In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate (...) the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate (...) the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

People with cognitive impairments often have difficulties formulating, understanding, or articulating decisions that others judge reasonable. The frequent response shifts decision-making authority to substitutes through advance directives of the person or guardianship orders from a court. The Convention on the Rights of People with Disabilities defends supported decision-making as an alternative to such forms of supplanted decision-making. But supported decision-making raises both metaphysical questions—what is required for a decision to be the person’s own?—and epistemological questions: how do we know what (...) persons judge to be their good, when they have difficulty conceptualizing and articulating? It raises practical questions, too, such as protection against risks of exploitation. This article uses a non-discrimination account of legal personhood drawn from the CRPD to explore how common features of decisions employed by people without cognitive disabilities are important in supported decision-making too. These features include prostheses, guardrails, relationships, and social contexts. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate (...) the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate (...) the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

In the Spring and Summer of 2014, a group of experts convened a series of meetings at the Westminster headquarters of the UK Ministry of Justice in order to determine whether the Mental Capacity Act 2005 complies with the United Nations Convention on the Rights of Persons with Disabilities. The meetings were organised by the research team of the Essex Autonomy Project, a research and public policy initiative funded by the Arts and Humanities Research Council and based at the University (...) of Essex. The working group included civil servants from the MoJ, the Office of the Public Guardian, and the Department of Health, as well as the Official Solicitor, a senior judge of the Court of Protection, leading academic experts from psychiatry, law and ethics, and representatives of user-group organisations. In September 2014, the EAP research team reported to the MoJ on its findings. This article summarises some of the key arguments and conclusions of that report. Both the report itself and this article represent the views of their respective authors; they should not be taken to represent the views of the MoJ, the AHRC, or the other participants in these consultations. (shrink)

It is widely accepted among medical ethicists that competence is a necessary condition for informed consent. In this view, if a patient is incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient. We call this the competence model. According to a recent report of the United Nations (UN) High Commissioner for Human Rights, article 12 of the UN Convention on the Rights of (...) Persons with Disabilities (CRPD) presents a wholesale rejection of the competence model. The High Commissioner here adopts the interpretation of article 12 proposed by the Committee on the Rights of Persons with Disabilities. On this interpretation, CRPD article 12 renders it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired decision-making capacity and demands the replacement of all regimes of substitute decision-making by supported decision-making. In this paper, we explicate six adverse consequences of CRPD article 12 for persons with mental disabilities and propose an alternative way forward. The proposed model combines the strengths of the competence model and supported decision-making. (shrink)

The 2008 UN Convention on the Rights of Persons with Disabilities (CRPD) provides a landmark articulation of the universality of human rights. It affirms in strong terms that all human beings have a claim to full inclusion and equal participation in society, something denied to many because of disability. The CRPD is an ambitious document with far-reaching and fundamental implications. This interdisciplinary collection of essays takes up pressing philosophical, legal, and practical issues raised by the CRPD and (...) the ongoing process of its implementation. Combining clear legal and philosophical overviews with ground-breaking conceptual analyses, the collection aims to advance the academic debate about human rights and disability and to serve as a useful resource for policymakers, ethicists, disability activists, jurists, and all those interested in the human rights of persons with disabilities. With contributions by Jackie Leach Scully, Marcus Düwell, Jenny Goldschmidt, Sigrid Graumann, Caroline Harnacke, Jan Vorstenbosch, Esther van Weele, Joel Anderson, Jos Philips. (shrink)

