Tag Archives: CRPD

ECHR Cases on Denial of Legal Capacity to Persons with Disabilities

by Eilionoir Flynn

In light of the Oireachtas Justice Committee’s report on the Mental Capacity Bill which will be launched later today, I wanted to reflect on two recent ECHR cases which have demonstrated how a denial of legal capacity to disabled people, through the imposition of an adult guardian, leads to the violation of other fundamental rights – such as the right to a fair trial, the right to be informed of decisions made about the person, the right to liberty and freedom of movement, and the right to freedom from inhuman and degrading treatment or punishment. These cases – Stanev v Bulgaria and DD v Lithuania have already generated significant commentary in the disability rights movement (see here and here) – as these cases represent the first time in which the European Court has acknowledged that detention of a person in a social care home, rather than a psychiatric hospital or institution can constitute a breach of Article 5. As Ireland moves towards reforming its law on capacity, it is worth bearing in mind the comments which have been made by the European Court, especially with regard to the ways in which adult guardianship can violate the rights of disabled people.

In Stanev v Bulagaria the applicant’s family members had applied to the regional court for a declaration of total incapacity and the appointment of an adult guardian. The court carried out what is known as a functional assessment of capacity – in other words, a test of Stanev’s ability to understand information, use and weigh information to reach a decision, retain information long enough to make a decision, communicate the decision to others, and understand the consequences of the decision to be made. As part of this functional assessment of his capacity, the regional court considered evidence that Stanev had been diagnosed with schizophrenia, had been admitted to psychiatric hospitals on several occasions, sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. Based on this evidence, the court found that Stanev was not totally legally incapable, but made a finding of partial incapacity, which was upheld on appeal. The relevant authority subsequently authorised the appointment of a temporary public guardian to Stanev, as his family members were unwilling to act as his guardian.

At the time of this appointment, Stanev was living in a small annex to his half-sister’s house. Since he had been found not to have the capacity to decide where to live, his guardian made an application for Stanev to be moved to a social care home. An agreement with the care home was subsequently drawn up and signed by the guardian, and Stanev was not consulted or informed of the reasons for this decision, or how long he would have to stay in the care home. Stanev was transferred to the care home by ambulance. The conditions in the care home were appalling, and led to a finding by the European Court that these conditions amounted to inhuman and degrading treatment, in violation of Article 3 of the European Convention on Human Rights.  In addition, the care home kept Stanev’s identity papers, meaning that Stanev could not travel without the explicit permission of the Director of the care home, even to go to the local village.  Once the period of appointment for the temporary public guardian had elapsed, the Director of the care home was then appointed as Stanev’s guardian. Stanev was not free to leave the care home where he had been placed, leading the European Court of Human Rights to find that he had been unlawfully deprived of his liberty, in violation of Article 5 of the European Convention on Human Rights.

The circumstances which Stanev faced are extreme examples of the damage that can result to an individual who is placed under adult guardianship. Some might argue that this damage could have been prevented if the guardian had been better monitored, if conflicts of interests had been avoided (e.g. in the appointment of the director of the care home as his guardian), if Stanev had been consulted about the decisions to be made and his wishes taken into account. However, even if all of these safeguards were in place, the transfer of legal capacity in relation to the decision about where to live from Stanev to his guardian means that it would still be possible for a guardian to have placed Stanev in a care home which he was not free to leave. Even if the physical conditions and facilities in the care home had been better, Stanev would still have experienced significant restrictions in his daily routine and would not necessarily have had access to opportunities to participate in the community – e.g. employment in the open labour market, mainstream education, making friends and forming relationships with individuals other than paid staff. These are all basic opportunities which the public at large may take for granted, but are often denied to people with disabilities, especially those who live in institutional care, and whose legal capacity is restricted or removed entirely.

