The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) took effect in 2008. This paper discusses a number of flashpoints where the CRPD will require real and significant reconsideration of English mental health and mental capacity law. The CRPD introduces a new paradigm into international disability law, relying on the social model of disability. While that is no doubt a good thing, there is as yet no clear sense as to how that is to be implemented. After providing an introduction to the Convention, the paper considers four specific areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005), psychiatric treatment without consent, civil detention of people with mental disabilities, and mental disability in the criminal system (fitness to plead, insanity and diminished responsibility).     

Maintaining the Legal Status of People with Intellectual Disabilities as Parents: The ADA and the CRPD

People with intellectual disabilities face proceedings to terminate their parental rights with disturbing regularity, with protecting the interests of offspring the primary justification. Although protecting children from harm is surely critical, these termination proceedings involve problematic assumptions about how fitness to parent is understood, how parenting is legally constructed, and what nondiscrimination requires for parents with intellectual disabilities. Using Article 12 of the Convention on the Rights of Persons with Disabilities as a model, it suggests two alternatives to the all‐or‐nothing termination processes in place today that might better realize the enjoyment of legal capacity as parents on an equal basis with others for people with intellectual disabilities: limited terminations analogous to limited guardianships and supported parenting along the lines of supported decision making proposed in the CRPD.     

Family Law,Parents with Disabilities,and the Americans with Disabilities Act

Parents with disabilities contend with bias within the family law system, often threatening their custody and visitation rights. The overarching goal of this article is to explore the experiences of parents with disabilities involved in custody and visitation disputes and the application of the Americans with Disabilities Act (ADA) in these cases. This article begins with an overview of parents with disabilities and their interactions with the family law system. Next, the article examines the ADA and its applicability to custody and visitation disputes. Finally, the article offers thoughts about strategies that can be utilized by attorneys to ensure that the rights of parents with disabilities are protected.     

WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO INVOKE THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Persons with disabilities have a right to effective access to justice under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This article provides insights on the parameters of that right, including a close examination of the history and text of Article 13, which directly addresses access to justice and other relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses implementation guidance from the Committee on the Rights of Persons with Disabilities, including its guidelines for State Party reports and jurisprudence. The initial reports by eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered. The Committee’s feedback regarding implementation of Article 13 by these eleven States parties is critiqued for being limited and inconsistent. This article then attempts to clarify what effective access to justice actually requires. It does so by focusing on the insights that can be drawn from implementation of Article 13 since the UNCRPD was adopted as well as implementation guidance from the Conference of States Parties, the International Disability Alliance, the World Network of Users and Survivors of Psychiatry and the National Center for Access to Justice. This article concludes with recommendations on how the Committee can improve its guidance on access to justice to help ensure that equal rights will not be illusory for persons with disabilities.     

PERSONS WITH DISABILITIES AND THEIR SEXUAL,REPRODUCTIVE, AND PARENTING RIGHTS: AN INTERNATIONAL AND COMPARATIVE ANALYSIS

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.     

Assistive technology as support for the exercise of legal capacity

Exercising legal capacity refers to engaging in legal transactions and relationships and is essential for the full inclusion of people with disabilities in society. The United Nations Convention on the Rights of Persons with Disabilities has enumerated the right to legal capacity on an equal basis and has created a state obligation to provide access to support for the exercise of legal capacity. This article examines the use of assistive devices as support for decision-making in exercising legal capacity for individuals with physical and cognitive impairments; for example, the use of voice recognition programmes, screen readers, and screen enlargement applications to support people with mobility and sensory impairments to use online portals essential for legal actions such as banking. It also discusses the experimental use of cognitive assistance, including computer or electrical assistive devices, to facilitate communication for people with cognitive impairments including those with no external signs of consciousness. It highlights the diversity of options for ‘support for the exercise of legal capacity’ showing how they can assist people with various disabilities. Finally, the article examines the boundaries of the state obligation to provide such support, including issues of practical implementation and resource allocation.     

“The ladder of the law has no top and no bottom”: How therapeutic jurisprudence can give life to international human rights

In the past two decades, therapeutic jurisprudence (TJ) has become one of the most important theoretical approaches to the law. But, there has, as of yet, been puzzlingly little written about the relationship between TJ and international human rights law. To be sure, there has been some preliminary and exploratory work on the relationship between TJ and international law in general, but virtually nothing on its relationship to international human rights law in a mental disability law context. This paper seeks to focus on this lack of consideration, to speculate as to why that might be, and to offer some suggestions as to how to infuse some new vitality and vigor into this important area of law and social policy.     

从《残疾人权利公约》反思国际人权机制

2007年3月起开放签字的《残疾人权利公约》是联合国体系在保护人权领域的最新努力。与以往的多数人权条约一样,《残疾人权利公约》列举了具体权利、构划了报告体制,同时通过任择议定书设计建立一套来文制度。这意味着在国际人权法上又添加了一套体制。虽然从权利保护发展本身看,这一公约的出现丰富了联合国体系的人权保护内容,但是从国际法治的理念上看,它是国际法不成体系的特征的继续与延伸,本质上不仅无益于国际法治的完善,而且有可能进一步提高国际法维护人权各个环节的成本。现阶段有必要考虑将包括人权、环境等领域的规范进行编纂,将相应机构进行整合,以推进国际法治的目标。     

The Adoption and Safe Families Act: Proposing a “Best Efforts” Standard to Eliminate the Ultimate Obstacle for Family Reunification

The Adoption and Safe Families Act of 1997 (ASFA) was enacted in an attempt to expedite the child's permanency plan by pushing for adoption of children in foster care. The ASFA requires the U.S. Department of Health to make reasonable efforts to reunify and preserve existing families while rewarding the states for increased adoption of foster care children. The ASFA was enacted to ensure the best interests of the child are to remain paramount, but in practice, the ASFA is furthering the best interests of the state. This Note proposes amendment of the ASFA to increase the obligation of the Department of Social Services (DSS) to make its best efforts to preserve and reunify the existing family unit, while also imposing a penalty if the DSS fails to do so.     

Legislative genesis and judicial death of a directive: The European Court of Justice invalidated the data retention directive (2006/24/EC) thereby creating a sustained period of legal uncertainty about the validity of national laws which enacted it

The Grand Chamber has ruled that the data retention directive was invalid ex tunc since it seriously interfered with the fundamental rights to respect for private life and protection of personal data and exceeded the limits of the principle of proportionality which are provided for in the Charter. The scope and temporal effects of this ruling should be clarified, especially its legal impacts on national laws of Member States which enacted the directive. In addition, the findings of the Grand Chamber on geographical safeguards have far-reaching implications on the retention and storage of personal data in the EU.