1. Legal capacity and law: why it matters
Tina Minkowitz
CHRUSP
Psych Out May 7-8, 2010

2. Legal capacity: the invisible wound
Non-person
Social death/ civil death
“You can’t dial 911 in here”
Silencing
Compliance/ learned powerlessness
The “capacity standard” for forced treatment
Guardianship: so silencing, not talked about in survivor movement

3. WNUSP advocacy on legal capacity in Disability Convention
Disability Convention: Convention on the Rights of Persons with Disabilities
Human rights treaty – international law
We didn’t start out emphasizing legal capacity – but it became center of “paradigm shift”
From non-person/ “everyone else knows best” to equal rights/ autonomy to freely develop self and life-project

4. WNUSP Advocacy 2
From “substituted decision-making” to “supported decision-making”: u/s networks thought OK to help in decision-making but not to take away control, ever
People with intellectual disabilities & their advocates agreed
Social model of disability, non-discrimination taken to full extent
Change society not the person
Legal capacity is civil/social status and right to exercise all other rights

5. “Capacity” standard
Capacity standard in right to refuse treatment has been a sham: we all think we are “capable of making a decision” and justifying it rationally – but psychs & judges disagree
Logically/linguistically there is overlap between concept of decision-making incapacity, and labels of mental illness and other “mental” disability
Scotland & UK “mental capacity” laws
“Functional diversity”
Equal rights vs. limitation of rights based on assessment of “functional capacity”

6. Why this is important
Capacity or “competence” as a prerequisite for valid consent is fundamental to traditional legal doctrine
But it violates equal rights of people with disabilities to make our own decisions
Need to reframe laws and legal doctrine to be inclusive of all people – legal capacity is a right not a privilege
Human rights higher than domestic law – CRPD requires countries to change laws

7. Legal capacity and law
“Legal capacity is the relation a legal system creates between its subjects and itself”
What people can do within a legal system – creation of relationships, undertaking responsibilities, asserting rights
Limitation or restriction of legal capacity is one of the most radical forms of discrimination
Agency and personhood: how law constructs social relationships, identity, freedom

8. Legal capacity and law 2 Law is social construct and can be changed
Deconstruct – what are the premises of old paradigm, what social needs does it serve? Which do we reject, and are there any we accept as legitimate?
How can we build a new paradigm of personhood that includes all of us, and create the laws to reflect it?

9. “Substitution” premises
Some people can’t look after themselves and need others to manage their lives
Involuntary protective measures – such as guardianship, and civil commitment – protect the person’s best interests
People who can’t manage their own lives have no use for autonomy and are better served by others taking care of their “best interests”
No need to respect, or even pay attention to, the person’s self-expressed wishes and needs

10. “Support” model as critique and alternative
Substituted decision-making and involuntary protective measures replicate dominance/submission in social relations – inconsistent with human rights and democratic values
How much should we acknowledge vulnerability and need for extra help in decision-making?
Inclusive design and equality-based supportive measures, vs. supported decision-making as a separate protective status

11. My beliefs/suggestions
For users and survivors of psychiatry, any reflection in law of particular “vulnerability” will put us back in discrimination
Inclusively designed laws: stronger free and informed consent, consumer protection, rights of criminal defendants, can protect us in altered states or distress
Higher level of protection needed depending on seriousness/potential intrusiveness e.g. ECT
Reasonable accommodation, accessibility training for law enforcement, doctors etc., and creation of our own chosen support relationships

12. Working with other disability groups
People with intellectual disabilities – Self-Advocates/People First & family organizations
People with dementia… self-advocacy groups?... Seniors organizations?
People with brain injury, people with autism, etc.
All issues at once? Tension between family organizations and self-advocacy?
Family as supporters for self-advocate participation

13. User/survivor legal advocacy
Repeal of mental health laws – stand-alone, only affects us, clear discrimination
OHCHR says abolition required by CRPD (no deprivation of liberty for preventive detention or care and treatment linked to apparent or diagnosed mental illness)
“Involuntary inpatient and outpatient torture” – invoke torture prevention framework in advocacy for moral strength and legal remedies
Special Rapporteur on Torture, other UN bodies
“National prevention mechanisms” under OPCAT

14. To take away
Appreciation of significance of legal capacity for users & survivors of psychiatry and the challenges posed by CRPD to traditional legal doctrine
Need to educate our own lawyers and engage them in helping to change paradigm
Grass-roots advocates play a role by not accepting anything less than full equality, freedom, personhood, integrity

15. Resources tminkowitz@earthlink.net www.chrusp.org www.wnusp.net
www2.ohchr.org/english/issues/disability