In this essay, I argue that Menkiti’s normative personhood is exclusionary, and logically inadequate, especially regarding mentally disabled persons. My argument is that Menkiti’s account of personhood as a moral-political theory does not possess the resources to accommodate and account for mentally disabled persons because of its rigid process of transformation, which requires moral excellence. An inclusive moral theory, I argue, should be able to accommodate all members of the moral community irrespective of their ability, but (...) rather, their capacity for relationships. Tapping into the intellectual resources of conversational thinking, I propose another conception of personhood predicated on moral status as the basis for personhood. With this method, I query the inclusiveness of Menkiti’s conception and demonstrate that a relational alternative option that bases moral status on the human capacity for relationships might be more inclusive. Here, personhood is anchored on the capacity for relationships, not the ability to exude moral excellence. I then contend that this moral status conception of personhood possesses the needed resources to account for all because it is inclusive and egalitarian, riding on the crest of Ezumezu logic, which is also both egalitarian and inclusive. (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 present article is aimed at substantiating the differentiation of the criminal procedure involving the disabled persons as well as at assessing some standards of protection of rights of the latter participants of the procedure, established in the Code of Criminal Procedure of the Republic of Lithuania. The provisions of the Constitutional Court of the Republic of Lithuania, given in the present article, enabled generalizing the following two aspects. The first aspect covers the substantiation of the criminal procedure relating (...) to the criminal acts that the physically or mentally disabled persons are suspected (accused) of and application of compulsory medical measures. Specific form of criminal procedure – procedure of application of compulsory medical measures – institution of criminal procedure, covering several closely interdependent legal norms, establishing particular legal specifics of investigation of criminal act and hearing, is established in the separate structural part (Chapter XXIX) of the Code of Criminal Procedure of the Republic of Lithuania. Moreover, though the criminal procedure relating to the acts that the physically or mentally disabled persons are suspected (accused) of is not governed in one place of the Code of Criminal Procedure, it is deemed to be a specific form of criminal procedure, since it constitutes particular related legal norms of criminal procedure, determining the exceptions of the general criminal procedure. The second aspect, related to the constitutional doctrine concerning the equality principle, enabled substantiating the specific legal regulation, established and applied to the disabled participants (suspected persons, accused persons, witnesses, aggrieved persons) in the Law on Criminal Procedure. (shrink)

In this essay, I argue that certain injustices faced by mentally disabled persons are epistemic injustices by drawing upon epistemic injustice literature, especially as it is developed by Miranda Fricker. First, I explain the terminology and arguments developed by Fricker, Gaile Pohlhaus, Jr., and Kristie Dotson that are useful in theorizing epistemic injustices against mentally disabled people. Second, I consider some specific cases of epistemic injustice to which mentally disabled persons are subject. Third, I (...) turn to a discussion of severely mentally disabled persons who, because they are unable to share information or develop interpretations of shared social experiences, may fall outside Fricker’s discussion of epistemic injustice. Fourth and finally, following arguments given by Kristie Dotson and Christopher Hookway, I define and explain a type of epistemic injustice: intimate hermeneutical injustice that I believe supplements other discussions of epistemic injustice. (shrink)

Elizabeth Barnes has recently developed an account of disability that is sensitive to the role of self-evaluation. To have a physical disability is, according to Barnes, to have a body that is merely different from the norm. Yet, as Barnes notes, some disabilities will genuinely frustrate some life plans. It may be the case, therefore, that a disability is instrumentally bad for a person and that acquiring one may be a genuine loss. Equally, however, a person may genuinely value a (...) disability such that it is instrumentally good for them and that they experience the acquiring of it as a gain. Notably, Barnes explicitly restricts this analysis to physical disabilities, leaving open the status of mental disabilities. Nevertheless, Barnes does not rule out the extension of her model to this category, and she expresses a desire to see future work on other disabilities built upon it. This article takes up this challenge, making the case that to possess a mental disability is merely to possess a minority mind. (shrink)

Stigma against mental disability within the medical field continues to impose significant barriers on physicians and trainees. Here, we examine several implications of this stigma and propose steps toward greater inclusion of persons with mental disabilities in the physician workforce.

