Dc presentation

7.Cases which demand alternatives to guardianship

So far I have sought to set out some ideas about how we might deliver a knock-out blow to binary systems of guardianship, and how we could cut the cord between deprivation of legal capacity and deprivation/restriction of other human rights areas. This section addresses the role of litigation to support supports. That is, how can litigation encourage or force the State to set up alternatives to guardianship? In his paper, Michael Bach suggests six broad directions for law reform to realize the rights protected under Article 12 CRPD. I’m taking Michael’s framework because I think it’s the most coherently thought through which I have read. I would like to ask whether litigation can help in any of these.

At this stage we are seeking not to dismantle abusive system or ensure safeguards to protect against abuse. We are asking a Court to say something about actually establishing a system. This begs the question whether these sorts of cases should at all be considered in jurisdictions where courts lack broad powers to provide injunctive relied – that is to order the executive to do something, to stop doing something or to refrain from doing something. It will be interesting to hear from US participants who have experiences of courts ordering injunctions which then have to be followed through and are assessed by a Special Master who reports back to the court on progress.
So, can litigation play a significant role even in jurisdictions where courts are not able to order such system reform? I would say yes, for all of the possible uses of strategic litigation I set out above. So, here are Michael Bach’s six areas of law reform:

A) Remove equations of disability with legal incapacity

Michael says:

It is critical to examine and reform provisions in contract, criminal, substitute decision making and other laws to remove any thresholds of legal capacity based on categories of disability or stereotyping language based on disability. Any criteria for recognizing personhood or legal capacity must be based on inclusive, and disability-neutral criteria. Any findings or assessments of incapacity must be definitively disentangled from disability or disability-related ‘causes’; and only a functional, decision-specific test with no reference to disability status or diagnoses must be applied in assessing or finding incapacity or a status of ‘in need of protection.’
How can litigation contribute to this direction? In its Shtukaturov judgment, the ECtHR said the following which is worth citing in full:
93. The Court notes that the District Court relied solely on the findings of the medical report of 12 November 2004. That report referred to the applicant's aggressive behaviour, negative attitudes and “anti-social” lifestyle; it concluded that the applicant suffered from schizophrenia and was thus unable to understand his actions. At the same time, the report did not explain what kind of actions the applicant was unable of understanding and controlling. The incidence of the applicant's illness is unclear, as are the possible consequences of the applicant's illness for his social life, health, pecuniary interests, etc. The report of 12 November 2004 was not sufficiently clear on these points.
94. The Court does not cast doubt on the competence of the doctors who examined the applicant and accepts that the applicant was seriously ill. However, in the Court's opinion the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “of a kind or degree” warranting such a measure […] However, the questions to the doctors, as formulated by the judge, did not concern “the kind and degree” of the applicant's mental illness. As a result, the report of 12 November 2004 did not analyse the degree of the applicant's incapacity in sufficient detail.
While the Court was correct to criticize the superficiality of the medical report, the Court, in my view, does not go far enough. It leaves open the possibility of a doctor writing a thorough medical report convincing a judge that the disorder is of such nature or degree to warrant full deprivation of legal capacity. We need to bring some more cases and persuade the Court that actually no-one needs to be totally deprived of their legal capacity: if someone is so functionally incapacitated why deny them all their rights?
Litigation has not yet begun to pick apart diagnosis from legal capacity in all of the areas which Michael lists. This is also a good example of how vitally important the facts of a case are.

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

Michael says:

Provide for a systemic approach to supports including supports for assisted decision making and development of supported decision-making networks, information and awareness, individual advocacy, and reform of community supports systems.
How can litigation contribute to this direction? As noted at length above, litigation can play a role in dismantling the existing binary guardianship systems which fail to provide a tailor-made approach. Litigators could describe in great detail the sorts of supports which the applicant should have been provided with, and encourage the court to specify in its judgment this sort of new system.
Can litigation achieve anything beyond this? Is there experience which disability litigators can read across from other areas where law has played a part in establishing systems? Can we read across from, for example, right to education cases, right to HIV treatment cases, right to housing cases? To what extent did the availability of resources play a part in securing these positive rights? I have not had time to research these possibilities, and I look forward to hearing especially from lawyers who have litigated these other areas.

