An unexpected diagnosis, an unorthodox birthday and an unwelcome tumour

I can only wish him the best of luck and good health.

basedrones

Some of you will be aware of my previous writings, whether on this roughly year old WordPress site or maybe even from a more “learned” source like a legal journal. On the basis that I have not yet achieved rock-star levels of infamy via my day job, there is a chance others happening upon this post will not be aware of my ramblings, but do read on, because this could just be the most important thing I will ever write and the most important thing you will ever read. Does that sound arrogant? Stick with me. If you are a bloke, or someone who cares about a bloke (which might feasibly be the whole population), that should bear my prediction out.

Testicular cancer. Wait, were you not expecting this paragraph to start with “testicular cancer”? I wasn’t expecting testicular cancer either, but I have acquired it. Not only that, it…

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Non-Refoulement and Critical Disability Theory

This post is a short version of the paper I will present at the 2013 Critical Legal Studies Conference at Queen’s University, Belfast   http://www.qub.ac.uk/sites/clc2013/

The reason for writing this paper is the recent judgment of S.H.H. v UK which is analysed in an excellent post here:  http://strasbourgobservers.com/2013/02/19/non-nationals-living-conditions-and-disability-situating-s-h-h-v-united-kingdom-within-strasbourgs-article-3-case-law/

Non-refoulement under international law imposes an obligation on a state not to expel or return a refugee to her country of origin or any other country where her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion.

In the context of the ECHR, non-refoulement has been adopted under the guise of Art. 3, which prohibits inhuman or degrading treatment and torture. So, an asylum seeker cannot be deported to her country of origin if she is in risk of being tortured or treated in a manner inconsistent with Art. 3.

In situations of armed conflict and humanitarian emergencies, the disruption of health services in the country of origin is a very serious issue, because it denies persons with disability the necessary support for medical intervention and social rehabilitation.

So the question arises: If a person with disability seeks asylum on the grounds that she is fleeing a devastated country, which provides no support to persons with disability, is an obligation of non-refoulement triggered? Can it be said that returning the asylum seeker with disability to her country of origin, where there is no accessibility, no rehabilitation, no social care, would violate Art. 3?

In S.H.H. v UK, the ECtHR considered that the applicant could receive some support from his (allegedly estranged) family and some social care from Afghan authorities, so he would not be placed in a position where Art. 3 would be violated.

The strong minority contested this and argued for a disability-sensitive interpretation of non-refoulement, without really going into this issue. So, what would this disability-sensitive interpretation of non-refoulement entail?

I think that more extensive protection from refoulement against deprivation of socio-economic rights is required. Our understanding of the obligation of non-refoulement has to be informed by the lack (or otherwise, existence) of a framework of support for persons with disability in their country of origin. This is where Critical Disability Theory comes into play, because it highlights the social oppression felt by persons with disability. Using the social model of disability, the disability rights movement has pushed for the adoption of the Convention on the Rights of Persons with Disabilities in order to advance a claim for support, while confirming and asserting the autonomy of persons with disabilities. By contrast, state policies which deny provision of support for persons with disabilities merely perpetuate the social oppression of persons with disabilities and they have to be eradicated as they are disablist. If a framework of support for persons with disability is non-existent in the country of origin, especially in humanitarian emergencies, a state party to the ECHR has an obligation to provide asylum to refugees with disabilities, under Art. 3.

 

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Non-consensual sterilisation of a male adult under German law

My first blog post, https://andreasdimopoulos.wordpress.com/2013/08/17/some-contrarian-thoughts-on-re-de-2013-ewhc-2562-fam/, was a philippic.

I criticised the court’s reasoning in Re DE, which can be found here http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf

I feel I have to go back and write some more on this issue from a comparative perspective. Sterilisation for persons with intellectual disability is sadly practised in many, many places around the globe.

In Germany, the equivalent to the MCA is part of the German Civil Code (BGB). Article 1905 BGB specifically regulates sterilisation in the following terms (taken from(http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p6301) :

(1)Where the operation is a sterilisation of the person under custodianship to which the person may not consent, the custodian may consent only if

1.  the sterilisation is not inconsistent with the intention of the person under custodianship,

2.  the person under custodianship will permanently remain incapable of consenting,

3.  it is to be assumed that without the sterilisation there would be a pregnancy,

4.  as a result of this pregnancy a danger for the life of the pregnant woman or the danger of a serious adverse effect on her physical or psychological state of health were to be expected which could not be prevented in a reasonable way, and

5.  the pregnancy cannot be prevented by other reasonable means.

A serious danger for the psychological state of health of the pregnant woman also includes the danger of serious and persistent suffering which would threaten her because custodianship court measures which would entail separating her from her child (sections 1666 and 1666a) would have to be taken against her.

(2)The consent must be approved by the custodianship court. The sterilisation may not be carried out until two weeks after the approval takes effect. In the sterilisation, preference is always to be given to the method that permits a refertilisation.