Ms. X is a person with cerebral palsy and schizophrenia. She has intractable bedsores that are a result of her immobility and to poor wound care related to her delusional thinking. Despite intensive community support, the wounds have worsened to the point that she has needed multiple hospitalizations to prevent systemic sepsis, a life‐threatening condition. She is capable of placement decisions and wishes for independence at home but is incapable of making wound care decisions and does not appreciate that immediately (...) returning home from the hospital, instead of going into a special care facility, would likely result in sepsis. The resulting dilemma about discharge planning highlights the complexity involved in weighing concerns around mental illness and capacity for treatment and placement of care. The extent of the care that is required and available in a community or health care system and the slow but relatively certain progression of the symptoms also make the decision challenging. Two commentaries take very different approaches in exploring the question whether Ms. X should be supported to go home or to a special care facility. (shrink)

Having encountered landmines in offering a critique of philosophy based on my experience as the mother of a cognitively disabled daughter, I ask, “Should I continue?” I defend the idea that pursuing this project is of a piece with the invisible care labor that is done by people with disabilities and their families. The value of attempting to influence philosophical conceptions of cognitive disability by virtue of this experience is justified by an inextricable relationship between the personal, the political, (...) and the philosophical. If one grants that the “special relationship” between mother and child requires moral recognition, then I need first to make vivid the case that this relationship in the case of a child who lacks some “normal capacities” is indistinguishable from any mother‐child relationship. If this is so, then I believe I can make a case that has as its conclusion that the moral personhood of even the severely cognitively disabled must be granted. Moreover, such recognition, I argue, necessitates the recognition of others who bear no special relationships to the child. (shrink)

The sexual assault of persons with mental disabilities occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most (...) sexual assaults of women with mental disabilities. We argue that existing Criminal Code provisions in Canada are inadequate to address this type of exploitation because courts have consistently failed to recognize that such abuses of power and trust are fundamentally inconsistent with any notion of voluntary consent. (shrink)

The wording of major human rights texts—constitutions and international treaties—is very similar in those provisions, which guarantee everyone the right to family, privacy, protection against discrimination and arbitrary detention, and the right to access the court. However, judges of lower national courts, constitutional judges and judges of the European Court of Human Rights often read the same or seemingly the same texts differently. This difference in interpretation gives rise not only to disputes about the hierarchy of interpretative authorities, but to (...) more general disputes about limits of judicial construction and validity of legal arguments. How it may happen, that the national courts, which apply constitutional provisions or provisions of national legislative acts, which are seemingly in compliance with the international human rights standards, come to different results with the international judges? Do they employ different interpretative techniques, share different values or develop different legal concepts? Do international judges ‘write’ rather than ‘read’ the text of the Convention? Who is, in Plato’s terms, a name-giver and who has a power to define the ‘correctness’ of names? The answers to these questions from the rhetorical and semiotic perspectives are exemplified by the texts of the judicial decisions on the rights of persons with mental disabilities. (shrink)

Living organ donation will soon become the source of the majority of organs donations for transplant. Should mentally handicapped people be allowed to donate, or should they be considered a vulnerable group in need of protection? I discuss three cases of possible living organ donors who are developmentally disabled, from three different cultures, the United States, Germany, and India. I offer a brief discussion of three issues raised by the cases: (1) cultural diversity and cultural relativism; (2) autonomy, (...) rationality, and self-interest; and (3) the proper use and role for clinical ethics consults. (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 World Health Organization has in the last decade 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. These tensions come into focus upon situating the WHO’s contributions to (...) the analysis of global mental health in light of the negotiation and early stages of implementation of the Convention on the Rights of Persons with Disabilities, particularly as it applies to persons with mental disabilities. (shrink)

