CRPD Article 12 and Supported Decision-Making
Candidate number: 8028
Submission deadline: 15. August 2020 Number of words: 19869
i Table of contents
1 INTRODUCTION ... 1
1.1 Scope, Objective, and Research Questions ... 3
1.1.1 Objective ... 3
1.1.2 Research Questions ... 4
1.1.3 Scope and limitations ... 4
1.2 Methodology ... 5
1.2.1 Normative assumptions and principles ... 6
1.3 Structure ... 8
2 BACKGROUND ... 9
2.1 Fundamental concepts and debates ... 10
2.1.1 Disability ... 10
2.1.2 Equal Recognition before the Law ... 11
2.1.3 Legal personality and legal capacity ... 13
2.1.4 Substituted and supported decision-making ... 15
2.2 Implementation ... 16
2.2.1 Norway ... 18
2.3 Literature review ... 20
3 SUPPORTED DECISION-MAKING AND AUTONOMY ... 22
3.1 Understanding autonomy ... 23
3.1.1 Autonomy and the CRPD ... 24
3.1.2 Autonomy and rationality ... 25
3.1.3 Relational understandings of autonomy ... 27
3.1.4 Autonomy in this thesis ... 28
3.2 Challenges ... 29
3.2.1 «Best interest» versus «choices and preferences» ... 29
3.2.2 How to secure a person’s “authentic preferences”? ... 30
3.2.3 Awareness of consequences ... 32
3.2.4 Securing a correct interpretation ... 33
3.2.5 Translating theoretical principles into practice ... 34
4 CONFLICTS OF RIGHTS ... 35
4.1 Conflicts of rights – background and literature review ... 37
4.1.1 Different approaches to conflicts of rights ... 37
4.2 Conflicts of rights and supported decision-making ... 39
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4.2.1 Autonomy versus health? ... 40 4.2.2 Supported decision-making as facilitating the process of navigating conflicts of rights – modifying background conditions ... 43 5 FINAL REMARKS ... 45 6 TABLE OF REFERENCES ... 49
Table of abbreviations
AAIDD: American Association of Intellectual and Developmental Disabilities
CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women CRPD: Convention on the Rights of Persons with Disabilities
DPO: Disabled People’s Organization GC1: CRPD’s General Comment No.1
ICCPR: International Covenant on Civil and Political Rights
ICESCR: International Covenant on Economic, Social and Cultural Rights ID: Intellectual disability
IDC: International Disability Alliance
NOU: Norges Offentlige Utredninger (Official Norwegian Report) PWD: Persons With Disabilities
UDHR: Universal Declaration of Human Rights WHO: World Health Organization
1 1 Introduction
Persons with disabilities (PWD) experience a wide range of marginalization and human rights violations, including inequality and discrimination, violations of dignity, and denial of auton- omy1. Decision-making and self-determination rights are commonly stripped away from PWD - and particularly people with intellectual disabilities - for example through guardianship schemes, involuntary confinement in institutions, or removal of their legal capacity based on diagnosis or mental capacity assessments2. This issue has received increased academic and legal attention in recent decades: The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on September 13, 2006, marked a significant point in these debates on the rights of PWD. It emphasized that PWD have the right to equal recognition as persons before the law, and “enjoy legal capacity on an equal basis with others in all aspects of life”3. Although the recognition of legal capacity includes a variety of factors, Kjersti Skarstad argues that “in practice, legal capacity means self-determination – having self-governance,” or the ability to make one’s own decisions and lead one’s own life within legal confines4. This stands in contrast to the aforementioned approaches to decision-making, which often strips certain groups of PWD of these rights. To achieve a shift to this new ap- proach, the Committee on the Rights of Persons with Disabilities (henceforth “CRPD Com- mittee”) outlined that the realization of the right to equal recognition before the law entails a shift from what they call substitute decision-making, to a supported decision-making regime5. This new regime is supposed to give priority to a person’s will and preferences, and to help secure autonomy and equal recognition before the law. While supported decision-making has been praised as a long-needed paradigm shift, it has also been controversial, and is still an object of debate among scholars, states, and activists in the field. One main point of debate concerns how one can “secure the right to legal capacity of persons with disabilities while simultaneously providing sufficient protection for other rights, such as the rights to health and freedom from abuse and ill treatment”6. This thesis will explore two of the main discussions
1 World Health Organization and World Bank. “World report on disability,” 9.
2 Arstein-Kerslake and Flynn, “Roadmap for equality before the law,” 471-490; World Health Organization and World Bank, “World report on disability,” 9.
3 CRPD, Article 12.
4 Skarstad, «Self-determination policies,» 776.
5 CRPD Committee. “GC1,” para. I.1-4.
6 Arstein-Kerslake and Flynn, “Roadmap for equality,” 471.
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connected to supported decision-making and Article 12, namely on the CRPD’s understand- ing of autonomy, and the potential conflicts of rights that might arise from this understanding.
Supported decision-making is rooted in CRPD’s Article 12 concerning the right to equal recognition before the law. This article holds that PWD have the right to be recognized as persons before the law, have legal capacity on an equal basis with others, and must be given the support needed to exercise said capacity7. This thesis is based in the understanding that the shift to supported decision-making, as outlined in the CRPD’s General Comment No.1 (GC1), is essential to the implementation of Article 12, and should be incorporated into prac- tice. Based on this premise, the thesis will look at some of the complexities and challenges that might arise in this effort, in an attempt to understand both what makes this process com- plicated, and why it is important to the realization of the rights held in the CRPD.
One notable aspect in the CRPD, relevant to supported decision-making, is the concept of autonomy. Autonomy is mentioned in the CRPD Article 3’s General Principles, which pro- vide a framework for interpretation of the Convention as a whole8. Article 3 calls for the re- spect for “individual autonomy including the freedom to make one’s own choices, and inde- pendence of persons”9 – and is thus relevant for discussions on supported decision-making, which gives centrality to a person’s will and preferences, allowing greater freedom to make one’s own choices. The CRPD’s approach to autonomy challenges certain traditional theories on autonomy - particularly those who base autonomy in rationality requirements or use it as a condition for rights eligibility – in that it understands autonomy as a fundamental principle, held by everyone on an equal basis. This conception of autonomy forms part of the basis of the GC1’s understanding of supported decision-making. Understanding how supported deci- sion-making can promote an individual’s autonomy, and what challenges might arise, is there- fore important to understanding the complexities of the implementation of the complete shift to this new decision-making regime. One chapter of this thesis will therefore be devoted to discussing autonomy.
