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“FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND PERSONS WITH MENTAL HEALTH PROBLEMS” Stakeholder meeting 4-5 November 2010 Vienna, Austria. “I nvoluntary Treatment ” – Legal capacity, Article 12 CRPD and the paradoxes of beneficience . Jerome Bickenbach
“FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND PERSONS WITH MENTAL HEALTH PROBLEMS”
4-5 November 2010
“Involuntary Treatment ” – Legal capacity, Article 12 CRPD and the paradoxes ofbeneficience.
Swiss Paraplegic Research
People withtemporary, permanent or episodic difficulties in cognitive or emotional functions of such severity as they [or others] percieve them to interfer with their decision-making capacity.
(or communication problems)
PEOPLE WITH MENTAL HEALTH PROBLEMS
Convention on the Rights of Persons with Disabilities
Civil rights and human rights
Personal right and social and economic rights…
All apply to persons with mental disabilities, but because of fear, stigma and stereotyping, people with mental disabilities have to fight for the most basic and personal of rights…
THE RIGHT TO BE A PERSON
Brutalizing, humiliating, cruel and lethal ‘treatment‘ obviously exists around the globe – these are massive injustices, but clear and obvious injustices and ones
(We know this because brutalizing treatment are never justified as brutalizing but as essential, necessary, beneficial, in the patient‘s best interest…)
So, more legally challenging treatment scenarios are more useful for policy development and CRPD implementation
How does the CRPD apply to respect for the person in treatment settings?
How should CRPD be interpreted?
How would this interpretation be applied in specific cases where autonomy and beneficience conflict?
IS INVOLUNTARY TREATMENT PROHIBITED BY ARTICLE 12?
2. States Parties shall recognize that persons with disabilities enjoy legal capacityon 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.
What we know already about Article 12…
It has both a negative (protecting against abuse) and a positive (providing support for decision-making) focus.
But does It anticipates in subsection 4, not just
a) the need for decision-making support,
b) the possibilities of (legitimate) constraints or limitations on the exercise of autonomy?
The refusal (to consent to) life sustaining treatment
The refusal of prescribed treatment (directed at underlying disease)
The refusal to prescribed treatment (directed at on professional outcomes, e.g. normal behaviour)
The request to end life
The request for treatment that is professionally judged not in one‘s interests (harmful, non-beneficial)
States parties obliged to put into place legal effective and enforceable mechanisms to…
Protect LEGAL CAPACITY
SUPPORT the exercise of legal capcity
Provide SAFEGUARDS to any limitations to legal capacity
Emergency, life-saving, unconsious....?
cf. Jehovah wittness child refusing blood transfusion
What ends, what means?
Supporting, respecting …
…but disagreeing and trying to persuade to change mind
enjoy legal capacity on an equal basis with others...