Legal Capacity and Support

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Legal Capacity is the fulcrum of rights under the CRPD. Legal capacity means being recognized as the decision-maker about one’s life, finances, health, relationships, and all other personal choices. This is important to defend ourselves against forced psychiatric interventions and exercise our rights in all aspects of life.

Article 12 is where the right to legal capacity is found in the CRPD and the monitoring body’s General Comment No. 1 (2014) (with a small but important Correction) gives detail about how it has to be implemented.

Key points from CRPD Article 12 and General Comment No. 1

People with disability have same right to legal capacity as others
Legal capacity cannot be restricted because of a person’s ‘mental capacity’ or apparent decision-making skills
When it’s not possible to determine a person’s actual will, after significant effort including support and accommodations, a ‘best interpretation’ of the person’s will can be made when necessary

Legal capacity exists at all time including in crisis situations
Forced psychiatric interventions violate legal capacity as well as the rights to liberty and freedom from torture/ill-treatment

People have a right to use support in exercising legal capacity
Support cannot be imposed against a person’s will
Supporters must respect the person’s will and preferences and be free from conflict of interest or undue influence

Though not mentioned in the General Comment, both civil and criminal responsibility are linked to legal capacity as the capacity to be held accountable for fulfilling legal duties

International Law Materials

Office of the High Commissioner for Human Rights, Thematic Study on Legislative Measures to Implement CRPD (2009)

CRPD Committee General Comment No. 1 (2014) and Correction of paragraph 27 (2018)

CRPD Guidelines on Deinstitutionalization (2022) – see paragraphs 10, 55, 73 and 76 – ending coercion in crisis; affirmative (not tacit) consent to mental health services; and non-medical support including peer support, crisis support, decision-making support

CEDDIS (monitoring body of Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities) General Observation No. 1 on legal capacity (2010) in Spanish – applies CRPD Article 12 to prohibit legal incapacitation and guardianship

CEDDIS Practical Guide for the Establishment of Support in Exercising Legal Capacity (2021) in Spanish, English, Portuguese summarizes experience and knowledge from CRPD-based reform work in the Americas

National Law Reforms

Peru (in Spanish) and English translation with commentary (2018) – the first reform to fully eliminate legal incapacitation based on disability or ‘discernment’

Colombia (in Spanish) (2019) – second after Peru to comply with CRPD, more detail than Peru about obligations of supporters

Decision by CRPD Committee in Arturo Medina Vela case (2019), requiring Mexico to eliminate ‘inimputabilidad’ – incapacity to be held criminally responsible

Mexico – health law reform in Spanish and English translation (2022) – addressing legal capacity and consent, highlighting universal capacity for mental health decisions

Mexico – national legal capacity reform law (2023) see paragraphs 445-455 (in Spanish) – national procedural code complying with CRPD; each state within Mexico must reform its own Civil Code

Mexico City (Federal District) civil code reform (2024) (in Spanish)

Amicus Briefs

ENUSP/WNUSP/IDA/MDAC third-party intervention to European Court of Human Rights in Koroviny case (2013)

Minkowitz/CHRUSP amicus brief to Colombia’s Constitutional Court (2020) – supporting Colombia’s legal capacity reform and advocating interpretation to maximize respect for will and preferences, particularly in ‘best interpretation’ context

Minkowitz/Fleischner amicus brief to International Criminal Court (2022) – CRPD-based approach to criminal responsibility as alternative to insanity defense

Minkowitz/Fleischner amicus brief to Mexico City criminal court (2023) Spanish and English – supporting legal challenge to disability-based ‘inimputability’ and security measures

Briefing Papers and Advocacy

WNUSP text proposals (2003-4)

WNUSP advocacy note on legal capacity – Dhanda (2005)

IDC briefing on legal capacity (2006)

Minkowitz, La capacidad legal inherente y la toma de decisiones con apoyo (2007) – español

IDA CRPD Forum principles on Article 12 in English and Spanish (2008)

Minkowitz, Norms and Implementation of Article 12: Notes for Discussion on Oct. 21, 2009 (first CRPD Day of General Discussion on Article 12, as panelist)

WNUSP on Article 12: Legal Capacity as Right, Principle and Paradigm (2011)

CHRUSP/WNUSP Submission to the Committee on the Rights of Persons with Disabilities Day of General Discussion on CRPD Article 12 (2011)

IDA position on functional capacity in English and Spanish (2011)

International Disability Alliance Written Submission to the Day of General Discussion of the Committee on the Rights of Persons with Disabilities (2011)

WNUSP on Political Participation and Legal Capacity (2011)

CHRUSP Comments on CRPD and Hague Convention on the International Protection of Adults (2011)

Joint submission supporting the draft General Comment (2014)

Minkowitz, Decision-making and moral injury (2015)

Minkowitz, Meta-autonomy and meta-equality (2015)

Minkowitz, Peruvian Legał Capacity Reform – Celebration and Analysis (2018)

Alternative Declaration at 5th World Congress on Guardianship (2018)

CHRUSP Indicators:

CHRUSP Briefing paper on involuntary commitment (2020)

Equal Legal Capacity

Minkowitz, Norms and implementation of Article 12 in English and Spanish (2012)

Carlos Rios, Todos somos incapaces (in Spanish)

Minkowitz, Alternative to Functional Capacity (2014)

Minkowitz, Legał Capacity from a Gender Perspective (2014)

Minkowitz, CRPD and Transformative Equality (2017)

Minkowitz, Discernment as process, not precondition (2019)

Minkowitz, Fusion Laws and CRPD: Compatible or Not? (2020)

Support in Decision-Making

Report of the C.A.C.L. Task Force on Alternatives to Guardianship, August 1992

PO-Skåne and supported decision-making (2005)

Minkowitz, The paradigm of supported decision-making (slides) (2007)

Minkowitz, Legal capacity from psychosocial disability perspective (2014)

Minkowitz, Support in Crisis to Replace Forced Psychiatry (slides) (2019)

Minkowitz, Reimagining Crisis Support: Matrix, Roadmap and Policy (2021) and translation Reimaginar el Apoyo en Crisis: Matriz, Hoja de Ruta y Política (2023)

Criminal Responsibility

IDA CRPD Forum submission to OHCHR Thematic Study on Legislation to Implement CRPD (2008) – first advocacy to abolish insanity defense and utilize disability-neutral doctrines

Minkowitz, Rethinking Criminal Responsibility (2015) – arguing for formal and substantive equality, taking account of disability within ordinary mens rea and defenses

Amicus brief to International Criminal Court in Ongwen case (insanity defense), Minkowitz and Robert D. Fleischner (2021)

Access to Justice Knowledge Hub Policy Brief (2022) – English and Spanish and Chinese – includes policy on CRPD-compliant approach to criminal responsibility based on Ongwen case amicus