Supporting Legal Capacity in Socio-Legal Context

People with disabilities have been routinely denied their right to legal capacity. This denial has been especially prevalent for people with cognitive and psycho-social disabilities. The traditional Enlightenment-derived normative framework operated on the basis of a simplistic binary distinction based on capacity, with decisions for persons found to lack capacity being made by others, generally without reference to the person. Most jurisdictions gave legal effective to this normative framework through substituted decision-making regimes, often implemented through wardship, guardianship or trusteeship laws. By recognising the equal right to legal capacity of people with disabilities and requiring States Parties to provide support for the exercise of this right, the CRPD provided an international human rights-derived impetus for a shift in both normative approaches and the legal frameworks which give effect to these.

Almost 10 years after the CRPD came into force, however, guardianship laws remain in force in many jurisdictions, including many that have fully ratified the Convention. In other legal systems, laws have changed to give greater priority to the will and preferences of people with disabilities, to recognise a presumption of capacity, and to provide legal mandates for supported decision-making in a range of contexts. Yet, despite repeated calls from the Committee on the Rights of Persons with Disabilities, including in General Comment No 1 (2014), for ratifying states to review laws that restrict the legal capacity of people with disabilities, no legislative reform to date has fully abandoned substitute decision-making. Instead, most recent capacity law still affords a role to functional assessments of capacity and substituted decision-making frameworks. So, for example, the English Mental Capacity Act 2005 uses a best interests approach if a person fails the functional test while the Irish Assisted Decision-Making (Capacity) Act 2015 uses a graded scheme involving both supported and substituted decision-making. Even under the Swedish approach, generally hailed as the closest to CRPD compliance as it has abolished the legal declaration of incapacity, the appointment of an administrator remains as a substitute decision-making framework.

There are many reasons why even in sympathetic states, legislative reform has not make the leap to full implementation of supported decision-making. Legislative and policy mandates to protect vulnerable people, the challenge of balancing paternalism and empowerment, the different understandings of supported and substitute decision-making across jurisdictions, as well as economic factors and cultural/attitudinal aspects have all played a role. This workshop uses socio-legal theories and methods to explore the conceptual, empirical and doctrinal barriers to the creation of effective and deliverable supported decision-making across multiple domains of socio-legal experience. Its core organising principle is that conceptual and doctrinal approaches to capacity need to be informed by an empirical, grounded understanding of how capacity operates in ‘real life’ contexts.

   In order to achieve this, three core themes are identified:

Theme 1: Conceptual Approaches to Supporting Legal Capacity

Under this theme, our workshop will explore the conceptual arguments surrounding legal and mental capacity. This provides a necessary foundation for the doctrinal and empirical discussions that follow. Speakers will explore the conceptual boundaries of capacity law in both legal and ethical contexts as well as the conceptual challenges in developing a CRPD compliant legal framework for supported decision-making and the challenges which the CRPD vision poses for traditional understandings of guardianship laws. Other conceptual issues relate to subjectivity, agency, power dynamics, and gender.

Theme 2: Doctrine and Practice: Constraints on traversing paradigms

This theme will explore the process of changing, making and using laws that engage with the new paradigm of disability, and the constraints posed by balancing protection from abuse with the right to enjoy legal capacity on an equal basis with others. Our focus here is on law reform, especially as has emerged in the wake of the CRPD, in both mental health and mental capacity arenas. Questions at the core of this theme include: How can the new paradigm of disability law be practically achieved? (How) Can the tensions between implementing the right to equal recognition before the law and the economic consequences of providing adequate support be resolved? How can capacity law developed through the courts (the England and Wales Court of Protection having been especially activist in this regard) which often focus on the hardest cases, be translated into effective regulation of everyday life? Participants in the workshop explore the contemporary law reform questions and problems in a wide range of jurisdictions, including Australia, Canada, Finland, India, Ireland, Spain, Sweden, and the UK.

Theme 3: Legal Capacity in Empirical Focus: Making decisions in real life contexts

The third theme we will explore in this workshop seeks to explore capacity law in its empirical contexts. Here, we will explore a range of life domains that intersect with other CRPD rights to examine the place of capacity and support in: family, home and relationships; working and learning; health and care choices; making legal decisions; participation in political and public life; and culture, recreation, leisure and sport. Questions that guide the workshop in addressing this theme include: what kinds of support are needed for decisions in different life contexts? How can the challenge of supporting legal capacity in private interpersonal contexts be met? How do social contexts shape decision-making support? How can the political and economic challenges of providing supported decision-making be addressed?

Reflecting the inherent challenges in delivering on the promise of the CRPD, the workshop is structured so that the discussion progresses from conceptual through doctrinal to empirical, grounded application. Yet, the interlinkages between themes and in particular the importance of using grounded empirical work to inform both conceptual and doctrinal developments means that socio-legal theory and method is central in discussions of all three themes. By bringing together international experts at all career stages at the IISJ to discuss these cross-cutting themes, we will be able to deliver a highly original collection of papers for an edited collection in the Oñati series.