Disability laws are crucial in ensuring a life of dignity for persons with disabilities. However, they remain limited and ineffective in the absence of adequate knowledge and awareness of the experiences with disability. The limitedness of disability laws has been spoken of in cases where the full realization of rights is subject to technological, philosophical, and market dynamics. In many cases, the law is also weakened by negative cultural beliefs and social perceptions of disability. And then there are cases where (...) disability laws perpetuate or tolerate oppression and violence. Despite their limitedness, disability laws offer normative content to facilitate engagement and critique for reform. In terms of what disability laws ‘ought’ to be, scholars write, that they should be about disabled people and the meanings provided by them. This objective has and can be fulfilled with the aid of disability studies that go beyond the inquiries of law with the right kind of research tools to theorize and re-theorize concepts and meanings about disability. Disability studies, in other words, represent the living conditions of disabled persons and the questions of how disability and/or impairment should be defined. This chapter examines the interaction between disability law and disability studies through the prism of the Convention on the Rights of Persons with Disabilities (CRPD). While discussing the models of disability (medical, social, human rights, and relational-community models) and agendas for reforming the CRPD, the chapter highlights the importance of new concepts and approaches. Further, the potential of disability laws, CRPD in particular, has been discussed keeping in mind the application of its core principles across different sectors (with a special focus on the Marrakesh treaty and copyright laws). (shrink)

National, European, and international institutions should implement social policies to help the persons with disabilities. Strategic sectors include education, training, and work, with the equal protection of the laws. In addition, this essay is focused on another crucial “sector" that is part of the primary law, which include tourism along with public transportation and non-discrimination. In conclusion, legislators, and public institutions, as well as transport companies must comply the principles of accessibility, equality, and social justice for the social inclusion of (...) persons with disabilities. (shrink)

The increasing focus on disability rights—as found, for instance, in the U.N. Convention on the Rights of Persons with Disabilities —challenges philosophical imaginaries. This article broadens the philosophical imaginary of freedom by exploring the relation of dependence, independence, and interdependence in the lives of people with disabilities. It argues that traditional concepts of freedom are rather insensitive to difference within humanity, and that the lives of people with severe disabilities challenge philosophers to argue and conceptualize freedom not only as independence (...) and interdependence but also as dependence. After tracing this need through a Hegelian understanding, via Julia Kristeva's work on disability, and finally the CRPD, it concludes that a unified solution might not be possible. Hence, it argues that disability issues necessitate philosophical modesty. (shrink)

Good communication between healthcare providers and patients is vital to effective healthcare. In order to understand patients’ complaints, make accurate diagnoses, obtain informed consent and explain treatment regimens, clinicians must communicate well with their patients. This can be challenging when treating patients from unfamiliar cultural backgrounds, such as the Deaf. Not only are they a linguistic and cultural minority, they are also members of the world’s largest and oft-forgotten minority group: the disability community. Under Article 25 of the United Nations (...) Convention on the Rights of Persons with Disabilities, persons with disabilities have rights to the same range, quality and standard of free or affordable healthcare and programmes as provided to other people. Yet communication barriers and healthcare providers’ lack of familiarity with Deaf culture can impair the quality and accessibility of healthcare for the Deaf. This essay analyses the scope of this issue in Singapore: a state party to the CRPD which has a vibrant Deaf community, and yet no legislative or constitutional guarantees of the rights of persons with disabilities. In addition to exploring the communication barriers faced by Deaf patients in Singapore, this essay highlights ways in which healthcare providers and the state can support community-based initiatives to overcome these barriers. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential role (...) in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention. (shrink)

Article 12 of the UN Convention on the Rights of Persons with Disabilities guarantees persons with disabilities?the right to legal capacity on an equal basis with others in all aspects of life.? In its General Comment on Article 12, the Committee on the Rights of Persons with Disabilities claims that this guarantee necessitates the abolition of the world?s dominant approach to mental capacity law. According to this approach, when a person lacks the mental capacity to make a particular legal decision (...) at the material time, the state authorizes a third-party to make it on her behalf. The Committee declares such substituted decision-making a violation of the Convention?s guarantee of legal capacity on an equal basis, and therefore demands it be replaced by an allegedly non-discriminatory alternative called supported decision-making. This paper argues that we should reject the Committee?s demand in its current form, because the most influential version of the new approach to supported decision-making suffers from serious conceptual flaws that make it inferior to the mental capacity approach. However, I then argue that the Committee?s demand stems from a legitimate ethical concern with respect and equality that ought to inform the CRPD's implementation process. (shrink)