7 CRPD, Article 12.
8 Lord and Stein, "Social Rights and Relational Value," 258.
9 CRPD, Article 3(a).
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This discussion will lead to a discussion on conflicts between rights: In the process of protect- ing one right – such as a person’s autonomy or liberty rights – there might be cases where the basic elements that are needed to protect said right might have fundamental conflicts with that is needed for the protection of other rights. One common example is potential conflicts be- tween rights to security and liberty10. Following the discussion of autonomy, the thesis will look at conflicts of rights that might arise from CRPD’s understanding of autonomy, and the implementation of the supported decision-making regime. It will also briefly look at how the supported decision-making regime might be used to address these challenges.
1.1 Scope, Objective, and Research Questions
1.1.1 Objective
This thesis aims to explore the complete shift from substitute to supported decision-making, and to illustrate how such a shift can help secure respect for human rights. It will contribute to academic discussions on supported decision-making, particularly with regards to what it might look like for supported decision-making to safeguard autonomy, and questions sur- rounding conflicting rights. Based on the premise that the complete shift of decision-making regimes, as called for in the GC1, should be achieved, the goal of the thesis is to understand some of the challenges, implications, and possible solutions that might arise in connection with the implementation of the supported decision-making regime, and how it might protect and promote human rights.
This will be done through evaluating a selection of debates surrounding the implementation of supported decision-making. It will attempt to address some fundamental challenges might arise, and will also show how further research is needed on several fronts, as the complexity of some of these questions prevents the easy identification of categorical, definitive answers.
Where possible, it will discuss how these challenges might be addressed and navigated within the supported decision-making regime.
The thesis mainly examines theoretical and normative debates surrounding these topics, but will use examples of practice and implementation to highlight the concrete implications for people’s lived experiences.
10 Nickel, «Making Sense of Human Rights,» 66.
4 1.1.2 Research Questions
Based on these goals, this study centers its discussion around the following research question:
What are the challenges to the realization of a complete shift to supported decision-making, as described by the CRPD Committee in their General Comment No. 1, when it comes to the respect for autonomy and addressing potential conflicts of rights and interests?
This question will be supported by two sets of sub-questions, to narrow the focus of the dis- cussion to specific debates surrounding supported decision-making:
1. What might it mean for a supported decision-making regime to protect autonomy, and what potential challenges might be encountered?
2. Which conflicts of rights might follow from the respect for individual autonomy, and how might these be approached through the supported decision-making regime?
1.1.3 Scope and limitations
A variety of questions can be raised concerning equality before the law in the context of Arti- cle 12, the CRPD as a whole, and human rights law and practice in general. These range from foundational, theoretical questions to concrete, practical questions of implementation and pol- icy. Due to the given limitations on scope and size of this research project, this thesis consid- ers a narrow part of this topic, focusing specifically on autonomy and conflicts of rights con- nected to supported decision-making.
Although the theoretical and legal aspects of Article 12 and the GC1 have received some aca- demic attention, there is currently a notable research gap with regards to analysing actual state practice11. Therefore, this thesis initially aimed to take a more practical approach, interview- ing professionals involved in the implementation of supported decision-making in Norway and Canada. Due to unplanned circumstances connected to the worldwide COVID-19 situa- tion, the study was unable to complete these interviews. The main research question of the thesis was therefore changed, as a more practice-oriented study became impossible. The new research question works towards the same goal, namely developing a deeper understanding of the complexities of the process of implementing a complete change to supported decision- making, and how it can help secure respect for human rights. It is, however, more suited to the methods which were available given the circumstances.
11 Skarstad, «Realizing the rights of PWD,» 32-33.
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Following this shift in research focus, this study makes use of a combination of legal analysis, document analysis, and an examination of existing statistics on the topic, to analyse the re- search questions. Although some primary sources will be utilized, the majority of the materi- als under analysis will be secondary sources. As there is limited statistics available on guardi- anship and/or decision-making practices for PWD in most countries, and the data that exists is often not disaggregated sufficiently or at all, there are limits to the conclusions that can be drawn from this material. It can nevertheless be used to provide context for the theoretical debates.
Due to the scope of the thesis, practical and ethical concerns, and the researcher’s experience, this study does not incorporate interviews with PWD who are impacted by these questions.
This results in the study having a potentially more limited insight into the experiences and opinions of PWD and people who are directly impacted by these questions, as these voices are often not directly represented in academic and theoretical discourse on Article 12. As these debates, as well as their conclusions and implementation, have the potential to have extensive impact of the lives of these persons, this study will strive to be conscious of which voices are most commonly heard in the debates under discussion, and the implications this might have on the conclusions drawn in the thesis’ analysis and conclusion.
1.2 Methodology
This study uses an interdisciplinary approach to analyze the overarching research questions as comprehensively as possible within the frames of this project. The study takes a qualitative approach, utilizing methods from law and social and political science, including political the- ory. This approach was chosen to examine how the legal principles in question play out in practice, and what the process of translation of the principles within the CRPD to national policy and practice might look like. The shift to supported decision-making involves legal, political and social elements. For this reason, it would be most appropriate take an interdisci- plinary approach.
The thesis makes some use of legal theoretical research – defined by Pearce et.al. as “research which fosters a more complete understanding of the conceptual bases of legal principles and of the combined effects of a range of rules and procedures that touch on a particular area of
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activity”12. In addition to this, it also makes use of methods and findings from social and po- litical science. This approach, aiming to evaluate law in the context of the society in which it operates, allows the thesis to assess the “legal and political transposition of a human rights norm,” and assess how implementation might take place – and which potential practical limi- tations exist13. As the topic under discussion in this thesis raises both theoretical and practical questions with regards to how to secure the enjoyment of fundamental human rights for PWD, this approach allows the thesis to address multiple facets of the discussions and challenges that might arise connected to supported decision-making
As remarked above, this study makes use of a combination of legal analysis, document analy- sis, and an examination of existing statistics. The document analysis will mostly be based on content analysis, and will mainly be based in secondary sources such as articles concerning supported decision-making, theoretical discussions surrounding Article 12, original research on the practice of supported decision-making, and other relevant academic discussions includ- ing autonomy theory and discussions on conflict of rights. Additionally, primary sources such as government statistics (especially in the case study of Norway) will be used to illustrate the practical dimensions of the theoretical discussions.
