Should guardianship and mental health laws be abolished? This is the proposal of a committee set up under the UN Convention on the Rights of Persons with Disabilities. ?The same has also been proposed by the European Union?s Fundamental Rights Agency.
I believe these proposals are gravely discriminatory against some of the most vulnerable people in society as some people are unable, with any amount of help, to act and decide validly for themselves.
Without guardianship or similar protections, many vulnerable people can be seriously at risk of detriment, exploitation and abuse. Others, with treatable mental illness, would be denied the treatment to which?they are entitled, without mental health laws.
The proposals view ?supported decision-making? and what they call ?substituted decision-making? as alternatives. They are not. People who can, with support, make valid decisions should receive that support. The reports are to be commended for emphasising this.? Other people, however ? at an extreme, those in a coma or persistent vegetative?state ? cannot make valid decisions, with any amount of support.?? To safeguard their human rights, appropriate mechanisms must be in place.
The proposals seem to be fixated upon completely outmoded and long superseded laws and concepts, such as ?incapacitation?.?? They seem to ignore the content of modern laws, and the principles that underlie them.? Brief descriptions of reformed systems, as in Scotland, are inaccurate. The proposals appear even to be incompatible with the UN Convention under which the committee was established.
I have written a paper on these proposals that comments on the pros and cons of these in more detail.? To view the paper please click here.
Should you have any further queries regarding these proposals, please contact our Adult Incapacity team?who would be happy to discuss these.