II. Equal recognition before the law

The right to equal recognition before the law was first codified in international law by Article 6 of the Universal Declaration of Human Rights (UDHR) in 1949. The Declaration was not a legally binding document; however, over the years, its principles have come to be regarded as customary norms in international law (Haleem, Reference Haleem1988). Since then, the right has been featured in three international human rights treaties adopted by the UN.

Article 16 of the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966 contains the earliest expression of the right to equal recognition before the law in a legally binding treaty. The wording of the provision echoes that of the UDHR and an analysis of the treaty negotiations suggests a focus on legal standing over legal agency (Gooding et al., Reference Gooding, Arstein-Kerslake and Flynn2015). Following the ICCPR in 1979, Article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) set out the right to equal recognition encompassing both legal standing and legal agency. However, from 1979 until the adoption of the CRPD in 2006, no explicit reference to the right to equal recognition before the law is made in any subsequent UN human rights treaty.

The CRPD, adopted in 2006, was hailed as the single most exciting development in the disability field in decades (Quinn, Reference Quinn, Quinn and Waddington2009). Although adopted in 2006, it only came into force in May 2008 and, like many human rights treaties, had been subject to years of drafting and negotiation (Trömel, Reference Trömel, Quinn and Waddington2009). Persons with disabilities and their representative organisations played a central role throughout drafting and adoption, as is reflected in International Disability Caucus (IDC)’s (2006b) motto of ‘nothing about us without us’. The overarching ideal behind the Convention is one of equality (Quinn, Reference Quinn, Quinn and Waddington2009) and this is evident in Article 1, which states that it aims to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities’. The CRPD has been identified as a catalyst for change, marking the paradigm shift from viewing persons with disabilities as objects of charity and medical treatment to identifying them as subjects with legal rights (Arbour, Reference Arbour2006). The CRPD only reformulates existing rights in the context of persons with disabilities and does not create any new rights (Kayess and French, Reference Kayess and French2008) as required by the mandate from the General Assembly under which the text was developed. However, there has been an ongoing debate in the literature following the Convention as to whether this ideal was realised or whether the Convention did in fact create new rights for persons with disabilities (Mégret, Reference Mégret2008).

The monitoring provisions for the CRPD, set out under Articles 31–40, combine the traditional treaty monitoring body, found in other UN human rights treaties, with a Conference of State Parties and independent national mechanisms. The Committee on the Rights of Persons with Disabilities is established at the UN level as the monitoring body that oversees the implementation of the Convention. It is tasked with producing concluding observations and general comments on how to interpret the articles of the Convention. The Optional Protocol, when ratified, enables the UN Committee to receive both individual and group petitions or complaints from within states.

Article 12 builds on existing international provisions to apply the right to equal recognition before the law to persons with disabilities. It comprises five paragraphs, and is modelled on the previous treaties to set out a right to legal capacity on an equal basis with others for persons with disabilities. The right to legal capacity it articulates encompasses both legal standing and legal agency.Footnote ¹ As noted above, persons with disabilities and their representative organisations played a key role in drafting the CRPD and, in particular, Article 12. For example, the World Network of Users and Survivors of Psychiatry drafted key demands to put before the Working Group that would draft the treaty text, including equal recognition before the law for persons with disabilities (Minkowitz, Reference Minkowitz2013). At this early stage of drafting and negotiations, equal recognition before the law was found under Article 9 (Working Group to the Ad Hoc Committee, 2004). It was, even then, a very contentious issue and, although many of the main points advanced by disabled peoples organisations (DPOs) were included in the Working Group text, it was subject to dissenting opinions in the footnotes.

In 1999, many DPOs grouped together to form the International Disability Alliance (IDA), which was instrumental in the establishment of the IDC at the first Ad Hoc Committee meeting in 2002.Footnote ² The IDC was open to persons with disabilities, disabled people's organisations and other allies (Trömel, Reference Trömel, Quinn and Waddington2009). This allowed persons with disabilities and their representative organisations to have their voices heard at a UN level and have a significant input into the negotiations. From this, fundamental concepts were inserted or retained within the final text. These include the key language changes that included a strong statement that persons with disabilities have the right to legal capacity on an equal basis with others and a positive framing of the right to support to exercise legal capacity (IDC, 2005). In particular, the representative organisations of persons with disabilities worked to ensure that no legitimation of the concept of substituted decision-making was included in the final text (Ad Hoc Committee, 2006a). These developments can be tracked using the Convention archives, clearly illustrating the development of Article 12, and what the IDC achieved with the support of some States Parties.Footnote ³

The final text of Article 12 reads as follows: ‘This first paragraph in the final text of the Convention builds on the provisions of the ICCPR and reaffirms the right of persons with disabilities to be recognised as persons before the law.’

