no agreement as to the required level of performance is reached. It is also argued that capacity assessments rarely allow for achieving the goal of checking whether or not a patient can choose what to do with his or her own body.

Ponencia en el Curso X Aniversario de la entrada en vigor de la Convención de Naciones Unidas sobre los Derechos de las Personas con Discapacidad (CU19061), dirigido por D. TORCUATO RECOVER BALBOA, y por D. IGNACIO SANCHO GARGALLO, en el marco de las actividades de Formación Continua de la Carrera Judicial para 2019. Madrid, mayo, 2019.
Se analiza el significado del concepto "apoyo en el ejercicio de la capacidad jurídica" en el texto de la Convención de Naciones Unidas sobre derechos de las personas con discapacidad y en la interpretación de la Observación general nº 1, así como la interpretación que del mismo se ha dado en el sistema español desde la aprobación de la Convención hasta ahora, y las propuestas de plasmación legislativa del mismo, en especial en el Anteproyecto en su versión de 14 de enero de 2019. A continuación se abordan algunas cuestiones problemáticas como los apoyos informales y su encuadre jurídico; la proyección temporal de los apoyos al proceso previo a la declaración de voluntad; la duda sobre si se contempla el derecho a no recibir apoyos o a prescindir de su contenido y la compatibilidad del mantenimiento de sistemas sustitutivos con la noción misma de apoyo.

In both continental and common law systems, the concept of discernment plays a central role as a factor that determines whether a person is considered to have or not have the capacity to make decisions or to exercise rights and duties for oneself. This use is contrary to CRPD Article 12-it places conditions on the right to exercise agency, based on implicit or explicit assessment of a person's decision-making skills. Yet the concept of discernment has another facet, and another function. Discernment is also a process of contemplation engaged in by one or more individuals, to seek the inner truth of a situation and come to a resolution. It cannot be measured or assessed objectively; its only end point is an inner sense of resolution, satisfaction or congruence, or a mutual sense of resolution, satisfaction or congruence when it involves more than one person. It's a concept used in some religious settings, and can imply a sense of sacred space or time, or simply a turning inward of attention.

La promulgación de la Ley 1996 de 2019 implicó un cambio en el paradigma existente sobre la capacidad legal de las personas en situación de discapacidad en Colombia. La introducción del modelo social de discapacidad se materializó a través de la creación de nuevas instituciones jurídicas que cambian el panorama en materia de capacidad jurídica. Este artículo estudia dichas novedades sustanciales y procesales, así como su impacto en algunos aspectos del derecho privado. En especial, se estudian los cambios en los requisitos de validez de los actos jurídicos y en el régimen de inimputabilidad en materia de responsabilidad civil.

Este miércoles se discute el proyecto de resolución al Amparo Directo en Revisión 44/2018 el ponente es el sr. Ministro Pardo Rebolledo. La revisión del proyecto parte de una postura radical y crítica sobre la Discapacidad: Que las personas con discapacidad nos asiste el derecho de participar en la sociedad sin necesidad de tutores, intermediarios, voceros o incluso ventrílocuos 3 , se trata de reconocer la voz propia, a ejercer derechos "en primera persona".

The legal capacity of natural persons subject is excluded from the scope of Regulation 44/2001 ex art. 1.2 a). Is the capacity of the seller an excluded issue or, contrariwise, is it considered a contractual matter? The present paper aims to provide a statement of the ECJ hitherto untold, which is one of those unusual times when the Court makes an extensive interpretation of that article, with the disadvantage that it entails: the exclusion of the application of the Regulation.

"Review of decision making of patients with mental difficulties in the health care context"
Summary:
The present article addresses certain aspects of consent to medical treatment of persons with mental difficulties. To that regard, we specifically observe the relation between legal capacity of the patient and the possibility to give consent to or to refuse a medical intervention, and the effects of the mental disability label. The approach we employ is mostly that of human rights and non-discrimination, while the relevant sources used in this piece are the UN CRPD Convention, as well as the reports and recommendations from the relevant international and regional bodies.