1.2.1 Normative assumptions and principles
The thesis grounds its analysis in the premise that the change to supported decision-making represents a significant part of the obligations under Article 12, and should therefore be im- plemented to protect the human rights expressed in the CRPD. The thesis draws its fundamen- tal normative assumptions from the CRPD in general, and from clarifications on the content and scope of Article 12 as specified in the GC1. It will also draw from other relevant human rights bodies in its discussion of equality before the law, supported decision-making, and au- tonomy.
The thesis works from the premise that “the human rights-based model of disability implies a shift from substitute decision-making paradigm to one that is based on supported decision- making,” as outlined in GC114. This means that the thesis will not contribute to debates about the relative merits of different decision-making regimes or the relative appropriateness and
12 Pearce, Campbell and Harding, “Australian Law Schools: Discipline Assessment”.
13 McInerney-Lankford, «Legal methodologies and human rights research,».
14 CRPD Committee, “GC1,” para 1.3.
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feasibility of a complete shift to supported decision-making. Instead, it will base itself in the premise that supported decision-making forms an integral part of the protection of the rights outlined in Article 12, supported by the GC1’s clear statement that this is a requirement. Tak- ing this as a premise, the thesis therefore presents an internal discussion within the boundaries of this assumption, to explore some of the critiques and challenges that might arise within the implementation of this shift.
The discussions in this thesis are based in normative principles that are integral to the CRPD and Article 12, including equal recognition before the law, autonomy, and non-discrimination.
These principles will be used when evaluating the discussions on the shift to supported deci- sion-making and the potential challenges – and opportunities – that might arise.
1.2.1.1 Equal recognition before the law
CPRD Article 12 outlines the right to equal recognition before the law to include the right to legal personality and legal capacity – or the right to be a holder of rights and duties, and the right to act on and amend them. This principle can also be found in Article 6 of the Universal Declaration of Human Rights (UDHR), Article 16 of the International Covenant on Civil and Political Rights (ICCPR), and Article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It will be discussed more in-depth in section 2.1.2.
1.2.1.2 Autonomy
According to Joel Feinberg, autonomy can be described by terms like “self-determination,”
“self-rule,” or “independence”, and has also been used to represent ideas of empowerment15. It is included in the CRPD’s General Principles, which was the first human rights convention to explicitly make mention of autonomy. This thesis uses autonomy in line with the CRPD understanding of the term, and will not view it as a qualifier for rights, but as something eve- ryone has a right to. Autonomy will be discussed further in Chapter 3.
1.2.1.3 Non-discrimination
15 Feinberg, «Harm to Self,» chapter 18.
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The right to equality and non-discrimination is integral to a variety of international human rights instruments, including but not limited to: the UN Charter; ICCPR; CEDAW; the Inter- national Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention of the Rights of the Child, alongside a variety of regional instruments. It is codified in the CRPD in Articles 3 and 5, which outline that this principle entails that “all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law,” that all discrimination on the basis of disability is prohibited, that reasonable accommodation should be provided, and that “specific measures to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination”16. It will be at the foundation of the discussions throughout this thesis.
1.3 Structure
This thesis is structured into five chapters. Following this introduction, Chapter 2 gives a more detailed overview of relevant background information. It will include a brief review of literature and an introduction to main concepts and debates related to supported decision- making, including disability, equal recognition before the law, legal personality and legal ca- pacity, and substituted and supported decision-making. This provides a backdrop for the anal- ysis in the following chapters.
Chapter 3 answers to sub-question 1, looking at what it might mean for supported decision- making to protect autonomy. It opens with a brief review of literature and a discussion of au- tonomy in the context of the CRPD, before discussing some of the questions that might arise in its implementation, including discussions on: the best interest vs choices and preferences approaches, discussions on authentic preferences and awareness of consequences, how to en- sure a correct interpretation, and how to translate theory into practice.
Chapter 4 addresses sub-question 2, and discusses some of the debates concerning conflict of rights that may follow from the autonomy discussion in Chapter 3, and briefly looks at some ways the supported decision-making regime might potentially be used to approach these con- flicts in a constructive manner.
Finally, the last chapter presents the thesis’ conclusion, final remarks, and suggestions for further research.
16 CRPD, arts. 3 and 5 (1-4).
9 2 Background
Persons with disabilities face a wide range of marginalization, discrimination and human rights violations, and do so at higher rates than non-disabled persons17. The WHO estimates that more than one billion people – or about 15% of the world’s population - live with one or more forms of disability, and report that this number has increased the last decades due to factors like population aging and the rise of chronic health disorders18. In other words, a sig- nificant portion of the world’s population has experiences with disability. Despite this, disa- bility has received somewhat limited academic attention in the human rights field: in political science research, for example, Skarstad found that out of 185,086 articles in the field available on the Web of Science, only 19 articles covered disability and human rights19 - amounting to less than 0.01% of the total number of articles. The adoption of the CRPD in 2006 contributed to increasing the attention given to the rights of PWD20, but there are still a variety of topics in this field that would benefit from further academic attention.
One of these topics is Article 12, where there have been debates on “how to secure the right to legal capacity of persons with disabilities while simultaneously providing sufficient protection for other rights, such as the rights to health and freedom from abuse and ill treatment”21. Alt- hough this topic has been one of the more debated ones within the relatively limited scholar- ship available on disability and human rights, there are still a variety of questions and debates that have yet to be answered or settled. This thesis examines some of these questions, looking specifically at questions related to autonomy and conflicts of rights.
This chapter gives the reader a general overview of the topic. It gives a brief literature review, and provides an outline of the concepts under debate, including disability, equal recognition before the law, legal personality and legal capacity, and substituted and supported decision- making. It also includes a brief section about Norwegian practice, to give the reader an exam- ple of how these questions play out in current political and legal contexts. Overall, the chapter provides context for the discussions on autonomy and conflicts of rights in chapters 3 and 4.
