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.

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9 COMMENTS

  1. 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

  2. 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.

  3. 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.

  4. 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.