Academic Articles

The following are a selection of abstracts or summaries of articles and reports concerning legal capacity:

A. General

1. People like That: Realising the Social Model in Mental Capacity Jurisprudence, Medical Law Review (2014)

Article written by B Clough and published in Medical Law Review (2014, Volume 23 Issue 1)

Through critical analysis of the law’s traditional response to mental disorders in mental health and mental capacity law, it will be argued that a medicalised model of disability has been predominant, and still permeates jurisprudence in this area. It will be suggested that insights from the social model and relational understandings of rights can highlight the ways in which wider contextual and structural relations can impact upon the lived experience of mental impairment. Moreover, an understanding of the various dimensions of mental illness can help elucidate how the law can respond effectively to structural, institutional, and contextual factors in order to facilitate the enjoyment of purported rights and values. In light of this, it will further be argued that the lingering precedence given to a narrow, medical view of cognitive impairment is outmoded given the more richly textured understanding of cognitive impairments which has recently emerged. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) has harnessed the insights from the social model of disability and the capabilities approach to justice, and will be presented as the legal articulation of such understandings. This article seeks to build upon these understandings of disability and social justice and argue for the need for a more responsive state and judiciary in addressing the concerns highlighted by the UNCRPD and embedding these into judicial discourse.

Citation: B Clough, People like That: Realising the Social Model in Mental Capacity Jurisprudence, Med Law Rev (2014) 23 (1): 53-80

2. Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future (2007)

Article written by Amita Dhanda and published in Syracuse Journal of International Law and Commerce (2007, Volume 34 Issue 2)

This article examines how the legal capacity of persons with disabilities is constructed in national legislations across jurisdictions, the reform efforts that have been initiated to offset some of the obvious disadvantages of these laws, and the limitations of these reform efforts. It then goes on to examine how the issue of legal capacity was deliberated upon in the Ad Hoc Committee and the different kinds of texts and reasoning that evolved from the First to the Eighth Sessions of the AdHoc Committee. It then looks at the final text and examines how the dynamic of the deliberations has influenced the content of the text. It is this dynamic that explains the conservative strangleholds that have attempted to be placed on a forward looking text. The indefensible nature of these constraints can be seen upon examining the relationship between legal capacity and the other articles of the Convention. The article concludes by expanding on the interpretation that should be accorded to the provision on legal capacity, in the light of the entire text of the Convention, and the measures that States would need to initiate to fulfill the mandate of ensuring full legal capacity of all persons with disability.

Citation: Amita Dhanda, Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future, 34(2) Syracuse J. Int’l L. & Com. 429 (2007)

3. Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making (2012)

Article written by Robert D. Dinerstein and published in Human Rights Brief (2012, Volume 19 Issue 2)

After providing some background on Article 12 and  its  relationship  to  core  values  immanent  in  the  CRPD  as  a  whole, the article sets out some of the characteristics of guardianship — the primary  form  of  substituted  decision  making  employed  around  the  world  —  and  its  alternatives.  It  then  explores  the  concept  of  supported  decision  making  and  some  of  the  ways  in  which  it  has, or might function. Finally, the article discuss some of the beginning efforts to come to terms with the meaning of supported decision making in which States Parties, non-governmental organizations, and the Committee on the Rights of Persons with Disabilities are engaged.  Early  indications  are  that  there  continues  to  be  substantial confusion, at least on the part of States Parties, over the meaning  of  supported  decision  making,  to  say  nothing  of  the  fitful process some countries are experiencing  in  changing  their  laws  to  provide  for  this  form  of  assistance  to  individuals  with  disabilities.  The article  will  conclude  with  some   observations   about   steps   people  with  disabilities,  NGOs,  policy-makers,  and  others  might  take to hasten States’ embrace of supported  decision  making  and  make the exciting promise of the CRPD  a  reality  for  people  with  disabilities.

Citation: Robert D. Dinerstein, Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making,Human Rights Brief 19, no. 2 (2012): 8-12

4. Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond (2012)

Article written by Kristin Booth Glenn and published in Columbia Human Rights Law Review (2012, Volume 44)

This Article maps the paradigm shifts in society’s view of incapacity and the law’s responses through guardianship, and now, potentially, its abolition. For each paradigm shift, it briefly describes some of the social and political changes that contributed to the shift. The article also briefly traces the roughly contemporaneous growth of an international human rights discourse and the use of United Nations machinery by disability advocates and persons with disabilities to enact the CRPD. It then describes the various legal and practical efforts to  create and honor supported decision-making for such persons currently in effect, surveying supported decision-making laws in Europe and North America. Lastlyly it describes the CRPD’s mandate for change, the structural innovations it incorporates to accomplish that end, and the “next steps” on the abolition of guardianship being taken by countries that have-and have not yet-ratified the CRPD.