Human rights have recently impacted on current conceptualisations of the rights and obligations owed to individuals with impairments, culminating in the UN Convention for the Rights of Persons with Disabilities. Particularly significant is Article 12, where interpretations have heralded a " will and preferences " paradigm which rejects substituted decision-making mechanisms, even in situations where an individual should make personally harmful or unwise decisions about their treatment, care, or relationships. This paper explores problems with " strict " and " flexible " interpretations of Article 12, focusing specifically on safeguarding issues in cases of relational abuse, exploitation, and coercion. Drawing analogies with feminist arguments opposing violence against women in the domestic sphere, I challenge the private/public and individualistic account of autonomy which is implicit in interpretations of the " will and preferences " paradigm, and suggest that proponents of Article 12 should consider the possible justifiability of expanded protectionist measures in cases of abuse involving individuals with impairments.

The issues related to the development of artificial intelligence have recently been tackled by various countries and international organisations, with the application of technologies involving machine learning, neural networks and deep learning that are al-ready in the market. This article deals with the issue related to Artificial Intelligence (AI) status and whether it is necessary to create a specific personality for them. Start-ing from AI definition, this research provides an overview of state-of-the-art rules related to the robotic status and to the hypothesis related to robotic subjectivity.

Algunos sistemas legales de América Latina han ido avanzando hacia el reconocimiento del igual derecho al reconocimiento de la personalidad jurídica de las personas con discapacidad. Tales formas de reconocimiento van desde reformas legales específicas en esta materia, hasta el desarrollo de jurisprudencia constitucional en línea con los mandatos establecidos en la Convención sobre los Derechos de las Personas con Discapacidad.

In this paper, the author deals with current theoretical issues of international legal personality. Special attention is paid to the growing conflict between the factual and normative dimensions of general legal capacity of subjects of international law. Contemporary trends and respective theoretical concepts are analyzed, especially regarding actual processes and challenges that are imposed in the definition of legal personality in international law.

On 3 December 2010, Argentina enacted the National Mental Health Law (NMHL), two years after ratifying the United Nations Convention on the Rights of Persons with Disabilities (CRPD). By allowing extrajudicial involuntary commitments for up to three days and legal capacity restrictions upon recommendation by an interdisciplinary team, the NMHL establishes thresholds for depriving persons with disabilities of their liberty and for restricting their exercise of legal capacity that are inconsistent with the CRPD. However, despite the NMHL's significant shortcomings, it has the potential to contribute both to increased autonomy for users of the mental health system and also to less restrictive legal capacity restrictions. The authors conclude that while the NMHL is inconsistent with the CRPD, it may still help promote a shift away from involuntary commitments and legal capacity restrictions if its implementation results in the dissemination of "better" practices that have emerged thus far.

The Convention on the Rights of Persons with Disabilities (CRPD) prohibited deprivation legal capacity of persons with disability based on assessment of mental capacity. The assertion is that, persons with disabilities shall exercise their legal capacity in all aspects of life without any restrictions that are based on mental incapacity (such as, unsoundness of mind, deficit in mental capacity, dotage, etc. This approach signifies a shift from substituted decision making, where another person act on behalf of persons with mental disabilities, to supported decision making where the person with mental disability is assisted in decision making. The rationale for the move lies on the recognition that the right to legal capacity embodies the inherent meaning of what it meant to be human. Without legal capacity a person cannot exercise all other rights and entitlements. Accordingly, States parties to CRPD are required to reform domestic legislations that are based on substituted decision making model and recognize full legal capacity of persons with disabilities in line with supported decision making model. As a Sate party to CRPD, Ethiopia assumed the same obligation. Nonetheless, in its initial report to the Committee on CRPD, the country denies existence of legislation that restricts legal capacity on the grounds of mental incapacity. This research found out that there are restrictions imposed on legal capacity of persons with disabilities on the basis of mental incapacity/disability. The research analyzed the approach employed to restrict legal capacity under the existing legal frameworks of Ethiopia vis-à-vis supported decision-making regime under CRPD. The research is doctrinal and, as such, limited to content analysis of general and specific legal capacity laws of the country (such as, marriage, divorce , will, work and employment, political participation, access to justice and others).

In this paper I reflect on my 13 years of work in international human rights law related to the Convention on the Rights of Persons with Disabilities, on obstacles and co-optation, and on my growing and inescapable awareness of linkages with feminism.

