The Meaning of Legal Capacity is Equality

Tina Minkowitz, Esq.
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The meaning of legal capacity is equality.  In a legal system that is premised on individual rights and freedoms, legal capacity means that a person has full access to all the rights and freedoms available to any individual in that system.  Partial legal capacity or removal of legal capacity represents a corresponding reduction or elimination of rights and freedoms available to that individual.

Legal capacity is not the be-all and end-all of existence.  Even in severely restricted circumstances the human spirit suffers, makes choices, and can even triumph.  But most of us are not saints and prefer a bit more comfort in our circumstances – economic, legal, political and social – with greater opportunity to act and interact freely, make our own mistakes and cultivate lives that we value.

The legal system is also not the be-all and end-all of existence.  But even if we have no interest in the legal system, it may take an interest in us when we least expect it:  being locked up in psychiatry, arrested on suspicion of a crime, or shut out of a beloved’s funeral are all ways we can be impacted by a legal system that we didn’t create and in many respects disagree with.  The legal system may also be effectively unavailable to us as a positive mechanism for reasons related to poverty, discrimination, rural living, or other kinds of marginalization.  In general, the legal system, and legal capacity, are most effective for those who are most privileged in mainstream society and least effective for those who are most oppressed.

People with disabilities are in general among the most oppressed – by discrimination as well as intersection with poverty, racism and other issues.  In a legal capacity reform that aims to take account of the situation of all persons with disabilities, including the most marginalized, we have to address legal capacity and the legal system holistically while adhering firmly to an equality-based framework and the principle of respect for individual autonomy, including the freedom to make one’s own choices.

The support model – instead of removing anyone’s right to make decisions based on an actual or perceived difficulty in decision-making, make support available so that the person has the best possible opportunity to make choices that are satisfactory within her/his own value system – is a partial solution.  Support does not answer the question of discrepancies in communication or determine the assignment of responsibility.  For those questions we need to resort back to equality and the principle of autonomy within any existing legal system.  Injustices in the legal system itself, including structural discrimination based on disability or intersectional issues, cannot be resolved by excluding persons with disabilities, which only perpetuates discrimination and injustice.

In an equality-based framework that respects individual and autonomy and diversity (as enshrined in CRPD Article 3), communication difficulties are mutual and cannot be reduced to an individual limitation.  In order to mesh with a legal system that requires definite resolution, there is a need for both flexibility and thoroughgoing cultural change to produce creative resolutions to the narrow range of cases where communication difficulty presents a real issue, while at the same time fully adhering to the obligation to respect the choices that are made and communicated effectively by any means.

Responsibility has many dimensions but most relevant to legal capacity are the absolution of others for consequences of one’s own choices, and the acceptance of those consequences oneself – whether they be natural consequences or consequences imposed by the operation of law.  Responsibility is a legal concept as well as a moral one; legal and moral doctrines of responsibility shade into each other.  Equality in the operation of responsibility can be hard to parse.  To what extent are we asking to have the full weight of a structurally unjust legal system set against us when we make choices that have unanticipated or undesired consequences?  And why would any oppressed group want to make its own life more difficult that way?

The fact is, doctrines exempting us from responsibility based on disability – like the insanity defense – have come at a high price and reinforce oppression.  They are qualitatively different from the operation of legal privileges and immunities that affirm moral right (but that, if unequal, also reinforce oppression from the opposite direction as a “right to oppress”); disability-based exemptions nullify the existence of persons with disabilities as moral actors.  There is no true compensatory status for persons with disabilities that allows us to function free of moral or legal judgment, which could open up possibilities for sustained critique of the legal system and conventional morality.  Rather, we exist in a limbo of social unease and legal uncertainty, with most legal issues resolved to our detriment.  In this context, yes, we have to start with equality, as well as opening up critiques and building in flexibility and cultural change to promote creative solutions in the small subset of truly thorny cases where it is not a matter of pity but of a failure of the legal system to grasp some dimensions of our lived experience.

Legal capacity reforms therefore have to be:

–       Intersectional and holistic, to deal with the actual obstacles people face in satisfactorily exercising their legal capacity.

–       Specific and local, to mobilize the capabilities of particular communities and legal systems.

–       Comprehensive and collaborative, so that people with disabilities, communities and government learn together and create something new.

–       Based on firm adherence to an equality framework and to the principles of respect for individual autonomy and diversity.

–       Incorporating a support model along with structural reforms and non-discrimination legislation (with respect to legal capacity).

