Full Description
This collection brings together leading international socio-legal and medico-legal scholars to explore the dilemma of how to support legal capacity in theory and practice. Traditionally, decisions for persons found to lack capacity are made by others, generally without reference to the person, and this applies especially to those with cognitive and psycho-social disabilities. This book examines the difficulties in establishing effective and deliverable supported decision-making, concluding that approaches to capacity need to be informed by a grounded understanding of how it operates in 'real life' contexts.
The book focuses on the UN Convention on the Rights of Persons with Disabilities (CRPD), which recognises the equal right to legal capacity of people with disabilities and requires States Parties to provide support for the exercise of this right. However, 10 years after the CRPD came into force, the shift to legal frameworks for supported decision-making remains at best only partial.
With 16 chapters written by contributors from the UK, Canada, Finland, India, Ireland, Spain, Sweden, and Turkey, the collection takes a comparative and interdisciplinary approach. Many of the contributors have been directly involved in law reform processes in their home jurisdictions, and thus can combine both academic expertise and practical, grounded awareness of the challenges of legal change.
Contents
1. Situating the Right to Enjoy Legal Capacity
Rosie Harding (University of Birmingham, UK), Mary Donnelly (University College Cork, Ireland and Ezgi Tascioglu (Keele University, UK)
PART I
CHARTING THE CONCEPTUAL CONTOURS OF CAPACITY LAW
2. Support Relationships in Law: Framing, Fictions and the Responsive State
Mary Donnelly (University College Cork, Ireland)
3. The Problem of Influence: Autonomy, Legal Capacity and the Risk of Theoretical Incoherence
Amanda Keeling (University of Leeds, UK)
4. The Significance of Strong Evaluation and Narrativity in Supporting Capacity
Camillia Kong (Birkbeck, University of London, UK)
5. Functional Capacity Assessments by Healthcare Professionals: Problems and Mitigating Strategies
Shaun O'Keeffe (National University of Ireland Galway, Ireland)
6. Charting a Path to Non-coercive Mental Healthcare: The Rhizomatic Nature of Universal Legal Capacity and
the Support Paradigm
Suzanne Doyle Guilloud (University of Bristol, UK)
PART II
REFORMING CAPACITY LAW: MAKING, SHAPING AND INTERPRETING LEGAL FRAMEWORKS
7. The (Contested) Role of the Academy in Activist Movements for Legal Capacity Reform: A Personal Reflection
Eilionór Flynn (National University of Ireland Galway, Ireland)
8. Enabling Supported Decision-Making in India's Mental Healthcare Act, 2017: Learnings from a Low-Resource Country Setting
Soumitra Pathare (ILS Law College, India) and Arjun Kapoor (ILS Law College, India)
9. Reflections on the Reform of Spanish Civil Legislation on Legal Capacity of Persons with Disabilities Patricia Cuenca Gómez (Universidad Carlos III de Madrid, Spain)
10. Adapting or Discarding the Status Quo? Supporting the Exercise of Legal Capacity in Scottish Law and Practice
Jill Stavert (Edinburgh Napier University, UK)
11. Performing Disability Rights: State Reporting and Turkey's (Non)Engagement with the CRPD
Ezgi Tascioglu (Keele University, UK)
PART III
SUPPORTING LEGAL CAPACITY IN EVERYDAY LIFE: BALANCING EMPOWERMENT AND SAFEGUARDS
12. Autonomy of a Person under Guardianship: Self-Determination in the Theory and Practice of Guardianship Law in Finland
Anna Mäki-Petäjä-Leinonen (University of Eastern Finland, Finland)
13. Autonomy, Capacity and Vulnerability: Making Decisions on Social Services for Persons with Dementia in Sweden
Titti Mattsson (Lund University, Sweden)
14. Law's Legitimacy and Social Work Support in Safeguarding Adults at Risk of Abuse
Jaime Lindsey (University of Essex, UK)
15. Putting the Pieces Together: Article 12, "Safeguarding" and the Right to Legal Capacity
Margaret Isabel Hall (Simon Fraser University, Canada)
16. Supporting Everyday Legal Capacity: Navigating the Complexities of Putting Rights into Practice
Rosie Harding (University of Birmingham, UK)
