Disability, Deprivation of Liberty and Human Rights Norms: Reconciling European and International Approaches

Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities

Freedom to negotiate: a proposal extricating 'capacity' from 'consent'

In this paper, we seek to radically reframe the legal construct of consent from a disability perspective. Drawing on feminist scholarship and human rights standards around free and informed consent', we apply a concept of freedom to negotiate to laws regulating both consent to sex and medical treatment - key areas in which the legal agency of people with disabilities (especially people with cognitive disabilities) is routinely denied, restricted or ignored. We set out the essential ingredients for reframing consent: namely, legal personhood, freedom to negotiate and understanding. We also outline conditions (i.e. coercion, undue influence and power imbalances) that impede valid consent. This represents a first attempt to move beyond labelling adults with certain disabilities as lacking the mental capacity' necessary to give valid consent - in order to explore in more depth particular expressions of consent or refusal and seek new validity criteria, beyond the label of mental incapacity'.peer-reviewe

Freedom to negotiate: a proposal extricating \u27capacity\u27 from \u27consent\u27

In this paper, we seek to radically reframe the legal construct of consent from a disability perspective. Drawing on feminist scholarship and human rights standards around free and informed consent\u27, we apply a concept of freedom to negotiate to laws regulating both consent to sex and medical treatment - key areas in which the legal agency of people with disabilities (especially people with cognitive disabilities) is routinely denied, restricted or ignored. We set out the essential ingredients for reframing consent: namely, legal personhood, freedom to negotiate and understanding. We also outline conditions (i.e. coercion, undue influence and power imbalances) that impede valid consent. This represents a first attempt to move beyond labelling adults with certain disabilities as lacking the mental capacity\u27 necessary to give valid consent - in order to explore in more depth particular expressions of consent or refusal and seek new validity criteria, beyond the label of mental incapacity\u27

Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?

Trends in international human rights law have challenged States globally to rethink involuntary mental health interventions from a non-discrimination perspective. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) in particular prohibits laws that discriminate on the basis of disability. However, a key criterion for compulsory mental health treatment under typical mental health legislation is a psychiatric diagnosis (in conjunction with risk of harm and other criteria). Hence, for people with mental health disabilities, rights to liberty and consent in healthcare are held to a different standard compared to other citizens. A prominent law reform option being explored by some governments and commentators for achieving non-discrimination is to replace the diagnostic criterion for triggering involuntary intervention with an assessment of mental capacity. After all, every citizen is subject to restrictions on autonomy where they are deemed to lack mental capacity, such as where concussion necessitates emergency service. However, the use of mental capacity “testing” is seen by diverse commentators as wanting in key respects. A prominent criticism comes from the United Nations Committee on the Rights of Persons with Disabilities, which considers mental capacity assessments a form of disability-based discrimination. This article queries the call to replace the diagnostic criterion in mental health law with an assessment of mental capacity in the light of jurisprudence on equality and non-discrimination in international human rights law. Instead, we examine the doctrine of necessity as an area of law, which might help identify specific thresholds for overriding autonomy in emergency circumstances that can be codified in a non-discriminatory way. We also consider the need for deliberative law reform processes to identify such measures, and we suggest interim, short-term measures for creating a “supported decision-making regime” in the mental health context. The article focuses in particular on the Australian context of mental health law reform, though the analysis can be generalised to international trends in mental health law

The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities

Article 12 of the Convention on the Rights of Persons with Disabilities has created a revolution in legal-capacity law reform. It protects the right to exercise legal agency for people with disabilities with more clarity than any prior human rights instrument. This paper explores what constitutes an exercise of legal agency and what exactly Article 12 protects. It proposes a definition of legal agency and applies it to the lived experience of cognitive disability. It also uses a republican theory of domination to argue that people with cognitive disabilities who are experiencing domination are forced to assert legal agency in even daily decision-making because of the high level of external regulation of their lives and the ever-present threat of others substituting their decision-making. It identifies Article 12 as a tool for protecting such exertions of legal agency and curtailing relationships of domination

State intervention in the lives of people with disabilities: the case for a disability-neutral framework

People with disabilities continue to experience a disproportionately high level of state intervention in their private lives. Many disabled people\u27s organisations have long sought to challenge this discriminatory approach and, in recent times, have relied upon the provisions of the UN Convention on the Rights of Persons with Disabilities in support of their claims. In this paper, we argue for the abolition of disability-specific legal bases for state intervention in the private lives of adults. We also argue for the introduction of a narrower disability-neutral legislative framework for state intervention in the lives of all adults - based on risk of imminent and serious harm to the individual\u27s life, health or safety, while providing greater respect for the person\u27s legal capacity as expressed through her will and preferences

Recognising legal capacity: commentary and analysis of Article 12 CRPD

This paper aims to summarise the current understanding and literature around Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). It provides a brief history of the key terms associated with the right to equal recognition before the law and encompasses both academic writing in this area and General Comment No. 1 from the Committee on the Rights of Persons with Disabilities. The content is intended to provide readers of this Special Issue with a general understanding of developments surrounding Article 12 so they can fully engage with the other papers within this Special Issue and with the content of the Voices of Individuals: Collectively Exploring Self-determination (VOICES) project as a whole