Convention on the Rights of Persons with Disabilities
NB Not on Legislation.gov.uk
- Thomas Hammarberg, 'Rights-based approach needed in new law on legal capacity' (Irish Times, 1/3/12). This article argues that reform of the Southern Irish Lunacy Act 1871 should comply with the UN Convention on the Rights of Persons with Disabilities
- Anna Nilsson, 'Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities' (Council of Europe, CommDH/IssuePaper(2012)2, 20/2/12). This paper sets out the following recommendations: (1) Ratify the UN CRPD and its Optional Protocol. (2) Review existing legislation on legal capacity in the light of current human rights standards and with particular reference to Article 12 CRPD. The review should identify and remedy possible flaws and gaps depriving persons with disabilities of their human rights in relation to legislation concerning, inter alia, guardianship, voting rights and compulsory psychiatric care and treatment. (3) Abolish mechanisms providing for full incapacitation and plenary guardianship. (4) Ensure that persons with disabilities enjoy the rights to property, including the right to inherit property and to control their own financial affairs, to family life, to consent to or reject medical interventions, to vote, to associate freely and to access justice on an equal basis with others. No one should be automatically deprived of these rights because of an impairment or disability or due to being subjected to guardianship. (5) Review judicial procedures to guarantee that a person who is placed under guardianship has the possibility to take legal proceedings to challenge the guardianship or the way it is administrated as long as guardianship regimes still remain valid. (6) End 'voluntary' placements of persons in closed wards and social care homes against the person’s will but with the consent of guardians or legal representatives. Placement in closed settings without the consent of the individual concerned should always be considered a deprivation of liberty and subjected to the safeguards established under Article 5 of the European Convention on Human Rights. (7) Develop supported decision-making alternatives for those who want assistance in making decisions or communicating them to others. Such alternatives should be easily accessible for those in need and provided on a voluntary basis. (8) Establish robust safeguards to ensure that any support provided respects the person receiving it and his or her preferences, is free of conflict of interests and is subject to regular judicial review. The individual concerned should have the right to participate in any review proceedings along with the right to adequate legal representation. (9) Create a legal obligation for governmental and local authorities, the judiciary, health care, financial, insurance and other service providers to provide reasonable accommodation to persons with disabilities who wish to access their services. Reasonable accommodation includes the provision of information in plain language and the acceptance of a support person communicating the will of the individual concerned. (10) Involve persons with intellectual and psychosocial disabilities and the organisations representing them actively in the process of reforming legislation on legal capacity and developing supported decision-making alternatives.