17 World Health Organization and World Bank, “World report on disability,” 9; Arstein-Kerslake and Flynn,
“Roadmap for equality before the law,” 471-490; Skarstad, “Realizing the human rights of PWD,” 11.
18 World Health Organization and World Bank, “World report on disability,” 5-8.
19 Skarstad, “Realizing the human rights of PWD,” 11.
20 Arstein-Kerslake and Flynn, “Roadmap for equality,” 471.
21 Arstein-Kerslake and Flynn, “Roadmap for equality,” 471.
10 2.1 Fundamental concepts and debates
This section gives an overview of topics and concepts discussed in this thesis, namely: disa- bility, equal recognition before the law, legal personality and legal capacity, and substituted and supported decision-making.
2.1.1 Disability
Article 1 of the CRPD outlines that PWD “include those who have long-term physical, men- tal, intellectual or sensory impairments which in interaction with barriers may hinder their full and effective participation in society on an equal basis with others”22. This definition, which emphasizes the social and societal aspects of disability, formsthe basis of this thesis’ under- standing of disability.
It is essential to note that PWD is not a homogenous group, and that there is large diversity of experiences. The WHO argues that while stereotypical understandings of disability emphasize specific groups – “wheelchair users and a few other ‘classic’ groups such as blind people and deaf people” – the experience with disability varies greatly and is a result of complex interac- tions between health, environmental, and personal factors23. It also points out that while “dis- ability correlates with disadvantage,” not all PWD face the same levels of disadvantage, and some groups might be doubly or triply disadvantaged. Women with disabilities, for example, can face both gendered discrimination and disabling societal barriers – this can be understood through a lens of intersectionality, which examines how different levels of disadvantage inter- act to shape a person’s lived experience24. For this reason, speaking of PWD as a blanket term is inaccurate and unproductive.
This thesis focuses mainly on persons with intellectual disabilities (ID), as this is a group that more frequently may be impacted by the contents of Article 12, particularly with regards to questions on autonomy and liberty rights. “Intellectual disabilities” is itself a blanket term which includes a variety of experiences and conditions25. According to the AAIDD, this form of disability is “characterized by significant limitations in both intellectual functioning and
22 CRPD, Article 1
23 World Health Organization and World Bank, “World report on disability,” 8.
24 Crenshaw, Kimberlé, «Mapping the Margins».
25 NOU 2016:17, 27.
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adaptive behaviour, which covers many everyday social and practical skills”26. This definition echoes that provided by WHO’s Europe office, which also emphasizes that disability is not solely dependent on individual impairment, but “the extent to which environmental factors support (…) full participation and inclusion in society”27. This thesis will use this definition of ID, recognizing that there are large degrees of diversity of experience - and degree of impair- ment or disadvantage – that exists within this group.
2.1.2 Equal Recognition before the Law
The GC1 outlines that the right to equality before the law is a “basic general principle of hu- man rights protection,” and that it is “indispensable for the exercise of other human rights”28. Equality before the law is specifically guaranteed in several human rights treaties, including the CRPD. CPRD Article 12 outlines this right to include both the right to legal personality and legal capacity – or the right to be a holder of, and to act on and amend, rights and duties.
This right is therefore essential to ensuring the enjoyment of other human rights: one can ar- gue that without recognition of legal capacity and autonomy, other human rights including but not limited to the rights to liberty, health, political participation, and the freedom from torture
“will be significantly compromised, if not completely voided”29. Removal of legal capacity has been used to justify a variety of harmful practices, including institutionalization, clinical experiments, forcible sterilization and denial of participation in society,30 which highlights how the denial of the right to legal capacity can be highly detrimental to the enjoyment of a wide spectrum of other fundamental human rights.
Although the right to equal recognition before the law is recognized in several bodies of inter- national human rights law, the concrete contents of this right has not been extensively elabo- rated in the treaties in question. The right to equal recognition before the law was first men- tioned in UDHR Article 6, and later included in two legally binding treaties: ICCPR Article 16 and CEDAW Article 15 both recognize this right31. Where the former two appear to focus mostly on recognizing an individual’s legal personality – the ability to be the bearer of legal of rights and duties – the CEDAW includes both “legal personality” and “legal capacity and agency”32, which also concerns an individual’s ability to “exercise, claim or defend” one’s
26 AAID, “Definition of Intellectual Disability”.
27 WHO Europe, “Definition: Intellectual Disability”
28 CRPD Committee, “GC1,” para 1.1
29 Skarstad, “Realizing the human rights of PWD,” 162.
30 Ibid.
31 UDHR, Article 6; ICCPR, Article 16; CEDAW, Article 15.
32 de Bhailís and Flynn, «Recognizing legal capacity,” 3.; Gooding, Arstein-Kerslake and Flynn, «Assistive technology as support,” 247.
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rights and assume legal liability33. According to the CEDAW, this includes equal rights to
“conclude contracts and to administer property,” and the right to be treated “equally in all stages of procedure in courts and tribunals”34. One should note that the text of CEDAW Arti- cle 15 specifically focuses on the gendered aspect, calling for equal recognition before the law of men and women, but not mentioning other groups to which this right might apply. It is also worthy of note that neither the text of the UDHR nor ICCPR Article 16 provides further clari- fication on the concrete scope of the right.
The right to equal recognition before the law is secured in the CRPD both as a General Prin- ciple, and specifically in Article 1235. Article 12 provides some elaboration on what the con- tents of this right are:
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 ca- pacity provide for appropriate and effective safeguards to prevent abuse in accord- ance 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 tai- lored to the person’s circumstances, apply for the shortest time possible and are sub- ject 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 af- fect 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 in- herit property, to control their own financial affairs and to have equal access to bank
33 Series & Nilsson, «Article 12,» 2.
34 CEDAW, Article 15.
35 CRPD, Articles 3, 12.
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loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.36.
As paragraphs 12.1 and 12.2 indicate, the CRPD understands “equal recognition before the law” to include both legal capacity and legal personality – as in CEDAW, discussed above, CRPD Article 12 thus seems to include both the capacity to hold rights and to act under the law. The distinctions between legal capacity and legal personality, as understood in the CRPD, will be elaborated on below.