Legal capacity reform will not solve a country’s social, political, economic, or cultural problems.  It will not eliminate hatred, greed, hypocrisy or environmental depredation.  It may bring such problems into sharper focus, or more likely, a country in which the government is captured by such problems will be incapable of creating the necessary reforms and will instead introduce minor adjustments to the incapacity system and even widen incapacity by means of the support model.  True reform is as complex as real life, and is about making our legal systems more democratic in principle and in practice, so that they can honor all of us and be honored without reservations in return.

9 COMMENTS

  2. Thank you, Tina for another thought-provoking piece.

    I’m not an attorney, but I did spend most of my adult life working as a rehabilitation counselor with people who were disabled.

    I saw, first-hand some of the challenges they were faced with – primarily with others who could not understand they were *equals*. IMO, it comes down to *equality*.

    “Equality is the soul of liberty; there is, in fact, no liberty without it.” – Frances Wright

    Be well,

    Duane

    • Thanks for your comment, Duane. I hope it is clear that I am including people who have experienced or been labeled with madness, mental health problems or trauma (to use a formulation that may capture both self-defined experience and pure labeling) as people with disabilities, along with other groups. Legal capacity affects a wide range of people with disabilities – older people labeled with dementia, people with intellectual/developmental disabilities, neurodiverse people, people with brain injury, etc. in addition to ourselves. Older people in general are especially likely to be deprived of legal capacity. And there is the question of children, who arguably also must come into the framework of universal legal capacity. (I discuss children in relation to legal capacity somewhat in a paper on SSRN, CRPD Article 12 and the Alternative to Functional Capacity, available at http://ssrn.com/abstract=2371939.

  3. It seems as we have been walled into a Ghetto our voices ignored, and those educated survivors who wish to help us ,who try so hard,and are an inspiration to many of us,while to the general population we have become a growing problem,while the authoritah even take our youngest to be labeled and drugged and none of us know what to do and how to effectively fight this oppression or to even stir the general population to an effective defense of themselves and their families. Are we left just dreaming that the fascist state will become democratic while a poor soul wanting a place of respite to come off of psych-drugs can’t find one ? Some how we must carry on the fight more united and ever more effectively even if we ourselves don’t live to see our victory.

  4. Thank you, Tina, for your ongoing focus on legal (“mental health”) capacity and the need for full and total equality before the law.

    I hope the attorneys at the United Nations are able to drive home for the U.S. president and Congress that equality before the law means the ELIMINATION of State- or hospital-sponsored capacity determinations. We must continue to express (and resolve) the crisis of language, interpretation (e.g., of key articles of the Treaty), and (critically) enforcement of evolving international humans rights law.

    Public acknowledgement by the U.S. government that human rights fail given our present interpretation of the Constitution would accelerate World elimination of: a) forced participation in medicine, including medicine of the mind; and, b) locked-ward mental hospitals.

    You make an articulate point: “There is no true compensatory status for persons with disabilities that allows us to function free of moral or legal judgment, which could open up possibilities for sustained critique of the legal system and conventional morality.”

    As a PWD, I am identical from a capacity standpoint as everyone else; ergo, if I err, I must be considered to have erred (e.g., to have broken the law) exactly AS IF I did not suffer from a disability (such as one traditionally [albeit unethically] attributed to causing illegal behavior) and exactly as if I were in full possession of my faculties when I committed the act in question (this is another point that I am sure you or another attorney within the Survivor Movement will address down the line. That PWDs are still considered to possess a diminished form of capacity [i.e., one less protective of individual autonomy] still beleaguers the fair administration of justice vis-à-vis the Courts). Sadly, revoking legal capacity rights (or making the decision that an individual lacks the capacity to participate in his or her own defense) and instead committing the accused to an unlawful, un-Constitutional prison is the status quo in the United States court system and it will continue to be the status quo until the U.S. government grants full ratification to the CRPD and then properly interprets and enforces the Treaty.

    As we know from the crisis of Australian CTOs (“community treatment orders”), the psychiatrists are making increasingly obvious and more profound incursions against our Freedoms (in the case of the Commonwealth of Australia, the psychiatrists can forcibly commit an individual to treatment without permission from the courts).

    Having been denied, for many years, adequate (and Constitutionally-guaranteed) forms of legal protection FROM psychiatric exploitation and trafficking (including exploitation conducted against me by medicalized sources masquerading as “support”), I know that State-supported psychiatry executes torture against targeted victims after luring them with the promise of “support” and that people claiming to need or seek support in decision-making must be protected (first and foremost) of the highly dangerous (and still not widely understood) abusive psychiatric paradigm.

    • Ben,

      Thanks for these comments. I’m especially drawn to what you say about support having been a kind of Trojan horse luring people into schemes of psychiatric torture and other abuse. It seems to be a common response in the psychiatric survivor community to be suspicious of anything claiming to be “support” especially when it is attached to some legal issue. (In New York, outpatient commitment is called “assisted outpatient treatment” to give a classic example.)