In DD v Lithuania, the applicant had developed schizophrenia, apparently as a result of shock at discovering that she was an adopted child. Her adoptive father applied to the district court to have her declared legally incapable and this finding was made. He subsequently applied to have her placed in care home for people with intellectual disabilities. DD’s psychiatrist was appointed initially as her guardian, but subsequently asked to be removed, claiming she had only consented to the initial appointment due to the strained relationship between DD and her father, including suspected financial abuse. The psychiatrist was then removed and her father was appointed as her legal guardian. Her father asked the care home to restrict visits to DD, and not to allow her former psychiatrist to visit her, which the care home agreed to do. He eventually removed her to his own flat. She escaped and was returned to the care home by police on two separate occasions.

DD attempted to have her guardianship tranferred back from her father to her former psychiatrist and asked the care home to ininitiate proceedings, but this request was refused. She then applied to the court for a review of the decision to appoint her father as guardian, arguing that she had never been consulted or involved in determining who her guardian would be, and had not been present at hearings. At the new preliminary hearing held on whether to reopen the guardianship case, DD was not allowed separate legal representation on the basis that her father, her legal guardian, had legal representation and that this was sufficient. DD alleged that she was threatened by the judge in his office during these proceedings that if she did not agree to the appointment of her father as guardian, an application would be made to place her former psychiatrist under guardianship.  She subsequently agreed to the appointment of her father as her guardian and the court therefore did not reopen guardianship proceedings.  Ultimately, her father asked to be relieved of responsibility as DD’s guardian and the care home in which she lived was then appointed as her guardian.

The European Court of Human Rights found that DD’s placement in the care home constituted detention as she was not free to leave; however, it found that such detention was lawful as it had been consented to by her guardian. However, the court did find a breach of Article 5.4 since there was no process for DD to have her detention reviewed. Unlike in Stanev, the Court found that the conditions in the care home did not amount to inhuman or degrading treatment. DD had argued that the use of restraint and seclusion constituted a breach of Article 3 but the Court found that these interventions were medically necessary and thus did not constitute a violation of rights.  In addition, the Court found that the proceedings in the domestic court resulting in the decision not to reopen DD’s guardianship case were not carried out in a fair manner and constituted a violation of  Article 6.1.

In short, these decisions contribute to an emerging body of case law from the European Court of Human Rights where the placement of people with disabilities (generally those with intellectual disabilities or mental health conditions) in adult guardianship has resulted in a violation of their fundamental rights. Article 12 of the UN Convention on the Rights of Persons with Disabilities which recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” e has been cited approvingly by the European Court and the notion of legal capacity – the right to make one’s own decisions and have these decisions respected in law – as a universal attribute inherent in all persons, regardless of the individual’s level of decision-making ability, is gaining traction in international commentary (see here and here). Therefore, the approach of the UN Committee on the Rights of Persons with Disabilities, which has strongly urged Spain and Tunisia to replace systems of substituted decision-making, such as adult guardianship, with systems of supported decision-making which respect the will and preference of the individual, should be borne in mind by Ireland as we move towards the publication of our capacity legislation.

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COE Commissioner for Human Rights Publishes Issue Paper on the Right to Independent Living

The Council of Europe Commissioner for Human Rights Thomas Hammerberg published an Issue Paper entitled “The Right Of People With Disabilities To Live Independently And Be Included In The Community”.  This Issue Paper Follows On From One On Legal Capacity Published Last Month Entitled “Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities”.  Issue Papers are commissioned and published by the Commissioner for Human Rights, to contribute to debate and reflection on important current human rights issues. Many of them also include Recommendations by the Commissioner for addressing the concerns identified. The Commissioner in this Issue Paper made a number of important recommendations on how States can realise the right to independent living.   The Issue Paper identifies the right to live in the community as enabling people to live their lives to their fullest within society and access the public sphere and as “… a foundational platform for all other rights: a precondition for anyone to enjoy all their human rights is that they are within and among the community”.   The Issue Paper very much is based on the emerging discourse being generated by Article 19 of the CRPD, which captures the right to live independently in the community as a distinct right. The Issue Paper also makes a number of references to the synergy between Article 19 of the CRPD and Article 12 on legal capacity and the right to live independently in the community is closely allied to fundamental rights such as personal liberty, private and family life and freedom from ill-treatment or punishment etc.

