Capacity
in law constructed by society 
The
first thing to appreciate in relation to legal capacity is that
it is socially constructed and is thus reflective of choices
societies have made at different points of time. Historically
capacity has been an attribute or a presumption that the law
has conferred or denied from populations. A useful illustration
of this process is provided by the legal management of the capacity
of women. The negotiable content of the concept is again demonstrated
by the Convention on the Rights of the Child acknowledging the
evolving capacities of the child and explicitly incorporating
the right to participation. (article 12) Therefore when we are
asking for the legal disqualifications applicable against us
(persons with psychosocial disability) to be lifted we are in
a manner of speaking treading paths traversed by other excluded
groups. We are saying that the allegation of incapacity that
society makes in relation to some or all of us is false and we
have a right to live like any other on our own terms.
Cognitive
Capabilities Privileged in Legal Construction of Capacity
Whilst
accepting the constructed nature of legal capacity (it is necessary
to understand) that it is primarily constructed from a normative
standard of cognitive capabilities. This privileging of cognitive
capabilities is questionable as not all of us use cognitive capabilities
to make our decisions. Should those of us who use an emotive
or intuitive basis for reaching decisions be considered incapable?
The law by according primacy to a certain way of being in the
world seems to be manufacturing incapacity labels. If the presumption
comes into being because of the way in which the law treats different
kinds of intelligences then evidently a Disability Rights Convention
needs to change this presumption and recognize these differences.
This process would stand initiated if the Convention should unequivocally
state that all persons with disabilities have legal capacity.
Legal
Capacity not to do with Wisdom of Choices
One
of the arguments put forth for substituted decision-making is
that a number of persons do not have the wisdom to exercise legal
capacity. But legal capacity is about the freedom to make choices
and not the wisdom of those choices. There is an inherent freedom
for all human beings to make the same or new mistakes and to
learn or not learn from them. This liberty to learn from mistakes
is at other than legal sites referred to as experimentation or
even learning from trial and error. Humanity has progressed by
allowing people the freedom to make mistakes. This may be because
it has often been found that the blunder of today becomes the
discovery of tomorrow. Whenever any people are not accorded the
freedom to make their own errors they are in effect not being
allowed to develop in accordance with their own genius and it
is this discrimination and deprivation that needs to be addressed
in relation to persons with psychosocial disability. Dignity
of risk and the right not to be protected are inherent rights
of all adults. A Convention which is being negotiated to return
to persons with disability their full personhood has necessarily
to interrogate all stereotypes because if it were to get entrapped
by stereotypes it would not just reinforce a mistaken impression
it would legitimize it.
Need
to Distinguish between a Norm and its Implementation
It
is next contended by the proponents of guardianship that supported
decision-making cannot substitute for guardianship and even if
it could such support is not available. These arguments it is
submitted conflate the concerns of implementation into the adoption
of norms. Should these constraints of implementation provide
the basis for adoption of norms under the Convention especially
when the norms adopted under the Convention will be the basis
of all future discourse on rights of person with disabilities?
A pragmatic approach for the implementation of norms is acceptable
but a similar perspective towards the adoption of norms is questionable
because this is letting the limitations of today confine the
developments of tomorrow.
Substituted
Decision Making will apply to all persons with psychosocial
disability
A
further argument by proponents of some form of substituted decision-making
is that as a rule all persons with disability have legal capacity
but there are a very small percentage of persons with severe
disability for whom supported decision-making will not be sufficient
and for whom guardianship will need to be provided. Proponents
argue that these guardianship arrangements should be put in place
subsequent to determination by a judicial body after due observance
of fair procedure safeguards. They contend that this substituted
decision-making will be the exception not the rule and would
apply to a small percentage of cases.
The
first consequence of accepting this argument will be that the
rule of substituted decision-making will need to be incorporated
in the Convention. Now the rule according to its proponents
has been incorporated only for a very small percentage of persons
with psychosocial disability. It therefore becomes necessary
to ask by what procedure this small percentage of persons will
be identified. Evidently this will be done from case to case.
This process of identification will render the capacity of
all persons with psychosocial disability open to question.
This
would give rise to a situation where for questionable advantages
to a small group of persons all persons with psychosocial disability
shall be disadvantaged. The contention of questionable advantage
is being made because studies evaluating the functioning of
guardianship have found abuse isn't in fact prevented with
guardianship, it is facilitated. Further these arrangements
once made cause the guardian to take all decisions on behalf
of and without consultation with the ward. This ouster makes
for the civil death of the persons subjected to guardianship.
Supported
Decision Making the Sole Model
In
the circumstances it may be worthwhile to ask if the paradigm
of supported decision-making would be a preferable option for
all persons with disability as it would keep us at the centre
of all decisions affecting us. It would interrogate the cognitive
privileging existing in present laws and yet allow persons with
disabilities along with others needing help to seek assistance
in those tasks which require higher reliance on cognitive capabilities.
By
Prof. Amita Dhanda (NALSAR)
for WNUSP [World Network of Users and Survivors of Psychiatry]
and Bapu Trust, Hyderabad, November, 2004.
