Round table meeting on legal capacity, Vienna 5 December 2013
Published: 10 December 2013
Inclusion Europe organised a meeting in Vienna in Austria.
People from different organisations came to this meeting.
They talked about what must happen in the countries
Inclusion Europe organised a round table meeting looking at role of capacity legislation and Article 12 UNCRPD in supporting the autonomy of people with intellectual disabilities.Albert Brandstätter from Lebenshilfe Austria, Maureen Piggot from Inclusion Europe and Klaus Lachwitz from Inclusion International opened the roundtable referring to their own work on capacity legislation at national, European and international level.
The event started by a presentation of Martha Stickings from the Fundamental Rights Agency (FRA) about the Europe-wide legal analysis of current standards and safeguards concerning the legal capacity of persons with intellectual disabilities and persons with mental health problems. Two typical models of legal capacity deprivation which correspond to full or plenary guardianship and to partial guardianship are still available in most EU member States. The grid of analysis, used by FRA, is the Council of Europe Recommendation 99(4), which predates the CRPD but allows mirroring legal capacity models, as they are organised in the legal framework of the Member States. Even though the research was prepared before the publication of the General Comment Art. 12, it concludes there is a need for the development of supported decision-making models.
The participants had lively discussions about the discrepancies between the UNCRPD and the implementation of Article 12 in the EU member States. The discussion focused on the possibility to lobby for a comprehensive approach to legal capacity as a non-discrimination issue – a hook to bring legal capacity in the EU issues.
One key issue which slows down reforms and is a preoccupation shared by many Ministries of Justice is how to legislate in the field of legal capacity. It is not only about reforming capacity laws. We cannot talk about supports without changing several other agendas (such as accessibility), given the complexity of the issue. This is an area where our organisations have to find a way to support effectively these reforms, together with other stakeholders, such as FRA, in order to bring the Ministries on the right path to reforms.
Camille Latimier and Geert Freyhoff focused on the analysis of the draft General Comment on Article 12 published at the last meeting of the Committee on the Rights of Persons with Disabilities and discussed with the participants the opportunity to send comments to the General comment on Art. 12 in January and to encourage other organisations to support the publication of this key document.
The frontier between substituted decision-making and supported decision-making: will and preferences, highlighted in the General comment, was not seen as so obvious for some participants as support needs to be interpreted by someone.
And of course, protection from abuse remains the big unanswered question, especially for parents and family members. However, participants agreed that harm has been done by denying autonomy and abuse was never avoided by the protection mechanisms. Many questions around safeguards still remain unsolved.
Last but not least, although the General Comment does not leave space for a progressive interpretation, many organisations are not comfortable to go for the big bang reform and would rather choose a step-by-step approach, law by law rather than reform all capacity legal laws at once. It will be of course interesting to read the observations and recommendations by the UN Committee on the Rights of Persons with Disabilities on a-step by-step approach.
However the participants agreed that our role is to build schemes of supported decision-making, at least by piece. Several actions were suggested:
by enabling persons to make decisions,
by ensuring that third parties recognise legally binding decisions of people with intellectual disabilities,
by creating teams of supporters, whatever is the legal status of the person (using among other PCP methods),
by being creative on the liability issue (for example, through volunteer schemes).
Furthermore, our organisations should also have a go in drafting and signing contracts with supporters, contracts between support person/ supported person and contracts with third representatives as well as power of attorney. There is the possibility to run experiences under private law contract. Although there is no specific control, it opens the door for new developments.
Three pilot projects have been presented in the afternoon. Irene Müller from the Austrian association Vertretungsnetz explain the importance and the impact of Clearing procedure, which, in cooperation with Courts, avoided guardianship and allows the development of a support plan: planning with self-help, social environment, and services. The results are very positive so far. In addition, a good practice to solve problems with banks has been developed with one bank. A Supported bank account – one bank is providing a service where you have two account: one account and one support account – it allows regular check and control over compulsory payment (rent) without restricting financial independence. Dana Kořínková presented a pilot project from the Czech Republic, looking at the creation of long-lasting circles of support for people with intellectual disabilities and psychosocial disabilities. Based on a combination of social and legal work, the project brought very positive outcomes for both groups.
Finally, the PERSON project focuses on legal capacity in the Balkans. A very important aspect of the project ispeer support groups. National networks of self-help group – peer to peer support –have been created. They are composed of people from institutions and people at risk of institutionalisation. Regional self-advocacy groups in Kosovo, Serbia, Montenegro are also involved in the project, which is very important for the ownership of the project through pool of experts with intellectual disabilities.
The Round table also coincided with the finalisation of Inclusion Europe’s project on peer support (www.peer-training.eu). People with intellectual disabilities learn to use their own life experiences to support their peers and use these examples and their own learning to support others. TOPSIDE Peer Support Training gives people with intellectual disabilities the opportunity to be included in the community and to get support from people they can trust, from people like them.
The participants shared other practices to build schemes of supported decision-making. Many ingredients and ideas were put together from different countries. Cultivating the appetite for risks, supporting risk-taking and fighting for the right to claim support (getting understandable information) are two elements that the participants agreed to focus on, once they are back home.
Maureen Piggot concluded this intensive day by saying we needed to push the boundaries, we needed to find partners to lead the way, by contracting specific agreement with different institutions, which wanted/needed to be protected. Challenging the risks, the preconceived ideas and giving the evidence of the situation people with intellectual disabilities remain high on our agendas for the next years.
Here you can download the presentations from the roundtable: