Safeguards in measures relating to the exercise of legal capacity

It has been over ten years since the adoption of the text of the UN convention on the Rights of Persons with Disabilities (CRPD). It demands in Article 12 equal recognition before the law for all persons with disabilities.

The provision is clear in guaranteeing to all people with disabilities the right to enjoy full legal capacity on an equal basis with others, while also imposing an obligation on the states to provide them with support in exercising legal capacity.

A person’s level of support needs should not be a barrier to obtaining support in decision-making.

However, for people with intellectual disabilities access to these rights remains particularly difficult because of the still broadly accepted concept of substitute decision-making and the absence of proper arrangements to support people to take their own decisions.

Full legal capacity means being in a position to make decisions about one’s life in big things and small.

It affects the ability to find employment, the right to vote, the right to work, the right to marry and to hold parental rights, the right to free movement or the right to seek legal protection before courts.
It also affects how people spend their money and what they do in their leisure time.
Denial of legal capacity can even prevent an individual from requesting that their right to make decisions be restored.

One of the most important reasons for the resistance against and slow implementation of the concept of full legal capacity for people with intellectual disabilities in the past ten years has been the concern for the safety and security of the person. People with intellectual disabilities are often perceived as especially vulnerable to abuse, manipulation and the possibility of taking decisions against their own best interests. This is a valid concern, even considering that the requirements for people with intellectual disabilities should not be higher than for anybody else – they also should have the opportunity to make errors and to learn from them.

Safeguards

Article 12 of the CRPD recognises that individuals who are in need of support for making their decisions may be at increased risk of abuse. Therefore paragraph 4 of Article 12 requires safeguards to be put in place as safety measures to prevent it. Inclusion Europe and its members fully support this: support for decision-making and safeguards must be developed hand in hand.

The challenge is to define the concept of safeguards appropriately:

how to respect the principle of autonomy,
to protect people with intellectual disabilities, and
prevent abuse without being paternalistic.

What are adequate safeguards in a supported decision-making model?

Substitute decision-making certainly cannot be considered as a safeguard, as it has been sometimes argued or discussed.

This paper aims at providing Inclusion Europe’s members and other interested stakeholders with an overview of the current understanding of “safeguards”, its potential content and measures for consideration and standards for those safeguards.