Gábor Gombos From civil death to full personhood: Ireland's challenges to implement the CRPD

1. From civil death to full personhood:
Ireland's challenges to implement
the CRPD
Gábor Gombos
Adjunct professor, NALSAR Law
University, Hyderabad, India and NUI
Galway

2. CRPD Article 12
• Legal capacity: right in and of itself as well as a
precondition for enjoyment of many other
rights
• Paradigm shift for persons with disabilities by
making them subjects of rights from objects of
charity
• Legal capacity as evolving concept (in line
with Preamble e)
• Legal capacity as accessibility

3. CRPD Article 12 para 1
• Article 12(1) reaffirms the right to recognition
everywhere as persons before the law (ICCPR
Art. 16) . Such a statement is needed because
certain systems of social oppression such as
racism; casteism; sexism and ableism have
subsisted by denying legal personhood to the
oppressed group.

4. CRPD Article 12 para 1
• Persons with disabilities are right holders and duty
bearers.
• They are entitled to, inter alia
- registration of birth;
- name;
- nationality;
- and all other incidents of legal personhood and
identity. (COB Peru para 23, 2011)
• All laws and procedures regarding the recognition of
the identity of persons should be made in a disability
inclusive manner ensuring accessibility and providing
reasonable accommodation.

5. CRPD Article 12 para 2: to have vs to
enjoy
• Declares or proclaims that all persons with
disabilities have legal capacity.
AND
• Have the right to enjoy the subtsance of that
legal capacity. The requirement of enjoyment
makes it necessary that suitable arrangements
be made to ensure the exercise of legal
capacity by persons with disabilities.

6. CRPD Article 12 para 2: In all aspects
of life
• In the absence of legal capacity the realization of many
other rights guaranteed by the Convention cannot be
achieved.
• Denial of legal capacity often results in
- institutional placement without free and informed
consent;
- forced medical treatment including psychiatric
treatment;
- denial to live independently and in the community;
- sterilization without free and informed consent;
- denial of the right to marry and parenthood;
- deprivation of the right to vote, stand for election
and participate in public life.

7. CRPD Article 12 para 2: Is it really for
all persons and all rights?
• Any interpretation of article 12(2) which excludes
certain persons with disabilities, inter alia based on
- “severity” ;
- “nature of impairment” or
- “difference in functioning and communication” is in
contradiction with article 1 (“promote, protect and
ensure the full and equal enjoyment of all human
rights and fundamental freedoms by all persons with
disabilities”.
• Article 1 encompasses the stated purpose of the
Convention, any interpretation which is in breach of
that article is totally impermissible.

8. Committee on all persons
• Recognition of all persons’ legal capacity and
right to exercise it (COB China, para 22 a,
2012)

9. Committee on Legal Capacity and
some of the often denied rights
• Respect to the individual's right, in his/her own
capacity, to give and withdraw informed consent for
medical treatment, to access justice, to vote, to marry,
to work, and to choose a place of residence. (COB
Hungary, para 26, 2012)
• Adopt measures to ensure that all health care and
services provided to persons with disabilities, including
all mental health care and services, is based on the
free and informed consent of the individual concerned,
and that laws permitting involuntary treatment and
confinement, including upon the authorization of third
party decision-makers such as family members or
guardians, are repealed. (COB China, para 38, 2012)

10. Committee on Legal Capacity and
some of the often denied rights
• The Committee is concerned that persons with
disabilities whose legal capacity is not recognized
may be subjected to sterilization without their
free and informed consent.
• The Committee urges the State party to abolish
the administration of medical treatment, in
particular sterilization, without the full and
informed consent of the patient; and ensure that
national law especially respects women’s rights
under articles 23 and 25 of the Convention. (COB
Spain, paras 37-38, 2011)

11. CRPD Article 12: Special protection as
affirmative measure?
• Article 5(4) allows for affirmative actions to achieve de
facto equality.
• Any special measure which results in the segregation
or exclusion of persons with disabilities on grounds of
“severity”; “nature of impairment” or “difference in
functioning and communication” would be against the
letter and spirit of affirmative action.
• Any measure which interferes with the autonomy of
the person with disabilities including the freedom to
make their own choices cannot be deemed affirmative
action under article 5(4) of the Convention.