      This response from our community is part of what has prompted me to delineate that the support model is only part of the story. The Committee on the Rights of Persons with Disabilities supports this view in its draft General Comment on Article 12, saying that a person may choose not to claim the right to support and instead only take advantage of the right to exercise legal capacity.

      Other survivors have strongly suggested that we need to look carefully at how to ensure that any support for the exercise of legal capacity is not misused. Even with good intentions, there is a lot of power that comes from being in a position to interpret something to another person, help the person in their decision-making process or help them express themselves to someone else. I address this a little bit in two papers I have posted on Social Science Research Network (SSRN) – CRPD Article 12 and the Alternative to Functional Capacity; and Legal Capacity from a Psychosocial Disability Perspective – which can be accessed through my author page on SSRN, http://ssrn.com/author=1348856.

      With respect to the United States, yes, until we ratify and implement without obstructive reservations, understandings and declarations, people in this country will not have sufficient tools available to do the advocacy that can result in the most meaningful response from the UN. The Committee on the Rights of Persons with Disabilities is the most advanced treaty body in its thinking on these issues, as should be expected because they are experts in this treaty itself. Committees monitoring treaties that the US has already ratified, such as the International Covenant on Civil and Political Rights, are not as advanced and we have a lesser possibility of obtaining good recommendations from them.

      Thanks again for writing.

      All the best,

      Tina

  5. Hi Tina,

    This made such a great read for me firstly because of the fact that when it concerns legal capacity in incapacity laws it is the same all over the world.
    At the moment I am trying to frame my thoughts into ‘correct’ sentences in reply to some of the Bills here in India and it is such a blessing that I decided to read your article today! It’s given me an understanding to my first thoughts on the issues here and how I should frame them.
    In terms of reform – I see India as perhaps a possibility to be able to create that or maybe I am the ever all hopeful just hoping that would be the case here since we are not a developed nation. But irrespective of being developed or not – the issues back in my home country (which is a developed country) are way behind the issues in India!
    Leave aside the big pharma and the existence of mental illness- even in the comparison of depression and schizophrenia people there think it is one and the same.

    • I hope also that India and other developing countries may be the first ones to succeed. I have been inspired by work in India by Amita Dhanda on the legal front and Bhargavi Davar in the advocacy movement for the rights of people with psychosocial disabilities (as well as your own work with The Red Door). Good luck!

  6. I want to comment on my own post a bit, and might make some small edits. Just after I wrote this, I began reading some Marxist intellectual theory from the 1970s – related to theology as a matter of fact – which is helping me to clarify some things.

    When I say “legal capacity is not the be-all and end-all of existence” I do not mean in any way to diminish the devastating impact of legal capacity deprivations in a person’s life. As I experienced myself, being treated as someone who is a cipher in the eyes of the law is life-endangering and highly traumatizing. What I mean is more like, “legal capacity is not the sum total of a person’s agency in the world.” I am intending to say that there is agency under even the worst oppression, that, even when we are treated as legal ciphers, we are in fact “still there” – still experiencing, still taking it all in, still making choices however horrifying and however much we find the choices to be unbearable.

    I am also understanding even more clearly that legal capacity reform has to do with practice/praxis and can only develop so far on a purely theoretical level before we reach questions that have to remain unanswered for the time being. The theory has developed to the extent it has, both in my work and in that of others, because it is being put to the test of what we know from experience, looking at our own experiences from a disability standpoint as a basis for criticism of the existing system. The necessity for practice/praxis as an integral part of theory and in an ongoing relationship with it has been implicit all along in this work and it is exciting for me to understand that this is not a weakness or a frustration but instead a confirmation that the work is developing as needed.

    As a possible esoteric sidelight to all this, the unifying aspect to the insight is that we are looking at the level of social relations (or socioeconomic relations) and not so much at the personal, not at the individual in isolation. It’s interesting because of course it is the individual exercise of legal capacity as a socially-validated expression of autonomy that is at issue: we are precisely identifying the social relations around the construction of the individual in law, deconstructing how these relationships operate destructively to suppress some people’s autonomy, and proposing alternative social relations and legal validation.

    I hope that my mention of Marxism does not scare people off. In the United States especially there has been a fear of socialism and anything related to it, from the McCarthy-era persecutions to more recent intellectual/political culture where the left pretends to be mainstream and often deprives itself of a meaningful critical standpoint. In any case, here it is, I know people may have very disparate ideas of what Marxism is and means, and hope you will glean what I mean here rather than attributing to me any beliefs based on some version of Marxism that I do not espouse.