21 October - legal capacity day at the UN

10am, Wednesday 21 October 2009. Hello! I am here dans le Palais des Nations in Geneva, where the Committee on the Rights of Persons with Disabilities (ComRPD) is having its first ever “day of general discussion”. You can read more about it here: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGD21102009.aspx. The ComRPD have picked Article 12 of the Convention – the right to legal capacity and supported decision-making. I’m here with my colleague Gábor Gombos who was instrumental in advancing the legal capacity law in Hungary. It should be an interesting day.

And here we go. Mr. Mohammed Al-Tarawneh, the ComRPD Chairperson opens the session and lays out the concepts in Article 12. The purpose of the day of general discussion is, he says, to explore some of these issues. Where do we place the line for third party authority? How can legislate to address the diversity of situations which may arise? How can we ensure the maximum potential. These and other issues will be discussed today. The Chair talks a lot about the need for court procedures for detaining people and properly assessing people’s dangerousness criteria, and proper “case by case judgment” which “appreciates the subjective element of his or her experience”… This is all somewhat vague. 

Mr. Ibrahim  Salama,  Chief, Human Rights Treaty Bodies Branch, now takes the floor. He conveys the greetings of the High Commissioner for Human Rights, who can’t make this day but was keen to do so. He says the entry into force of the CRPD was a milestone in the expansion in human rights. Legal capacity is a cornerstone among different branches of human rights law. Starting the discussion sends an important message, and allows broad discussions from a variety of perspectives. The salient issues, he says, are supported decision-making versus substituted decision-making, and how should these services should be conducted. He also brings up the insanity defence – should this be abolished recognizing the capacity to act? What to do with an offender’s lack of culpability? He says real solutions will be nuanced, and that we should allow a spectrum of views. He says that the Convention is innovative and unique particularly in the areas of supported decision-making and augmentative and assisted communication.

Amita Dhanda who is a professor of law in India and now a consultant for the Office of the High Commissioner for Human Rights (OHCHR) gives a keynote presentation. Read Art. 12 in the history of the Convention’s negotiation. OHCHR is writing a handbook on legal capacity – she wants inputs into the existing laws, the mandate of Art. 12, in order to assist in planning for law reform policy and programmes. We all have our own brand on misapprehensions and misunderstandings. These understandings are important for members of ComRPD, for States and for civil society. She delicately challenges the Chairperson, saying that he is reinforcing the existing framework. She says she “would want to recommend to you and want you to think about” how Art. 12 breaks from that thinking and moves on, where are the reform efforts which address discrimination and how Art. 12 is ahead of the status quo.

Amita says “listening is the keynote, because listening generates dialogue”. If the CRPD is going to be meaningful for all for the entire human community, it is important that we do it in a way that generates dialogue – including aspirations and assertions from disabled persons organizations. She says we also need to listen to the doubts which people have when we’re making a paradigm shift. She also recommends us to listen to the opposition.

Amita talks about examples from India and Hungary. Amita says that in India, there has been a process of looking at how to reform the “National Trust Act”. Through some national consultations, a number of people demonstrated major ignorance of legal capacity and the necessity of support, and what is the distinction between support and substitution. Then they redrafted the law, engaged different stakeholders, and some of those who opposed the reforms now support it. Amita says we shouldn’t begin with the presumption that everyone will agree and everything will fall into place – but if one understands the information which people are seeking, then answers can be provided and the dialogue can be had. Amita cites the recent Indian Supreme Court case which decided that just because a person has an intellectual disability, no-one else should be able to impose an abortion if she is thinking otherwise. Amita says that the third area of work in India is questioning the current mental health laws, which assume that persons with mental illness are both incapable and dangerous.

In Hungary, disability law reform was a mainstream exercise – it was an integral part of the civil code reform. Amita points out that whilst DPOs spearheaded the reforms, they had lawyers to work in tandem. The Hungarian civil code reforms has demonstrated that there will be ups and downs, mirroring the global discourse. Abolition of plenary guardianship, abolition of plenary limited guardianship, recognition of support, and full legal capacity of PWDs who can manage affairs on their own or with support.

It’s midday now, and we’re running an hour behind. There was a hoo har earlier when Amita was due to start and was told suddenly that the massive screen needed to be pulled down to accommodate her power point slides. Here in assembly room A in the Palais des Nations, there are no power sockets near the delegates’ desks, so I have to move to the side every so often to charge my batteries. (note to self: bring spare battery next time).

