Resources on legal capacity and the UN CRPD

This page contains a selection of resources on Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD): the right to equal recognition before the law.  If you are new to the CRPD, you may find this short introduction helpful.  This page is a work in progress, so if you know of materials you think should be added please send me an email with your suggestions.  I have taken the decision not to include academic literature as it is extensive, technical and not always freely available without subscription – however if you are searching for a paper on a particular topic related to legal capacity and the CRPD, I would be happy to see if I know of any which may help.

Please note that interpretations of the requirements of Article 12 CRPD vary.  The interpretation of the requirements of Article 12 by the United Nations Committee on the Rights of Persons with Disabilities in General Comment Number 1 is authoritative (which is technically distinct from binding), but not all the interpretations and reform efforts listed below follow this interpretation.

Treaty materials

The CRPD and international organisations

Office of the High Commissioner for Human Rights

Office of the United Nations High Commissioner for Human Rights (2009) Thematic Study on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities. Geneva. [Link]

UN Special Rapporteur on Torture

Nowak, M. (2008) Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/63/175) [Link]

Méndez, J. E. (2013) ‘Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’, in 22nd session of the Human Rights Council, 4th March 2013, Geneva (A/HRC/22/53/Add.2). [Link]

Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (2014)Washington College of Law. [LINK]

World Health Organisation

World Health Organisation, Office of the High Commissioner for Human Rights, United Nations Entity for Gender Equality and the Empowerment of Women, Joint United Nations Programme on HIV and AIDS, United Nations Development Programme, United Nations Population Fund and United Nations Children’s Fund (2014) Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement, Geneva. [Link]

Council of Europe

Commissioner for Human Rights (2012) Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities. [LINK]

Commissioner for Human Rights (2012) The right of people with disabilities to live independently and be included in the community, Strasbourg:Council of Europe. [LINK]

European Court of Human Rights

The CRPD has appeared in numerous ECtHR rulings.  The first ruling in which it appeared was Glor v Switzerland (App. No.13444/04) (30 April 2009); this was also the first finding of disability discrimination under Article 14 of the European Convention on Human Rights (ECHR).  It has also appeared in a number of rulings specifically concerning legal capacity:

Alajos Kiss v Hungary (Application no. 38832/06) [2010] ECHR 692

Stanev v Bulgaria (App no 36760/06) [2012] ECHR 46

D.D. v Lithuania (App no 13469/06) [2012] ECHR 254

RP v UK (App no 38245/08) [2012] ECHR 1796

Sýkora v The Czech Republic (App no 23419/07) [2012] ECHR 1960

Mihailovs v Latvia (App no 35939/10) [2013] ECHR 65

MS v Croatia (App no 36337/10) [2013] ECHR 378

MH v UK (App no 11577/06) [2013] ECHR

It is important to bear in mind that the interpretation of the CRPD in these ECHR cases stands at odds with the interpretation of the CRPD by the CRPD Committee.

European Union Agency for Fundamental Rights (FRA)

European Union Agency for Fundamental Rights (FRA) (2013) Legal capacity of persons with intellectual disabilities and persons with mental health problems, Brussels. [LINK]

European Union Agency for Fundamental Rights (FRA) (2012) Involuntary placement and involuntary treatment of persons with mental health problems. [LINK]

European Union Agency for Fundamental Rights (FRA) (2012) Choice and control: the right to independent living. Experiences of persons with intellectual disabilities and persons with mental health problems in nine EU Member States. [LINK]

European Union Agency for Fundamental Rights (FRA) (2011) The right to political participation of persons with mental health problems and persons with intellectual disabilities, Wien, Austria. [LINK]

Court of Justice of the European Union

The European Union has only very limited competence over issues relating to legal capacity.  However, it is notable that the Court of Justice of the European Union adopted the definition of disability contained in the CRPD for the purposes of European Union non-discrmination law (see HK Danmark, v Dansk almennyttigt Boligselskab, 2013).  Several other cases adopting this definition and citing the CRPD have followed.

European Commission

The European Commission has published the EU’s report on the implementation of the CRPD, to be submitted to the CRPD Committee as part of its monitoring process.  The report states that the EU has no competence to regulate matters relating to legal capacity, but details work that the EU has funded or been otherwise involved in relating to legal capacity law reform in member states and states that may join the EU.

European Union funded projects on legal capacity and supported decision making

The Choices project is funded by the European Union and is a ‘platform on supported decision making’.  The website contains practical information on supported decision making for different areas of life.

The EU PERSON project aims ‘To increase competencies of Balkan Civil Society Organisations (CSOs) on both regional and national levels to strategically advocate and monitor reforms affecting persons with psycho-social and intellectual disabilities.’  It contains reports and information about legal capacity law reform efforts in Croatia, Bosnia and Herzegovina, Kosovo, Turkey and Serbia.

Similar rights in other legal instruments

Before the CRPD, several other international human rights instruments contained similar rights to those contained within Article 12.  Article 6 of the Universal Declaration of Human Rights (UDHR) and Article 16 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘Everyone has the right to recognition everywhere as a person before the law.’  Article 15 of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) explicitly addresses discriminatory denials of legal capacity experienced by women, and states:

1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.