12. The Committee on Article 12 para 2
• Repeal the laws, policies and practices which
permit guardianship and trusteeship for adults
(COB China, para 22, 2012)
• Abolish the practice of judicial interdiction and
review the laws allowing for guardianship and
trusteeship to ensure their full conformity
with article 12 (COB Peru, para 25, 2012)
• Take immediate steps to derogate
guardianship (COB Hungary, para 26)

13. CRPD Article 12 para 3: the duty to
provide access to support
• Besides abolishing norms that violate the duty
of states parties to respect the human right of
legal capacity, it is equally important that
legislative, judicial, administrative and any
other measures that protect and fulfill this
right are also adopted.

14. Committee on enabling measures
regarding access to support
• Take legislative action to replace regimes of substituted
decision-making by supported decision making, which
respects the person’s autonomy, will and preferences, in
the exercise of one’s legal capacity in accordance with
article 12 of the Convention.
• Legislate and implement, in consultation with organizations
of persons with disabilities, a blueprint for a system of
supported decision-making, which includes:
- Accommodations and access to support where necessary
to exercise legal capacity;
- Arrangements for the promotion and establishment of
supported decision-making. (COB China, para 22b and d)

15. Committee on enabling measures
regarding access to support
• Provide training, in consultation and
cooperation with persons with disabilities and
their representative organizations, at the
national, regional and local levels for all
actors, including civil servants, judges, and
social workers, on the recognition of the legal
capacity of persons with disabilities and on
mechanisms of supported decision-making.
COB Hungary, para 26, 2012)

16. CRPD Article 12: What if no support
available?
• Provision of access to support is an enabling
measure to ensure that persons with disabilities
enjoy their legal capacity on an equal basis with
others.
• Legal capacity cannot be denied by reason of
obtaining such support; at the same time the
absence of such support cannot be a reason to
deny the exercise of legal capacity to persons
with disabilities; nor can persons with disabilities
be obligated to obtain such support to exercise
their legal capacity.

17. CRPD Article 12 para 3: Supported
decision making or support to exercise
legal capacity?
• To provide access to support that enables persons with
disabilities to exercise their legal capacity. The diverse
nature of this support is also acknowledged in several
other articles of this Convention. (E.g. Articles 9(2) (f);
19(b);23 (2); 24 (2) (d); 26 (1) (b) and 29(iii))
• Both article 12 (3) and all the aforementioned articles
refer to support to enable persons with disabilities to
exercise the particular right. Hence any system
whereby persons with disabilities are prevented from
exercising the right cannot be termed support.

18. CRPD Article 12 para 3: Supported
decision making or support to exercise
legal capacity?
• Any support to enjoy the substance of any other
right in the Convention may be support under
article 12(3).
• Of particular relevance are support to:
- exercise informed consent to medical
treatment;
- to own and manage property and exercise
financial autonomy and management;
- to choose where and with whom to live.

19. CRPD Article 12 para 3: Provision of
support or access to support?
• The duty is to provide access to support as distinct
from provision of support.
• Access to support in contradistinction to support
would require states parties to take a range of
initiatives:
- for some persons it would be a recognition of an
existing support arrangement;
- for others it may necessitate the launch of schemes
which assist in the creation of networks of support;
- for still others the states parties may need to
establish the support networks.

20. CRPD Article 12 para 4: Can restriction
of legal capacity be a safeguard/
• Article 3 is an integral part of the object and
purpose of the Convention. Hence the safeguards
shall be interpreted to advance the full and equal
enjoyment of all rights by respecting the persons
autonomy including the freedom to make one’s
own choices, will and preferences.
• Safeguarding substitution to decision-making
presumes an interference with a person’s
autonomy and hence is in conflict with article
12(4) as interpreted by this Committee in its
concluding observations.

21. CRPD Article 12 para 4: Safeguards
• Suitable measures to prevent the abuse and
exploitation of persons with disabilities. Such
measures should as far as be disability neutral.
Furthermore wherever disability specific
measures are needed, it would be more
appropriate to devise them under article 16
which is the dedicated article on the issue.

22. Committee on Safeguards
• Supported decision making, which respects
the person’s autonomy, will and preferences;
• Regulations to ensure that support respects
the person’s autonomy, will and preferences
and establishment of feedback mechanisms to
ensure that support is meeting the person’s
needs. (COB China, para 22 and 22c)