Dc presentation

6.Cases which disentangle subsequent losses of rights

A person deprived of restricted of legal capacity is usually appointed a guardian. The guardian is given the decision making authority of a number of important decision – where the adult lives, whom the adult hangs around with, where the adult can go, who the adult can marry, what sorts of medical treatment the adult should have, and any applications to courts or other types of State authority. There may well be others which I’ve forgotten, and anyway the list differs across jurisdictions. There are some other rights over which the guardian has no control, because law specifies that persons without full legal capacity are not entitled to them: these include the right to vote and stand for election (a spectacular contribution to the political invisibility of persons with mental health problems and intellectual disabilities), the right to join political parties and associations (putting a stop to a person expressing his or her desire to formally join with like-minded people: no surprise that there are few national associations for the rights of persons under guardianship), and the right to work (exacerbating the already well-established bidirectional link between poverty and disability).

So the question is, can litigation contribute to a disentangling of legal capacity and its subsequent human rights violations? That is to say, can litigation help to demolish the myth that persons with disabilities are incapable of – for example – voting, and demolish the patronising and empirically disproven assumptions which lurk behind such laws. Can litigation contribute to restoring personhood? Can litigation repatriate decision-making in distinct areas of life?
(Sticking for a moment with voting, the assumption is that mad people will cast irrational votes. It hilariously follows therefore that people without labels of mental disorders/disabilities cast rational votes. What is rationality anyway? Since when have people without labels of mental disorders/disabilities had to take a rationality test at the polling station? What would such a test look like? And since when did we discount irrational votes? If we think racism is irrational, did we discount those votes which were cast solely because of the ethnicity of the candidates? Doesn’t rationality in voting boil down to agreement with the person who is conducting the rationality test, just like consenting to medical treatment boils down to agreeing with the doctor? I digress.)
My answer to this question is an unqualified “yes”. I recommend some caution about choosing a case with an appropriate factual matrix, and going through the appropriate procedural motions. I don’t want to go into what exactly is appropriate, as that will be jurisdiction- and aim-specific. So what sorts of cases would fall under the category of cases which disentangle subsequent loss of rights? I will just outline some of the issues which can be picked off, depending on the client’s circumstances and instructions.

i) A guardian decides to institutionalise the adult
Legal incapacity and institutionalisation are intimate lovers, and litigation certainly can prize apart their disgusting cavorting. Incapacity and institutionalisation are the two main mechanisms which segregate persons with disabilities and they are a match made in heaven. In most countries in central and eastern Europe the vast majority of residents in long-term institutions have been deprived or restricted of legal capacity (I have not seen any statistics on this, so this is based on my own and colleagues’ observations). As uncovered in Shtukaturov, people under guardianship are placed in psychiatric hospitals by their guardians, legally overriding the adult’s (often rather vocal) wishes. In other cases the family member guardian will have Aunty Mildred placed under guardianship to get her property and send her to an institution for the rest of her life. Managers of some residential institutions have made deprivation of legal capacity a prerequisite for a person to be given a place! After all, a director of an institution will find it far more convenient to have all the residents under his guardianship: that way he can spend their money, they can’t complain, and he can control them better.
Without treading on the toes of the Article 19 CRPD session in the Washington seminar, let me just point out a few ways in which strategic litigation could decouple incapacity and institutionalisation. In its March 2008 judgment in Shtukaturov, for example, the ECtHR found that the Applicant was detained (this was not a difficult conclusion to come to: the doors were locked and the hospital wouldn’t allow his attorney to visit, let alone allow the applicant to leave – they eventually released him after seven months), despite the Russian law classifying the hospitalisation as “voluntary” because the guardian had provided proxy consent to the hospitalisation. In a parallel case brought by the same applicant, the Russian Constitutional Court in February 2009 quashed a provision in the mental health legislation which allowed guardians to provide proxy consent. The ECtHR has already dealt with a case in which the applicant was an autistic man not technically under anyone’s guardianship. He was assenting (not objecting) but lacked the functional capacity to consent to hospitalisation. In this case the ECtHR found that the applicant was detained and therefore safeguards, such as regular court reviews of the necessity of detention, should have been provided (see H.L. v. the United Kingdom, no. 45508/9992, judgment of 5 October 2004).
In the pending case of Kedzior v. Poland, the applicant was restricted then deprived of legal capacity, his brother was appointed as his guardian, and decided to send the applicant to a long-term social care institution where the applicant was detained. MDAC has argued in its amicus brief to the ECtHR that the legal capacity decision and the institutionalisation decision should not be conflated (we have separately argued that incapacitation as such and institutionalisation as such are both violations of the ECHR).


ii) A person under guardianship is prohibited from exercising her right to X

The basic argument is that just because someone is under guardianship, it does not automatically follow that he or she is completely incapable of exercising her right to X. It is important that the X is actually an established human right which is specified in legislation or case law. In these cases X could be a pick and mix of any of the following:

• 
  Right to work, protected under Article 8 ECHR – see Sidabras and Dziautas v. Lithuania, Application no. 55480/00, judgment 27 July 2004.
  

