Mental Health Law Reform in the New and Old Paradigm of

Legal CapacityAmita Dhanda

Professor and Head Centre for Disability Studies, NALSAR, Hyderabad

Construction of Legal Capacity

Old Paradigm New Paradigm

Passive Selective Varied According to

Context Peculiar to Persons with

Disabilities Static Understanding of

Legal Capacity Support if loss of Capacity Loss Externally Monitored through Fair Process

Safeguards

Active Universal Applied to All Areas of

Life Equal basis with others Evolving nature of

Legal Capacity Support with Capacity Will Respecting

Safeguards

The altered construction of legal capacity in the CRPD should guide mental health law reform.

Post CRPD Mental Health law Reform needs to be different from the incapacity driven pre-CRPD effort.

Equality and non discrimination; reasonable accommodation and real choice needs to drive the CRPD prompted mental health law reform.

Arguments of the Presentation

Movement from a Status or Outcome Based test of Competence to a Functional Approach

Movement from routine institutionalization to the least restrictive alternative

Induction of Fair process safeguards to prevent abuse of the compulsory care provision

Pre-CRPD Mental Health Law Reform Efforts

All persons recognized to possess legal capacity but the search for the ultimate test continues

In those rare cases of lack of capacity how should decision-making happen?

Should force be barred in all situations?

What about emergencies ?

Post CRPD Dilemmas or Controversies

Are they different ?

If not, then has the rounded nature of the new paradigm of legal capacity been missed?

Has the new paradigm gone flat ?

Pre and Post CRPD Dilemmas?

A total acceptance of the presumption of legal capacity i.e., all humans possess legal capacity by the fact of being human

Right is accompanied with a State obligation to provide support

Yes it is a legal fiction but a fiction which like all fiction opens up possibilities for creation

What would the new paradigm require

It is not the mental capacity to make a choice

It is the existence of a choice or choices.

Optimum performance of the State Obligation to create choice

What is the Essential Requirement to Make a Choice ?

Need to see the commonalities between persons with and without disabilities

Examine the possibilities of reasonable accommodation

Evaluate norms for accessibility

Explore the Equality Possibilities

Cannot create relationships of trust through the procedures of mistrust

To develop skills of persuasion the legal permission to use force needs to be ousted

Need to distinguish between force sanctioned by the law and the force of persuasion

Need to Under Legislate

if someone else was making decisions for you. They could decide to take you away, lock you up, not listen to you, give you medication, block you from doing your work and living your life with your body and mind the way they are.WOULD YOU WANT THIS TO HAPPEN TO YOU?

Wouldn't you have the feeling that you have lost you dignity and want it back? Wouldn't you feel your integrity has been violated? Wouldn't you want to have support in making decisions without being taken over and to ask for help without being seen any the less for it? Wouldn't you want to maintain your inherent dignity and be supported to make your decisions? Wouldn't you want to retain your integrity and continue to be you?

The principles established in this Convention are universal and will apply to all human beings, as much to you as to me.

Let us make a Convention for a world where we can all grow and develop with mutual support.

IMAGINE A CONVENTION FOR ALL.

IMAGINE