In recent human rights and legal instruments, individuals with impairments are increasingly recognised as agents who are worthy of respect for their inherent dignity and capacity to make autonomous decisions regarding treatment and care provisions. These legal developments could be understood using Stephen Darwall’s normative framework of the second person standpoint. However, this paper draws upon phenomena – both in legal developments and recent court cases – to illustrate theoretical difficulties with the contractualist underpinnings of Darwall’s account if applied to (...) questions of what is owed to individuals with disabilities. I argue that, under Darwall’s framework, whether the threshold for second-personal competence has been met will determine whether respect or rational care is owed to them. This fact distorts our understanding of what we owe to persons with mental impairments—in part because it limits respect to relations that are symmetrical and reciprocal. In light of these challenges the paper offers an account of hermeneutic competency, which can be applied to non-reciprocal and asymmetrical relationships. This alternative account will be of practical import to judicial determinations of best interests under the Mental Capacity Act 2005 in England and Wales. It will also be of broader theoretical interest to any legal system that deals with people with mental disabilities. (shrink)

This article consists of a report submitted to the Massachusetts Commissioner of Mental Health in 1981 from the members of a citizens task force convened for the purpose of recommending policy to the Department in matters concerning privacy and human sexuality. The Chairman of the Committee was given responsibility for producing the information and resources necessary for the members to debate the issue with some intelligence, of facilitating the process and the deliberations, and of writing the final recommendations and report (...) contained in this article.The need for policy in the areas of privacy and human sexuality for persons living in our state institutions serving the handicapped is a continuing and critical one. Resolution of the issues requires informed, courageous decision making by those who are responsible for the welfare of persons with mental or developmental deficiencies. The policy suggested in this article may serve as a step forward for those decision makers. (shrink)

Individuals who are profoundly mentally handicapped do not have the capacity to make their own decisions and also do not have a past record of decisions, from when they had capacity, to guide us in making decisions for them. They represent a difficult group, ethically, for surrogate decision making. Here I propose some guidelines, distinguishing between these patients and patients in a persistent vegetative state (PVS). As the life span of patients becomes shorter, or their level of consciousness becomes (...) permanently impaired, the presumption for comfort care should become an imperative, and the standard of evidence to justify any invasive intervention should become higher. For members of this population, who have no more ability to refuse treatment than to consent to it, protection of the vulnerable must mean allowing a peaceful death as well as a comfortable life. Reasonable legal safeguards are also proposed to allow improved end-of-life decisions to be made for this population. (shrink)

Although almost completely ignored, Aquinas’s account of persons with severe intellectual disabilities is key to his understanding of human persons and their salvation. Aquinas extensively addresses questions of human impairment, and for Aquinas physical and mental impairment are not nearly as important as moral or spiritual impairment. Contrary to those who focus on Aquinas’s account of rationality and suppose he thinks that a person must exercise rationality in order to be moral and in the image of God, Aquinas’s view is (...) that persons with severe mental impairments have a distinct spiritual advantage, due to the impeccability of the gift of wisdom given them in their baptism. (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)

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 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)

The Convention on the Rights of Persons with Disabilities is increasingly seen as driving a paradigm shift in mental health law, particularly in relation to the understanding that it requires a shift from substituted to supported decisions. This article identifies two competing moral commitments implied by this shift, both of which appeal to the notion of autonomy. It is argued that because of these commitments the Convention is in tension with more general calls in the medical ethics literature for preserving (...) patient autonomy through support. The competing commitments within the Convention also present a particular challenge in putting the support it requires into practice. A discursive control account of freedom is used to develop some practical guidelines for navigating this new moral territory. (shrink)

