NGO Comments on the draft text
Draft article 9 - EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

World Network of Users and Survivors of Psychiatry
May 26, 2004

Article 9 of the draft text contains the essential elements for the elimination of substituted decision-making and the provision of assistance to those who wish to have it. Paragraphs b and c(i) guarantee that no person will be deprived of legal capacity which means the right to have the final choice in one’s own decision-making. Paragraph d requires states to ensure the availability of assistance in decision-making and related activities to those who require it.

At our side event yesterday a speaker provided information about a model for supported decision-making developed by a Canadian organization and partially implemented in a provincial government in Canada. We are providing excerpts of that report, which outline the main features of the model, and a url for an accessible version of the full report, on the table outside. Besides guaranteeing autonomy in the sense that the final decision is always up to the person him or herself, the model recognizes that interdependence in decision-making is a fact of life for all human beings and is based on the recognition and facilitation of relationships of trust between individuals. No competency tests would be imposed under this model and procedural safeguards only exist to ensure that the person providing support is meeting his or her obligations including the obligation to follow the wishes of the person receiving support. A new public office would be created to facilitate the development of trusting relationships for individuals who are currently isolated, and there is a residual judicial power of decision-making when the wishes of an individual cannot be ascertained or interpreted and an important decision must be made.

World Network of Users and Survivors of Psychiatry believes that it is premature to propose specific text based on the proposal we have looked at. The proposal was written within a specific national context and needs to be translated into text appropriate for an international convention. We would prefer to do this by means of consultation among all interested parties after this Ad Hoc Committee meeting and before the next one.

Intervention by (Australian) National Association of Community Legal Centres, People with Disability Australia Incorporated, Australian Federation of Disability Organisations

Mr. Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We strongly support the inclusion within the draft text of the four key rights that underpin draft article 9:

• That all people with disability have the right to recognition everywhere as persons before the law (as recognised in article 16 ICCPR and sub paragraph (a))

• That all people with disability have the right to be presumed to have full legal capacity to make our own decisions in all areas of life (as recognised in article 15 CEDAW, the common law of various States Members’ jurisdictions and sub paragraphs (b) to (d));

• That all people with disability are entitled to the full and equal enjoyment of the same rights and protections before and under the law as all other people (as recognised in articles14, 15 and 26 ICCPR and sub paragraph (a)); and

• That all people with disability have the right to own and administer property (as recognised in article 17 UDHR, articles 13 and 15 CEDAW and sub paragraphs (d) to (f)).

We believe that these rights represent the necessary preconditions to the effective exercise of our rights as individuals with disability. We therefore strongly recommend the inclusion within the text of separate articles devoted to each of them, in substitution for draft article 9, because with respect to the Working Group, draft article 9 as currently framed is not clear enough and does not go far enough. Its problem is that it conflates and confuses these four quite separate rights.

When considering including an additional article in respect of the right of people with disability to own and administer property, we can commend to this honourable Committee the formulation of that right found at article 25 of the Bangkok Draft.

When considering additional articles in respect of equality before and under the law, and legal personality, we are unable to draw upon any other draft articles for the Committee’s reference, but believe in any event that articles in these areas should as closely as necessary follow the form of those articles in the pre existing human rights Treaties already referred to.

In respect of the right to be presumed competent, we believe that much more needs to be stated in the text than currently appears.

On that topic, at the outset let us say that we do believe that there are both situations where a person with disability does in fact lack the capacity to understand the nature and effect of decisions that affect them (a person in a coma is a case in point), and where a person with a disability understands the nature and effect of decisions that affect them but for various reasons may not be able to exercise that legal capacity. In both cases where a decision of importance is required to be made, we believe that appropriately safeguarded guardianship legislation and structures remain an essential part of a range of assisted and substitute decision-making options. This will enable people with decision-making disability to exercise their legal capacity where the choice of such options is directly proportionate to the degree of assistance required without interfering with the person’s legal capacity, rights and freedoms. In this respect we support the wording of sub paragraphs (c) (i) and (d), but recommend a substantial redrafting of sub paragraph (c) (ii) to further elaborate the procedural safeguards necessary to support the full range of assisted and substitute decision making options from the most informal, culturally appropriate and least restrictive to the more formal options of limited and plenary guardianship. Principle 1 (6) of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care provides assistance in this regard so far as safeguards around the more restrictive options of formal guardianship orders are concerned.

It is also essential for this article to guarantee people with disability access to competent legal aid in relation to all these matters, and we strongly support the International Labor Organisation’s intervention in this respect.