The second paragraph, modelled on provisions found in CEDAW, outlines a right to legal capacity for persons with disabilities on an equal basis with others. As in CEDAW, this encompasses being both a holder of rights and an actor in law, and both of these elements must be recognised for the right to legal capacity to be fulfilled (Committee on the Rights of Persons with Disabilities, 2014). However, during the final session of the Ad Hoc Committee, the right was subject to a footnote, stating that, in certain languages, the term ‘legal capacity’ referred only to being the holder in rights and not an actor in law. After much debate, this footnote was removed at the final meeting (Ad Hoc Committee, 2006b) and the final text is as shown above.

Article 12 paragraph 3 places an obligation on states to provide supports to enable persons with disabilities to exercise legal capacity. Paragraph 4 requires States Parties to create safeguards to ensure that persons with disabilities can exercise their legal capacity. In the seventh session of the Ad Hoc Committee, the IDC (2006a), in conjunction with a group of states, submitted changes that sought to ensure that allowing safeguards would not amount to allowing substituted decision-making or guardianship. Some of the changes in language suggested can be seen in the final text of the paragraph, above. The UN Committee on the Rights of Persons with Disabilities (2014) has subsequently clarified in the General Comment that all regimes of substituted decision-making must be abolished. Finally, the fifth paragraph seeks to ensure access to property and equal rights regarding financial affairs for persons with disabilities, traditionally areas in which persons with disabilities were treated less favourably by the law.

As with all international human rights treaties, the CRPD is a statement of general principles that does not define key terms or delve into the practicalities of how to achieve the rights it sets out. The ‘paradigm shift’ and increased understanding of Article 12 can be tracked in the literature published following the negotiation of the CRPD. Much of the material published immediately after the CRPD was adopted focused on interpreting the text and analysing its practical implications, with many authors looking to the drafting process for guidance (Minkowitz, Reference Minkowitz2010; Dhanda, Reference Dhanda2006–2007; Quinn, Reference Quinn, Quinn and Waddington2009; Kayess and French, Reference Kayess and French2008; McSherry, Reference McSherry2012; Kanter, Reference Kanter2014). It was only after the Committee published its concluding observations to states that focus shifted to how the law-reform process might work in practiceFootnote ⁴ and to the resulting domestic law-reform processes.Footnote ⁵ Unfortunately, a detailed discussion of this is not within the scope of this paper. Most recently, after the publication of the General Comment, which clarified key issues regarding the realisation of Article 12, literature criticising the Committee's interpretation of Article 12 began to emerge, as did further clarification by activists and human rights scholars on what exactly Article 12 means for persons with disabilities (Dawson, Reference Dawson2015; Gooding, Reference Gooding2015; Browning et al., Reference Browning, Bigby and Douglas2014).

III. Distinguishing legal capacity and mental capacity

It is important to distinguish the concept of ‘legal capacity’ from ‘mental capacity’. Legal capacity is a concept contained within the broad heading of equal recognition before the law. It has been defined as the right to be recognised as a person before the law and therefore to have one's decisions legally recognised (Flynn and Arstein-Kerslake, Reference Flynn and Arstein-Kerslake2014b). As set out above, equal recognition as a person before the law encompasses two distinct concepts – legal standing, that a person is the holder of rights; and legal agency, that a person is an actor in law (McSherry, Reference McSherry2012). As a holder of rights, a person is entitled to full protection of her rights by the legal system. As an actor in law, a person has the power to create, modify or end legal relationships and make decisions that must be legally recognised (Committee on the Rights of Persons with Disabilities, 2014). Some commentators characterise this in terms of passive capacity and active capacity (Hoffman and Könczei, Reference Hoffman and Könczei2011).

In contrast, mental capacity is used to refer to a combination of cognitive ability, impairment and a person's extent of understanding of the consequences of their actions. Mental capacity is used in many states as a means to assess and deny legal capacity. A common example of this would be legislation that establishes a test of mental capacity as the threshold for carrying out certain legally binding decisions, such as decisions about consent to medical treatment, decisions involving the sale or purchase of assets, and decisions about where and with whom to live.Footnote ⁶

Article 12 of the CRPD has been identified as the catalyst for change in this area (Arstein-Kerslake and Flynn, Reference Arstein-Kerslake and Flynn2016), recognising that the different ways in which people make decisions and different levels of cognitive ability should not be used as a means to assess and deny legal capacity (Minkowitz, Reference Minkowitz2010). The paradigm shift, set out above, can only truly be put in context, however, by reflecting briefly on the evolution of legal norms concerning legal capacity generally.