It is widely agreed that first-person testimony is a good source of evidence, including testimony about the contents of mental states unobservable to others. Thus we generally think that an individual’s testimony is a good source of evidence about her wellbeing—after all, she experiences her quality of life and we don’t. However, some have argued that the first-person testimony of disabled individuals regarding their wellbeing is defeated: regardless of someone’s claim about how disability affects her overall wellbeing, other evidence (...) about disability undermines the force of her testimony with respect to our justified beliefs. In this paper, I argue that at least some cases of first-person testimony about disability is not defeated. Particularly, neither the existence of conflicting testimony nor evidence about disabilities’ associated harms or challenges successfully undermine either the content of the testimony or the reliability of the testifiers. While I do not claim that first-person testimony is the only evidence relevant to characterizing disability, I argue that it is not always blocked by other evidence about disability. At least some first-person testimony from disabled individuals is, therefore, undefeated evidence relevant to evaluating disability and overall wellbeing. (shrink)

The right to active participation by disabled people in academic research has been discussed at length in recent years, along with the potential for such research to function as a tool in challenging oppression and pursuing disability rights. Significant ethical, legal and methodological dilemmas arise, however, in circumstances where a disabled person loses the capacity to provide informed consent to such participation. In this article, I consider disability politics and academic research in the context of the Mental Capacity (...) Act 2005, which sets out in Anglo-Welsh law the circumstances and requirements for research participation by individuals lacking the capacity to provide informed consent. Drawing on my own perspective on research participation in relation to physical and psychosocial disability, I consider the implications of my potential future loss of capacity for my right to participate in disability-related research. I examine the barriers to such participation and suggest that partial solutions may be found in the advance decision-making and advance care-planning frameworks of the MCA 2005 and related policy, but that current legislative and policy frameworks nevertheless still curtail my rights with regard to research participation on loss of capacity to consent. In so doing, I seek to provoke debate concerning what this legislative provision means for the disability rights movement, and the possibilities and challenges it presents to the movement’s commitment to ‘nothing about us without us’. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Third Way: Social Disability and Person-Centered AssessmentChristopher Heginbotham (bio)Keywordsimpaired functioning, psychopathic, personality disorder, neurological damage, psychotherapyJohn Sadler’s Fascinating Paper identifies a significant problem with existing diagnostic classifications. But in doing so he raises further unresolved philosophical, nosological, and practical problems. Although he is undoubtedly right in showing that the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV (and International Classification of Diseases [ICD]-10) do not provide an adequate (...) categorization, he is I believe wrong to use the term “vice” to describe the cluster of wrongful acts.“Vice” conjures up images of Miami, drugbusting police, prostitution, and other activities that are characterized by one thing—by and large, these are actions undertaken knowingly, usually for financial gain. These are not the actions of people with impaired mental functioning as a result of mental disorder or neurological damage. It is of course true that human trafficking and enforced prostitution may mean women forced into prostitution against their will, but rarely are these women considered mentally disordered solely as a result of their prostitution. Yet it is capacitated, premeditated wrongdoing that is normally considered to be “vice.”By contrast, all the cases cited in the paper describe conditions that are almost certainly the result of some form of impaired functioning, either owing to early childhood experiences (Case A), familial culture and conditioning (Case B), or neurological damage (Case C). The common thread in these cases is impaired capacity—in Case A this could be described as due to psychopathic or personality disorder (I distinguish the two separately rather than describe the phenomenon as “psychopathic personality disorder”) as a result of multiple childhood traumas. Their presentation is not unexpected given the person’s history and, although the condition may have become refractory, it might be amenable to treatment with psychoanalytically oriented psychotherapy, given sufficient time and a nurturing environment (Bateman and Fonagy 2006, 2008; Cordess and Cox 1996; Levy 2008).The description of Case B leaves a lot of room for doubt and uncertainties. Did Ms A really try to smother her child? She confessed to one occasion, but was this under duress? Did she feel that if she agreed she would be treated more leniently? And if she was guilty, does it suggest “vice,” a premeditated act, or is there another explanation—attention [End Page 31] seeking because of low self-esteem or a personality disorder as a result of some abuse that had not been identified? Almost certainly from the description given this would not count, for me at any rate, as vice. Her actions may be odd, bizarre, or dangerous, but did they demonstrate a mens rea? Was Ms A making adequate evaluative judgments of her situation and that of her child? We know from clinical work with very damaged women in forensic mental health services that early physical, emotional, or sexual abuse leads in turn to women harming both themselves and their children (Bland et al. 1999; Cordess and Cox 1996; see also for example, Jeffcote and Watson 2004). Or perhaps, speculatively, her condition was Munchausen’s by proxy?Case C is horrendous but does not lend itself readily to the forms of psychiatric classification available. Indeed there is no easy way to describe such actions other than those of someone who is either incapable of understanding the nature and consequence of the actions that he has undertaken, or is simply “mad” in a folk sense. Prima facie this seems to be the result of permanent and little understood neurological damage. However, this case comes closest to the evil that is implied in the term “vice”; and might be diagnosed similarly to a celebrated English murderer, that of Peter Sutcliffe, the so-called Yorkshire Ripper. Sutcliffe was diagnosed as suffering from paranoid schizophrenia, although the jury at his trial found that he was fit to plead, and he was initially sent to prison, where he deteriorated. He is now, and has for some time, been in Broadmoor high secure hospital.The result of these comments is that I agree fully with John Sadler’s conclusions, but for rather different reasons. DSM-IV categories try and fail to offer a symptomatology for... (shrink)

