Legal Capacity, Disability and Human Rights: Changes and Challenges

by | Jul 9, 2020

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About Nicolas Espejo Yaksic

Dr. Nicolás Espejo Yaksic is Researcher at the Centre for Constitutional Studies (CEC) of the Supreme Court of Mexico; Visiting Fellow, Exeter College, University of Oxford and Member of the Leiden's Children Rights Observatory, Leiden University. He has worked for more than 25 years in the field of human rights, both as an academic and activist, in Latin America and for the United Nations System. He is the editor (with Fabiola Lathrop) of the book Discapacidad Intelectual y Derecho (Intellectual Disability and The Law), Thomson Reuters & Legal Publishing, Santiago de Chile, 2019.

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Nicolás Espejo Yaksic, “Legal Capacity, Disability and Human Rights: Changes and Challenges”, (OxHRH Blog, 9 July, 2020), <https://ohrh.law.ox.ac.uk/legal-capacity-disability-and-human-rights-changes-and-challenges/>, [Date of access].

The UN Convention on the Rights of Persons with Disabilities recognizes in Article 12 the equal right to exercise legal capacity without discrimination and imposes on States parties a duty to adopt appropriate measures to provide access by persons with disabilities to the support they may require to exercise this legal capacity. In the words of the Committee on the Rights of Persons with Disabilities (General Comment Nº 1) a support system for decision making is a set of relationships, practices, measures and agreements, of more or less formality and intensity, designed to assist a person with an intellectual, cognitive or psychosocial disability, in the communication, understanding and consequences of legal acts, as well as in the manifestation and interpretation of their will, wishes and preferences.

This new model of legal capacity avoids the problems derived from guardianship or substitute decision, from a human rights point of view. As the European Court of Human Rights has warned, the declaration of absolute legal incapacity – in which all decisions regarding the exercise of a person’s rights are removed from their personal control – violates the principle of proportionality and is contrary to the right to private life. A similar position has recently been adopted by the Supreme Court of Justice of the Nation (SCJN) of Mexico, determining that Articles 23 and 450, section II, of the Civil Code for the Federal District (today Mexico City) that regulate guardianship or substitute decision making, were unconstitutional “since such regulations are excessively restrictive since it does not foresee the possibility that the interdiction is gradual and proportional with respect to the characteristics and conditions of the people”.

Comparative legislation in Latin America has been consolidating a series of reforms that aim precisely at getting closer to the model proposed by the UN Convention. In cases such as those of Costa Rica (2016), Peru (2018) and, more recently, Colombia (2019), legislation has recently adapted to a stricter interpretation according to the mandates derived from the Convention. Thus, these laws presume the legal capacity of all people and under equal conditions before the law, and create support systems for decision-making (assisted and / or co-decisions) and safeguards for protection against possible abuses. In some cases in the European context, such as in Germany and the Czech Republic, modifications have passed in order to prohibit declarations of absolute legal incapacity. More comprehensively, Ireland has legally established assisted decision-making processes.

Despite its simplicity, the model proposed by the Convention has not been easy to implement. Firstly, in the treatment and regulation of intellectual disability coexist the correct intuition to protect and the remnants of a tutelary conception that does not pay due attention to respect for the human dignity of which every person is the owner, particularly when it comes to people who require more intense support.

Secondly, and despite the legal reforms underway, the hegemonic conception of legal capacity, understood as patrimonial / civil capacity to celebrate business or contracts in the private sphere, has monopolized the very concept of legal capacity. This means that, without prejudice to reforming the general rules on legal capacity in civil codes, the anchors of this civil conception of legal capacity remain in force in the other practical dimensions of the lives of people with disabilities, such as health, politics and sexual and reproductive rights.

Thirdly, the recognition of these new conditions and legal principles cannot be properly understood without reference to the general context of personal and communitarian relationships that sustain autonomy. In this perspective, promoting and regulating the equal right to legal capacity is also a matter of recognizing and promoting the necessary inter-personal and inter-social networks and competencies that enable autonomy to flourish; a concern that might have been overshadow by an apparent, but false, contradiction between individual autonomy and care.

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