2.1.3 Legal personality and legal capacity
According to Article 12 and the CG1, the rights to legal capacity and legal personality are integral to securing equal representation before the law, but there have been some debates about what this concretely means in the context of the CRPD. On a general basis, legal per- sonality can be defined as “a compendium of rights and duties that enable an actor to function in a legal system” – a set of rights and duties that are a prerequisite for participation in a legal or political system37. A classic form of legal personality is a subject that “can sue and be sued, can be held liable for his actions, and is considered autonomous”.38 A legal person is thus a subject of rights and duties39.
The term legal capacity shares many similarities with legal personality. Although there cur- rently does not exist a definition of legal capacity that has been accepted internationally40, it is commonly understood as “the ability of a person to make decisions that may have legal con- sequences for themselves and/or for others,” such as entering into a contract - in other words, not only the capacity to be a holder of rights, but to act on and amend them, for example through marriage41. The GC1 holds that legal personality is a prerequisite for having legal capacity42.
36 CRPD, Article 12.
37 Mark, «Legal Personality,» 753.
38 Naffine, “Who are law’s persons?”, 80-81.
39 Smith, «Legal Personality,» 283.
40 European Union Agency for Fundamental Rights, «Legal capacity of persons with intellectual disabilities,» 9.
41 Gooch, Graham and Williams, «A Dictionary of Law Enforcement,» Capacity.
42 CRPD Committee, “GC1,” para. 11.
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Many conceptions of legal personality and legal capacity include the concept of a so-called
“rational actor”, which in turn has been understood as legal personality requiring a certain form of mental capacity43. This is based in an idea that in order to make decisions on how to lead one’s life, one needs to have a certain understanding of the decisions and their implica- tions – this will be discussed in-depth in Chapter 3. The GC1 model challenges this concep- tion of legal capacity, specifying its understanding that mental capacity is not a requirement for legal capacity. Where legal capacity, as understood by the CRPD Committee, concerns the ability to hold and exercise rights and duties, mental capacity “refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors”44. The GC1 specifies that “perceived or actual deficits in mental capacity” should not be used to jus- tify removal or denial of legal capacity45.
Many countries currently have legislation allowing for removal of legal capacity based on mental capacity assessments46. The use of such assessments has been criticized on different grounds. The GC1 points out two significant criticisms: Firstly, that mental capacity assess- ments by nature are fundamentally flawed: they presume to have an ability to assess “the in- ner workings of the human mind” with accuracy, and are used to remove rights based purely on a perceived level of competence47. It questions whether it is at all possible to accurately determine the level of “capacity” or competence.
Secondly, the GC1 argues that removal of legal capacity following mental capacity assess- ments are “discriminatorily applied to people with disabilities” 48. This line of criticism points out that such assessments will, through their focus on perceived “competence” and similar criteria, necessarily be skewed in a way that ends up impacting persons with certain forms of ID more frequently. Skarstad notes that if the right to equality before the law can be restricted on the basis of a person’s assumed competence or mental capacity, the practical application would lead to persons with stronger ID consistently being denied the right to autonomy at higher rates than others49. Autonomy will be discussed more in-depth in Chapter 3.
The right to legal capacity also has links to the fulfilment of other human rights: As an exam- ple, the UN Special Rapporteur on Torture has emphasized the importance of the recognition
43 Series, «Relationships, autonomy and legal capacity,» 80-81.
44 CRPD Committee, “GC1,” II.13.
45 CRPD Committee, “GC1,” II.3.
46 OHCHR, «Annual report of the OHCHR» A/HRC/10/48, para. 45.
47 CRPD Committee, “GC1” art. 15
48 Ibid
49 Skarstad, «Funksjonshemmedes menneskerettigheter,» 118.
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of legal capacity. The 2013 Report of the Special Rapporteur on torture argues that “fully respecting each person’s legal capacity is a first step in the prevention of torture and ill- treatment”50. The report further holds that removal of legal capacity, based in “stigma and discrimination,” has led and leads to deprivation of liberty of PWD – forcible institutionaliza- tion being one example of this51.
The GC1 understanding of legal capacity takes its basis in what is known as the “social model of disability,” which understands disability as the result of the “interaction between a person’s individual make-up (including any ‘impairment’ they may have) with their social environ- ment,”52 and therefore focuses on challenging social and environmental barriers that hinder inclusion. In this understanding, everyone has a right to being recognized as having legal per- sonality and capacity, without any mental capacity requirement – instead of framing “’mental capacity’ as an individual deficit, resulting in a loss of legal capacity,” it requires that appro- priate support is provided, so that everyone may exercise their legal capacity on an equal ba- sis53. In this model, the barrier towards full legal capacity is not the person’s individual level of capacity, but the societal structures preventing a person from obtaining the appropriate support and accommodations needed to exercise their rights. This understanding that support should be provided to allow for everyone to exercise legal capacity, without having to meet pre-determined benchmarks of “capacity,” is the basic foundation of the supported decision- making regime.
2.1.4 Substituted and supported decision-making
There have been various debates on the scope and nuances of supported decision-making.
Nevertheless, the CRPD Committee provides a useful basic delineation between supported and substitute decision-making in the GC1, which will be used as a starting point for the dis- cussions in this thesis. According to the GC1, substitute decision-making regimes are identi- fied by the removal of legal capacity from persons in one or more decisions; the potential ap- pointment of a substitute decision-maker, even against the person’s will; and a prioritization of the assumed “best interest” of the person over their will and preferences, when decisions are made by a substitute decision-maker54. One common example of substitute decision- making is plenary or partial guardianship.
50 UN Special Rapporteur on Torture, “Report of the Special Rapporteur,” A/HRC/22/53, 15-16.
51 Ibid
52 Alston, «Towards Supported Decision-making,» 23; Series, «Support Paradigms,» 80.
53 Ibid.
54 CRPD Committee, “GC1,” para. III.29.
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Supported decision-making, on the other hand, centers on a person’s will and preferences ra- ther than the perceived “objective best interest”. According to the CRPD Committee, such a regime should “comprise various options which give primacy to a person’s will and prefer- ences”; seek to avoid over-regulation of each person’s life; be available to all, regardless of the level of support needed or mode of communication; and respect each person’s right to refuse, change or terminate the support, amongst other things55. One of the aims of such a system is contributing to building skills and confidence of PWD, potentially allowing them to
“exercise their legal capacity with less support in the future, if they so wish”56.