IV. The denial of legal capacity

Historically, legal capacity was granted or denied based on various characteristics as either society or the law dictated. This is illustrated by two well-known examples of deprivations of legal capacity. Blackstone (Reference Blackstone1979) noted that women in marriage were seen as suffering a ‘civil death’, as they were denied their legal capacity when their legal identity was incorporated into their husband's. In the US, slaves were also denied their legal capacity or personhood because the law saw them as only three-fifths of a person.Footnote ⁷

Disability is one of the only remaining characteristics under which society and the law justify denying an individual her legal capacity on an equal basis with others. This disproportionately affects people with intellectual or psychosocial disabilities due to the view that legal capacity is often assessed based on a level of cognitive ability and understanding consequences known as mental capacity, as outlined above.Footnote ⁸

Three methods of assessment are primarily used to determine whether someone should be denied her legal capacity: status, outcome or the functional test (Dhanda, Reference Dhanda2006–2007). These methods have been extensively discussed elsewhere; therefore, only a brief outline is set out below. In a status approach, incapacity is presumed from a medical diagnosis or labelling of an individual as a person with a disability (Flynn and Arstein-Kerslake, Reference Flynn and Arstein-Kerslake2014a). This approach fails to look past the impairment or diagnosis before denying an individual the right to be seen as person before the law. It ignores an individual's actual decision-making skills and a life-changing denial of legal capacity is made solely based on stereotypes (Commissioner for Human Rights, 2012).

The outcome approach assesses decisions made by the person with a disability to determine whether they were ‘good’ decisions (Commissioner for Human Rights, 2012), such as in the case of an individual in psychiatric treatment. If the individual asks to discontinue their treatment, her legal capacity is questioned, although her capacity to consent to treatment initially was not at issue (Dhanda, Reference Dhanda2006–2007). This test also clearly holds persons with disabilities to a higher standard in decision-making than the rest of the population.

The functional approach, used in many countries,Footnote ⁹ typically assesses whether the person with an ‘impairment or disturbance in the functioning of the mind or brain’Footnote ¹⁰ understands the decision and all the reasonably foreseeable consequences of the decision. Legislation based on the functional approach typically requires that the person must be able to use, weigh and retain the information necessary to make the decision, to understand the consequences of their decision and to communicate her decision to others.Footnote ¹¹ Again, however, a person's decisions would generally not be subject to such scrutiny but for her status or diagnosis and, therefore, many commentators believe that all three tests are discriminatory (Minkowitz, Reference Minkowitz2013; Dhanda, Reference Dhanda2006–2007). Others argue that, if the functional test is set out using language that is facially neutral and without expressly referring to ‘disability’ or ‘impairment’, this does not amount to disability discrimination (Australian Law Reform Commission, 2014). The UN Committee on the Rights of Persons with Disabilities takes the position that any test amounts to indirect discrimination when it disproportionately affects people with cognitive disabilities (Committee on the Rights of Persons with Disabilities, 2014).

In many jurisdictions, following the denial of legal capacity, a person will be subject to some form of substituted decision-making. Typically, a third party, often known as a guardian, is appointed to make legally relevant decisions on the person's behalf (Keys, Reference Keys, Quinn and Waddington2009). An individual under plenary or full guardianship cannot make any decisions of legal significance on her own behalf. Other variations known as limited or partial guardianship allow the individual to make some limited decisions, but the individual's rights are still severely curtailed. Either way, the guardian or third party is generally charged with acting in the individual's ‘best interests’ and the individual generally has little or no input into what decisions are made. The third party may be a family member or a trusted individual but this is frequently not the case with lawyers and civil servants, who have no relationship with the individual, also appointed in some countries.Footnote ¹²

An emerging body of literature reveals varied ways in which legal capacity is denied even without substituted decision-making regimes or adult guardianship. An individual can also be denied her legal capacity by her family or carer in the private sphere (Arstein-Kerslake and Flynn, Reference Arstein-Kerslake and Flynn2017), through involuntary treatment such as forced psychiatry or other forced medical interventions (Minkowitz, Reference Minkowitz2006–2007) and through the legal system, where a person is found to lack the necessary legal capacity to take a case in court,Footnote ¹³ is seen as ‘incompetent’ to testify or found not guilty by reason of insanity (Minkowitz, Reference Minkowitz2014).