BackgroundSexual boundary violations in healthcare are harmful and exploitative sexual transgressions in the professional–client relationship. Persons with mental health issues or intellectual disabilities, especially those living in residential settings, are especially vulnerable to SBV because they often receive long-term intimate care. Promoting good sexual health and preventing SBV in these care contexts is a moral and practical challenge for healthcare organizations.MethodsWe carried out a qualitative interview study with 16 Dutch policy advisors, regulators, healthcare professionals and other relevant experts to explore (...) their perspectives on preventing SBV in mental health and disability care organizations. We used inductive thematic analysis to interpret our data.ResultsWe found three main themes on how healthcare organizations can prevent SBV in mental health and disability care: setting rules and regulations, engaging in dialogue about sexuality, and addressing systemic and organizational dimensions.ConclusionOur findings suggest that preventing SBV in mental health and disability care organizations necessitates setting suitable rules and regulations and facilitating dialogue about positive aspects of sexuality and intimacy, as well as about boundaries, and inappropriate behaviors or feelings. Combining both further requires organizational policies and practices that promote transparency and reflection, and focus on creating a safe environment. Our findings will help prevent SBV and promote sexual health in mental health and disability care organizations. (shrink)

This article explores contemporary approaches to the understanding and interpretation of the formation of inclusive society. The focus is on the investigation of the everyday experiences of individuals who face various limitations in their living conditions such as limited opportunities, special needs, and disabilities. The paper highlights the importance of considering the unique aspects of subjective time when systematically analyzing the functional characteristics and existential mechanisms of an inclusive society, which constitutes the living environment for people with disabilities. It points (...) out that the temporal intentionality of a mentally challenged individual manifests in a unique form of ordering, synchronization, and existence within various phenomena and events within the individual's mental imagery and inner experiences. The authors emphasize the necessity to differentiate two primary stages in an individual's perception and understanding of their actual existence—the evaluation stage and the stage of identifying prospects. The study shows how intentional temporality inherently transforms into individual time, revealing the peculiarities of internal experiences and the unique aspects of an individual's mental imagery. These are integral steps in the formation of a system of social events that are marked within the individual consciousness. The novelty of this study lies in the examination of intentionality within the framework of a disabled person's subjective time, a characteristic that is fundamentally individual yet resonates with the collective daily consciousness of disabled individuals within an inclusive micro-society. (shrink)

According to what we propose to call “the competence model,” competence is a necessary condition for valid informed consent. If a person is not competent to make a treatment decision, the decision must be made by a substitute decision-maker on her behalf. Recent reports of various United Nations human rights bodies claim that article 12 of the Convention on the Rights of Persons with Disabilities involves a wholesale rejection of this model, regardless of whether the model is based on a (...) status, outcome, or functional approach to competence. The alleged rationale of this rejection is that denying persons the right to make their own treatment decisions based on an assessment of competence necessarily discriminates against persons with mental disorders. Based on a philosophical account of the nature of discrimination, we argue that a version of the competence model that combines supported decision-making with a functional approach to competence does not discriminate against persons with mental disorders. Furthermore, we argue that status- and outcome-based versions of the competence model are discriminatory. (shrink)