Ultimately, the final text of Article 12 does not explicitly discuss whether or not it prohibits substitute decision-making57. While some argue that this ambiguity ultimately allowed states who were hesitant to accept the idea of a complete regime shift to still join the CRPD, this silence on substitute decision-making in the text of Article 12 has been accompanied by dis- cussion and some disagreement on what this means in practice for Parties to the Convention58. The GC1, however, goes far in refuting this ambiguity, explicitly emphasizing that a human rights-based model of disability requires a shift from substituted to supported decision- making, and that substitute decision-making is prohibited59. It also states that it is insufficient to develop a supported decision-making regime that operates alongside substituted decision- making regimes; rather, State parties should abolish substitute decision-making and complete- ly replace it with the new system of supported decision-making60. Following this, the continu- ation of guardianship systems alongside development of supported decision-making systems would not be sufficient to fulfil a State’s obligations.
2.2 Implementation
The CRPD has by many been understood as a positive “paradigm shift,” moving from an un- derstanding that views PWD as “objects of charity and medical treatment”, to a model that acknowledges them as “subjects with legal rights”,61 and Article 12 and the GC1 have been recognized as part of this paradigm change. Article 12 and the GC1 have also been the subject
55 Ibid.
56 CRPD Committee, “GC1,” para. III.24.
57 Martin et.al. “Three Jurisdictions Report”.
58 Ibid; Series & Nilsson «Article 12,» 2-3.
59 CRPD Committee, “GC1,” para. 3
60 Ibid, para. III.28.
61 Council of Europe, «Equal Recognition», 5; Skarstad, «Realizing the human rights of PWD», 25-27.
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of debate, however, and have by some been seen as controversial, overly ambitious, or lack- ing nuance62. The implementation of this regime change has encountered various challenges, and many States have up until this point elected to develop and implement supported deci- sion-making without completely abolishing existing substitute decision-making systems. At this point in time, no state has been recognized as having made a complete shift from substi- tute to supported decision-making.
When it comes to both the theoretical interpretation and practical implementation of Article 12, the GC1 notes that State parties have struggled with understanding its exact obligations and scope63. As of May 2019, fourteen of the CRPD’s 181 States Parties have made reserva- tions or issued interpretive declarations concerning the contents of Article 12, most of these expressing an understanding that the Convention allows for limits on autonomy and legal per- sonality, and that substituted decision-making may be acceptable in certain situations64. The GC1 states that this is a result of “a general misunderstanding” of the scope of obligations placed on States under Article 12.
These debates are reflected in some of the discussions of the Ad Hoc Committee that negoti- ated the CRPD between 2002 and 2006, considering whether limitations on rights for certain individuals/groups should be allowed within Article 12. Many States expressed a belief that substituted decision-making should be allowed in “extreme cases”, for example cases where it is extremely difficult to be sure of what a person’s wishes are, while the International Disabil- ity Alliance – an alliance of disabled people’s organizations (DPOs) that partook in the draft- ing process – expressed a strong opinion that substituted decision-making should be abolished completely. In their clarification on this stance, the IDC expressed that they believed support- ed decision making “ranges from zero to 100 per cent and is a dynamic concept”, and that it applies even to decisions where an individual is unable to express choices or opinions as long as the individual was “at the center of the discourse”65. The IDC’s understanding of supported decision-making can thus be seen as “far broader than what might be intuitively be thought”66, arguing that substitute decision-making is unnecessary and unwanted even in the so-called
“extreme” or challenging cases. Others argue that substitute decision-making might be neces- sary in certain of these cases, questioning whether “100%” support is not, in fact, substitute
62 Christoffersen, “DRAFT GENERAL COMMENTS”.
63 CRPD GC1, para. I.3.
64 UN Treaty Collection, “Chapter IV”.
65 Series & Nilsson, “Article 12,” 7.
66 Ibid.
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decision-making by definition67. This thesis will not attempt to settle this debate. It will, how- ever, work from the assumption that the supported decision-making system is able to accom- modate for a large variety of different levels of support needs.
For illustration purposes, this thesis uses examples of practice where appropriate. To give the reader a brief overview of what current decision-making practices might look like, this section gives a brief overview of the current situation in Norway. The example of Norway will be used recurrently throughout this thesis, but will also be supplemented with examples from other countries where appropriate. Norway was chosen as it is an example of a State that has attempted to implement certain aspects of supported decision-making as called for in Article 12 and the GC1, while still receiving criticism from the CRPD Committee for its continuation of substitute decision-making. It is also one of the aforementioned countries that have issued interpretative declarations regarding the contents of Article 12.
2.2.1 Norway
The literature available on supported decision-making in practice in a Norwegian context largely mirrors the international lack of extensive research in the area, and there are few stud- ies available that examine the practical implementation of Article 12 in Norway. A 2016 Offi- cial Norwegian Report (NOU) found that there exists no government statistics on guardian- ship: it states that there is currently no information available showing how many of the per- sons under guardianship have an ID, nor any existing data evaluating the scope of guardian- ships or how they are practiced and enacted68. One of the more detailed accounts of Norwe- gian practice currently available can be found in Skarstad’s Doctorate Thesis, where she ex- amines the extent to which self-determination is practiced in Norway in accordance with hu- man rights principles69. She argues that while Norway has committed to protecting persons with intellectual disabilities’ right to self-determination, it is currently not securing this in practice, and its system functions mainly as one based on substitute decision-making70. The CRPD has not currently been incorporated into Norwegian law71, but despite this, Nor- way has made some steps towards securing the principles of Article 12: The Patients’ and Users’ Rights Act of 2015, for example, established the right to user-controlled personal assis-
67 Ibid.
68 NOU 2016:17, 136.
69 Skarstad, “Realizing the human rights of PWD”.
70 Ibid, 183.
71 CRPD Committee, «Concluding Observations,» 2.
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tance72. The CRPD Committee also highlighted the Equality and Anti-Discrimination Act of 2018, and the 2018 National Inclusion Initiative including PWD as a target group, as positive advancements in implementing the Convention. Despite this, several aspects of current Nor- wegian law and practice have received criticism for their approach to Article 12.