• 
  Right to associate, protected under Article 10 ECHR.
  

• 
  Right to marry and found a family – as protected under Article 12 ECHR (right to marry and found a family) as well as Article 8 ECHR (right to respect for private and family life, home and correspondence).
  
  
  
• 
  Right to establish and develop relationships – as protected under Article 8 in case-law which has said that “respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings” (see Niemietz v. Germany, (1992) 16 EHRR 97, para. 29).
  

• 
  Right to consent to or refuse mental health treatment (or any other treatment, for that matter) – as protected under Article 8 ECHR (“a person’s body concerns the most intimate aspect of private life. A compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right [to privacy]” Y.F. v. Turkey, Application no. 24209/94, judgment 22 July 2003, para. 33.)
  

• 
  Right to access remedies – as protected under Article 13 ECHR (Frustratingly, the ECtHR tends to decline to say much under Art. 13 when it can say it under Art. 6, but the provision remains a relevant one).
  
  
  
• 
  Right to vote – as protected under Art. 3 of Protocol No. 1 to the ECHR.
  
  
  

To give an example about one of my favourite issues: voting. There is a case pending before the ECtHR called Alajos Kiss v. Hungary. In this case the Applicant is a man under partial guardianship who wanted to vote but was prohibited from doing so as he did not have full legal capacity, as specified in the Hungarian Constitution. The Applicant challenges his right to vote under Art. 3 of Protocol No. 1 to the ECHR (which protects the right to vote) was violated. His essential argument is that the judge who placed him under partial guardianship did not even consider whether he had the capacity to vote (whatever the capacity to vote means: isn’t a grunt or a flicker of an eyelid enough?).

Let’s for one moment suspend notions of supported decision-making and for the purposes of this paragraph pretend we are still in the old paradigm of substituted decision-making. Even in this paradigm we could argue that the law itself is crazy: even if a kind judge found good ‘protection’ grounds to place me under partial guardianship because, hypothetically, I need lots of help with managing my finances (actually that part is true) it does not follow as a matter of logic that I will lack the capacity to choose between Gordon Brown and David Cameron. It does not follow as a matter of public policy that I need to be deprived of one thing if I need assistance in another thing. And nor does it follow as a matter of human rights.
The ECHR provides a very useful framework for considering most situations where one has to balance competing rights or claims. In their court applications litigators can set out the framework as questions (and answer them of course: lawyers like providing answers). These are the issues which the Court would look at in any Article 8 ECHR claim: any interference with the right to privacy must be in accordance with the law, pursue a legitimate aim, and be proportional. As noted above, Article 8 is quite useful in that one can frame many guardianship abuses under it: guardianship itself, placement in an institution, restrictions on visitors, restrictions of the right to work, restrictions of the right to decide about medical treatments are just a few examples.
The first question to ask is this: “Is the interference with the right to privacy in accordance with domestic law?” If an interference or restriction with any human right is not codified somewhere in law, then a human rights court will invariably find a violation. However, it is my experience that invariably the interference will be codified.
Any interference with privacy must be justified by the government in reference to one of the categories listed in Article 8(2): in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. So the second question would be: “Does the interference with the right to privacy pursue a legitimate aim?”
In the voting example, the State might say that it wants to protect ‘incapable people’ from influencing the political process. There are lots of responses to this which I will for once restrain myself from providing. All I will say is that at this stage litigators need to be using (a) international human rights arguments; (b) comparative legal arguments, (c) empirical evidence. Sparingly litigators should deploy some (d) gut-wrenching rhetoric: most judges I have met do in fact have human-like emotions, and most of them are not experts in these areas and need to be reminded about what’s at stake.
Litigators often argue an alternative. To lay people it may seem as if litigators are either incompetent or convinced that their case is very weak if they say something like “The Applicant submits that if the Court finds that the prohibition of voting for persons without full legal capacity pursues a legitimate aim, then the Applicant submits that the State has not demonstrate that the measure is proportionate”.
Once the Government has claimed that the interference is in its opinion justified in one of these categories, the Court will examine whether the measure is “necessary in a democratic society”. In examining this, the Court will examine whether there is also a “pressing social need” (Dudgeon v. the United Kingdom (1981) 4 EHRR 149, para. 51). The Court interprets the needs of a democratic society fairly liberally, emphasising that among the hallmarks of a democratic society are broadmindedness, tolerance and pluralism. So the litigator will need to muster arguments that there is not necessary in a democratic society to deny people under guardianship the right to – for example – vote.
I would like to ask a few questions:

• 
  What strategies have been successful in limiting the range of rights which are compromised by a person being deprived or restricted of legal capacity?
  
• 
  What sorts of information do litigators require in order to frame arguments?
  
• 
  Do litigators need evidence that the individual is “capable” to exercise a certain right to support the assertion that that right should be restored? If yes, to what extent could it be said that we are refining the wedge rather than challenging the discrimination?