V. Interpreting the scope of Article 12: General Comment No. 1

The General Comment on Article 12 is the first of its kind for the CRPD.Footnote ¹⁴ It sets out to provide interpretative guidance on the theory behind this highly contentiousFootnote ¹⁵ but equally important article. Some would argue that this is exactly why Article 12 needed to be the subject of the Committee's first General Comment (Arstein-Kerslake and Flynn, Reference Arstein-Kerslake and Flynn2016). The General Comment covers normative content and gives practical direction on how the Article should be implemented. It draws on guidance and interpretation previously provided by both the Office of the High Commissioner on Human Rights and DPOs.Footnote ¹⁶ Arstein-Kerslake and Flynn (Reference Arstein-Kerslake and Flynn2016) describe it as a roadmap for legal-capacity law reform, clearly stating that a person cannot be denied her right to recognition as a person before the law based on an assessment of mental capacity, and that instead people should supported to exercise their legal capacity (Committee on the Rights of Persons with Disabilities, 2014). On this basis, the General Comment calls for an overhaul of all existing laws in the area of legal capacity. This has led to arguments that its content is impractical and radical (University of Cambridge, Cambridge Intellectual & Developmental Disabilities Research Group, 2014) while others, including the contributors to this Special Issue, believe that it is long overdue as a call for equality for persons with disabilities (World Network of Users and Survivors of Psychiatry & the Center for the Human Rights Users and Survivors of Psychiatry, 2014).

VI. In the wake of the General Comment: conflicting interpretations

Following the publication of the General Comment, the focus of the literature surrounding Article 12 progressed from interpreting the text to either plotting its practical implementation or criticising the Committee's interpretations and providing alternatives. One of the main criticisms originally made in many of the submissions on the Draft General Comment was that never allowing mental capacity to lead to a denial of legal capacity is both impractical and unrealistic.Footnote ²² Ward (Reference Ward2015) relies on the concept of ‘factual incapacity’ to argue that, in some circumstances, no matter how much support is provided to a person, it will remain impossible to determine what decision the person wishes to make. This argument appears to ignore the Committee's delineation of a ‘best interpretation’ framework to guide decision-making where, after all efforts to support a person, their will and preferences remain unknown.

A well-known psychiatrist, John Dawson (Reference Dawson2015), argues that mental capacity is often used to define the line between two conflicting state obligations – respecting individual autonomy and protecting vulnerable individuals. He believes that determinations of mental capacity are necessary so that the state knows when it can intervene. As discussed in Flynn and Arstein-Kerslake (Reference Flynn and Arstein-Kerslake2017), it should be possible for the state to develop a disability-neutral basis for intervention to protect the human rights of people at risk of abuse, exploitation, violence or neglect, without using discriminatory tests of mental capacity.

Dawson (Reference Dawson2015) further argues that many aspects of the legal system require assessments of the inner workings of the mind and that most sophisticated legal systems would be impoverished without them. Such provisions include the concept of intention or ‘mens rea’ in criminal law and defences such as diminished responsibility. Professor Michael Perlin (Reference Perlin2015) also follows this path, arguing that interpretations of the General Comment that call for the abolition of the insanity defence and findings of incompetency are incompatible with the rest of the CRPD, violating an individual's right to a fair trial and the possibility of torture in prison.

The Committee's interpretation of Article 12 views disability-specific criminal provisions including the insanity defence and unfitness to plead as incompatible with the guarantee of universal legal capacity. The discriminatory nature of such criminal provisions has also been pointed out by leading activists and scholars in the field (Minkowitz, Reference Minkowitz2014) who argue that ‘intention’ or ‘mens rea’ in the criminal law is in fact recognition of an individual as a legal actor with legal responsibility and can be applied equally to people with and without disabilities. This concept of ‘on an equal basis’ is central to the interpretation found in the General Comment and relied upon by those who favour it. They argue that legal capacity can be denied based on a range of factors as long as it is on an equal basis between persons with and without disabilities. This argument is explored further with regard to both state intervention (Flynn and Arstein-Kerslake, Reference Flynn and Arstein-Kerslake2017) and consent (Brosnan and Flynn, Reference BROSNAN and FLYNN2017), respectively, in other papers within this Special Issue.