German law focuses on the danger of pregnancy, which may cause physical or psychological harm to the pregnant woman. This, I believe, is a flaw in legislative design, because it can be construed as sexist. The woman is left carrying the baby, but the law cannot exclude considerations of grave (psychological) harm to the man, which may be caused by the pregnancy.

At any rate, the sterilisation can be authorised if there is a concrete risk of pregnancy, which may create a concrete risk for the physical or psychological well-being of the woman. However, the sterilisation may apply equally to either the male or the female incapacitated partner. This was clarified in a German case which involved the sterilisation of an adult male.

The case, in German, is here http://www.lareda.hessenrecht.hessen.de/jportal/portal/t/s15/page/bslaredaprod.psml?&doc.id=JURE130003712%3Ajuris-r01&showdoccase=1&doc.part=L

 The gist of the court’s reasoning is that the sterilisation of the male partner cannot take place because it is a disproportionate interference to take away his fertility for ever, when the female partner will not suffer any physical or psychological harm from carrying to term and at any rate, she can be injected with a 3-month contraceptive injection. Those who value relational autonomy will see a vindication of this concept in the ruling.

However, for the purposes of this blog post, this ruling highlights, for me at least, how strict the control of proportionality has to be when we are faced with non-therapeutic sterilisation. It simply cannot be done.

 

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Some Contrarian Thoughts on Re DE [2013] EWHC 2562 (Fam)

This is my first blog post and I have been moved to write it by an issue I deeply care about: non-consensual sterilisation for persons with intellectual disability.

Re De is a judgment I do not agree with. I will not punch about whether DE had capacity or not. The crux of the case relates to best interests.

Under English law, non-consensual sterilisation, of either male, or female incapacitated person, has to be in the person’s best interests.  

The analysis of best interests in Re De is problematic.

From a human rights perspective, the judgment mentions Art. 8 of the ECHR and Arts. 23 and 26 of the CRPD. Sterilisation is seen as an infringement of the right to respect of private and family life under Art. 8 of the ECHR. The mention of the CRPD rights, not having been incorporated in English Law, is of no binding force. 

However, an analysis of non-consensual sterilisation only on the basis of Art. 8, or the extensive case law cited and followed in Re DE, does not give the full picture of what is at stake here, in human rights law.

In Issues in the Human Rights Protection of Intellectually Disabled Persons (Ashgate: 2010, 184-191) I have argued that non-consensual sterilisation undercuts a very different, and often very neglected right under the ECHR. Art. 12 of the ECHR protects the right to marry and found a family.  Insofar as sterilisation is concerned, Art. 12 has to be regarded as lex specialis in relation to any other interferences with bodily integrity, which are caught by Art. 8. When a non-consensual sterilisation is authorised, Art. 12, in the part that relates to founding a family, is annihilated. It is for this reason, under human rights law, that non-consensual sterilisation is inherently problematic.

The problem with non-consensual sterilisation has to do with proportionality of interference. Art. 12 of the ECHR is a qualified right, which can be exercised according to the national laws governing the exercise of this right. This means that the right of Art. 12 can be interfered with, in accordance with the law, for a legitimate aim and if the intensity of the interference is proportionate to the legitimate aim to be achieved.

All things being equal therefore, if the intensity of the interference is so high as to extinguish the right, then the legitimate aim to be achieved has to be very high indeed. (My personal view is that the interference can never abolish a human right). Since non-consensual sterilisation extinguishes the right to marry and found a family, then the reasons for authorising it have to be grave and serious. This is were the distinction between therapeutic and non-therapeutic, non-consensual sterilisation becomes crucial. Non-therapeutic, non-consensual sterilisation can never be justified under human rights law.

Ultimately, Re De is disappointing because it does not offer a convincing analysis of the distress that becoming a father would cause DE. Short of jumping off a cliff or developing serious mental illness, I cannot subscribe to an inflation of psychological distress which may justify non-consensual sterilisation in the best interests of DE.

But, I can hear you argue, DE actually does not want to become a father again. He has no wish to found a family. Aren’t you being paternalistic?

I can understand this argument, in human rights terms, as a conflict of rights. Authorising the non-consensual sterilisation for DE will satisfy his right to respect for his private and family life under Art. 8 of the ECHR (continuing his sexual relationship without the fear of becoming a father again) to the detriment of his right to marry and found a family under Art. 12.

My position, when faced with competing rights, is to strike a balance between the two, in a way which affords as much protection as possible to both. For me, it is clear that DE’s fertility should be safeguarded, even if this may cause him distress in his private life.

Persons with intellectual disability are not immutable or static. Like any person, their wishes and personality change and grow. DE does not want to be a father again, now. What about the future? Ask yourselves then, what safeguards DE’s best interests: authorising a non-consensual sterilisation in the absence of grave and imminent medical harm for his convenience and the convenience of others around him, or preserving his fertility in order to safeguard his right to marry and found a family, should DE form such a wish in the future?

 

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