Historic Moment for the Right to Legal Capacity
On Tuesday April 8, 2014, the UN Committee on the Rights of Persons with Disabilities adopted its first General Comment, on Article 12 which deals with the issue of legal capacity. It was a moment that brought tears to my eyes and I turned and hugged another woman who was crying – Raquel Jelinek from the Mexican group CONFE, which advocates for the rights of people with intellectual disabilities. I had not expected the adoption to happen so quickly and had not expected my tears.
As I listened just beforehand to the Committee read and discuss the finalized version of the General Comment, I found myself considering the text as I had done during the drafting and negotiation of the Convention itself: wow, this is good; this is not great but I can live with it . . . there were no parts that I couldn’t live with. The text of this General Comment is better than the Convention itself, in terms of the satisfying experience of hearing it made explicit that nonconsensual psychiatric interventions must be eliminated, and that the “controversial” concept of mental capacity can never be a basis for depriving anyone of legal capacity, including the capacity to perform legal acts, make one’s own decisions and create legal relationships. It is truly a watershed for users of survivors of psychiatry and people with psychosocial disabilities throughout the world, and for people with intellectual disabilities as well.
In short, with its adoption of General Comment No. 1, the Committee on the Rights of Persons with Disabilities has brought to fruition the work that was started way back in 2002 when the World Network of Users of Survivors of Psychiatry joined other organizations in starting to think about what rights we wanted to address in the new treaty. The work is far from over, and the General Comment gives us a solid platform to push for changes in domestic laws throughout the world in countries that have ratified the CRPD. But at the level of international law, the General Comment certifies that the CRPD establishes the fundamental shifts in perspective and principles that we advocated for, and that we believed as a matter of legal interpretation as well as social justice must be the correct understanding of the CRPD text.