Transcript “FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND PERSONS WITH MENTAL HEALTH PROBLEMS” Stakeholder meeting 4-5 November 2010 Vienna, Austria “Involuntary Treatment ” – Legal.

“FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND
PERSONS WITH MENTAL HEALTH PROBLEMS”
Stakeholder meeting
4-5 November 2010
Vienna, Austria
“Involuntary Treatment ” – Legal capacity, Article
12 CRPD and the paradoxes of beneficience.
Jerome Bickenbach
Swiss Paraplegic Research
Background
A. People with temporary, permanent or
episodic difficulties in cognitive or
emotional functions of such severity as they
[or others] percieve them to interfer with
their decision-making capacity.
(or communication problems)
PEOPLE WITH MENTAL HEALTH PROBLEMS
Background
B. Fundamental rights:
Convention on the Rights of Persons with Disabilities
Civil rights and human rights
Personal right and social and economic rights…
All apply to persons with mental disabilities, but
because of fear, stigma and stereotyping,
people with mental disabilities have to fight for
the most basic and personal of rights…
THE RIGHT TO BE A PERSON
CRPD – GENERAL PRINCIPLES
Article 3 - General principles
The principles of the present Convention shall be:
a. Respect for inherent dignity, individual autonomy including the freedom to
make one’s own choices, and independence of persons;
b. Non-discrimination;
c. Full and effective participation and inclusion in society;
d. Respect for difference and acceptance of persons with disabilities as part of
human diversity and humanity;
e. Equality of opportunity;
f. Accessibility;
g. Equality between men and women;
h. Respect for the evolving capacities of children with disabilities and respect for
the right of children with disabilities to preserve their identities.
THE ISSUE
RESPECT
Background
Caveat:
Brutalizing, humiliating, cruel and lethal
‘treatment‘ obviously exists around the globe –
these are massive injustices, but clear and
obvious injustices and ones
(We know this because brutalizing treatment are never justified as
brutalizing but as essential, necessary, beneficial, in the patient‘s best
interest…)
So, more legally challenging treatment
scenarios are more useful for policy
development and CRPD implementation
CRPD: Article 12, legal capacity and
treatment decision-making
How does the CRPD apply to respect for the person in
treatment settings?
How should CRPD be interpreted?
How would this interpretation be applied in specific cases
where autonomy and beneficience conflict?
IS INVOLUNTARY TREATMENT
PROHIBITED BY ARTICLE 12?
Article 12 - Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on
an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and undue influence, are
proportional and tailored to the person’s circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to the degree to which
such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and
effective measures to ensure the equal right of persons with disabilities to own or
inherit property, to control their own financial affairs and to have equal access to bank
loans, mortgages and other forms of financial credit, and shall ensure that persons
with disabilities are not arbitrarily deprived of their property.
Article 12 - Equal recognition before the
law: Rights
2. States Parties shall recognize that persons
with disabilities enjoy legal capacity on an
equal basis with others in all aspects of life.
3. States Parties shall take appropriate
measures to provide access by persons with
disabilities to the support they may require in
exercising their legal capacity.
IS INVOLUNTARY TREATMENT
PROHIBITED BY ARTICLE 12?
What we know already about Article 12…
• It has both a negative (protecting against abuse)
and a positive (providing support for decisionmaking) focus.
• But does It anticipates in subsection 4, not just
a) the need for decision-making support,
but also
b) the possibilities of (legitimate) constraints
or limitations on the exercise of autonomy?
Scenarios of Involuntary treatment and
involuntary non-treatment
The refusal (to consent to) life sustaining treatment
The refusal of prescribed treatment (directed at
underlying disease)
The refusal to prescribed treatment (directed at on
professional outcomes, e.g. normal behaviour)
The request to end life
The request for treatment that is professionally judged
not in one‘s interests (harmful, non-beneficial)
Implementation of Article 12 in real cases
States parties obliged to put into place legal
effective and enforceable mechanisms to…
Protect LEGAL CAPACITY
SUPPORT the exercise of legal capcity
Provide SAFEGUARDS to any limitations
to legal capacity
Does Article 12 require
No treatment if no consent?
Emergency, life-saving, unconsious....?
Does Article 12 require
Respecting every decision about
treatment?
cf. Jehovah wittness child refusing blood
transfusion
Does Article 12 require
Rejection of 'ends justify means'
justifications?
What ends, what means?
Does Article 12 demand
Non-prescriptive, non-judgmental
support?
Supporting, respecting …
…but disagreeing and trying to persuade
to change mind
What does Article 12 require?
enjoy legal capacity on an equal basis
with others...