Legal capacity
Why is the right to legal capacity an MDAC goal?
People with disabilities the world over have been stripped of their right to make decisions about their own lives. In Europe and elsewhere this has been achieved by depriving or restricting a person of their legal capacity, and placing them under the guardianship of another person. As a consequence autonomy – the ability to make informed, un-coerced decisions – has been compromised.
Guardianship a legal mechanism in which human rights abuses can be all pervasive. In many countries it is a legal mechanism that serves to perpetuate and hide abuses and to defy accountability for perpetrators. Once a medical expert recommends and a judge decides that a person is unable to make day-to-day decisions, that person will be formally stripped of their legal capacity. Once stripped of legal capacity a guardian, often unknown, will be appointed. As depriving someone of legal capacity often also deprives them of the legal right to enter into contracts, instruct a lawyer, to vote or own property, to marry or even to bring up children. That guardian will make all or most decisions for the person with disabilities, and will make them in the person’s “best interests”, which might not be what the person with disabilities actually wants.
Subject to substituted decision-making, people can be in a ‘civil coma’ for years. Guardians frequently have the power to place an adult into mental health and social care institutions and restrict them from leaving. When children with mental disabilities reach the age of 18, they are often automatically deemed “incapable” and placed under guardianship.
How is legal capacity a human rights issue?
Rights to autonomy and self-determination, as well as fair trial rights and respect for privacy are all core human rights, found in many human rights treaties.
Article 12 of the UN Convention on the Rights of Persons with Disabilities directly implicates guardianship by recognising that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. States must take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. Systems must include safeguards, and people with disabilities should have equal property rights to others. Legal capacity links with many other CRPD provisions also, such as Article 23 which ensures family, fertility and parenthood rights, Article 29 participation in political life, and Article 22 which provides a right to respect for home.
These provisions add credence to MDAC’s call for a shift away from the arbitrary removal of legal capacity of people with disabilities, towards the adoption of national policies and laws which will make assisted and supported decision-making a reality.
What is MDAC calling for?
- A legal protection of autonomy.
- No plenary guardianship.
- Introduction of supported decision-making, advance directives and enduring powers of attorney.
- No link between legal capacity and subsequent loss of rights (right to property, family life, work, vote etc.)
What impact has MDAC achieved?
The right to legal capacity has been a core feature of MDAC’s programming since the organisation’s inception in 2002. In 2006-8 we produced a series of reports on guardianship and human rights reports on several countries in the central and eastern Europe, reports which was the first international investigation into the human rights implications of guardianship systems. For several years we have conducted substantial litigation at domestic and ECtHR levels, and decided cases include:
- Czech domestic decisions
- Shtukaturov v. Russia judgment at the ECtHR and
- Shtukaturov judgment at the Russian constitutional court
- Kiss v. Hungary
MDAC has also successfully contributed to international advocacy, resulting in:
- The Commissioner for Human Rights of the Council of Europe issuing strong "Viewpoints” on the right to legal capacity in 2009
- The UN Human Rights Committee coming out with its strongest recommendations on legal capacity, following a shadow report submitted by MDAC in relation to Russia in 2009
At the domestic level we have with organisational partners advocated for legal capacity law reform, notably in Hungary, the Czech Republic and Slovakia.