Article 12 of the UN Convention on the Rights of Persons with Disabilities guarantees persons with disabilities ‘the right to legal capacity on an equal basis with others in all aspects of life.’ In its General Comment on Article 12, the Committee on the Rights of Persons with Disabilities claims that this guarantee necessitates the abolition of the world's dominant approach to mental capacity law. According to this approach, when a person lacks the mental capacity to make a particular legal (...) decision at the material time, the state authorises a third-party to make it on her behalf. The Committee declares such substituted decision-making a violation of the Convention's guarantee of legal capacity on an equal basis, and therefore demands it be replaced by an allegedly non-discriminatory alternative called supported decision-making. This article argues that we should reject the Committee's demand in its current form, because the most influential version of the new approach to supported decision-making suffers from serious conceptual flaws that make it inferior to the mental capacity approach. However, I then argue that the Committee's demand stems from a legitimate ethical concern with respect and equality that ought to inform the CRPD's implementation process. (shrink)

Law 49/2018, of August 14, created the Portuguese legal regime of the assisted decision-making (capacity), thus eliminating the legal institutes of interdiction and disqualification, provided for in the Civil Code (CC). The aim of this legal regime was to embed a new vision of disability based on a model of rights, that grants people with disabilities an independent and autonomous life and reflects the acceptance of the International Convention on the Rights of Persons with Disabilities (CRPD) guidelines. This paper (...) intends to discuss the ‘new’ Portuguese legal system regarding the legal capacity of persons with disabilities and its role in valuing the expression of the real will of people with disabilities. (shrink)

RESUMEN: Este trabajo considera la conceptualización y aplicación de la figura de los ajustes razonables en Qatar tras nueve años desde la ratificación de la Convención sobre los Derechos de las Personas con Discapacidad (CDPD). En él se trata de analizar la situación de igualdad y no discriminación de las personas con discapacidad utilizando como medida de impacto la figura de ajustes razonables. El artículo destaca las principales fallas y virtudes del Estado de Qatar respecto a esta figura y traza (...) un camino a fin de poder avanzar en la inclusión de las personas con discapacidad a la luz de la CDPD. ABSTRACT: This paper considers the conceptualization and application of reasonable acommodation in Qatar after nine years since the ratification of the Convention on the Rights of Persons with Disabilities (CRPD). It analyzes the situation of equality and non-discrimination of people with disabilities using the figure of reasonable adjustments as an impact measure. The article highlights the main failures and virtues of the State of Qatar regarding reasonable accommodation and draws a path to move forward in the inclusion of people with disabilities in the light of the CRPD. PALABRAS CLAVE: ajustes razonables, igualdad, CDPD, Qatar. KEYWORDS: reasonable accommodation, equality, CRPD, Qatar. (shrink)

I explore the usefulness of Martha Nussbaum's capabilities approach in regard to the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD aims at empowering people with disabilities by granting them a number of civil and political, but also economic, social and cultural rights. Implementing the CRPD will clearly be politically challenging and also very expensive for states. Thus, questions might arise as to whether the requirements set in the CRPD can be justified (...) from an ethical perspective. I will first investigate if Nussbaum's capabilities approach provides support for the rights claimed in the CRPD. Second, I will investigate to what extent Nussbaum's capabilities approach is a useful tool to set priorities among rights in the course of the implementation of the convention. This is an urgent question because seen realistically, it will not be possible to realize all rights at once and thus some rights need to receive greater priority than others. I will argue that the capabilities approach can be regarded as supporting the rights specified in the CRPD, but that it proves unable to guide the implementation process due to an insufficient grounding of the capabilities. Employing the capabilities approach thus leads to only limited results. (shrink)

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons with disabilities. (...) The contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD. (shrink)