This paper proposes a novel method for identifying the public evaluative standards that contribute to the classification of certain conditions as mental disabilities. Public evaluative standards could contribute to ascertaining disabilities by outlining characteristics whose presence beyond a threshold is fundamentally important for the life of a person and whose absence or reduced occurrence constitutes a disability. Additionally, they can participate in determining disabilities by delineating particularly grave difficulties, impairments, or incapacities. Our method relies on a model of public justification (...) of evaluative standards that is inspired by Gerald Gaus’s theory of public reason. Thus, our approach recommends the justification of evaluative standards through sound deliberative routes from reasons accessible to all persons who participate in the process of justification and the convergence of what is justified in this way to each of them. We deem that disabilities could be caused both by problems in the internal characteristics of a person as well as by unfairness or a lack of hospitality in external circumstances. This is why the method of justification is applied to the assessment of those circumstances as well. If social or environmental circumstances cannot be justified through the convergence of reasons accessible to all persons involved in the process of justification, we have reasons to exclude the presence of a disability and ascertain the presence of inadequate external conditions. (shrink)

People with disabilities face inequalities in mental wellbeing, for which social exclusion is a contributing factor. Musical activities offer a promising but complex intervention, making impacts on a population with highly varied characteristics and needs challenging to capture. This paper reports on a mixed methods, person-centered study investigating a community music intervention for such a population. Three groups of adult service users with varied disabilities, took part in weekly music workshops in different locations. Music staff, housing and resource center staff, (...) as well as participants and members of their families, took part in semi-structured interviews. A quantitative measure administered by service staff was used to rate service users’ social development. Two lay researchers, both individuals with a disability contributed to all aspects of the study. Interviews were analyzed through thematic analysis. Improvements in individuals’ self-expression, confidence, mood, and social skills were consistent with previous findings. Differences in effect between centers included: Group 1, some of whom had previous experience of workshops, showed an improvement in musical skills; Group 2 showed a mixed response, some participated with enthusiasm but others chose art activities over music workshops; Group 3 had lasting positive impact, this group had very limited opportunities for music due to their rural location. Quantitative analysis showed significant increase over all groups in communication, interaction with others, and joint attention. The intervention was beneficial for participants in separate locations in similar ways, but also highlighted that context and prior experience mediated effects in distinct ways. The lay researchers enhanced the qualitative analysis by emphasizing the importance of recognizing participants’ self-expression in non-verbal modes of communication and the importance of having music staff with a disability to provide a positive role model. This paper proposes that mixed methods person-centered research is the most suitable approach to capture and understand the multiple and varied effects of this complex intervention for a diverse group of participants. (shrink)

Among the various human forms alluded to in the Hebrew prayer, mental retardation appears to be one of the most difficult to celebrate. It is the disability that other disabled persons do not want attributed to them. It is the disability for which prospective parents are most likely to use selective abortion (Wertz 2000). And it is the disability that prompted one of the most illustrious United States Supreme Court Justices to endorse forced sterilization, because "three generations of imbeciles (...) are enough." The mentally retarded have at times been objects of pity, compassion, or abuse by their caretakers and society at large. But they have rarely been seen as subjects, as citizens, as persons with equal entitlement to fulfillment. (shrink)