Monsur Choudhury, ComRPD Member from Bangladesh. Mr Choudhury tells of his personal experience of being the first blind person to obtain a masters degree in the country, but was denied employment, and was denied a visa to the UK to study law. He passes the mic to German Xavier Torres Correa who is a Vice-Chair of the COmRPD. He starts speaking in Spanish and I scramble to grab the headphones so I can listen to the interpreters. Mr Correa says that the ComRPD needs to work as quickly as possible. Then he hands over to Edah Maina, another Vice Chair of ComRPD. Ms Maina is director of the Kenya Society for the Mentally Handicapped. She says that Art. 12 is at the heart of the Convention – those who are hidden and consealed are those with mental disabilities and those who require support.

The Chair introduces Ron McCallum who is a ComRPD Member and professor of labour law at the University of Sydney in Australia. Mr McCallum is the “Rapporteur” for this session. Now my MDAC colleague Gabor Gombos takes the floor! Gabor says he’s a person with a psycho-social disability. He explains that MDAC together with the Hungarian organization of persons with intellectual disabilities forged a coalition to impact on legal capacity, which is a small and important part of the large civil code. Gabor points out the irony that the Hungarian government didn’t actually plan to reform the legal capacity bits of the civil code. Gábor emphasises that the responsibility falls on States Parties, and that this in itself is complex as the government is a complex machinery. He says that these issues are discussed as a developmental issue rather than within a human rights framework. 

Tina Minkowitz from the Center for Users and Survivors of Psychiatry in the US takes the floor. Tina is here also representing the World Network of Users of Survivors of Psychiatry. Tina says that the decision about whether a person needs support should be that person’s decision – and this decision needs support. Tina will present in the afternoon too. David Leigh from Australia Disability Federation is up next. He says the advocates for substitute decision-making need to make a better case. Well, that’s one way of putting it! He says there’s no research on substitute decision-making and suicide, in other words, there’s no research to say that other people’s decisions will prevent suicides.

Michael Bach (with whom I had breakfast) who is representing Inclusion International (www.inclusion-international.org) and is also director of www.cacl.org. Michael encourages us to ask on what basis has legal capacity been removed? What are the assumptions in law which have made this a justifiable decision, in particular people with intellectual and psycho-social disabilities? one of the assumptions in law which has attributed legal capacity for most people is that we assume we have certain decision-making capacities (all the options, info, and communicate the decision). Michael says that the assumption is discriminatory on the basis of disability. He asserts that there are some other bases: moral philosophy provides two other criteria: (1) in contract law if there’s a mutual intention, then there’s a contract: they don’t need to understand the technical elements of the contract. (2) we assume identity and agency are concrete through time: these assumptions have also proved discriminatory. The reality is that identity can be presented as the narrative coherence of someone’s life. Michael says we need to recognise distinct decision-making capacities: if people can demonstrate their decision-making capacities, they may need accommodations (visual aids, plain language, CRPD Art. 5). There may be some people who may need additional assistance through a network of supporters: this is supported decision-making and these people who have full legal capacity. How do we decide the accommodation needed? Michael concludes at the starting point for questioning the assumptions upon which we deprive legal capacity.

Claude Deutsche from Disabled Persons International makes the point that in France there’s a deafening silence on this issue, and parliamentarians have not understood the paradigm shift which has taken place. Stefan Trommel from the International Disability Alliance says that Art. 12 is complex embodiment and we can’t expext changes overnight. He makes the point that some Constitutions will also need to be changed! He says that in Spain those few legal experts who understand Art. 12 consider involuntary outpatient treatment are compatible with the Convention. Reservations and declarations undermine Art. 12 and are a barrier to implementation. On insanity defence, Stefan says, it needs to be removed and be replaced by disability-neutral provisions. I don’t quite understand what the impact of this actually is and what is at stake… is it just a culpability test with the same result, or does the IDA want all mentally disordered offenders to be sent to prison? (MDAC will be doing some work on this issue, I hope).

Now the representative of Jordan intervenes and asks how the ComRPD can help States Parties in reforming their legal capacity laws? He asks whether the ComRPD can make a general comment on this? Ron McCallum on behalf of the ComRPD says that this will be placed on the agenda for the next meeting in February 2010, and he thinks it should be the first Article on which the ComRPD makes an interpretation.