Citation: Kristin Booth Glenn, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond, 44 Colum. Hum. Rts. L. Rev. 93 2012-2013

5. Navigating the ‘Flashing Amber Lights’ of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities:Responding to Major Concerns (2015)

Article written by Piers Gooding and published in Human Rights Law Review (2015, Volume 15 Issue 1)

In recent years, the enumeration of the right to legal capacity in the United Nations  (UN)  Convention  on  the  Rights  of  Persons  with  Disabilities (CRPD)  has  caused  considerable  controversy.The  adoption of  General Comment  No.  1  by  the  UN  Committee  on  the  Rights  of  Persons  with Disabilities (‘CRPD Committee’) in April 2014 sheds new light on major debates  in  the  field,  particularly  regarding  implementation  measures  to fulfil  the  obligation  of  States Parties to  provide  people  with  disabilities with  ‘support  to  exercise  legal  capacity’  on  an  equal  basis  with  others. This interpretive guidance builds upon the CRPD framework for achieving equal   recognition   before   the   law   for   people   with   disabilities.Yet commentators  have  criticised both  the CRPD  Committee’s  interpretation and the  enumeration  of  Article  12 in  the  CRPD itself, as wanting  in  key respects.This  article draws  on  the  General  Comment No.  1 to  list  and respond to  major  concerns  raised  about the  obligation  of  States  Parties to provide people with disabilities the support they may require in exercising their legal  capacity.The  list of  concerns  and  counter-arguments  are  set against a broad range of implementation measures from domestic law and policy from around the world.

Citation: Piers Gooding, Navigating the ‘Flashing Amber Lights’ of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities:Responding to Major Concerns, Human Rights Law Review, 2015, 15(1), 45–71

6. Advancing Legal capacity jurisprudence (2011) 

Article written by Oliver Lewis and published in European Human Rights Law Review (2011, Issue 6)

This article addresses the role of strategic litigation of the right to legal capacity of people with disabilities. It places legal capacity within an international human rights law framework and sets out how it is particularly resonant in the context of disability where its withdrawal leads to arbitrary removal of rights such as the right to property, health care decision-making, working and voting. The article examines art. 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), a treaty which, at the time of writing, has been signed by all 27 Member States of the European Union and ratified by 18. In addition, the EU has acceded to the Convention, the CRPD being the first UN human rights treaty that has provided this opportunity. The author provides a review of European jurisprudence in the area of  legal capacity and suggests that litigation can play a valuable role in highlighting the wrongs in guardianship systems, and opening up areas for advocacy and law reform.

Citation: Oliver Lewis, Advancing Legal capacity jurisprudence, (2011) European Human Rights Law Review, 6, 700-714

7. Mental health law and the UN Convention on the rights of persons with disabilities (2014)

Article written by G. Szmukler, Rowena Dawb, Felicity Callar and published in International Journal of Law and Psychiatry (2014, Volume 37 Issue 3)

The article argues that a form of mental health law, such as the Fusion Law proposal, is consistent with the principles of the CRPD. Such law is aimed at eliminating discrimination against persons with a mental illness. It covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness, and only allows involuntary treatment when a person’s decision-making capability (DMC) for a specific treatment decision is impaired — whatever the health setting or cause of the impairment — and where supported decision making has failed. In addition to impaired DMC, involuntary treatment would require an assessment that such treatment gives the person’s values and perspective paramount importance.

G. Szmukler, Rowena Dawb, Felicity Callar, Mental health law and the UN Convention on the rights of persons with disabilities, International Journal of Law and Psychiatry 37(3) (2014) 245–252

8. The Support Model of Legal Capacity: Fact,Fiction, or Fantasy? (2014)

Article written by Elionoir Flynn and Anna Arstein-Kerslake and published in Berkeley Journal of International Law (2014, Volume 32 Issue 1)

This article explores  a  plausible  legal  framework  within  which  to ground   a   support   model   of   legal   capacity   and   fully   replace   regimes   of substituted decision-making. The authors ground their argument in the lived experience of people  labeled  with  a  disability.  The article  focuses  particularly  on  individuals  with cognitive  disabilities,  as  they  are  generally  more  likely  to  have  their  decision-making  ability  called  into  question,  and  consequently,  to  have  their  legal capacity   denied.   However,   the article  claims   that   such   a   system   of   support   will ultimately  benefit  all  individuals,  not  just  persons  with  disabilities.  The  article further  examines  reform  efforts  underway  and  the  contributions  of  legislative change  and  judicial  activism.  Since  the  entry  into  force  of  the  CRPD,  many countries have begun to reform their laws on legal capacity. While significant challenges remain to ensure the full replacement of  substitute  decision-making  regimes,  international  developments  are  clearly  trending  towards  the  recognition  of  support  to exercise legal capacity.