When ratifying the CRPD, Norway issued an interpretative declaration stating that Article 12 allows for substituted decision-making “when necessary, as a last resort and subject to safe- guards”73. Under the Norwegian Guardianship Act of 2010, persons who are “unable to safe- guard their own interests” because of diagnoses including but not limited to “dementia, intel- lectual impairments, (…) or severely impaired health,” may have an appointed guardian to manage their interests for them74. As Skarstad remarks, it is unclear whether a person’s “in- terests” should be interpreted as meaning their will and preferences, or whether this implies a
“best interest” approach”75. A guardianship does not include the competency to consent to coercion or force, vote, create a will, marry, acknowledge paternity, or make decisions in oth- er particularly personal matters, except when specifically authorized by law76. The Guardian- ship Act also outlines that a guardian shall, “insofar as possible,” listen to the person under guardianship in matters concerning significant decisions, and when it otherwise seems natu- ral77.
Despite this, the Guardianship Act does not guarantee full legal capacity to everyone. Legal capacity may be removed in situations where there is a significant danger that the person will significantly harm their own interests – these decisions are made in court and do not require consent78. Additionally, in specific cases where a person’s legal capacity has not been re- moved, the law nevertheless “entails that self-determination does not need to be respected if the person does not understand the issue at hand (lacks decision-making competence)” - these decisions are made by a county governor based on medical opinion79.
Skarstad’s study of all guardianship cases from one county (Oslo/Akershus) in 2015 showed that only two of 167 guardianship decisions were referred to a court for removal of legal ca- pacity. Out of the remaining 165 who were determined to have legal capacity, however, al- most 50% were declared to not have decision-making competence80 – which opens up for
72 Pasient- og brukerrettsloven, LOV-1999-07-02-63
73NOU 2019:14, 414-415; Mestad and Høgdahl, “Supplementary information,» 5.
74 Guardianship Act, section 4 para. 20.
75 Skarstad, «Self-determination policies,» 780.
76 Guardianship Act, section 4 para. 21
77 Ibid, section 4.
78 Ibid, section 4 para 22; Mestad and Høgdahl, «Supplementary Information,» 5.
79 Mestad and Høgdahl, “Supplementary information,» 5.
80Skarstad, “Self-determination policies,” 782.
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removal of self-determination under the Guardianship Act, as described above. Skarstad’s study additionally shows that advisors had spoken directly with the person with ID in 13% of the cases of establishment of guardianship, and that complaints were made about the guardian or guardianship in 6% of the cases81. Moreover, guardianship mandates were generally broad and generic, and in almost 92% of the cases, the guardian was given both economic and per- sonal mandates, giving them the ability to make a wide range of decisions on another’s be- half82.
In its Concluding Observations on the Initial Report of Norway, the CRPD Committee ex- pressed concern that County Governors lacked sufficient knowledge about the respect for legal capacity for PWD, and that there was a general “lack of effective safeguards for persons with disabilities in the exercise of their legal capacity and a lack of knowledge about the scope of support for decision-making”83. According to NOU 2019:14, the term “supported decision-making” has not been clearly defined in Norwegian law, does not currently have a commonly accepted definition in wider usage, and is used differently in different contexts84. This indicates that there currently is a lack of knowledge and clear guidelines about supported decision-making and how to incorporate this into practice, which may complicate or hinder the full shift to this regime.
2.3 Literature review
This section provides a brief overview of literature on the CRPD, the GC1, and Article 12.
Chapters 3 and 4 will include their own, more targeted reviews of literature concerning auton- omy and conflicts of rights.
As noted above, Article 12 has been praised as one of the most important articles of the CRPD, but has also been controversial85. Different points of criticism have been raised – with regards to potential practical concerns, some question the extent to which the requirements of Article 12 are realistic and practically implementable, especially in countries which have lim- ited resources available. This has, by some, been used as an argument against the complete shift to supported decision-making. Others argue that this does not mean one should not aspire to Article 12 as an ideal, as is also the case with other human rights which might be practical- ly challenging to implement because of resources. As will be discussed later, this thesis will
81 Ibid, 782-783.
82 Ibid, 783.
83 CRPD Commuttee, «Concluding Observations,» 6.
84 NOU 2019:14, 413.
85 Skarstad, «Funksjonshemmedes menneskerettigheter,» 105.
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side with the latter view, understanding the rights in Article 12 – and the complete shift to supported decision-making - as an expression of an ideal to which one should aspire, not as an empirical statement.
With regards to theoretical and normative questions, there have been debates on how to define and understand the concrete scope of supported decision-making, how to handle potential conflicts of rights arising from the substitute decision-making regime, and what one should do in “exceptional” cases where it might be very difficult to obtain information about a person’s will and preferences86. There is also notable disagreement on how to approach autonomy and liberty rights under Article 12, which will be discussed further in Chapter 3.
As mentioned, academic discussion on autonomy and conflicts of rights in connection with Article 12 will be discussed in their respective chapters below. Outside of this, other debates that should be noted are those connected to the content and understanding of the supported decision-making regime, and the legal capacity debate. The debate on the concrete contents and practical implementation of supported decision-making will be reflected in several of the discussions in the chapters below. This thesis will refrain from attempting to settle the debate on the concrete contents of this regime, and will as far as possible refer to the GC1’s under- standing of the concept, while recognizing that this definition contains some areas of ambigui- ty, particularly with regards to its concrete practical contents.
The debate on how to understand “legal capacity” has been a notable part of discussions on Article 12, and this thesis will not go in-depth on this complex debate87. One should still note that the distinction between having legal standing/the capacity to hold rights, and having legal agency or the capacity “to act”, was debated by several state parties during the Ad Hoc dis- cussions: at one point the right to equal recognition before the law was subject to a footnote clarifying that in Chinese, Arabic and Russian, “legal capacity” meant the capacity to hold rights, not to act88. This footnote was eventually removed, although some States still ex- pressed the opinion that the legal capacity mentioned in Article 12 para. 2 only includes the capacity to hold rights89. Responding to this, the GC1 later specified concretely that it holds
“legal capacity” to include both the capacity to hold rights and the capacity to “be an actor
86 de Bhailís and Flynn, “Recognizing Legal Capacity,” 19-22.
33 Ibid, 6.
88 De Bhailís and Flynn, «Recognizing legal capacity», 7; Gooding, Arstein-Kerslake and Flynn, «Assistive technology as support,» 249.
