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NextGen

What Could/should a Support Oriented Law Look Like?

Gerard Quinn, Amnesty International Ireland & CDLPDublin, 29 April 2013.

www.nuigalway.ie/cdlp

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‘Pacta Sunt Servanda’

States are Presumed to Enter Treaty Obligations in ‘Good Faith’

Which means they are expected to take their obligations seriously

AndThe Obligations in Article 12 go to the very ‘object & purpose’

of the UN CRPD.

Therefore – the Core Obligations are not ‘add-ons’ – they go to the heart of future legislation

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The Support Paradigm

Delicate dance between Independence and Inter-Dependence

Article 12 speaks of support to ‘enable a person exercise their legal capacity’

This includes supported ‘decision-making’

But also spans augmenting capacity where, e.g., people are transiting form Institutions to community living

This is about Expanding Civil Rights to make them effective – its is not aboutlimiting civil rights

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What should the Act Contain?

Task 1. Act should enshrine ‘Will & Preferences’ as its core.♯

8 Core Tasks for the Act

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Task 2. Act should acknowledge an Evolving Spectrum of Supports♯

Assume supports are equally relevant across spectrum and intensity of disability

Specify/Acknowledge Supports that augment capacity

Specify/Acknowledge Supports to assist a person make choices/decisions

Specify/Acknowledge Supports to help individuals express their will and preference (representation agreements)

Specify/Acknowledge Co-decision – provided the centrality of ‘will & preferences’

Emphasize that Supports are not mandatory

Emphasize that Supports are to be found mainly in the community

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Task 3. Act should be clear on the legal implications of support♯

3rd parties are to be bound by ‘will and preference’ that emanates directly or indirectly viathe supports.

Conversely, individual is bound.

No islands of non-application. Art 12 speaks of ‘all spheres of life’

Can provide detailed legislation in these outlying fields – but in principle no sphere is left out.

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Task 4. Act should provide for effective safeguards with respect ♯to the support regime.

The usual challenges need to be safeguarded against – e.g., conflictsof interest

The elusive line between ‘support’ and ‘supplanting’ the will and preferenceneeds particular attention – which will evolve as experienceevolves

Safeguards should not be used as a Trojan horse to re-introduce aProtective agenda that nearly always smothers the individual

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Task 5. Act should set out an APPROPRIATE Institutional ♯Architecture to advance & safeguard the system.

SYMBOLICALLY: Its Institutional Home has to be Appropriate – NOT from traditionalprotection oriented institutions [too much negative legacy] – this is about expandingcivil rights – not limiting them. Name it POSITIVELY

PRACTIALLY: Its Tasks should include:

Help grow the field by issuing Good Practice Guidelines

Help develop safeguards through Good Practice Guidelines

Register all representation and similar agreements

Connect with community development programmes to ensure they extend to growingSupport regimes

Interact/contribute/learn from international best practice

Interact/contribute/learn from bodies like Irish Human Rights & Equality Commission.

Keep system under review – develop research – play a key role in reviewing the Act.

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Task 6. Act should ‘Look Outwards’ to Linkages and grow them♯ .

Act & new apparatus will not have all the capabilities. But other parts of the systemhas valuable assets to put at disposal of support philosophy.

- acknowledge/develop link with advocacy system (NAS)

- Acknowledge/develop link with community development apparatus

- Acknowledge/develop link with general adult protection system to ensureprotection ‘on an equal basis with others

Task 7. Act should specify clear Transitional Arrangements & Timelines- if needed♯

Conceptual Challenge: How do you transition from one Protection system to another Support System?

You Need: Cut-offs, timelines, milestones. No new entries to wardship. Automatic reviewfor everyone on wardship to get support.

What triggers are identified to graduate from one phase to another?

Doctrine of ‘Progressive Achievement’ kicks in – with clear limiting principles

But it Was Built………./

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Task 8. Act has to have a Clear & Purposeful Review Mechanism♯

Be Clear on What turns on the review?

Reflect on what worked/what didn’t work – identify critical success factors as well as major inhibiting factors?

Identify new areas that can be innovated?

5 Year trigger.

Can there be an interim review?

How/Who conducts it? How to ensure adequate civil society input. How to ensure independence of the process

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Act is Part of a Bigger project: Expunging the Ghosts of the PastHimmler: Some Persons are not persons – ‘human animals’ – ‘untermenschen’

Objects – not subjects.

Subterranean impulse in all cultures

Sir William Blackstone: Upon Marriage woman suffers ‘civil death’

Exclusion rooted in civil law – policy choices

Law rendering people invisible - objectification

The Irish Gulag – Implicitly lesser forms of persons

Concentric circles of exclusion.

No cognitive dissonance – no moral outrage

Social ordering on a theory of lesser humans

Last Enclave: What about those with Intellectual disabilities

Are they ‘lesser’ humans…does ‘ordinary’ law apply?

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Enact this Law not just because the UN requires it

Enact it because it fits with the Republican Nature of the State

“The Irish Republic fully realises the necessity of abolishing the present odious, degrading and foreign Poor Law System, substituting therefor a sympathetic native scheme for the care of the Nation's aged and infirm, who shall not be regarded as a burden, but rather entitled to the Nation's gratitude and consideration.”

Programme for Democratic Action, First Dáil, 1919.