1pm. It’s lunchtime. We're back at 3pm. Boy, do they like their long lunches here.

3pm and everyone is well lunched. The second part is opened by a ding of what sounds like an electric doorbell and an introduction by Ms. Jia Yang (ComRPD Vice-Chair) who says a few words. She passes over to Maria Soledad Cisternas Reyes (ComRPD Member) who says a few words. She passes over to this session’s rapporteur number one Amna Al Suwedi (ComRPD Member) who says a few words. She passes over to Georgy Konczei (ComRPD Member) who is this session's rapporteur number two, who says he welcomes the progress by OHCHR to produce a manual on Art. 12 to “to correct some misunderstandings in the Handbook for Parliamentarians in respect to Article 12” (see the handbook here: http://www.un.org/disabilities/default.asp?id=212). He also says he has to listen to the experiences of civil society and the countries which have ratified Art. 12 with our without reservations/declarations, listen to the challenges to the normative recognition and the implementation to provide access to support which people may require to access their legal capacity, and the role of the independent of the Art. 12(4) review body and other safeguards. Professor Konczei is very well placed to weigh in on the nuances inherent in legislating and implementating Art. 12, as he has been closely involved in the Hungarian reforms.

There are some interventions by various NGOs, explaining their view on how Article 12 should play out in practice. A frustration is that there is very little formal discussion during this "day of general discussion". There is a sense that one needs to present one's views, because others might not share them. I guess the real work happens informally, in corridors and over lunches, coffees and cigarrettes (the UN is now totally non-smoking so smokers have to go outside... there is a balcony on the 8th floor which has a fantastic view over Geneva). I ask a question about Egypt's interpretative declaration on Article 12, which in essense recognises the right to have rights but not to exercise them. I say that this frustrates the object and purpose of the Convention, and as such is not allowed. I ask the Committee whether they consider this declaration to be a reservation, what they are doing about it, and what they encourage other Member States to do. Ms María Soledad Cisternas Reyes, the ComRPD Member from Chile, answers. At least through the English interpretation, says “this type of reservation does jeopardize the ratification and implementation of the Convention. States which have entered reservations need to be aware of this." She says that Member States can discuss these declarations at the Conference of States Parties. However, I don't recall this being discussed in September's meeting which would have been an ideal time for a State to table a discussion about how these interpretative declarations and reservations are potentially unravelling the tapestry of the Convention. She also says that civil society can take actions, but does not specify what kind of action. The ComRPD Member from Qatar says that most delegations has technical delegations during the negotiations, but not the Egyptians, so this may explain why Egypt "may have misunderstood". She notes that Qatar like many other countries, discussed reservations, but decided to enter reservation-free ratifications.  So what I take from these answers is that the Committee does view Egypt's interpretative declaration as a reservation, that the ComRPD hasn't actually done anything about it (otherwise they would have told us), encourage Member States to discuss it, and civil society to do something. It doesn't exactly come across as a call to action. Ok, now there's a break, and I need to recharge my laptop battery.

6pm. The chair summarises the day. The ComRPD will consider adopting a general comment on Art. 12. They hope that State Party reports to the ComRPD which will start next year will fully cover ARt. 12. The ComRPD will examine reports in the spirit of constructive dialogue and come up with practical and feasible recommendations which States can act upon. He says that they will continue to welcome NGOs, and are encouraged by the large number of NGO submissions for today's discussion. (for MDAC's contribution see here http://www2.ohchr.org/SPdocs/CRPD/DGD21102009/MDACHungary.doc). The chair says that they will do their best to interpret the Convention's provisions constructively to improve the lives of millions of persons with disabilities.

So there we have it. My immediate reaction is that it is difficult to assess whether this day has at all been helpful. As noted, there was actually little discussion. Next time they could split participants into smaller groups to get some dialogue going. Article 12 is taking root, but there are still elephants in the room which have not been discussed, there is little clarity about the contours of legal capacity, and little agreement about how the contours should manifest themselves in law and policy reform. There's an obivous need to continue to share promising (and less than promising) practices across the world. It was great that the reforms in Hungary had a good airing before the internaitonal community, but as Gábor pointed out, the deal has not been sealed: the Hungarian president has refused to sign the law, and has sent it back to parliament, and the opposition party has indicated that it will not allow the new law to enter into force. There's still a massive amount of work to do. And on that note I bid you farewell. I'm off for une bierre (ou deux).