A beautifully written, deeply provocative inquiry into the intersection between animal and disability liberation--the debut of an important new social critic How much of what we understand of ourselves as "human" depends on our physical and mental abilities--how we move (or cannot move) in and interact with the world? And how much does our definition of "human" depend on its difference from "animal"? Drawing on her own experiences as a disabled person, a disability activist, and an animal advocate, author (...) Sunaura Taylor persuades us to think deeply, and sometimes uncomfortably, about what divides the human from the animal, the disabled from the nondisabled--and what it might mean to break down those divisions, to claim the animal and the vulnerable in ourselves, in a process she calls "cripping animal ethics." Beasts of Burden suggests that issues of disability and animal justice--which have heretofore primarily been presented in opposition--are in fact deeply entangled. Fusing philosophy, memoir, and science--including factory farming, disability oppression, or our assumptions of human superiority over animals--Taylor draws attention to new worlds of experience and empathy that will open up important avenues of solidarity across species and ability. Beasts of Burden is a wonderfully engaging and elegantly written work, both philosophical and personal, by a brilliant debut author. (shrink)

This chapter contains sections titled: The Case for Restricting the Civil Liberties of the Cognitively Disabled Two Conceptions of Competence Further Topics Editor's Note.

The ability to (re)classify populations is a key component of state power, but not all new state classifications actually succeed in changing how people are categorized and governed. This article examines the French state’s partly unsuccessful project in 2005 to use a new classification—“psychic handicap”—to ensure that people with severe mental disorders received services and benefits from separate agencies based on a designation of being both “mentally ill” and “disabled.” Previous research has identified how new classifications can be (...) impeded by cultural and cognitive barriers to their adoption and struggles between professionals or administrators over their implementation. Drawing on 186 interviews, archival sources, and 13 months of observations across different French bureaucracies, I expand on this literature in two ways. First, I use the case of psychic handicap to argue that a new classification can also fail to achieve its intended effect when it constitutes a bureaucratically split personality—a combination of classifications that imply that individuals belong to two, mutually exclusive kinds of people. I show how psychic handicap embodied contradictory expectations about the behavior, characteristics, and institutional trajectory of people with mental disorders. Second, I identify how bureaucrats resolved these contradictions through mechanisms of refractory looping, outsourcing expertise, and classification by default, which in this case led to the reclassification of this population as simply “mentally ill.” This framework calls attention to how practical inconsistencies can limit the impact of new classifications, even absent overt resistance to their elaboration or implementation. (shrink)

End-of-life care is the only major reference to systematically explore the unique medical, social, legal, political, and ethical issues to consider while providing care to adults and children with intellectual and developmental disabilities who are facing terminal illness or life-limiting conditions.

It is contested whether and to what extent moral responsibility can be ascribed to persons with mental health disabilities. Will Cartwright (2006) evaluates two prevalent theories of responsibility in terms of their suitability for morally appraising sociopathic personality disorder, particularly as embodied in the famous homicidal bank robber Robert Harris. Cartwright argues that our intuitions about Harris conflict because we are instantly horrified by Harris’ actions, but we are forced to reconsider our initial moral reaction when we reflect on Harris’ (...) history of extreme abuse and neglect. After considering both candidate theories—the reflective-self view and the reasons view—Cartwright decides that neither is .. (shrink)

Is it self-evident that every Kenyan adult citizen should have the right to vote at national and civic elections or referenda? This is not always the case: certain segments of the population are expressly or implicitly excluded by law or practice from the franchise. This paper suggests that the concept of unsoundness of mind should no longer be the basis for excluding persons with disabilities generally, and those with intellectual disabilities in particular, from voting. It traces provisions in law that (...) disenfranchise persons adjudged to be of unsound mind; and provides interpretation using national law as well as international human rights norms to infer that general or automatic disenfranchisement is a human rights violation. It concludes that Kenya’s electoral authorities must ensure that neither their policies nor the practices of their officials disenfranchise some Kenyan adults from voting by equating such persons’ mental illness or intellectual disabilities with “unsoundness of mind”. (shrink)

Resource added for the Nursing-Associate Degree 105431, Practical Nursing 315431, and Nursing Assistant 305431 programs.

