1. Contracting In. 2. Patriarchal Confusions. 3. Contract, the Individual and Slavery. 4. Genesis, Fathers and the Political Liberty of Sons. 5. Wives, Slaves and Wage-Slaves. 6. Feminism and the Marriage Contract. 7. What's Wrong with Prostitution?

The Sexual Contract

http://www.antoniocasella.eu/archipsy/Szmukler_2014.pdf

Mental health law and the UN Convention on the rights of persons with disabilities

This paper examines the regulation of ‘personhood’ through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psychosocial, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2816696_code427203.pdf?abstractid=2779376&mirid=2

Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity

In this paper, the authors assert that the principles set out in the United Nations Convention on the Rights of Persons with Disabilities require a paradigm shift in the law of capacity so that the question is no longer: Does a person have the mental capacity to exercise legal capacity? The question is instead: What types of supports are required for the person to exercise his or her legal capacity?

The authors advocate for a conception of legal capacity that includes as a minimum the capacity to express one’s intention or will in ways that at least one other person can reasonably describe as meaningful. Based on this minimum threshold, the authors argue for a reformulation of the concept of legal capacity based on three decision-making statuses: (1) legally independent status – where there is reasonable evidence that the person has the ability, by him or herself or with assistance, to understand information that is relevant to making a decision and to appreciate the reasonably foreseeable consequences of a decision; (2) supported decision-making status – where a person needs support from others to express or represent him or herself to third parties, and/or to process information; and (3) facilitated decision-making status – where a person has significant disabilities, is not able to act legally independently, does not have a trusting and committed relationship based on shared life experiences and personal knowledge, and for whom not even a co-decision-maker could discern his or her will or intention without deeper knowledge of the person and his/her ways of communicating. This last status is conceptualized as temporary until an appointed facilitator can learn how to understand the person’s intention or will through his or her unique way of communicating.

The authors advocate for a positive duty on the state and on third parties to provide supports and accommodations to facilitate decision-making. Specifically, they propose that the right to access supports includes a right to access the types of supports and combinations of supports that most enhances each person’s autonomy based not on disability status but on the particular individual making the decision and the nature of the decision itself. The authors set out detailed mechanisms for safeguards, monitoring, information provision, enforcement and independent advocacy to ensure that the autonomy of persons in various decision-making statuses is maximized and such persons are safe from serious adverse effects, including abuse and neglect. The effect of the paradigm shift that the authors propose is to widen the concept of legal capacity so that more persons with intellectual, cognitive and psychosocial disabilities would be found legally capable and thus their autonomy would be respected.

http://www.repositoriocdpd.net:8080/bitstream/handle/123456789/449/L_BachM_NewParadigmAutonomy_2010.pdf?sequence=1

A New Paradigm for Protecting Autonomy and the Right to Legal Capacity

This paper examines the regulation of 'personhood' through the granting or denying of legal capacity. It explores the development of the concept of personhood through the lens of moral and political philosophy. It highlights the problem of upholding cognition as a prerequisite for personhood or the granting of legal capacity because it results in the exclusion of people with cognitive disabilities (intellectual, psycho-social, mental disabilities, and others). The United Nations Convention on the Rights of Persons with Disabilities (CRPD) challenges this notion by guaranteeing respect for the right to legal capacity for people with disabilities on an equal basis with others and in all areas of life (Article 12). The paper uses the CRPD to argue for a conception of personhood that is divorced from cognition and a corresponding recognition of legal capacity as a universal attribute that all persons possess. Finally, a support model for the exercise of legal capacity is proposed as a possible alternative to the existing models of substituted decision-making that deny legal capacity and impose outside decision-makers. Copyright © Cambridge University Press 2014.

Legislating personhood: Realising the right to support in exercising legal capacity

It is the contention of this paper that forced psychiatric interventions violate the universal prohibition of torture The Convention on the Rights of Persons with Disabilities (CRPD) lays the basis for this argument to be developed in a series of steps, starting from its recognition of equal legal capacity and free and informed consent of persons with disabilities, and equal right to respect for physical and mental integrity, as well as the freedom from torture and cruel, inhuman or degrading treatment or punishment These obligations, contained in Articles 12, 25, 17, and 15 respectively, will require immediate cessation of forced psychiatric interventions But there is a need to go further, and examine the serious nature and consequences of forced psychiatric interventions as a violent assault, in most cases sanctioned if not perpetrated by the state, affecting every aspect of a person’s life: the body, the mind, the personality, the social relationships, and the spiritual values or higher meaning Based on an examination of these factors, and the internationally accepted definitions of torture, I will argue for recognition of forced psychiatric interventions as a grave violation of human rights, necessitating criminalization of perpetrators and reparations for victims and survivors

http://www.wnusp.net/documents/TheUnitedNationsConventionOnTheRightsOfPersonsWith.pdf

The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions

This reflection responds primarily to the papers on legal agency and state intervention, with brief comments on the two other papers. The concept of transformative equality, developed in jurisprudence under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), can promote a deeper understanding of the rights of persons with disabilities. 1 In particular, it is useful to address power relations between disabled and non-disabled persons not only with respect to family members and medical professionals, but also in the institutions of law and the state.

CRPD and transformative equality

Human rights law evolves through processes of social eruption, in which social movements agitate for the recognition of injustices as legal wrongs, and in which sectors of the population that have been oppressed rise up to assert themselves as protagonists who change the landscape of law along with the social, economic and cultural relationships in which law is grounded. The involvement of users and survivors of psychiatry in the CRPD drafting and negotiations, as an integral part of the community of people with disabilities, set the stage for a dramatic (r)evolution in human rights law. This paper explores the genesis of key provisions in the CRPD on legal capacity, liberty, and freedom from forced interventions, and their early interpretation and application.

CRPD Advocacy by the World Network of Users and Survivors of Psychiatry: The Emergence of an User/Survivor Perspective in Human Rights

Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.

Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond

This paper uses interpretive tools to analyze the application of the Convention on the Rights of Persons with Disabilities to the prohibition of compulsory mental health treatment and detention. It addresses the definitions of disability and discrimination, legal capacity, liberty, respect for physical and mental integrity, free and informed consent in health care, and adds the prohibition of torture and ill-treatment as applied by the UN Special Rapporteur on Torture. The paper also answers questions regarding the intention/purpose of the CRPD, other relevant interpretive factors, the compatibility of deprivation of liberty based on health reasons and/or treatment without free and informed consent with the CRPD principle of individual autonomy, whether individual autonomy can be restricted without this being done on an equal basis for all, and whether compulsory interventions can be viewed as positive affirmative actions. The paper was originally prepared as a submission to the Law Committee of the Norwegian government in connection with its review of the Mental Health Act.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1876132_code1348856.pdf?abstractid=1876132&mirid=1

Tina Minkowitz

Papers

The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions

CRPD and transformative equality

CRPD Advocacy by the World Network of Users and Survivors of Psychiatry: The Emergence of an User/Survivor Perspective in Human Rights

Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond

Prohibition of Compulsory Mental Health Treatment and Detention Under the CRPD