A/HRC/37/56
some jurisdictions, courts can impose a supported decision-making arrangement or a codecision-making arrangement, or decide who should act as a supporter and what acts she or
he may perform. Many countries have established thresholds to access support, usually
based on an assessment of a person’s mental capacity, where those who cannot reach such
thresholds are “doomed” to substitution decision-making regimes. The use of the “best
interest” standard in some supported decision-making regimes is also worrisome, as it
contradicts respect for the will and preference of individuals. Furthermore, in certain
jurisdictions, accessing certain forms of supported decision-making compromises the legal
capacity of the person and can translate into a loss of rights, including parental and political
rights.
49.
Despite such limitations, the growing number of countries adopting supported
decision-making schemes is encouraging and shows that substitute decision-making
regimes are increasingly being challenged. Colombia and Peru, for example, are in the
process of undertaking major legal reforms in this area, which include the recognition of the
capacity to act of all persons with disabilities, the elimination of guardianship regimes, and
the introduction of a set of supported decision-making arrangements. In both countries,
draft bills prepared by multi-stakeholder commissions received the endorsement of
different political parties and civil society. The Special Rapporteur welcomes those
processes and strongly encourages the States to promptly adopt these important reforms.
50.
The Special Rapporteur has also identified countries that have undertaken reforms to
ensure more procedural safeguards in the implementation of substitute decision-making
regimes. Changes introduced include the possibility to choose the person who would act as
guardian, the periodic review of guardianship orders and the right to appeal decisions that
remove or restrict one’s legal capacity. Some countries have also limited guardianship to
being a measure of last resort, when no other less restrictive measure can be applied. All
such reforms fall short in respecting the rights of persons with disabilities, as the existence
of substitute decision-making regimes is contrary to article 12 of the Convention.
51.
In a similar effort, a number of countries have removed plenary guardianship
entirely from their legal systems, only permitting substitute decision-making in certain
circumstances and for a limited period of time. In the majority of cases, States transition
from plenary guardianship to partial guardianship or curatorship, limiting restrictions to
legal capacity to health and/or financial matters. While the abolition of plenary
guardianship is an important step, maintaining or creating regimes of partial guardianship
and other forms of substitute decision-making are still contrary to the requirements of
article 12 of the Convention.
52.
Finally, there are a significant number of countries that have adopted or are
considering adopting mental health legislation. As long as mental health laws allow for the
involuntary deprivation of liberty, forced treatment and forced medication of persons with
disabilities, those laws are contrary to the Convention, including the right of persons with
disabilities to legal capacity. Regardless of their rights-based rhetoric and increased
procedural safeguards, mental health laws confer on medical professionals the capacity to
make decisions on behalf of persons with disabilities, particularly persons with
psychosocial disabilities, thus legitimizing coercive practices. Moreover, in the past two
decades, there has been a worrisome increase of community treatment orders in mental
health legislation, which expands coercive care beyond the confines of mental health
facilities. 19 Mental health legislation as it exists today must be repealed, as it creates a
separate legal regime for persons with psychosocial disabilities, contrary to the obligations
of States under the Convention. Regulation of the practice of mental health services should
focus on acceptability and quality, while the rights and freedoms of persons with
psychosocial disabilities must be the same as those of others in all areas of law, including
legal capacity and liberty and security of the person.
19
12
See Andrew Molodynsky, Jorun Rugkåsa, and Tom Burns, Coercion in Community Mental Health
Care. International Perspectives (Oxford, Oxford University Press, 2016).
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