According to a popular line of thought, being excluded from interpersonal life is to be exempted from accountability, and vice versa. In ordinary life, this is most often illustrated by the treatment of people with serious psychological disorders. When people are excluded from valuable domains on the basis of their arbitrary characteristics (such as race and sex), they are discriminated against, prevented from receiving the benefits of participation in those domains for morally irrelevant reasons. Exemption from accountability—via exclusion from the (...) interpersonal domain—seems to prevent exempted parties from receiving crucial human goods for morally irrelevant reasons. This chapter discusses two widely deployed ways of trying to ameliorate morally costly disabilities. Both fail to apply viably to various psychopathologies. The solution involves disentangling accountability and interpersonality in a way that also provides insights into our shared human nature. (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)

This paper explores the value of respect for personal autonomy in relation to clearly immoral and irrational acts committed freely and intentionally by competent people. Following Berlin's distinction between two kinds of liberty and Darwall's two kinds of respect, it is argued that coercive suppression of nonautonomous, irrational, and self-harming acts of competent persons is offensive to their human dignity, but not disrespectful of personal autonomy. Irrational and immoral choices made by competent people may claim only the negative liberty to (...) be left alone. Lives disposed to autonomy are worthy of solidarity and active support in addition to the right of free choice and action. Autonomous premeditated desires (distinguished from mere consent) may embody transcendental choices, which transcend consideration of physical and psychological well-being. Choices made by incompetent persons (e.g., children and the mentally disabled) are not related to autonomy, but to self-directedness. The value of human dignity confers protection to self-directedness, but not at the expense of other vital interests. (shrink)

The 1990 Americans with Disabilities Act enacted a conceptual shift in the meaning of ‘disability.’ Rather than defining ‘disability’ as a disadvantageous physical or mental deficit of persons, it codifies the understanding of ‘disability’ as a defective state of society which disadvantages these persons. In contrast, the standard medical model incorrectly conceptualizes disabled persons as biologically inferior, and thus confines them to the role of recipients of benevolence or care. Turning to an ethic of caring yields counter-intuitive results that (...) conflict with the conceptual apparatus of the ADA. It is argued that in order to liberate social thought from this medical model and thus move the disabled from being socially marginalized to being socially enabled, one must re-conceptualize current practice by adopting the ADA's conceptual framework. Keywords: caring, disability, equality, ethics, health care polic CiteULike Connotea Del.icio.us What's this? (shrink)

Historically, philosophers have had little to say about justice and disability. However, in recent years and in response to disability rights movements, philosophers have started to consider the claims to justice of persons with mental and physical impairments. Importantly, some have charged that without extensive revision, social contract accounts of justice – which enjoy immense popularity among political philosophers – cannot address the needs and interests of persons with disabilities. In this article, I explain why social contract accounts are thought (...) to flounder when it comes to justice for persons with disabilities. Then I assess the merits of recent attempts to construct theories of justice inclusive of persons with disabilities. In particular, I consider Nussbaum’s capabilities approach, Kittay’s justice as caring, and various restatements of the social contract. (shrink)

We undertake to bring a phenomenological perspective to bear on a challenge of contemporary law and clinical practice. In a wide variety of contexts, legal and medical professionals are called upon to assess the competence or capacity of an individual to exercise her own judgement in making a decision for herself. We focus on decisions regarding consent to or refusal of medical treatment and contrast a widely recognised clinical instrument, the MacCAT-T, with a more phenomenologically informed approach. While the MacCAT-T (...) focuses attention on individual cognitive performance criteria, an approach oriented by second-person phenomenology brings into view the complex role of time, others and identity in constituting the capacity for individual autonomous judgement. Our phenomenological analysis has consequences both for the practice of capacity assessments and for further research in this arena. Good practice in capacity assessment must attend to decision communities, distributed capacity, and temporal competence, while research on mental capacity will miss the phenomenon if it trains its focus ‘between the ears.’ We illustrate our approach by considering two recent cases of contested capacity: one involving cognitive disability in a dysfunctional decision community, the second presenting the possibility of competent decision-making under conditions of paranoid schizophrenia. (shrink)