89 Gooding, Arstein-Kerslake and Flynn, «Assistive technology as support,» 248.
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under the law,”90 although some States still express disagreement on this understanding. This model of equal recognition before the law has been termed the “universal legal capacity mod- el”91. The legal capacity debate is extensive and complex, and to some extent mirrors debates on autonomy and rights which will be elaborated below. This thesis will take its foundations in the GC1 understanding of legal capacity, unless otherwise specified.
3 Supported decision-making and autonomy
There have been wide theoretical and practical debates about the contents and implementation of autonomy, both in political theory and in scholarly work on human rights. To respond to this thesis’ research goals as effectively as possible, this section takes a relatively targeted approach, focusing mainly on specific points in the debate that arise in connection to support- ed decision-making. It responds specifically to sub-question 1.
Section 3.1. examines different conceptions of autonomy, what autonomy aims to accomplish, and why it is significant in relation to Article 12. This chapter will not delve into the extensive existing debates about whether or why people do or do not have autonomy. Instead, section 3.1 provides a brief overview and review of literature and establishes how autonomy will be used in this thesis. It presents and discusses some criticisms of the “rational” model of auton- omy, and shows conceptions of autonomy in literature that are more aligned with the CRPD’s understanding. Through this, it highlights how autonomy theory can be used to support the CRPD’s approach to autonomy.
The following sections look at specific questions and challenges: first, it discusses questions on authentic preferences. It then looks at the question of awareness of consequences and its implications on efforts to secure individual autonomy, before discussing what challenges might arise in the process of securing a correct interpretation of a person’s will and prefer- ences. Finally, it discusses the translation of principles into practice.
The following sections examine how supported decision-making can help secure autonomy in practice, identify some notable challenges to implementation, and examine what conditions might be necessary for the supported decision-making paradigm to effectively safeguard au- tonomy for persons with ID.
90 CRPD Committee, “GC1,” para. II.12.
91 Dhanda in Gooding, Arstein-Kerslake and Flynn, «Assistive technology as support,» 246.
23 3.1 Understanding autonomy
The concept of individual autonomy has been significant to political and moral theory. The- word “autonomy” is drawn from the Greek words for “self” and “rule” or “law”, translating to
“the having or making of one’s own laws”92. The concept can be approximately rendered, according to Joel Feinberg, by terms like “self-determination,” “self-rule,” or “independ- ence”93. It has also been used to represent ideas of empowerment94. Gerald Dworkin argues that one should be wary of assuming that authors use “autonomy” in the same way, and that the term is used in a broad fashion95. He nevertheless argues that in different areas of autono- my, including the moral, political and social, one can find a “notion of the self which is to be respected, left unmanipulated and which is, in certain ways, independent and self- determining”96. This fundamental element can also be found reflected in CRPDs understand- ing of autonomy. John Christman argues that the concept generally is “understood to refer to the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces”97. This thesis’ understanding of autonomy will largely coincide with this definition, albeit with a critical approach to additional requirements of rationality and independence. This is elaborat- ed on in section 3.1.4.
The content of autonomy can take different forms. Feinberg outlines four different meanings – autonomy as capacity, condition, ideal, and as a right98. The idea of autonomy as capacity is tied to ideas of competence, capacity, ability and rationality, which have been interpreted to exclude certain groups from this conception of autonomy – including some persons with ID99. This understanding of autonomy is discussed below.
Feinberg’s conception of autonomy as condition highlights how the right to or capacity for autonomy does not necessarily translate to autonomy in practice: he argues that even “a per- son with both the capacity for, and right to, self-government many in fact be a willing slave to another, with no opportunity to exercise his rights or capacities”100. One can see that CRPD’s stance that every person has autonomy would be hard to interpret as an empirical statement, as there are many people who do not enjoy autonomy as condition. Rather, it would benefit
92 Feinberg, «Harm to Self,» chapter 18.
93 Ibid
94 Stefánsdóttir, Björnsdóttir and Stefánsdóttir: “Autonomy and Intensive Support,” 163.
95 Dworkin, «The Nature of Autonomy.»
96 Ibid
97 Christman, «Autonomy in Moral and Political Philosophy.»
98 Feinberg, «Harm to Self,» chapter 18.
99 Ibid.
100 Ibid, 31.
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from an understanding based on what Feinberg describes as autonomy as “not merely a ‘con- dition,’ but a condition to which we aspire to as an ideal”101. This thesis will mainly refer to autonomy as an ideal and a right.
3.1.1 Autonomy and the CRPD
Respect for “inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of person” is recognized as a general principle in the CRPD. The CRPD was the first human rights convention to explicitly make mention of autonomy102. Au- tonomy is mentioned four times throughout the Convention: in the Preamble, the General Principles, and connected to the right to freedom from exploitation, violence and abuse, and the right to health103.
Although autonomy is not directly mentioned in Article 12, one can draw clear links between the CRPD Committee’s understanding of autonomy, and Article 12’s call for equal recogni- tion before the law: In the GC1, autonomy is described as including the power to have one’s decisions legally respected”104 and the “freedom to make one’s own choices”105. The Commit- tee also outlines the right to legal capacity, the right to qual recognition before the law, and the right to choose where to live as examples of rights related to autonomy that should be pro- tected in a supported decision-making regime106.
The Convention’s approach to autonomy stands in contrast to various traditional scholars and theorists. As will be discussed below in this brief review of literature, one traditional under- standing is that rights are conditional on autonomy, and that autonomy is conditional on ra- tionality. The CRPD’s approach, placing autonomy as a general principle, seems to reject these conditionalities, rather understanding autonomy as part of rights that all people have on an equal basis. The GC1 finds that autonomy thus should be secured in practice – for example through supported decision-making - and that “at all times, the individual autonomy and ca- pacity of persons with disabilities to make decisions must be respected,” even though the form and intensity of support might vary107. In stating this, the CRPD understanding removes itself from traditional rationality requirements.
101 Ibid, 31.
102 Skarstad, “Realizing the human rights of PWD,” 64.
103 CRPD, Preamble and arts. 3(a), 16(4), 25(d)
104 CRPD Committee, “GC1,”. para. IV.33.
105 Ibid, para. I.4.
106 Ibid, para. III.29.
107 CRPD Art. 3 (d); CRPD Committee, “GC1,” para. 17, 18.