CAPACITY - PERSONAL AUTONOMY

1. CAPACITY - PERSONAL AUTONOMY

2. Revision ‘Personality Rights’ • Entirety of subjective rights of which every person is a holder, just because he is a person • Intend to protect the personality of a person on the physical, psychological and moral level • Legal protection is absolute and may have a positive and negative effect • Personality rights vs human rights

3. Capacity vs personal autonomy • Capacity • The power to exert your rights in abstracto • Personal autonomy • The power to exert your rights in concreto

4. Content of the lecture 1. Legal capacity • criteria under which individuals may act by themselves or need assitance by others (Gillick v. West Norfolk and Wisbeck Health Authority [1985] 3 All E.R. 402; [1986] A.C. 112) • Quid mentally handicapped? (Winterwerp v. the Netherlands (ECtHR 24 Oktober 1979))

5. Content of the lecture 2. Personal autonomy • The right of minors to be heard before the adoption of decisions • The right to give free and informed consent to interventions, in the health field, that may interfere in the physical or mental integrity or in the privacy of a person. • Quid end-of-life decisions? Limits of self-determination?

6. Legal capacity • All legal systems have to provide some criteria under which individuals may act by themselves or need assistance by others + conditions under which this assistance has to be supplied • Rules on legal capacity in European jurisdictions + age of majority + protective measures on behalf of mentally disabled adults - extent of legal competency of children, youngsters, impaired adults - scope and effects of protective regimes for them

7. Harmonization efforts • UN Convention on the rights of the child ”States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (art 12)

8. Harmonization efforts • European Convention on the Exercise of Children’s rights (1996) “The rights and best interests of children should be promoted and to that end children should have the opportunity to exercise their rights, in particular in family proceedings affecting them.” (Preamble) The object of the present Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority. (art 1.2)

9. Harmonization efforts • UN Convention on Human Rights and Biomedicine “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. “The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.”

10. GILLICK v. WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY [1986] A.C. 112

11. Gillick Case • Do children have legal capacity? • It shows the problems that may arise if national law does not provide for a specific age for undertaking a legally relevant affair • Legal capacity: A girl under the age of 16 has thelegal capacity to consent to medical examination and treatment, including contraceptive treatment, if she has sufficient maturity and intelligence to understand the nature and implicaons of the treatment • The parental rights: The parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him/her to understand fully what is proposed

12. There might be exceptional cases when in the interests of the child’s welfare a doctor might give contraceptive advice and treatment without the permission or even knowledge of the parents. Therefore, the doctor must be satisfied that: • The girl understood his advice and that she has a sufficient maturity to understand what is involved • He could not persuade her to tell or allow him to tell her parents • She was likely to have sexual intercourse with or without contraceptive treatment • Her physical or mental health was likely to suffer, unless she received such advice or treatment • Her best interests required such advice or treatment without the knowledgje or consent of the parents

13. Re R (A minor) (Wardship: medical treatment) • Re W (A minor) (medical treatment: court’s jurisdiction)

14. Mentally handicapped person • Art. 5 §1 (e) ECHR "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (e) the lawful detention ... of persons of unsound mind ...;”

15. Mentally handicaped person • Art. 5 §4 ECHR "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

16. Mentally handicaped person • Art. 7 Convention on Human Rights and Biomedicine “Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.”

17. Mentally handicaped person Recommendation of the Committee of Ministers to Member States concerning the protection of the human rights and dignity of persons with mental disorder

18. Chapter III: involuntary placement in psychiatric facilities and involuntary treatment, for mental disorder • Chapter IV: placement of persons not able to consent in the absence of objection • Minors

19. Winterwerp v. the Netherlands • Requirements for a valid detention of a person of unsound mind • The person detained is reliably shown to be of unsound mind • The very nature of what has to be established before the competent national authority (a true mental disorder) calls for objective medical expertise • The mental disorder must be of a kind or degre warranting compulsory confinement • The validity of continued confinement depends upon the persistence of such a disorder

20. Aerts v. Belgium therapeutic institution

21. Winterwerp v. the Netherlands • Procedure and due process • Compulsory detention of persons of unsound mind requires a review of its lawfullness to be available at reasonable intervals, even if the initial decision issued from a court • The reviewing authority must possess the characteristics of a “court” and must also be independent both of the executive and of the parties • The procedure followed must have a judicial character with guarantees appropriate to the kind of deprivation of liberty in question

22. Art 5(4) proceedings do not always need to be attended by the same guarantees required under art 6(1) for civil or criminal litigation, but the person concerned should have access to a court and the opportunity to be heard either in person or through representation • Mental illness might entail restricions on or modifications of the exercise of such procedural rights, but could not justify impairing its very essence

23. Requirement of judicial determination and right to a hearing • An excessive interval between an application for discharge ad the court hearing might constitute a restriction of access to the courts • The refusal of the public prosecutor to refer a detained person’s application for release to the court denies the right to court proceedings embodied in art 5(4) • A court discretion to decide whether or not to hear the detained person did not protect the fundamental guarantees of procedure which must be applied where liberty has been deprived. • It cannot be said that an applicant has failed to avail himself of the right set out in art 5(4) simply because he had never instructed a lawyer to represent him