About 4.5 million people with intellectual disabilities live in the European Union (EU). That is about as many people as are living in Ireland. Many disabled people are restricted in their legal capacity; they often have a legal guardian who takes some or all decisions for them. Their access to justice is also limited due to the lack of accessibility or reasonable accommodation.
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) confirms the right to full legal capacity and the right to access to justice in Articles 12 and 13. Persons with intellectual disabilities should be able to decide for themselves and access the justice system on an equal basis with others.
In achieving the transition from substituted to supported decision-making regimes, it is clear that governments are uncertain as to how they can fully realise the ‘paradigm shift’ of Article 12, including with regard to Article 13 of the UNCRPD. We thus recommend that governments consider implementing ongoing mechanisms to replace the framework of guardianship, mental capacity assessments and ‘best interests’ decision-making with a supported decision-making regime. This could include:
- undertaking law reform to replace assessments of mental capacity with the provision of supports to exercise legal capacity;
- prioritising the will and preference of the relevant person with intellectual disability rather than a ‘best interests’ model;
- developing supported decision-making in policy and practice by drawing on the emerging range of promising practices being promoted internationally;
- making clear information and resources available to support people to challenge guardianship orders and arrange alternative supports that do not restrict legal capacity.
We further recommend that governments consider implementing ongoing mechanisms
- to promote access to justice for people with intellectual disabilities. This could include:
- auditing specific barriers in access to justice, for example, the lack of reasonable accommodations regarding speech and language for people with intellectual disabilities in legal proceedings;
- collecting data on the types of support that people with disabilities are requesting or using in legal proceedings;
- ensuring that legal proceedings from courtrooms to administrative tribunals and reporting mechanisms are accessible to people with disabilities in general;
- reforming laws so that denial of reasonable accommodation is deemed by law to be an act of disability-based discrimination.
Finally, it is important to reiterate that even within existing systems of substituted decision-making, some efforts are being made to better respect the will and preferences of adults with intellectual disabilities. In the move away from guardianship systems, we can retain existing forms of support that enhance rather than undermine the rights of adults with intellectual disabilities, while rejecting any measures that restrict or deny an individual’s legal capacity.