Citation: Elionóir Flynn, Anna Arstein-Kerslake, The Support Model of Legal Capacity: Fact,Fiction, or Fantasy?, 32(1) Berkeley J. Int’l Law.124 (2014)

B. By region

a. Asia-Pacific

China

1. Guardianship of the Elderly with Diminished Capacity: The Chinese Challenge (2015)

Article written by Rebecca Lee and published in International Journal of Law, Policy and the Family (2015, Volume 29 Issue 1)

China’s elderly, traditionally revered, are now a forgotten population amid the nation’s rapid economic development. Stories of caregiver neglect, financial exploitation, physical and psychological abuse and neglect are not uncommon. The country’s one-child policy, implemented in the 1970s, has drastically changed its demography and traditional family structure. Responding to the ageing challenge has become an imminent task for China. This article examines critically the adult guardianship laws in China, which were modernized in 2013 as part of the reforms on elder law. First, it seeks to show that Confucian values are rooted in guardianship provisions in China. However, the deficiencies of the existing law to respond to the ageing challenge are also apparent as a consequence. It then goes on to discuss how, against a background of diminishing significance of the Confucian ethic of responsibility in China, recent reforms have attempted to preserve and enrich the Confucian tradition. Ultimately, the challenge facing China is not merely one of devising an adult guardianship system to protect the elderly, but also lies in her attempt to reinvigorate Confucianism with modern relevance.

Citation: Rebecca Lee, Guardianship of the Elderly with Diminished Capacity: The Chinese Challenge, International Journal of Law, Policy and the Family, Vol. 29, Issue 1 (April 2015), pp. 1-14

b. America

Canada

1. Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN Disability Rights Convention (2014)

Written by Nicholas Caivano and published in Western Journal of Legal Studies (2014, Volume 4 Issue 1)

During the negotiations leading up to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), States Parties vigorously debated the scope of Article 12, which establishes legal capacity for persons with disabilities “on an equal basis with others in all aspects of life.” The ambiguity of Article 12 has led to many interpretations that have been the subject of debate among human rights activists and academics. Developments in the jurisprudence and legislative reforms across several jurisdictions indicate that governments and courts have begun to grapple with what recognizing the right to legal capacity for persons with disabilities requires. The purpose of this paper is to examine whether Article 12 imposes an obligation on States Parties to use supported decision-making as an alternative to substituted decision-making, the system in place in most jurisdictions throughout the world. It is argued that the drafters of Article 12 intended to set out a strong presumption of capacity and to permit substituted decision-making only in rare circumstances.This paper uses Canada as an example of a jurisdiction that will need to contend with the legislative implications of Article 12 in light of its existing domestic laws.

Citation: Caivano, Nicholas, Conceptualizing Capacity: Interpreting Canada’s Qualified Ratification of Article 12 of the UN Disability Rights Convention, (2014) 4:1 UWO J Leg Stud 3

c. Africa

South Africa 

1. Equal Recognition and Legal Capacity for Persons with Disabilities: Incorporating the Principle of Proportionality (2014)

Article written by Willene Holness and published in South African Journal on Human Rights (2014, Volume 30 Issue 2)

The new approach to legal capacity legislation promoted by the Convention on the Rights of Persons with Disabilities is that all persons with disabilities have full legal capacity on an equal basis with others, but may require support in making certain decisions. Any restrictions on legal capacity must accordingly incorporate safeguards in line with art 12(4) of the Convention, including that the restriction must be tailored to the individual’s circumstances and must be proportional to his or her needs. The South African Law Reform Commission has embarked on law reform in this regard and has recommended the Assisted Decision-making Bill to provide for support measures as an alternative and parallel measure to the current curatorship system. Proportionality is not only a standard of judicial review to ascertain whether a legislative measure justifiably limits the right to equality and legal capacity. It is also a principle that must guide any person that provides support to a person with a disability who cannot make decisions independently to ensure that whatever support is provided to him or her to come to a decision regarding his or her welfare or finances, remains proportional to his or her circumstances and needs. The support must not be overbroad, must not negate the autonomy of the person, and even in hard cases, the will and preferences of the person must be sought. The Assisted Decision- making Bill does not sufficiently incorporate the principle of proportionality and other safeguards and will require revision.

Citation: Willene Holness, Equal Recognition and Legal Capacity for Persons with Disabilities: Incorporating the Principle of Proportionality, 30(2) S. Afr. J. on Hum. Rts. 313 (2014)