4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.

Several countries have provisions relating to legal capacity inscribed in their national constitutions.  You can search for these using the fantastic Constitute website.  The WHO also has a database of legal capacity legislation from many different jurisdictions (part of a larger collection of health related legal databases called Mindbank).

Role of the CRPD in domestic law in the United Kingdom

The UK is a ‘dualist’ state, which means that unless a treaty is incorporated directly into domestic law through legislation (such as the Human Rights Act 1998, for the European Convention on Human Rights (ECHR), or the European Communities Act 1972, for the European Union) it is not binding on the UK courts.  However, international treaties can still be a source of ‘persuasive authority’ for the courts, for example helping them to interpret domestic law where its provisions are ambiguous.

Although the domestic courts were initially reluctant to embrace the CRPD as a source of persuasive authority for interpreting domestic law (R(NM) v Secretary of State for Justice [2011] EWHC 1816 (Admin)), it has now been confirmed as a source of persuasive authority by the Court of Appeal and the Supreme Court.  It has been relied upon in cases concerning Article 19 CRPD – the right to independent living and non-discrimination (Burnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629; Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345), Article 13 CRPD – access to justice (AH v West London MHT (J) [2011] UKUT 74 (AAC) ) and Article 14 CRPD – on the meaning of deprivation of liberty (P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19).  It has been mentioned in two Court of Protection cases to date.  The first was on involuntary sterilization (A NHS Trust v DE [2013] EWHC 2562 (Fam)), the second was on support for decision making around sex (A Local Authority v TZ (No. 2) [2014] EWHC 973 (COP)).  Article 12 CRPD, and the General Comment by the CRPD Committee, were cited for the first time in a domestic case by Senior Judge Lush in London Borough of Haringey v CM (2014).

Legal capacity and the CRPD around the world

This section contains links to articles, reports, projects, bills and laws from around the world which have influenced, or been influenced by, the CRPD’s approach to legal capacity.  Thanks to Marina Mendez Erreguerena for assistance finding resources from Latin America, and apologies that I have only been able to include English language materials.  I am aware that there are also reform efforts in various countries which are not included on this list (e.g. Peru, Japan, Singapore, Czech Republic) because I have not been able to find English language materials – any links gratefully received.

Argentina

Bariffi, F. J. and Smith, M. S. (2013) ‘Same Old Game but with Some New Players: Assessing Argentina’s National Mental Health Law in Light of the Rights to Liberty and Legal Capacity under the UN Convention on the Rights of the Persons with Disabilities’, Nordic Journal of Human Rights, 31(3), 325–342. [Link]

Australia

Australian Law Reform Commission (2014) Equality, Capacity and Disability in Commonwealth Laws: Discussion Paper, Sydney. [Link]

South Australia

Wallace, M. (2012) Evaluation of the Supported Decision Making Project, South Australia:Office of the Public Advocate. [Link]

Office of the Public Advocate, ‘Resources: Supported Decision Making’ [Link]

Victoria

Victorian Law Reform Commission (2012) Guardianship Final Report 24, Melbourne, Australia. [Link]

Bigby, C., Whiteside, M. and Douglas, J. (2015) Supporting People with Cognitive Disabilities in Decision Making – Processes and Dilemmas.,  Living with Disability Research Centre, La Trobe University, Melbourne. [Link]

Balkan states and Turkey

EU Person project

Bulgaria

Bulgarian Centre for Not-for-Profit Law (2014) Supported Decision Making – or How People with Intellectual Disabilities or Mental Health Problems can Live Independent Lives, Sofia. [Link]

Croatia

Halilcevic, S. (2013) ‘“Why Am I Different?” Disability and the Right to Vote in Croatia’, Open Society Foundations, 23 August 2013, [Link]

Canada

The Law Commission of Ontario commissioned a study of the lived experience of supported decision making in five Canadian Provinces with statutory supported decision making: Alberta; British Columbia; Saskatchewan,Manitoba and Yukon.   This study reports the views and experiences of ‘experts’ as well as those involved in making support agreements.

James, K. and Watts, L. (2014) Understanding the lived experience of supported decision-making in Canada, Law Commission of Ontario. [Link]

Alberta

The Adult Guardianship and Trusteeship Act 2008 (Alberta, Canada)

British Columbia

Representation Agreement Act (British Columbia) 1996

Nidus Personal Planning Resource Centre and Registry (2009) Experiences of adults living with Fetal Alcohol Syndrome Spectrum Disorder and their personal supporters in making and using a Representation Agreement, Vancouver, B.C. [Link]

Nidus Personal Planning Resource Centre and Registry (2009) A Study of Personal Planning in British Columbia, Vancouver, B.C. [Link]

Ontario

Bach, M. and Kerzner, L. (2010) A New Paradigm for Protecting Autonomy and the Right to Legal Capacity: Prepared for the Law Commission of Ontario Ontario.[Link]

Bonnie Lashewicz, Jennifer Mitchell, Eniola Salami and Samantha Cheuk (2014) Understanding and addressing voices of adults with disabilities within their family caregiving contexts: Implications for capacity, decision-making and guardianship, Commissioned by the Law Commission of Ontario. [Link]

Yukon

Decision Making, Support and Protection to Adults Act, 2003 (Yukon, Canada)

Costa Rica

Organisation of American States (2014) Final Report: Third Special Meeting of the Committee for the Elimination of All Forms of Descrimination Against Persons with Disaiblities (CEDDIS), November 21 and 22, 2013, San José, Costa Rica. [Link]

Japan

Japan has recently revised its election laws, removing provisions which deny voting rights to adults under guardianship (Inclusion International, 2013).