The Issue Paper sets out that living independently involves the provision of support and that full inclusion and participation in the community involves different elements that include:

  • choice
  • individualised supports that promote inclusion and prevent isolation and
  • making services for the general public accessible to people with disabilities.

The Commissioner expressed concern that “millions of people with disabilities in Council of Europe member states are denied the right to live in the community. Placement in institutions, still affecting the lives of more than a million people with disabilities across Council of Europe countries, is a pervasive violation of this right which calls for a firm commitment to deinstitutionalisation. Many more are isolated within their own communities due to inaccessibility of facilities such as schools, health care and transportation and lack of community-based support schemes.”  This Issue Paper is timely then as the CRPD is driving a worldwide disability law and policy reform agenda.  This provides an opportunity for States across Europe to promote the right to live in the community and participate and contribute to their communities. 

From a mental health perspective it is noteworthy that the Commissioner in the Issue Paper identifies mental illness as a factor as contributing to institutionalisation and subject to detention and forcible treatment.  The Commissioner also referred to Article 14 of the CRPD as countering this by prohibiting “deprivation of liberty on the basis of a disability”. 

In order to ensure the effective enjoyment of the right to live in the community for people with disabilities, the Commissioner for Human Rights urged Council of Europe member states to take the following action:

  1. ratify the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol.
  2. review their legislation and policy in the light of Article 19 of the UN Convention on the Rights of Persons with Disabilities, with a view to ensuring that everyone with disabilities enjoys an effective right to live independently and be included in the community, irrespective of the nature of the impairment.
  3. ensure that all people with disabilities have the legal capacity to make decisions, including those affecting their right to live independently and to be included in the community, through appropriate supported decision-making if needed.2
  4. adopt a no-admissions policy to prevent new placements of persons with disabilities in institutional settings.
  5. set deinstitutionalisation as a goal and develop a transition plan for phasing out institutional options and replacing them with community-based services, with measurable targets, clear timetables and strategies to monitor progress.
  6. allocate the necessary budgetary and other resources towards community-based supports rather than institutional placement and services, in accordance with the principle of progressive realisation.
  7. ensure that the process of transition to community-based services and supports does not fall short of achieving full implementation of the right to live in the community, recognising that smaller institutions or segregated frameworks and mechanisms, such as congregate care, even when physically placed in the community, do not satisfy the conditions set in Article 19 of the UN Convention on the Rights of Persons with Disabilities.
  8. develop and implement a plan for services such as personal assistance, housing, support in finding a job, life planning, and support to family, which prevent isolation within the community, and which ensure that a person’s support needs do not compromise their full and equal participation and inclusion in society.
  9. develop and implement a plan to support families who have a child with a disability to enable the child a full life within family and community and prevent isolation and institutionalisation.
  10. define a statutory and enforceable individual entitlement to a level of support which is necessary to ensure one’s dignity and ability to be included in the community.
  11. review the nature and purpose of services offered to persons with disabilities with a view to enabling them to lead the life they prefer, by maximising their choice and control of support services and by avoiding bundling such services in a way which compromises that choice.
  12. enable persons with disabilities to purchase their own supports and access housing in the general housing market.
  13. critically examine the inclusiveness of community services for the general population with a view to making these services responsive to the needs of persons with disabilities.
  14. ensure monitoring by independent national mechanisms of the human rights of residents of institutions until institutions are phased out, and of the human rights of people using community support services, including the quality and accessibility of community-based schemes and supports.
  15. ensure that persons with disabilities and their representative organisations are involved and participate fully in planning, carrying out and monitoring the implementation of the right to live in the community. 

