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‘Civil death’ for people with intellectual disabilities

People with an intellectual disability need their internationally-recognised equal rights, including to legal capacity – not charity.  By Jim Winters 

 

What group in society is denied the right to right to vote, make a will, have sexual relations, travel abroad, make medical decisions and marry? At first thought it might be those incarcerated for the most heinous of crimes. Yet this is the fate of over 3,000 people who have committed no crime. These are people with an intellectual disability, serious mental health difficulties, dementia or acquired brain injury.

It is incomprehensible that legislation allowing this situation: the obsolete Lunacy Regulation (Ireland) Act, 1871, remains on our statute books. The High Court continues to hear petitions under this law. A person can be made a ward of court under this law. Once made a ward of court, a person is denied the right to exercise legal capacity. Legal capacity refers to the capacity both to have rights and, most importantly, to exercise those rights. The denial of legal capacity has been described as ‘civil death’.

The committee established to advise the government has no member with a disability or representative from a civil-society organisation

The ward of court system reflects what is referred to as the medical model of disability. The medical model views people with disabilities, including people with intellectual disabilities, as objects for charity, in need of treatment or care, and incapable of making their own decisions. For years this model has informed disability policy in Ireland. People with disabilities were hidden away in institutions, segregated from mainstream society. Today, almost 4,000 people with an intellectual disability remain sequestered in these institutions.

In December 2006 the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol was adopted at the UN General Assembly. The CRPD reaffirms the right of all persons with a disability to enjoy all human rights and fundamental freedoms. It rejects the medical model of disability. It views people with disabilities, including people with intellectual disabilities, as people with rights, who are capable of claiming those rights and making decisions for their lives based on free and informed consent.

The CRPD brings together the fundamental rights contained in all other international human-rights treaties covering civil, cultural, economic, political and social rights. It provides the framework for how these rights should be protected and promoted, and posits a legal obligation on governments to give effect to these rights.

inclusion

The CRPD entered into force in May 2008. 130 nations have ratified the CRPD and 76 have ratified both the CRPD and the Optional Protocol. Ireland was one of the first countries to sign the CRPD in March 2007. However, it remains one of the few EU Member States still to ratify the CRPD though it is now under increasing international pressure to do so.

The continued failure of government to introduce Legal Capacity legislation means that ratification of the CRPD cannot proceed. This legislation has now been on the ‘A List’ of five successive legislative programmes. These delays call into question the government’s commitment to the human rights of people with intellectual disabilities.

The CRPD imposes an obligation on governments actively to involve civil society in the framework for national implementation and monitoring. However, the committee established to advise the government on the legislative and administrative measures required to enable ratification has no member with a disability or representative from a civil-society organisation.

The CRPD should be ratified and incorporated into Irish law without further delay. The active and meaningful involvement of people with a disability and their organisations in preparation for this ratification should now be facilitated.

The CPRD places a legal obligation on the government to introduce a framework for national implementation and monitoring. At least one part of this framework is required to adhere to the UN Paris Principles for the independence of National Human Rights Institutions. The government has given a commitment that the new Irish Human Rights and Equality Commission (IHREC) will meet the requirements of the Paris Principles. It is essential that the IHREC be designated as the independent body to monitor implementation of the CRPD.

 

Jim Winters is Advocacy & Rights officer with Inclusion Ireland, the national advocacy organisation for people with an intellectual disability.