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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

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  1. “FUNDAMENTAL RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES AND PERSONS WITH MENTAL HEALTH PROBLEMS” Stakeholder meeting 4-5 November 2010 Vienna, Austria “Involuntary Treatment ” – Legal capacity, Article 12 CRPD and the paradoxes ofbeneficience. Jerome Bickenbach Swiss Paraplegic Research

  2. Background 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

  3. Background Fundamental rights: 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

  4. CRPD – GENERAL PRINCIPLES RESPECT THE ISSUE

  5. Background Caveat: 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

  6. CRPD:Article 12, legal capacity and treatment decision-making 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?

  7. Article 12 - Equal recognition before the law: Rights 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.

  8. IS INVOLUNTARY TREATMENT PROHIBITED BY ARTICLE 12? 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, but also b) the possibilities of (legitimate) constraints or limitations on the exercise of autonomy?

  9. Scenarios of Involuntary treatment and involuntary non-treatment 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)

  10. Implementation of Article 12 in real cases 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

  11. Does Article 12 requireNo treatment if no consent? Emergency, life-saving, unconsious....?

  12. Does Article 12 requireRespecting every decision about treatment? cf. Jehovah wittness child refusing blood transfusion

  13. Does Article 12 requireRejection of 'ends justify means' justifications? What ends, what means?

  14. Does Article 12 demandNon-prescriptive, non-judgmental support? Supporting, respecting … …but disagreeing and trying to persuade to change mind

  15. What doesArticle 12 require? enjoy legal capacity on an equal basis with others...

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