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An Update: U.N. Convention on Rights Of Person’s With Disabilities

The U.N. Convention on Rights of Person’s with Disabilities entered into force in May 2008. It is the first legally binding international treaty aimed specifically at protecting the rights of persons with disabilities.

Ratifying State Parties have to either incorporate new laws or change existing laws to meet their obligations of implementing this Convention.

Notably, 174 States have ratified the convention.

Article 12 of the Convention – “Equal Recognition before the Law” – recognizes that persons with disabilities have legal capacity on an equal basis with others – an individual cannot lose his/her legal capacity to act, simply because of a disability.  However, legal capacity can still be lost in situations that apply to everyone.

In response to Article 12, most jurisdictions have incorporated substitute decision making (i.e. guardianship) rather than supported decision-making in their legislation in response to this UN Convention.

However, a recent report on mental health and human rights prepared by the U.N. High Commissioner for Human Rights interprets Article 12 as meaning that:

“States should repeal legal frameworks allowing substitute decision makers to provide consent on behalf of persons with disabilities and introduce supported decision-making, ensuring its availability for those who request it. Health service providers should seek the free and informed consent of the person concerned by all possible means”.[1]

With supported decision-making, the presumption is always in favour of the person with a disability who will be affected by the decision.

The individual is the decision maker; the support person(s) explain(s) the issues, when necessary, and interpret(s) the signs and preferences of the individual.

Supported decision-making can take many forms.

Those assisting a person may communicate the individual’s intentions to others or help him/her understand the choices at hand.

They may help others to realize that a person with significant disabilities is also a person with a history, interests and aims in life, and is someone capable of exercising his/her legal capacity.

The UN recognizes[2] the Province of British Columbia in Canada as one of the leading jurisdictions in incorporating supported decision-making into law, policy and practice.

In BC, an individual with disabilities can enter into a “representation agreement” with a support network.

A representation agreement is a legal document under the Representation Agreement Act of BC.

Representation agreements are both a supported and substitute decision making option by which an adult may appoint another person to make decisions on their behalf in respect of personal and health care matters, and the routine management of an adult’s financial affairs.

The agreement is a sign to others, including doctors, financial institutions and service providers, that the individual has given the support network the authority to assist him/her in making decisions and represent him/her in certain matters.

The Government of British Columbia amended its Representation Agreement Act to increase accessibility to representation agreements while maintaining related safeguards such as requiring a monitor to be appointed in certain circumstances.[3]

In fact, it was B.C.’s Representation Agreement Act that inspired Article 12[4] of the UN Convention calling on governments to implement legislation that ensures all adults receive support with decision making without the need to take away or restrict their rights.

One of the main innovations in the legislation is that persons with more significant disabilities can enter into representation agreements with a support network simply by demonstrating “trust” in the designated supporters.[5]

A person does not need to prove legal competency under the usual criteria, such as having a demonstrated capacity to understand relevant information, appreciate consequences, act voluntarily and communicate a decision independently, in order to enter into this agreement.

A number of individuals and support networks have entered representation agreements as an alternative to guardianship or other forms of substitute decision-making.

A community-based Representation Agreement Resource Centre (now called Nidus Personal Planning Resource Centre and Registry) assists in developing and sustaining support networks by providing information, publications, workshops and advice.

The Centre also oversees a registry in which a network can post an agreement for other parties to view if required before entering a contract with the individual. For more information see http://www.nidus.ca.

The most recent report from Canada on the U.N. Convention (Convention on the Rights of Persons with Disabilities, First Report of Canada, dated 2014) confirmed that both supported decision-making and substitute decision-making regimes exists under provincial legislation.

According to the Report, the interpretive declaration to Article 12 clarifies Canada’s understanding that the article reflects a presumption of legal capacity and permits both supported and substitute decision making arrangements in appropriate circumstances and in accordance with the law.[6]

The Report also states that the reservation to Article 12 preserves Canada’s ability to continue to use substitute decision-making arrangements in appropriate circumstances and subject to appropriate and effective safeguards.

In Canada, many measures relating to the exercise of legal capacity are subject to regular review by an independent and impartial authority or judicial body, while others are subject to a review or appeal mechanism.

Additionally, according to the Report – Canada’s reservation to Article 12(4) preserves its right to maintain the supported and substitute decision-making arrangements that are not subject to regular review by an independent authority, where such measures are subject to review or appeal.

Canada’s interpretative declaration in relation to Article 33(2) clarifies that Canada implements this article at both the federal and provincial levels through a variety of mechanisms such as courts, human rights commissions and tribunals, public guardians, ombudspersons, and intergovernmental bodies.

[1] Mental Health and Human Rights, January 31, 2017 at p. 9. See also https://jme.bmj.com/content/medethics/44/4/226.full.pdf

[2] See UN Website on implementing the Convention: https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-the-convention-on-the-rights-of-persons-with-disabilities/chapter-six-from-provisions-to-practice-implementing-the-convention-5.html

[3] Convention on the Rights of Persons with Disabilities, First Report of Canada, dated 2014 at 8.

[4] See BC’s Nidus Personal Planning Resource Centre and Registry website – http://www.nidus.ca/?page_id=240

[5] See section 8(2) of the Representation Agreement Act, RSBC 1996, c 405.

[6] First Report at p.4

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