The fourth session of the UN Open-Ended Working Group on Ageing was held from 12-15 August 2013 in New York, and was characterised by greater participation from civil society organisations of older persons, as well as broader representation from African and Asian countries than in previous sessions. Although many actors within group, particularly the Latin American countries, are trying to work towards a new binding instrument to comprehensively protect the human rights of older persons, significant opposition remains from some key States – including the EU, US and Canada.
The long-awaited Assisted Decision-Making (Capacity) Bill 2013 has been published this morning. Although this reform is a long time in the making, many civil society organisations such as the Centre for Disability Law and Policy and Amnesty Ireland cautiously supported the delay on the basis that the extra time would be used to get the legislation ‘right’ and ensure as far as possible that it would comply with the UN Convention on the Rights of Persons with Disabilities – especially since this legislation was repeatedly referred to by government as the final step to be taken before Ireland would be ready to ratify this Convention. A positive process of engagement with civil society was adopted by both the Oireachtas Justice Committee – in finalizing its report to the Minister as to what should be contained in the legislation, and by officials from government departments responsible for drafting the legislation. A consensus on the need for the legislation to be premised on support to exercise legal capacity was reached by all sides, and this is a marked improvement from the automatic removal of legal capacity based on a label of disability which had prevailed for so long under the Ward of Court system.
On 29 April, Amnesty International Ireland and the Centre for Disability Law and Policy, NUI Galway, will co-host a conference in the Radisson Blu Hotel, Dublin 8. The purpose of the conference is to explore how to practically implement capacity legislation that is compliant with the UN Convention on the Rights of Persons with Disabilities, through the introduction of supported decision-making and an approach that respects the individual’s will and preferences. The Committee on the Rights of Persons with Disabilities has repeatedly required States to replace regimes of substitute decision-making (such as adult guardianship) with supported decision-making. The speakers will discuss their experience of supported decision-making in practice and how this might be replicated in Ireland. We will hear from national and international experts who will discuss what ireland’s capacity bill must contain to ensure it is in line with the CRPD, and host a discussion on children and decision-making. More information on the conference is available at the following link and you can register to attend by clicking here.
Yesterday, the Court of Justice of the European Union handed down its decision in the joined cases of Ring and Skouboe Werge (see judgment here). This ruling is particularly significant as it represents the first decision on the definition of disability under the Framework Directive on Employment 2000/78 since the EU concluded the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2010. In essence, the Court moved away from the restrictive definition it adopted Chacón Navas, and instead interpreted the Framework Directive in light of Article 1 CRPD, which states that
“persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
On last night’s Late Debate programme on Radio One (which you can listen back to here), Minister Kathleen Lynch was asked to comment on the publication of the Assisted Decision-Making (Capacity) Bill (from about minute 52 onwards). This Bill has been placed in the A list of legislative proposals and the government has stated that is key to Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). Continue reading “Ireland's Assisted Decision-Making Bill and the UN Convention”
Last week the European Court of Human Rights published its decision in the case of Lashin v Russia. This judgment is one of a series of recent decisions from the Court which address issues of denial of legal capacity and loss of liberty through detention which was consented to by a guardian (see for example Stanev v Bulgaria, DD v Lithuania, Sykora v Czech Republic). However, while cases such as Stanev and Sykora have somewhat progressed the Court’s approach to denial of legal capacity (in particular by finding that such a denial can constitute a breach of Article 8 in Sykora), arguably, Lashin regresses the Court’s position by finding that depriving someone of her legal capacity and maintaining that status may pursue a number of legitimate aims, and that some form of limitation of legal capacity, such as partial guardianship, may be necessary for ‘mentally ill persons.’ This judgment brings to the fore the inherent tension between the ECHR and the UN Convention on the Rights of Persons with Disabilities – already commented on by Phil Fennell and Peter Bartlett, among others.
Last week, the US Senate failed to reach the two-thirds majority required on a motion to ratify the United Nations Convention on the Rights of Persons with Disabilities (CRPD). You can view footage of the senate debate and vote here.
Lawrence O’Donnell pronounced this a ‘day of shame’ for the US Senate, and many commentators, especially those among the American disability rights community, have expressed their disappointment at the failure to ratify the treaty. Now that this attempt has failed, it is important to take stock of the approach to ratification pursued in the Senate and to consider possible alternatives, if another attempt to achieve US ratification is to be made.
Last week the High Court issued a significant judgment in the case of MX v HSE. An earlier judgment in the same case on an issue of judicial review is available here. The most recent judgment addresses issues of constitutionality and compliance with the European Convention on Human Rights regarding the treatment of a patient in the Central Mental Hospital without her consent. A novel argument was made in the case regarding the direct effect of the UN Convention on the Rights of Persons with Disabilities following its conclusion by the European Union – even though Ireland has not yet ratified the Convention. This argument was however dismissed by MacMenamin J, although he acknowledged the guidance provided by the Convention in relation to issues of legal capacity.
I will focus my analysis of the case here on the issues of the plaintiff’s perceived lack of mental capacity to consent to treatment, and the availability of independent review of her treatment, with a view to outlining how the UN Convention takes us in a different direction from the procedural safeguards provided for in the ECHR, and will discuss how a new approach to consent to treatment, and support to exercise legal capacity is required.
Yesterday, the Irish Times published an article highlighting a report from the National Advocacy Service (NAS) on the response to their advocacy work on behalf of people with disabilities. Having viewed the report, which has not been published online, but is being made available to any member of the public who requests it, I wanted to respond with some comments on the work which the NAS has undertaken since its establishment in 2011 and to make some suggestions about future developments in the provision of advocacy to people with disabilities in Ireland. Continue reading “National Advocacy Service in the Spotlight”
In this post, I will address the gaps in the current Constitutional framework as seen from the disability perspective, focusing primarily on the equality guarantee in Article 40.1, with a view to providing some suggestions as to how this right could be reframed and strengthened within the current Constitutional order. Although the narrow remit of the Constitutional Convention outlined to date would probably not stretch to accommodate such a reformulation, I hope that this series on humanrights.ie may provide a useful resource to members of the Convention as they enter deliberations about the scope of their work.