What would you do?

As a researcher, I was drawn to disability rights when I first read about the early sterilisation case law of the English courts. I developed a theoretical argument as to how to protect the rights of persons with disabilities under English law. As an academic, I am doing what I am supposed to do.

Then real life happens and kicks in the door of the ivory tower of research. The death of LB was such an event. How do I, as an academic, researcher and human being respond to this?

The central claims of my research is that we need more human rights for persons with disabilities in every single context of their daily lives. We need to enact the CRPD under UK law. We need to make every healthcare and social care professional accountable to human rights (if not by means of civil liability, then criminal liability). We need to develop awareness of persons with disabilities as bearers of rights, to which correspond correlative duties from all of us.

Faced with LB’s death, the best and most useful thing I can do is to do more research, which strengthens the central claims of my research.

I was planning, for a long time, to submit an abstract to the Art Historians Association Conference on Hogarth’s Scene in a Madhouse. Based on the social model of disability, I considered that a reading can be made of this engraving (or the painting on which the engravings are based) which depicts the disabling gaze in the interaction of the fashionable ladies and the inmates of the asylum. The powerpoint of the presentation is here. As the participants in the conference stream also noted, Hogarth is also ironically asking: Who is mad? What are those ‘normal’ ladies doing in a place like this? What folly is this?

Our current law and social practice, even after 300 years from Hogarth’s time, has not rendered such questions meaningless. We retain laws and practices which disable and disempower persons with disabilities. Time for change.

R.I.P. LB.

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On caesareans and sterilisations

Now that the brouhaha relating to the forced caesarean case has abated, it is time to step back a little and consider the wider picture on mental capacity in UK law. And yes, the wider picture is no Normal Rockwell painting.

A major criticism of the forced caesarean case is that the views and wishes of the mother are not discussed in the judgment. The second other major criticism is that the human rights of the mother are also not discussed in the judgment.

As a comparison, consider the incapacitated sterilisation case. The views and wishes of the adult male are discussed in great length in the judgment: the adult male, even though incapacitated, clearly wishes to undergo the sterilisation. The human rights of the incapacitated male are not discussed in the judgment.

In both cases, the fundamental legal issue is to consider the views, opinions and wishes of the person, in order to achieve the protection of his or her human rights. References to human rights have become trite. However, this point is crucial. What is meant by human rights? Does that reference cover bodily integrity (protected under Art. 8 ECHR), or the right to procreate (protected in conjunction with the right to marry under Art. 12 ECHR)?

The wider picture is wider. The wider picture deals with the right to recognition before the law under Art. 12 CRPD. The Draft General Comment on Art. 12 CRPD by the CRPD Committee states the following, in paras. 12 and 13:

12.       Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of an individual, which naturally vary among individuals and may be different for a given individual depending on many factors, including environmental and social factors. Article 12 does not permit perceived or actual deficits in mental capacity to be used as justification for denying legal capacity.

13.       In most of the state reports the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where an individual is thought to have impaired decision-making skills, often because of a cognitive or psychosocial disability, her legal capacity to make a particular decision is consequentially removed. This can be done simply based on the diagnosis of a disability (status approach), or where an individual makes a decision that is thought to have negative consequences (outcome approach), or where an individual’s decision-making skills are thought to be deficient (functional approach). In all these approaches, an individual’s disability and or decision-making skills are accepted as a legitimate basis for denying her legal capacity and lowering her status as a person before the law. Article 12 does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity.

In light of the above, rather than focusing on any particular criticisms of these cases, it is urgent to take issue with two things in the Mental Capacity Act:

1. That a person may be regarded as lacking decision-making capacity, which then is used to deny him or her legal capacity

2. That the consideration of best interests is carried out without any reference to human rights

The wider picture then is wider.

The first and obvious point is to introduce a Disability Rights Act, which will incorporate the CRPD in UK law.

The second point is to amend the Mental Capacity Act.

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Disability and Human Rights

One of the blessings of this year has been that I designed, and managed to get approved by my Law School, a postgraduate course on Disability and Human Rights. At the time of writing this, I have no idea if students will actually be interested in taking part in the course, so it may not run after all, due to lack of interest. But that is beside the point of this post.

The real challenge for legal academics who are interested in disability and human rights, like me, is to translate the claims of the disability rights movement in their best legal light. Of course there is now the Convention on the Rights of Persons with Disabilities. Yet, we should not forget that the CRPD is an international convention, which is the product of diplomatic debate and input from disability NGOs. The rights protected by the CRPD require interpretation and the work of the CRPD Committee will prove crucial to this effect.

The best example to illustrate my point is the theoretical cornerstone, upon which the disability rights movement has based its edifice of claims: the social model of disability, about which Jenny Morris has written an amazing blog. Reading this post, and reflecting on it from a legal perspective has been a long process for me, which is still ongoing, so I will incorporate it in the reading list for the first seminar of my Disability and Human Rights module and see what my students will say.

The common approach to the social model of disability in terms of human rights has been that it imposes obligations upon the state to bring down the barriers that exclude persons with disabilities from equal and full participation to society. This approach carries a fatal objection about the allocation of scarce resources: the state, in carrying out its policies, may give precedence to policies other than the social model of disability.

