Dc presentation

3.Legal capacity case clusters

There are very few examples of legal capacity litigation anywhere, and of the few I don’t know about all of them (MDAC is compiling an accessible database on its website which will have summaries of major human rights cases concerning people with intellectual disabilities and psycho-social (mental health) disabilities – please help us with this project by sending any cases you know about – from any time and any place). This subject is a work in progress, and one of the reasons why it’s one of the most exciting contemporary human rights issues to have the privilege to work in. This paper seeks to engage head-scratching litigators by suggesting three clusters of issues which could be subject to litigation in order to contribute to securing a legislative edifice to effectively implement Article 12 of the UN Convention on the Rights of Persons with Disabilities (whatever the provision actually means). I am focusing on strategic litigation, that is the deliberative identification of cases so as to use the judicial branch of the State to put pressure on executive and legislative branches of the State to effectively implement an existing law or to change a law.

I also classify within strategic litigation those cases where litigators do not proactively seek victims, but where the litigants simply appear to the litigators who have an awareness of a great case when they them: this was the situation with Bulgarian attorney Yonko Grozev then of the Bulgarian Helsinki Committee in the case of Varbanov v. Bulgaria and with MDAC Legal Monitor in Russia, attorney Dmitri Bartenev in the case of Shtukaturov v. Russia: both groundbreaking cases.
Legal capacity cases can, I suggest, be split into three clusters:

4. 
   Cases which chip away the guardianship edifice
   

These are cases in which litigators ask the judge to swap gavel for hammer and strike a blow at the monolithic and binary legislative edifice of guardianship. Lawyers do so by framing their claims in hardcore human rights provisions like the right to fair trial, using concepts such as arbitrariness, proportionality and discrimination. These cases include, for example, guardianship orders being granted behind the adult’s back; lack of legally aided lawyer to represent an individual throughout legal capacity court hearings; lack of review of guardian’s (in)actions; legal block on persons under guardianship from challenging neglect or abuse.

5. 
   Cases which disentangle subsequent losses of rights
   

These are cases in which litigators seek to separate the deprivation or restriction of legal capacity from any subsequent loss of rights. Such cases include, for example, those where a guardian can simply decide to place the adult into an institution; where a guardian can provide proxy consent to mental health treatment which the adult clearly does not want; the legal prohibition of voting and standing for election of persons deprived/restricted of legal capacity; legal restrictions on marrying; the taking away of a person’s child as an automatic consequence of that person being stripped of legal capacity; the legal prohibition on working, and – the motivator of most guardianship applications – the prohibition of having any say in how one’s finances are managed.

6. 
   Cases which demand alternatives to guardianship
   

These cases include everything which guardianship is not. That is to say, anything to do with putting in place structures for supported decision-making to happen, and for advance directives to be written and utilized. For example, a person who could benefit from supported decision-making but there is no such system in place in the jurisdiction; a person who wants to plan for future incapacity by way of an advance directive, but these are not legally binding.
There can of course be cases which feature two or all of the above clusters.
I would also like to point out that it is a litigator’s duty to seek a remedy for the client. This may involve negotiations with the authorities or guardian. Many cases can be resolved in this way. Strategic litigation will only happen where there is an almighty conflict, and we need to be aware that it may not be possible to highlight all areas of Article 12 utopia in the courtroom because some issues will get sorted out beforehand. (In fact it is a good thing if parties never reach court, but suggesting this is taboo in the strategic litigation fan club).

4.Article 12: trick or treat?

I am writing this section on Halloween, and apologise therefore that the title will be outdated by the time anyone else reads this. The participants at the first general day of discussion on Article 12 hosted by the UN Committee on the Rights of Persons with Disabilities on 21 October 2009 (see by blog for a blow by blow account) agreed that Article 12 is one of several provisions which could claim to be the beating heart of the Convention. Or to use international treaty law words, the provision speaks directly to the object and purpose of the treaty, which Article 1 tells us is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” I haven’t heard anyone disagree with this proposition.

Before jumping into the courtroom, a sensible first question for a litigator might be to ask him or herself the following question: “What does Article 12 mean?” Strategic litigation is supposed to be a deliberative process which precisely identifies issues and strategically selects the best clients and mechanisms to achieve an exact result in order to create a coherent legal utopia. But what does an Article 12 utopia actually look like? There are a number of perplexing sub-questions. I don’t claim to have the functional capacity to come up with the answers. Luckily Michael Bach, Gerard Quinn and others will be able to weigh in with their thoughts on 13 November. Here are some of the questions:
Does Article 12 allow for a total deprivation of legal capacity and the placement of a person under plenary/total guardianship in any circumstances? (Most people will say “no” to this. But their view is not universally agreed. For the most public opposition view, see Egypt’s interpretative declaration (which is a disguised reservation in my view) which says that Egypt “declares that its interpretation of article 12 [...] which deals with the recognition of persons with disabilities on an equal basis with others before the law, with regard to the concept of legal capacity [in Article 12(2)], is that persons with disabilities enjoy the capacity to acquire rights and assume legal responsibility ('ahliyyat al-wujub) but not the capacity to perform ('ahliyyat al-'ada'), under Egyptian law.”)
Does Article 12 allow partial guardianship in any circumstances? If “yes”, what are the circumstances exactly? If “no”, what does Article 12(4) mean when it talks about measures being subject to regular judicial review?
Article 12(3) says that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” What Are “appropriate measures” as distinct from no measures or inappropriate ones? Does it matter that supported decision-making seems not to be a right at all given that it is phrased as a State obligation to provide access to support? What is the nature of “access”, and how does the concept of reasonable accommodation impact upon such access? What does it mean to “require” support? How can this be assessed? Who or what should do the assessing?
Is it possible for supported decision-making envisioned in Article 12(3) to turn into substituted/surrogate decision-making? If “yes”, does it matter? Can we identify the point at which support becomes substitution? Should we guard against it? Can we guard against it? What should we do when it happens?
Is supported decision-making subject to available resources, and as such classed as an economic, social and cultural rights subject to progressive realisation under Article 4(2) of the CRPD? If “yes”, is better for a person who needs support to be under guardianship or not to be subject to any measure at all? If “yes”, isn’t it true that guardianship systems also require resources? Isn’t it true that a person with disabilities could require support in exercising civil and political rights such as the right to access courts, right to vote, right to marry, right to consent to medical treatment, right to associate, right to decide where and with whom to live?
What does Article 12(4) mean when it talks about safeguards needing to be proportional to the person’s rights and interests? How can you square this with the concept of supported decision-making in which the person’s rights are not supposed to be affected?
There are bound to be questions which I’ve missed. The interpretation of Article 12 has already been challenged on the floor of the UN, and most worryingly by Egypt’s declaration-cum-reservation. In short, is Article 12 a revolution which articulates “new” rights? Or is it an evolution of human rights whose provisions could be inferred from pre-existing human rights instruments?
In the following three sections I will try to address each of the three legal capacity case clusters which I identified above, namely (a) cases which chip away the guardian edifice, (b) cases which disentangle subsequent loss of rights, and (c) cases which demand alternatives to guardianship.