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UK Joint Parliamentary Committee on Human Rights launches Report on Article 19 UNCRPD

We are delighted  to welcome this guest post by Neil Crowther a leading disability rights and equality advocate.  Neil an independent consultant and writes in a personal capacity. He was previously Director of Human Rights at Britain’s Equality and Human Rights Commission (EHRC) where he led the development and implementation of its domestic and international human rights programme.  Prior to his role as Director of the EHRC Neil led the Commission’s disability rights programme.  

In a world-first, the UK’s Parliament has conducted an Inquiry into the UK Government’s implementation of Article 19 of the UN Convention on the Rights of Persons with Disabilities – the right to live independently and to be included in the community.   I was honoured to work as a specialist adviser on the Inquiry of the Joint Parliamentary Committee on Human Rights which began in 2011 and received evidence from over 300 witnesses.  Dr Hywel Francis MP, Chair of the Committee, said: “We are concerned to learn that the right of disabled people to independent living may be at risk through the cumulative impact of current reforms. Even though the UK ratified the UNCPRD in 2009 with cross-party support, the Government is unable to demonstrate that sufficient regard has been paid to the Convention in the development of policy with direct relevance to the lives of disabled people. The right to independent living in UK law may need to be strengthened further, and we call on the Government and other interested organisations to consider the need for a freestanding right to independent living in UK law.” 

The Report draws attention to a number of significant human rights issues, including:

  • the need for freestanding legislation to protect the right to independent living in UK law,
  • the effect of current reforms to benefits and services on the ability of disabled people to enjoy independent living,
  • the role played by the UNCRPD in policy development and decision making at all levels of government,
  • the use of equality impact assessments,
  • the effects of devolution on implementation of the UNCRPD

The right to independent living does not exist as a freestanding right in UK law. Although it is protected and promoted to some extent by a matrix of rights, the Committee believes that this is not enough. It argues that the Government and other interested parties should immediately assess the need for, and feasibility of, legislation to establish independent living as a freestanding right. In addition, the Committee concludes that the UNCRPD is hard law, not soft law, and that the Government should fulfil their obligations under the Convention on that basis, and counter any public perception that it is soft law.

The Committee finds that:

  • reforms to benefits and services risk leaving disabled people without the support they need to live independently;
  • restrictions in local authority eligibility criteria for social care support, the replacement of the Disability Living Allowance with Personal Independence Payment, the closure of the Independent Living Fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people;
  • some people fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care.

It also finds that:

  • the Government had not conducted an assessment of the cumulative impact of current reforms on disabled people. The Report urges them do so, and to report on the extent to which these reforms are enabling them and local authorities to comply with their obligations under the UNCRPD.
  • the UNCRPD did not appear to have played a significant role in the development of policy and      legislation, as is required by the Convention. The Committee therefore argues that the Government should make a commitment to Parliament that they will give due consideration to the  articles of the Convention when making legislation.
  • Further, the Committee deprecates changes to the duties of public authorities in England under the Equality Act 2010, which no longer require the production of equality impact assessments of changes in policy, nor the involvement of disabled people in developing policies which will affect them.

The Committee finds variations in the manner in which the devolved administrations have implemented the Convention, and uncertainty as to the role the UK Government should play in ensuring implementation. The Report notes with disappointment the lack of a strategy in Northern Ireland to promote independent living and reminds the UK Government to acknowledge their responsibility to ensure implementation.

The Committee also considers a range of other issues relating to independent living. It recommends that the Government should take further action to ensure that assessments for care needs are portable across the country in order to ensure disabled people’s right to choose their place of residence. It also expresses concern over a growing incidence of hate crime against disabled people and urges the Government take action to foster respect for the rights and dignity of disabled people. 

Neil will write more about the issues raised by the Inquiry and about other work he has been involved in on Article 19 and the Convention more generally in a separate blog.

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