Kenya

Kamundia, E. (2013) How to implement Article 12 of the Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya: A briefing paper, The Kenya National Commission on Human Rights and the Open Society Initiative for Eastern Africa. [Link]

India

The Draft Rights of Persons with Disabilities Bill 2012 (India)

Centre for Disability Studies NALSAR University of Law (2011) The Rights of Persons with Disabilities Bill. [Link]

Republic of Ireland

Assisted Decision-Making (Capacity) Bill 2013 (Ireland) (this bill replaced the earlier Draft Mental Capacity Bill (Ireland) 2008)

Age Action Ireland, The Alzheimer Society of Ireland, Amnesty International, Centre for Disability Law & Policy NUI Galway, Disability Federation of Ireland, Inclusion Ireland, Irish Mental Health Lawyers Association, Mental Health Ireland, Mental Health Reform, National Advocacy Service for People with Disabilities, Shine and St Patricks University Hospital (2012) Essential Principles: Irish Legal Capacity law, Dublin. [Link]

Centre for Disability Law & Policy (2011) Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality. [Link]

Irish Human Rights Commission (2014) IHRC Observations on the Assisted Decision-Making (Capacity) Bill 2013, March 2014 Dublin. [Link]

Houses of the Oireachtas Committee on Justice Defence and Equality (2012) ‘Report on hearings in relation to the scheme of the Mental Capacity Bill, May 2012’, 31/JDAE/005,  [Link]

Law Reform Commission (2013) Sexual Offences and Capacity to Consent, Dublin. [Link]

Centre for Disability Law & Policy (2012) Submission on Law Reform Commission Consultant Paper: Sexual Offences and Capacity to Consent (2011), NUI Galway. [Link]

Criminal Law (Sexual Offences) (Amendment) Bill 2014 (Ireland)

Sweden

Engman, T., Manning, F. and Ekecrantz, L. S. (2008) A New Profession is Born – Personligt ombud, PO, Socialstyrelsen, Fhebe Hjälm. [Link]

UK

England and Wales

House of Lords Select Committee on the Mental Capacity Act 2005 (2014) Mental Capacity Act 2005: post-legislative scrutiny, TSO: London. [Link]

House of Lords Select Committee on the Mental Capacity Act 2005 (2013) Oral and written evidence – Volume 1 (A – K), House of Lords, UK Parliament; The Select Committee on the Mental Capacity Act 2005 (2013) Oral and written evidence – Volume 2 (L – W), House of Lords, UK Parliament. [Link]

Law Commission (2014) Unfitness to Plead: An Issues Paper London. [Link]

The Essex Autonomy Project have held a series of roundtables and a conference, with the Ministry of Justice, to consider the compliance of the Mental Capacity Act 2005 with the CRPD. Resources are available online.  [Link]

Northern Ireland

Northern Ireland is consulting on adopting a ‘fusion’ law, which would combine mental capacity and mental health legislation.  The consultation documents do not discuss the compatibility of this approach with the CRPD, and it should be noted that there is considerable debate about the compatibility of fusion law with the CRPD – certainly it would appear to be precluded by the General Comment on Article 12.  Alex Ruck Keene has written a helpful blog post about the Northern Irish ‘fusion’ approach.

A report commissioned by the Equality Commission for Northern Ireland on compliance with the CRPD highlights barriers to compliance with Article 12 CRPD, but it also criticises the interpretation of Article 12 by the CRPD Committee. [Link]

 Scotland

The Scottish Government (2014) Responses to a Consultation on draft proposals for a Mental Health (Scotland) Bill [Link] (Amendments to strengthen provisions for psychiatric advance statements)

Scottish Human Rights Commission (2014) A Consultation on draft proposals for a Mental Health (Scotland) Bill: Response to Scottish Government Consultation, Edinburgh. [Link]

USA

Jenny Hatch Justice Project

Cases influenced by Article 12 CRPD:

  • In the Matter of the Guardianship of Dameris (File No. 2009-0892) Surrogate’s Court, New York County, New York (December 28, 2012)
  • Matter of Chaim A.K. 2009 NY Slip Op 29384 [26 Misc 3d 837] September 21, 2009 (New York Surrogate’s Court)
  • Re Mark CH [2010] 906 N.Y.S.2D 419

Further resources

NGOs

This section links to NGOs who are active in campaigning for reforms to legal capacity laws in light of the CRPD.

Websites and resources

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