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

Michael says:

In order to ensure people access supports to exercise legal capacity in a way that maximizes individual autonomy, it may be helpful to explore a two-step approach to recognizing need for decision-making assistance. The approach would recognize the two types of decision-making status described above (autonomous and supported decision making), both with full legal capacity. In making determinations about whether a person even requires decision-making assistance if another person questions their decision-making capacity, and if so, the status through which a person would best be assisted, the following kinds of questions might be asked.

1. 
   First and foremost, is the person able, with or without, individualized assistance as needed (visual aids, plain language, interpreters, assistance to other parties to understand, etc.), but short of mandated supported decision-making representatives/networks, to communicate his or her will and intention to others sufficient for all the parties to enter into needed legal arrangements and have decisions made consistent with the person’s intentions?
   
2. 
   If not, is the person able to choose a supported decision-making network of trusted support persons/representatives to assist the individual in making decisions and in communicating his/her intentions and personal identity to others.
   

How can litigation contribute to this direction? My view is that courts are only likely to recognise supported decision-making as a status if the legislature has already recognised it. There could be instances where supported decision-making is widely used throughout a jurisdiction, and litigators creatively convince the court that it unconstitutional or contrary to human rights law (under discrimination provisions perhaps? Or reasonable accommodation provisions?) for the state not to have legislated to recognised supported decision-making.

Does this sound ridiculous or is it worth discussing? I look forward to your views!

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

Michael says:

The 2-step approach to recognizing the need for decision-making assistance suggests a related approach for defining the tests of reasonable accommodation.

1. 
   Is the person perceived as able to make and communicate this decision on his/her own, without support (functional test as outlined above)?
   
2. 
   If not, is the person able, with some decision-making assistance, to communicate his or her intention sufficiently for the purposes of this decision/action? If so, what type of assistance is necessary for this purpose?
   

1. 
   Is the person able to communicate his/her intention, with accommodations that are needed to manage this particular decision/act or enter this legal arrangement – like an interpreter, translator, augmentative communication device, communication assistance to other parties – but short of a mandated supported decision-making network/representative?
   
2. 
   If not, is the person able to engage a supported decision-making network/ representatives who will assist in making decisions and communicating the person’s intentions and personal identity to others? Recognition of the role of the supported decision-making network, in a fiduciary relationship with the individual, and assistance in facilitating the development and maintenance of this network is the main accommodation required in this case. Other accommodations in b(i) above may also be needed in this case.
   
3. 
   Have reasonable efforts been made, to the point of undue hardship, to provide these accommodations including – where it is determined that b(ii) accommodations are required – investment in development of valuing personal relationships and personal knowledge that would help establish supported decision-making networks?
   

How can litigation contribute to this direction? Most countries have legislation which prohibits discrimination in various areas. If the decision-making issue (let’s say it’s a healthcare issue) is one which is protected by non-discrimination provisions, then litigators could argue that the failure to provide reasonable accommodation to someone who needs assistance in making a healthcare decision constitutes discrimination. Litigators could rely on the definition of discrimination in Article 2 of the CRPD itself:
“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.
There may be a few hurdles to get around, as the concept of disability-based discrimination in domestic law may well not be as inclusive as the CRPD’s version. But it might be worth a shot. The CRPD uses strong language in demanding that “in order to promote equality and eliminate discrimination”, States must take “all appropriate steps to ensure that reasonable accommodation is provided” (Article 5(3)). Litigators could set out all the steps necessary, and suggest to the Court which ones are “reasonable” for a State to take: I imagine that in deciding which steps are reasonable account should be taken of the resources available to the State. How would this line of argument work in the jurisdiction where you practice?

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

Michael says:

People with disabilities have often been denied the opportunity to enter contractual relationships with others that could advance their social and economic well-being, on the basis that they lack contractual competency. Steps should be taken by States parties and regional institutions to consider reform of statutory provisions, and principles of contract law in the name of assuring ‘freedom of contract’ for people with disabilities. Reforms might include protection of clauses that contract away recourse to a contractual incapacity defense in certain circumstances; representation by third party supported decision-making networks and protection of those representatives from liability for contracts they negotiate on behalf of an individual; and affirmation of capacity for contracting purposes, according to the criteria for personhood and for providing reasonable accommodation for this purpose, as suggested above.
How can litigation contribute to this direction? A person with intellectual disabilities who, for example, wants to enter into a contract with a cable TV company, but is denied because of their intellectual disability, may well have a justiciable claim. Litigation may be able to establish that a person was discriminatorily denied goods or services, but I imagine the litigator would have to present evidence as to the applicant’s functional capacity at the time of seeking to enter into a contract.
Another example might be a couple with intellectual disabilities who want to enter into a mortgage: they (like me) do not understand how mortgages work, and do not understand half of the small print on the regular forms which the bank provides. If they are rejected by the bank because they do not understand the contract and are therefore not in a position to sign it, could they sue the bank for failing to provide reasonable accommodations, which might include easy-to-read provisions, or a member of staff who takes the time and effort to explain everything to them?
I am sure there are lots of other examples, but I am unsure of the extent that litigation could seek to set up supported decision-making schemes where none currently exist. What litigation might be able to do is document a range of ways in which people with disabilities face barriers to accessing goods and services on an equal basis with others because of the quite high bar of contractual capacity one has to reach in order for a contract to be valid. I look forward to your views.