In this paper, I offer a solution to the Capacity/Equality Puzzle. The puzzle holds that an account of the franchise may adequately capture at most two of the following: (1) a political equality-based account of the franchise, (2) a capacity-based account of disenfranchising children, and (3) universal adult enfranchisement. To resolve the puzzle, I provide a complex liberal egalitarian justification of a moral requirement to disenfranchise children. I show that disenfranchising children is permitted by both the proper political liberal and (...) the proper political egalitarian understandings of the relationship between cognitive capacity and the franchise. Further, I argue, disenfranchising children is required by a minimalistic, procedural principle of collective competence in political decision-making. At the same time, I show that political equality requires the enfranchisement of all adults, regardless of cognitive capacities, and that the collective competence principle does not ground adult disenfranchisement. This justifies the progressive legal trend that holds the capacity-based disenfranchisement of adults to be incompatible with liberal democratic principles. (shrink)

The UN Convention on the Rights of Persons with Disabilities (CRPD) was passed in 2006 and came into force in 2008. It sets out a number of core values, including dignity, individual autonomy, non-discrimination, participation and community inclusion. Although the CRPD has been recognised as an important step forward by many disabled people and their supporters and provides the foundation for building a good life, the author argues that it does not necessarily equate with it. The underpinning Western (...) values of choice, independence and control are important, but leave out groups of marginalised people for whom these goals may not be achievable. They also present challenges and dilemmas for those involved in supporting/caring roles. In this paper, the author reflects on the implications of the CRPD for the lives of people with learning disabilities, in particular those with profound needs and explores whether it provides a genuinely coherent framework for an inclusive society. (shrink)

This contribution explores disability rights protection in Inter-American States within the framework of the OAS and in the context of the obligations established under the CIADDIS and the CRPD. Following the classical division between ‘primary’ and ‘secondary’ rules, the contribution first sketches key regulatory initiatives in the area of disability rights and second considers compliance and enforcement mechanisms. Along these lines, the first section illustrates similarities and differences between the CIADDIS and the CRPD and, within this framework, essential (...) regional regulatory initiatives. The second section assesses disability rights in select countries, based on periodic reports under the CIADDIS and CRPD. The section examines the four largest countries by population in the region, notably, the United States of America (US), Mexico, Brazil and Colombia. The third section explores the enforcement of disability rights via key cases before the Inter-American Commission on Human Rights (IAComHR) and the Inter-American Court of Human Rights (IACtHR). The purpose is providing a comprehensive understanding of disability rights in the region and identifying key regulatory problems and ways forward. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities, adopted on December 13, 2006, and entered into force on May 3, 2008, constitutes a key landmark in the emerging field of global health law and a critical milestone in the development of international law on the rights of persons with disabilities. At the time of its adoption, the U.N. High Commissioner for Human Rights heralded the CRPD as a rejection of the understanding of persons with disabilities “as (...) objects of charity, medical treatment and social protection” and an embrace of disabled people as “subjects of rights.”The text of the Convention itself, and the highly participatory process by which it was negotiated, signal a definitive break from previous international approaches that focused on disability within a medical model framework. In contrast to traditional approaches, the CRPD embraces a social model of disability, concentrating the disability experience not in individual deficiency, but in the socially constructed environment and the barriers that impede the participation of persons with disabilities in society. (shrink)

This article reviews the contributions of the UN Convention on the Rights of Persons with Disabilities to the progressive development of both international human rights law and global health law and governance. It provides a summary of the global situation of persons with disabilities and outlines the progressive development of international disability standards, noting the salience of the shift from a medical model of disability to a rights-based social model reflected in the CRPD. Thereafter, the article considers the Convention's (...) structure and substantive content, and then analyzes in specific detail the particular contributions of the Convention to health and human rights law and global health governance. It concludes with an exploration of the potential implications of the CRPD's innovations for some of the most pressing issues in global health governance, including the Convention's contributions to the principle of participation in decision-making. (shrink)

