As we near the end of the campaign, we wanted to offer technical information for activists and reformers wishing to transform legal capacity law and policy. There are many laws, policies and practices that violate the right to equal recognition before the law for people with disability. The two major areas for law reform that the PERSON project has focused on are adult guardianship law and mental health law. The following materials were developed from a meeting of civil society organisations from across the Balkans and Turkey who met in Tirana, Albania, in March 2015.
Guardianship and mental health laws regulate the area of legal capacity, financial management and substitute decision-making. Guardianship laws apply when a person is deemed to lack mental capacity. Under guardianship law, a substituted decision-maker is appointed to make decisions for the person. Mental health law refers to legislation that makes it lawful to detain a person and treat him or her involuntarily with psychiatric medications. While guardianship and mental health laws vary in different countries, they all breach, are inconsistent with or fail to fulfil obligations under CRPD.
Key issues include the following:
(a) These laws only apply to people with disability; they are not laws that apply generally to everyone. Under international human rights law, any permissible limitations to human rights must be ‘prescribed by law’ and any law prescribing a limitation to a human right must be of general application. Consequently, to the extent that guardianship, estate management and mental health laws limit the autonomy-related rights of persons with impairment and disability as a specific population group, they are arbitrary and in violation of the right to equality before the law.
(b) They provide different and inconsistent tests for assessing a person’s ability to exercise legal capacity, which leads to uncertainty, confusion and inappropriate application of legal principles beyond the specific context in which they were formulated — there is no nationally consistent legislation that outlines the principles and provisions for looking at how a person can exercise his or her legal capacity.
(c) They focus on a person’s capacity to manage their affairs or make decisions, rather than on measures that would enable or support a person to manage their affairs or make decisions.
(d) They do not mandate or actively promote alternatives to substitute decision-making.
Various Areas for Advocacy and Reform
Aside from the two major areas of law reform noted above, there are a range of laws, policies and practices that deny or diminish recognition of people with disability as persons before the law, or deny or diminish a person’s ability to exercise legal capacity. These areas are listed below and help to indicate particular parts of legislation that can be the focus of advocacy efforts:
People with disability may be refused access to a bank account, or if they have a bank account, the financial institution may refuse to allow them to operate it independently. Banks also frequently refuse to recognise informal support people, such as family members from whom a person may wish to receive assistance to operate a bank account.
Legislation may disqualify a person from voting if they are found to be incapable of understanding the nature and significance of enrolling and voting, due to ‘being of unsound mind’.
A person can be removed from public office, such as serving as a judge or politician if it is decided that the person cannot, or may not be able to fulfil responsibilities because they have a ‘disability’, such as psychosocial disability.
People with disability may be unable to obtain equal benefit and protection of the law because they do not receive supports to enable them to take action to protect their interests and no one else may do so on their behalf. For example, some people with disability cannot obtain a personal violence order unless supported to do so.
Equally, the capacity of people with cognitive impairments to participate as witnesses in Court proceedings is not supported and this has led to serious assault, sexual assault and abuse crimes going unprosecuted.
Will making and disposition
People with disability may require support that is proportional to their needs and that is without undue influence and conflicts of interest to ensure that they can exercise their right to make a will on an equal basis with all other persons.
‘Deinstitutionalisation’ or laws on involuntary detention/deprivation of liberty
Traditional systems of care of persons with disabilities in large-scale institutions are still prevalent in many parts of the world. The abolition of traditional institutions is required by a series of UN declarations, and is important from the perspective of human rights because it represents a form of segregation and ghettoization which is unacceptable in the modern world. The detention of people with disabilities in large-scale institutions requires that they be divested of legal decision-making. A Human Rights Watch has stated that:
Individuals with intellectual and/or mental disabilities are particularly vulnerable to placement in institutions because they are often deprived of their ability to make important life decisions. Therefore, to ensure the right to live in the community, states should also respect the right to the full exercise of legal capacity.
People with disabilities may have their parental rights, marriage rights, fostering rights and reproductive rights denied. For example, a psychiatric diagnosis may mean that a person can be divorced without claim to parental rights. The right to consent to sex might be another area in which people with disabilities are subject to discriminatory laws.
There may be other areas of law in which people with disabilities do not enjoy equality before the law, and do not enjoy equal recognition of legal capacity. The laws listed above are meant to demonstrate the wide-ranging areas in which legal capacity law and policy might be changed.
Different types of legal advocacy
Advocacy can take many different forms. Essentially it means political activity by individuals or groups which aims to influence decisions within political, economic, and social systems and institutions. It can include a range of activities. One example is a media campaign. Another is public speaking, commissioning and publishing research, or filing an amicus brief. An amicus brief refers to a short document that provides information to a particular institution or organisation (such as a court, or a government ministry). Lobbying is another form of advocacy, in which individuals or groups can approach directly legislators, policymakers and other public officials. Again, there are many types of advocacy.
For example, the EU-PERSON project has undertaken the following:
- Direct lobbying of government officials and lawmakers
- Media campaigning
- Publishing research
- Holding public events, with expert speakers presenting
- Organising coalitions of civil society organisations
- Undertaking a campaign via social media
- Strategic litigation
- Training judges and other legal professionals
- Training service providers and public officials
- Establishing and supporting peer-advocacy groups for people with disabilities
There are clear links between different types of advocacy. It can be useful to combine different forms of advocacy, as many of them are complementary to one another.
Ideally, governments, in consultation with people with disability and their representative, advocacy and legal organisations, should conduct a comprehensive audit of laws, policies and administrative arrangements that address legal capacity. Smaller scale advocacy might take the form of focusing in on some or all of the relevant areas of law in which legal capacity is denied to persons with disabilities on an unequal basis. This may depend on the countries political situation, or the capacity of the organisation. The reform of laws would occur in order to:
- modify, repeal or nullify any law or policy, and counteract any practice or custom, which has the purpose or effect of denying or diminishing recognition of any person as a person before the law, or of denying or diminishing any person’s ability to exercise legal capacity;
- enact laws that recognise the right of all people in all situations to recognition before the law; that secures legal capacity for all people, and which expressly extends to those circumstances where support ma y be required for a person to exercise legal capacity;
- recognise the fact that people with disability may be particularly reliant upon these laws, that provisions will be required to oblige all relevant actors to provide reasonable accommodation to meet the needs of people with disability, and designate a range of positive measures to ensure that people with disability are able to exercise legal capacity on an equal basis with others;
- enshrine the primacy of supported decision-making mechanisms in the exercise of legal capacity;
- establish a comprehensive system focused strongly and positively on promoting and supporting people to effectively assert and exercise legal capacity, and on safeguarding against abuse and exploitation in both informal and formal supported and substituted decision-making arrangements; and
- provide specific criminal offences relating to the exploitation, abuse and neglect of people with disability subject to supported and substitute decision-making arrangements.
 This specific content has been drawn from the Australian civil society report to the UN Committee on the Rights of Persons with Disability. See Disability Representative, Advocacy, Legal and Human Rights Organisations Australia, ‘Disability Rights Now: Civil Society Report to the United Nations Committee on the Rights of Persons with Disability’ (Author 2012) <http://www.disabilityrightsnow.org.au/node/15> viewed 27 August 2013.
 Human Rights Watch, “Once you enter, you never leave: Deinstitutionalisation in Croatia” 2010. Available at:
http://www.hrw.org/sites/default/files/reports/croatia0910webwcover.pdf (viewed 2 January 2015).
This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of PERSON (Partnership to Ensure Reforms of Supports in Other Nations) and can under no circumstances be regarded as reflecting the position of the European Union.