F) Launch pilot initiatives for supported decision making

Michael says:

Much can be learned from pilot initiatives for reform of law, policy and practice. Inclusion International is currently supporting pilot demonstration initiatives for supported decision making in Hungary and India, which are based on its eight-point Agenda for Supported Decision Making outlined in the Foreword to this document. A Pilot Project Design Guide has been created for these initiatives, which is proving helpful in design and implementation. It could be used to replicate projects in other countries.
How can litigation contribute to this direction? I’m pretty sure litigation can’t directly instigate a pilot project, but what it can do is demonstrate the need for such an initiative, and it can use the results of such initiatives to demonstrate that alternatives are possible. In a similar way, MDAC is using the Hungarian civil code reform as an example in our advocacy in other countries in order to demonstrate that reforms are actually possible.
One angle to get a court to suggest a pilot initiative would be to cite
In what other ways can strategic litigation interface with pilot project to demonstrate that supportive decision-making can work in practice?

8.Engaging in broad legal advocacy

A few finishing thoughts. Litigators have to pick cases carefully. This is not always possible, however: clients may come along but their cases may not be ideal: this is a moral conundrum. Some litigators such as UK barristers who are not allowed to turn away cases do not have the luxury of waiting for the ideal factual matrix to come along. On the other hand, clients may simply appear and litigators need to decide whether to represent them and see what transpires (as was the case in Shtukaturov, and look how that case turned out).

Another issue is identifying the case destination. It is not necessarily “good” to bring a case to the ECtHR or the new and untested UN Committee on the Rights of Persons with Disabilities. Domestic courts can be more creative than international courts. They may have greater sensitivity to the context within which a case is brought (but this might work against the applicant). They may be able to provide remedies such as injunctions. They may be able to provide greater sums of compensation than the miserly European Court of Human Rights usually hands out. Domestic victories are more difficult to disseminate internationally. MDAC is in the process of establishing an accessible online database of mental disability litigation complete with summaries of the cases, and links to relevant documents such as the full judgments and the pleadings where available. Please contribute to this knowledge exchange initiative so that we may all benefit.
We ought also to be aware of the possibility provided by the Optional Protocol to the CRPD to bring individual cases to the ComRPD from jurisdictions where that State has ratified the Optional Protocol and the CRPD itself. There is a need to bring cases, so that we start to get some ‘authoritative’ decisions from the expert global body. But there is a risk in relying on this quasi-judicial body which has publicly demonstrated a less than consistent approach to dealing with Article 12 and other issues. On the other hand, bringing cases could force the ComRPD to regroup and focus on substance rather than hold lengthy debates about internal governance and procedures. The ComRPD has pledged to come out with a General Comment on Article 12, a venture which could be a disaster if the ComRPD overestimates States’ dedication to Article 12 reforms, or if it understates the need for reform. My unsolicited view is that it should wait for a few years so that it can draw on promising practices.
Finally, this paper has, I hope, suggested some contours of the Article 12 territory. It has also suggested that litigation can make great headway in nudging States towards Article 12 utopia (whatever that means), but that litigation as a law reform strategy may have its limits, especially in encouraging the establishment of new supported decision-making legislative and practical systems. That litigation may not be the best tool does not mean that litigators need not engage. On the contrary. Litigators need to be out there assisting advocacy NGOs, engaging with disabled people’s organisations, convincing mainstream human rights NGOs to take up CRPD issues, helping to draft policy papers for NGOs and think-tanks, using their positions of authority to meet influential people, talking up their bar associations, informally educating their judge friends about the CRPD, teaching at law schools, writing papers in academic journals and challenging sanist and discriminatory attitudes towards persons labelled as incapable and incompetent.