“Dangerous liaisons”. Critical reflections on vulnerability, disability and law**: The attitude of the disability rights advocates towards vulnerability is extremely complex, given the ambiguity of this concept, which is used in the process of “othering”, as well as of in-cluding people with disabilities. In this essay, I will refer to some of the main contemporary debates concerning vulnerability widespread in the field of social-sciences, in order to verify their usefulness for the instances of persons with disabilities. To this aim, I will particularly consider the literature pertaining to feminist and disability studies, trying to highlight simi-larities and divergencies between them. In the second part, I will focus on the legal debate concerning vulnerability, evaluating to what extent it is helpful for the recognition of the full legal subjectivity of persons with disabilities.

In the matter of the request for an advisory opinion by the Council of Europe Committee on Bioethics under Article 29 of the Oviedo Convention (European Court of Human Rights)

Written submissions by the Center for the Human Rights of Users and Survivors of Psychiatry

Part I: Position of CRPD in international law and its relationship to Articles 7 and 27 of the Bioethics Convention

Part II: Content of CRPD Norm on Abolition of Involuntary Hospitalization and Treatment

En presente trabajo tienen como objetivo analizar el régimen de incapacidad del Código Civil Argentino (CC) a la luz del derecho internacional de los derechos humanos, y más concretamente, de la Convención Internacional sobre los Derechos de las Personas con Discapacidad

In this paper I examine the reception of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) in the courts of two domestic jurisdictions: United States (New York) and Mexico, and through legislative reform in Peru. Adopting a normative standpoint, I compare the value of leading court cases in New York and Mexico as a step towards implementation of the international standard, followed by a summary of Peru's reform proposal which I believe substantially fulfills international obligations. After this Introduction, I begin with an overview of Article 12 and a criterion by which to assess domestic reception, following which I discuss each jurisdiction separately, addressing the status of international human rights law and CRPD in particular in the jurisdiction, and focusing on one central case and subsequent developments.

In this essay, I examine the concept of taklīf in some influential Ashʿarī works of uṣūl al-fiqh. By situating the possibility of imposition of divine duties (taklīf) within the larger scheme of the dynamics of production of normativity and regulation of behavior that those works constructed, I explore the manner in which Ashʿarī jurisprudents conceived of the law’s applicability to particular individuals. We will see that, while the state of being mukallaf was largely seen as a matter of awareness and mental capacity, Ashʿarī jurisprudents paid particular attention to the possibility of being motivated by the moral purpose of the law. This internal and moral conception of legal capacity can be articulated with the Ashʿarī theories of causality, or the lack thereof. Given the very particular notion of creation of action that Ashʿarīs advanced, the ability to bear the burden of divine duties did not consist of the possibility of causing the actions in question, but of performing them knowingly of their moral aim. I argue that, rather than view legal subjects in light of their role as potential generators of particular consequences, the Ashʿarī philosophy of law was centered on the view of legal subjects as morally motivated agents. The idea of taklīf, therefore, was broader than capacity in the modern sense, since it pertained to the legal relevance of the agent’s action, rather than the validity of its consequences alone. As such, this concept represented a domain within which considerations of divine omnipotence were articulated with practical legal imperatives that concern the need to attach consequences to human actions.

"Legal capacity is presumed for individuals who are not labeled as disabled, while capacity mustbe negotiated by those with intellectual, significant psychosocial, and communication disabilities. These individuals are presumed to lack legal and decision-making capacity and consequently must negotiate their capacity to access justice, select appropriate support and care, and choose treatment or care protocols. Determining incapacity based only on a person’s status as a disabled person, or on functional incapacity based on impairment, shifts the burden of proof to individuals to show they have the capacity to exercise their right to autonomy.
This chapter explores international treaties and guarantees of rights that affect the exercise of legal capacity. It addresses a number of critical areas at the intersection of legal capacity and individuals with multiple and complex needs. In particular, it focuses on domestic law in Colombia and Canada in order to assess how each of those countries have recently addressed issues of competence and incompetence in complex decision-making cases and the limitations on the exercise of legal capacity. Colombia and Canada have been selected because they represent two distinct legal systems, common law (with the exception of Quebec in Canada) and civil law, and because both have progressive courts that have made advances in human rights. This chapter will examine how Colombia and Canada justify limitations on the rights of persons with complex and multiple needs, including reliance on the rationales of protecting the public (including harm to self and others), entitlement to services, and protection of individual rights. After exploring the current Colombian and Canadian laws, the chapter will outline and assess the potential that supported decision-making presents for recognizing fundamental rights.
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