The World Health Organization (WHO) has identified mental health as a priority for global health promotion and international development to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements — in particular, disabled persons' organizations (DPOs). These tensions come into focus upon situating the WHO's mental health policy initiatives in (...) light of certain controversies arising under the Convention on the Rights of Persons with Disabilities (CRPD), particularly as it applies to persons with mental (psychosocial) disabilities. I examine two such controversies — concerning, respectively, the legitimacy of involuntary psychiatric interventions and the legitimacy of regimes of substitute decision-making. These controversies illustrate the radical challenges to global and domestic mental health policy that have gained new momentum through the participation of DPOs in the CRPD process. At the same time, they illustrate the need for ongoing, inclusive forums for deliberation at the nexus of mental health policy and human rights, aimed at enabling human flourishing within a framework of respect for diversity. (shrink)

The widespread view — proclaimed by proponents of disability studies, some disability federations, and many disabled people — that there is a human right to inclusive education, was eventually substantiated by international law with the UN Disability Convention in 2006. One of the most discussed issues in disability studies concerns the CRPD; the contributions are legion. Surprisingly, there are hardly any substantial contributions that pay particular attention to the important question of whether inclusive education is a moral human right, (...) and, if so, how this particular human right could be morally justified. A related topic that is frequently discussed concerns the question of whether inclusive education is compatible with the International Bill of Human Rights. Other scholars, such as Theresia Degener, wholeheartedly support the idea that inclusive education is a substantial legal and moral human right. (shrink)

Recent programs aimed at the independent living of persons with disabilities, allow them to be costumers of sectors in which they have never had full access in the past. The Lisbon Treaty has distinctly recognized the existence of a community tourist area within the primary law, and CRPD has defined the principles of accessibility and accessible tourism as tools for the inclusion. In addition, tourism and transportation stakeholders must guarantee non-discriminatory services; they must approach persons with disabilities as every (...) other customer, by taking in consideration their needs and rights, especially when it comes to their accessibility, assistance, and information. Companies of transportation must cooperate with DPOs in order to define disability-related training procedures. (shrink)

The social and cultural model of disability has challenged the historically powerful perception of disability as a deficiency. Disability is no longer conceived of solely in terms of an individual lack of capacities but also considered as a structural effect of disabling social institutions and normalizing thinking. The UN Convention on the Rights of Persons with Disabilities (CRPD) from 2006 marks a decisive step towards the recognition of humans with (cognitive) disabilities as legal subjects who are entitled to enjoy (...) all human rights on equal terms with others. A central claim of the CRPD refers to full political participation of persons with (cognitive) disabilities. This paper argues for strengthening the political participation of persons with severe cognitive disabilities. The normative starting point is the claim that they are our equals, both morally and socially. In spelling out this status equality for the realm of the political, I focus on what political equality and inclusivity means concerning franchise. I will argue that the disenfranchisement of persons with cognitive disabilities, as practiced in many countries, cannot be justified. Furthermore, enfranchising persons with cognitive disabilities is deemed a central expression of their recognition as equals. Thus, it marks a crucial moment of emancipatory transformation towards a more inclusive political system. In cases where severely cognitive disabled persons cannot exercise the right to vote themselves, forms of assisted voting and supported decision-making must be available. (shrink)

RESUMEN: Este artículo analiza el sentido e implicaciones del Artículo 12 de la Convención Internacional sobre los Derechos de las Personas con Discapadad a la luz de la Observación General Nº1 de su Comité y se centra en determinar su impacto en el régimen general de atribución de personalidad y capacidad jurídica y en el ámbito del Derecho Privado y de Familia del Estado de Qatar. ABSTRACT: This paper analyzes the meaning and implications of Article 12 of the International Convention (...) on the Rights of Persons with Disabilities in the light of the General Comment No. 1 of its Committee. It focuses on determining the impact of this General Comment to the general regime of personality and capacity attribution in the field of Private law and Family law on Qatar. PALABRAS CLAVE: capacidad jurídica, CDPD, derecho privado, legislación qatarí. KEYWORDS: legal capacity – CRPD – private law – Qatari legislation. (shrink)