*Essential readings
Note: the recorded lectures (links at bottom of page) supplement the readings for this segment and relate to each of the topic areas.
Normative framework
CRPD Article 12, see also Article 3*
General Comment No. 1 Corrigendum (para 27)*
CEDAW Article 15 and General Recommendation 21, paragraphs 7-10
UDHR Article 6 and ICCPR Article 16
OAS CEDDIS Practical Guide for the Establishment of Support to Exercise Legal Capacity of Persons with Disabilities English Español * – consult for deeper look and addressing controversies, taking into account country reforms and DPO views
- Questions to consider:
How does the right to legal capacity relate to the right to recognition as a person before the law?
What is the role played by ‘respect for will and preferences’ in CRPD Article 12, paragraph 4?
How does CRPD Article 12 compare with CEDAW Article 15? Do both equally guarantee full legal capacity of the group whose rights they are addressing?
What is the difference between support and substitution in the exercise of legal capacity, under CRPD Article 12?
How does the exercise of legal capacity relate to the making of decisions?
What is the difference between formal and informal deprivation of legal capacity?
How do forced psychiatric interventions violate the right to legal capacity?
What does Article 12 say about the question of civil responsibility? What does it say about criminal responsibility?
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Legal capacity and decision-making
WNUSP text proposal on legal capacity*
Dhanda, WNUSP Advocacy Note on Legal Capacity (2pg handout)*
International Disability Caucus Information Note on Legal Capacity (2pg handout)
Minkowitz, The Paradigm of Supported Decision-Making (ppt) (pdf)
Minkowitz, Norms and Implementation of CRPD Article 12 (short article)*
IDA CRPD Forum Principles for the Implementation of CRPD Article 12*
Submissions to the CPRD Committee for General Comment No. 1 (includes a wide range of views by states and civil society, some opposing the core premises of the GC as adopted)
Special Rapporteur on the Rights of PWD, Report on legal capacity and supported decision-making
Bach, Developmental Disability Lecture Series (viewpoint contradictory to perspective taught in this course)
Minkowitz, Equal Legal Capacity or ‘Supported Decision-Making’?*
The Small Places website – includes European Court of Human Rights cases; various law reform projects; NGO and academic materials
Choices – ‘platform on supported decision-making’ – explore site, read anything that interests you
ERC Voices project, storytelling about legal capacity – see in particular Events page and videos from workshops
Minkowitz, CRPD and Transformative Equality (and related articles by others -currently behind paywall, check for updates)
- Questions to consider
What are the roots of Article 12? What are its core premises as advocated by civil society?
What are the relationships between equality, autonomy and support, as part of the right to legal capacity, in the different writings? What is the role of safeguards?
What does it mean to need support to exercise legal capacity, or to use such support?
Are the rights of people who don’t want support protected equally as those who do want it, in Article 12 (and vice versa)?
How can we make sure that the environment for exercising legal capacity and decision-making is conducive to people making this choice freely and without constraint?
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Legal capacity from a survivor perspective
‘What is IPS [Intentional Peer Support]?’ (on IPS website)*
PO-Skåne – personal ombud in Skåne*
Davar, Legal Capacity and Civil and Political Rights for People with Psychosocial Disabilities
Minkowitz, Alternative to Functional Capacity
Minkowitz, Positive Policy to Replace Forced Psychiatry *
Minkowitz, Discernment as Process, Not as Precondition*
- Questions to consider:
How do IPS and PO-Skåne connect with the right to legal capacity? Is it accurate to characterize them as practices of support for decision-making?
How do guardianship and involuntary psychiatric commitment separately and together constrain the lives of people with psychosocial disabilities, especially in a post-colonial context?
Why have survivors of psychiatry emphasized respect for autonomy and privacy, along with egalitarianism relationships and mutuality, in our support work?
What would it mean to adopt a social model of crisis support as support for decision-making, bypassing the mental health system and its concepts of diagnosis and treatment?
What are the respective roles played by cognition and discernment (or judgment) in the exercise of legal capacity?
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Selected country initiatives
Peru’s reform of the Civil Code (2018) – Legislative Decree 1384 original Spanish or English translation with commentary by Sodis* plus earlier reform Ley 29973; see also implementing regulations for mental health law (in Spanish)
Colombia’s law reform (2019), Ley 1996 (in Spanish)
India’s law reform, Rights of Persons with Disabilities Act, sections 12-15 (opposed for retention of ‘limited guardianship’, see Davar article above)
Costa Rica’s law reform, Ley para la Promoción de Autonomía Personal especially articles 2, 5-11, 12-15 and implementing regulations (in Spanish)
Minkowitz, Peruvian Legal Capacity Reform: Celebration and Analysis
National Center for Supported Decision-Making (US) – research library with information about reform initiatives and proposals
- Questions to consider:
What impact can we expect these reforms to have on the rights and lives of people with psychosocial disabilities and victims/survivors of psychiatry?
How well does each of them respond to the core premises of Article 12 as articulated in GC1?
What are the different approaches taken by the drafters of these reforms, and how would you assess their advantages and disadvantages?
Is the right to free and informed consent generally, and with respect to psychiatry, guaranteed as part of these reforms? What pathways might exist to complete the reform of legal capacity in this respect?
What else is omitted or could be improved, in any of the reforms?
**
Newest reform – Mexico
Mexico’s reform of health law (2022) – key provisions on mental health and legal capacity – original Spanish and English translation* plus see also legal capacity reform (2024) Mexico legal capacity reform (paragraphs 445-455) (in Spanish) and official report explaining reform (in Spanish)
CHRUSP Amicus brief to Mexican Supreme Court in case seeking release of everyone detained in a particular institution*
- Questions to consider:
Is Mexico’s health law reform, especially combined with the legal capacity reform, sufficient to legally abolish forced psychiatry?
Is the reform sufficient to make sure the practices will be abolished in practice? What else needs to be in place?
Is it a good approach to use legal capacity combined with health law to abolish forced psychiatry?
**
Archived materials
Fall 2017: Recording of lecture, slides segment 3 fall 2017 rev
Spring 2017: Recording of lecture, slides segment 3 rev and pdf segment 3 rev
Assignment
Write your responses to the questions under each topic.
As we continue to work on revisions to this website, we hope to provide webforms and also forums for you to record your reflections and share them.
Optional activities
- Consider: What is your relationship to legal capacity? Do you take it for granted? Do you want it? Do you have an ambivalent relationship with it? Is it irrelevant to you? What factors have influenced your perspective?
- See if you can find the relevant law or laws on legal capacity in your own jurisdiction (your country or state/province). Which are the laws that you would look for? How will you define the scope of your search, narrowly or broadly to incorporate all areas of law where the concept of ‘mental capacity’ may be used to restrict rights or responsibilities?
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(c) Tina Minkowitz 2020-2024