Involuntary Treatment – Legal capacity, Article 12 CRPD and the paradoxes of beneficience. Jerome Bickenbach Swiss Paraplegic Research FUNDAMENTAL RIGHTS.

“Involuntary Treatment ” – Legal capacity, Article 12 CRPD and the paradoxes of beneficience.

Jerome BickenbachSwiss Paraplegic Research

“FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND PERSONS WITH MENTAL HEALTH PROBLEMS”

Stakeholder meeting4-5 November 2010

Vienna, Austria

BackgroundA. People with temporary, permanent or

episodic difficulties in cognitive or emotional functions of such severity as they [or others] percieve them to interfer with their decision-making capacity.

(or communication problems)

PEOPLE WITH MENTAL HEALTH PROBLEMS

BackgroundB. Fundamental rights:

Convention on the Rights of Persons with Disabilities

Civil rights and human rightsPersonal right and social and economic rights…

All apply to persons with mental disabilities, but because of fear, stigma and stereotyping, people with mental disabilities have to fight for the most basic and personal of rights…

THE RIGHT TO BE A PERSON

CRPD – GENERAL PRINCIPLESArticle 3 - General principles

The principles of the present Convention shall be:

a. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

b. Non-discrimination; c. Full and effective participation and inclusion in society; d. Respect for difference and acceptance of persons with disabilities as part of

human diversity and humanity; e. Equality of opportunity; f. Accessibility; g. Equality between men and women; h. Respect for the evolving capacities of children with disabilities and respect for

the right of children with disabilities to preserve their identities.

THE ISSUE RESPECTRESPECT

BackgroundCaveat:

Brutalizing, humiliating, cruel and lethal ‘treatment‘ obviously exists around the

globe – these are massive injustices, but clear and obvious injustices and ones

(We know this because brutalizing treatment are never justified as brutalizing but as essential, necessary, beneficial, in the patient‘s best interest…)

So, more legally challenging treatment scenarios are more useful for policy development and CRPD implementation

CRPD: Article 12, legal capacity and treatment decision-making

How does the CRPD apply to respect for the person in treatment settings?

How should CRPD be interpreted?

How would this interpretation be applied in specific cases where autonomy and beneficience conflict?

IS INVOLUNTARY TREATMENT PROHIBITED BY ARTICLE 12?

Article 12 - Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

Article 12 - Equal recognition before the law: Rights

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

IS INVOLUNTARY TREATMENT PROHIBITED BY ARTICLE 12?

What we know already about Article 12…

•It has both a negative (protecting against abuse) and a positive (providing support for decision-making) focus.

•But does It anticipates in subsection 4, not just

a) the need for decision-making support,

but also

b) the possibilities of (legitimate) constraints or limitations on the exercise of autonomy?

Scenarios of Involuntary treatment and involuntary non-treatment

The refusal (to consent to) life sustaining treatment

The refusal of prescribed treatment (directed at

underlying disease)

The refusal to prescribed treatment (directed at on

professional outcomes, e.g. normal behaviour)

The request to end life

The request for treatment that is professionally judged

not in one‘s interests (harmful, non-beneficial)

Implementation of Article 12 in real cases

States parties obliged to put into place legal effective and enforceable mechanisms to…

Protect LEGAL CAPACITY

SUPPORT the exercise of legal capcity

Provide SAFEGUARDS to any limitations to legal capacity

Does Article 12 requireNo treatment if no consent?

Emergency, life-saving, unconsious....?

Does Article 12 requireRespecting every decision about

treatment?

cf. Jehovah wittness child refusing blood transfusion

Does Article 12 requireRejection of 'ends justify means'

justifications?

What ends, what means?

Does Article 12 demandNon-prescriptive, non-judgmental

support?

Supporting, respecting ……but disagreeing and trying to persuade to change mind

What does Article 12 require?

enjoy legal capacity on an equal basis with others...