The CRPD has sought to rectify this by taking an integrated approach to the human rights of persons with disabilities: there is no clear distinction between negative rights and socio-economic rights. CRPD rights are a normative bundle of negative rights and positive obligations, which have to be realised progressively. The objection from the argument on the allocation of scarce resources is partly addressed in this way.

Notwithstanding the sheer awesomeness of the CRPD, I have a nagging suspicion that the way forward in human rights protection for persons with disabilities may lie in this direction: clearing the way for the ever greater justiciability of disability rights, by intensifying the review (e.g. the proportionality control) of the allocation of scarce resources.

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Disability Hate Crime – The Law Commission’s Consultation

Back in September 2011, the Equality and Human Rights Commission published a very important report, ‘Hidden in Plain Sight‘, which looked into issues of disability-related harassment. The findings of the Report make for disheartening reading. I will not hide the fact that the Report, Part 2 especially, where ten serious cases of disability hate crime are described, gave me – and still does – the howling fantods. The gist of the report for me is that harassment is very common and that something has to be done about it.

But I won’t make the mistake of supporting this claim, without explaining it a bit. I think we cannot understand disability hate crime without some analytical tools, concepts such as the social model of disability and disablism. My understanding of disablism is not very different than that of other writers in disability rights. Disablism is treating someone as inferior because of her disability. However, this is not the complete picture. If I call someone the R-word, am I displaying a disablist sentiment? Undoubtedly, but this conclusion does not follow logically from the definition of disablism I just cited. Disablism has also to be understood in connection with the social model of disability. If I am displaying attitudes , engaging in behaviour, reproducing stereotypes that commonly used to preclude the full and equal participation of persons with disabilities in society, then I am displaying disablist conduct. Calling someone the R-word is not simply about treating someone as inferior, but it also perpetuates a negative stereotype for persons with intellectual disability which reinforces their social exclusion of mainstream society. Therein lies the harm of disablist speech. It is a different matter entirely if we decide that this harm outweighs the right to free speech.

This may sound like hair-splitting. It may also be very obvious to disability activists. Personally, I had to work my head around this in order to construct an argument that involves a more complete understanding of disability hate crime.

Turning to the Law Commission’s Consultation on extending hate crime offences to cover disability, sexual orientation and gender identity, which can be found here, it is important to note that the questions that the Law Commission can look into are rather limited. The question basically boils down to this: English law has created aggravated offences of hate crimes, as well as an offence of incitement to hatred for some protected categories. Should the existing criminal law be extended to cover disability, sexual orientation and gender identity?

The answer, from a legal, disability rights perspective, is unequivocally yes. Despite the problems which have been noted in enforcing existing hate crime legislation, in the limited remit that this Law Commission Consultation has, the message has to be that Parliament should protect persons with disabilities more against hate crime.

I am focusing on disability here, not because I do not think that the other characteristics of sexual orientation and gender identity should not be protected, but because the claim for the fuller protection against disability hate crime is much stronger in legal terms. In moral terms, my deeply held belief is that protection against hate crime is required for any group of persons that is targeted because of its ‘otherness’, because of its difference. But in legal terms, the case of disability is much stronger because there is the Convention on the Rights of Persons with Disabilities.

Consider Art. 16 CRPD: Freedom from exploitation, violence and abuse. Section 5 requires states to adopt effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and prosecuted. This legal provision does not leave any room for wishy-washy responses to hate crime.

This point is extremely important for the more controversial offence of incitement to hatred, which is unacceptable for the hard-core liberals among us, who believe that freedom of speech is (near) absolute.

Some analysis of the issue of the right to free speech is required, before I proceed. The hard-core approach to freedom of speech is out of tune with the current legal paradigm of the CRPD. Art. 8 CRPD imposes an obligation on states to encourage all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the CRPD. I am actually very glad to see that this matter is currently taken up by the current Hate Crime Action Plan. Of course,neither the CRPD nor  I advocate criminal sanctions in enforcing this obligation. But it goes to show you that freedom of speech has certain limits, and that limit in relation to disability is not portray persons with disabilities in a negative light, inconsistent with the social model of disability and the CRPD. Immediately, we can understand how crucial this provision is in relation to the ‘benefit scroungers’ debate.

Based on Art. 8 CRPD, it simply is not convincing any more to claim that we will be violating the right to free speech by extending the protection of incitement to other categories, such as disability. The limits to free speech are being drawn, indirectly, towards protecting persons with disabilities.

So, my final point is this: the paradigm of protection in international human rights law has changed. The CRPD has ushered in a very different approach to the issue of human rights for persons with disabilities. Art. 16 CRPD demands a very comprehensive and effective protection against abuse and violence for persons with disabilities, whilst Art. 8 CRPD shows, indirectly, that some lines have to be drawn as to what can be contributed in public discourse about disability. This change in how we understand and protect the human rights of persons with disabilities should also benefit persons from other targeted groups, such as sexual orientation and gender identity.

 

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