Dc presentation

How can strategic litigation play a role

in nudging States towards legal capacity utopia?

A preliminary ideas paper for discussion on 13 November 2009 at the seminar on disability litigation in Washington DC, organised by the Mental Disability Rights International, the Open Society Institute and the American University.

Accompanying handouts

• 
  Judgment by the European Court of Human Rights in the case of Shtukaturov v. Russia, Application no. 44009/05, judgment 27 March 2008.
  
• 
  Judgment by the European Court of Human Rights in the case of Salontaji-Drobnjak v. Serbia, Application no. 36500/05, judgment 13 October 2009.
  
• 
  MDAC amicus curiae brief and the Court’s Statement of Facts in the European Court of Human Rights case of Kedzior v. Poland, Application no. 45026/07.
  

Oliver Lewis

Executive Director

Mental Disability Advocacy Center

Rákóczi út 27/B

H-1088 Budapest

Hungary
Tel: [phone]

Fax: [phone]

Email [e-mail]

Website www.mdac.info

31 October 2009
Table of Contents

1. Executive Summary 5

2. A long-winded disclaimer 6

1. How quickly things have changed 7

2. Yet how entrenched attitudes still are 8

3. Legal capacity case clusters 9

4. Article 12: trick or treat? 10

5. Cases which chip away the guardianship edifice 12

A person was deprived/restricted of legal capacity because of insufficiently clear and specific (or unacceptably wide) bases for filing an application. 12

A person was deprived/restricted of legal capacity due to psychiatric report but the law is unclear about the type and quality of evidence needed for a deprivation/restriction of legal capacity. 12

A person was deprived/restricted of legal capacity in proceedings where the judge accepted an doctor’s conclusion that the adult was “too mentally ill” to be present in the courtroom. 12

A person was deprived/restricted of legal capacity but received no (or useless, e.g. he received a letter but he can't read) notification about the pending court hearings. 12

A person was deprived/restricted of legal capacity but was not given access to information about all proceedings related to the procedure. 12

A person was deprived/restricted of legal capacity but played no part in the court proceedings. 12

A person was deprived/restricted of legal capacity and was present at the court hearings and wanted to – but was precluded from – presenting evidence (including own testimony) and challenging evidence presented against him/her. This would include the possibility of calling all expert witnesses who submit a report so that the conclusions can be vigorously scrutinized. 12

A person was deprived/restricted of legal capacity in proceedings where there was no legal representation paid for by the State. 12

A person was deprived/restricted of legal capacity and a guardian was appointed, but the adult’s opinion about the choice of guardian was given insufficient weight. 12

A person was deprived/restricted of legal capacity and a guardian appointed, but the guardian is a person with a conflict of interest (such as directors of social care institutions), and there is no effective procedure for assessing and preventing and remedying such conflicts of interest. 12

A person was deprived/restricted of legal capacity and has no effective appeal mechanism to challenge the guardianship (e.g. in Russia the adult has a mere ten days after the court sends notification, irrespective of when the adult actually finds out!) 12

A person was deprived/restricted of legal capacity and is appointed a guardian but there is no effective procedure for the adult to challenge the appointed guardian (e.g. the guardian may be a sexually abusive father). 12

A person was deprived/restricted of legal capacity and the guardian makes all decisions, but never visits or speaks with the adult before taking decisions. 12

A person was deprived/restricted of legal capacity and wants to complain about their guardian's (in)actions but there is no effective complaints mechanism. 13

A person was deprived/restricted of legal capacity but feels that the criteria for being so deprived/restricted are not met; wants to apply to court to regain legal capacity, but there is no such procedure, or it is ineffective. 13

What are the sister provisions in various jurisdictions where these arguments could be deployed? I could well imagine, for example, a read across into “dignity”, “integrity” or “personality” if those are directly justiciable in your jurisdictions. In the ECHR context litigators will subsume these sorts of concepts under Article 8 ECHR. 14

Another question: 15

In your jurisdiction, what arguments would you use to demonstrate that plenary/total guardianship is a violation of human rights? 15

What other legal arguments could we muster to chip away at the arbitrary nature of guardianship? Are there examples from other regions, or from domestic courts which would snugly fit into the litigator’s toolbox? 17

Does the concept of “reasonable accommodation” add to regular human rights arguments, or is a distraction? What advantages might there be in arguing that reasonable accommodation duties (as specified in Article 5(3) of the CRPD) extend to courtrooms and procedures related to legal capacity? 17

Is Article 13 of the CRPD wider than its sister provision, Article 6(1) of the ECHR? If so, how? 18

6. Cases which disentangle subsequent losses of rights 18

Right to work, protected under Article 8 ECHR – see Sidabras and Dziautas v. Lithuania, Application no. 55480/00, judgment 27 July 2004. 19

Right to associate, protected under Article 10 ECHR. 20

Right to marry and found a family – as protected under Article 12 ECHR (right to marry and found a family) as well as Article 8 ECHR (right to respect for private and family life, home and correspondence). 20

Right to establish and develop relationships – as protected under Article 8 in case-law which has said that “respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings” (see Niemietz v. Germany, (1992) 16 EHRR 97, para. 29). 20

Right to consent to or refuse mental health treatment (or any other treatment, for that matter) – as protected under Article 8 ECHR (“a person’s body concerns the most intimate aspect of private life. A compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right [to privacy]” Y.F. v. Turkey, Application no. 24209/94, judgment 22 July 2003, para. 33.) 20

Right to access remedies – as protected under Article 13 ECHR (Frustratingly, the ECtHR tends to decline to say much under Art. 13 when it can say it under Art. 6, but the provision remains a relevant one). 20

Right to vote – as protected under Art. 3 of Protocol No. 1 to the ECHR. 20

What strategies have been successful in limiting the range of rights which are compromised by a person being deprived or restricted of legal capacity? 21

What sorts of information do litigators require in order to frame arguments? 21

Do litigators need evidence that the individual is “capable” to exercise a certain right to support the assertion that that right should be restored? If yes, to what extent could it be said that we are refining the wedge rather than challenging the discrimination? 21

7. Cases which demand alternatives to guardianship 22

A) Remove equations of disability with legal incapacity 22

B) Ensure access to needed supports to demonstrate and exercise personhood and legal capacity 23

C) Recognize different decision-making statuses through which legal capacity is exercised 24

D) Provide for ‘reasonable accommodations’ in provision of decision-making assistance 24

E) Take steps to enhance and protect freedom of contract for people with disabilities 25

F) Launch pilot initiatives for supported decision making 26

8. Engaging in broad legal advocacy 28

1.