Russian Constitutional Court criticises “abusive” guardianship law

28 June 2012

St. Petersburg (Russia) and Budapest (Hungary). In a case initiated by MDAC, the Russian Constitutional Court yesterday quashed as unconstitutional the lack of alternatives to plenary guardianship. An estimated 300,000 people are currently under guardianship, all stripped of their personhood and of their legal rights. The Court ordered the parliament to enact a new law which better respects people’s decision-making capacity.

Since 1982, Irina Delova has lived in “Social Care Institution No. 3” in St. Petersburg. With almost 1,100 it is one of the largest institutions in Russia. Until 2010 she had managed her own money, but the institution wanted to control it. They applied to a district court which deprived Ms Delova of her legal capacity. The institution became her guardian and she was not allowed to access her own money. At the district court hearing, psychiatrists testified that Ms Delova was able to manage her money for every-day purposes, but she needed some support for more complex transactions.

“The Constitutional Court has taken an important step in recognising the obvious: that the law should provide alternatives to Irina Delova, as it should to everyone else: stripping personhood and dignity should never be lawful,” said Oliver Lewis, MDAC Executive Director. “We call on the Federal Government and members of the Duma to abolish plenary guardianship altogether, and introduce supported decision-making, in accordance with the UN Convention on the Rights of Persons with Disabilities.”

Full deprivation of legal capacity is the only measure available in Russian law to enable people with disabilities to make decisions. MDAC has been campaigning for reform of the law since launching a report on guardianship and human rights in Russia in 2007. In 2010 the European Court of Human Rights started to chip away at the system in the case of Shtukaturov v. Russia. In a separate case brought on Mr. Shtukaturov’s behalf, the Constitutional Court struck down numerous procedural aspects of Russian guardianship law which were implemented through legislative amendments in 2011. However, until now, the substantive guardianship law had not been judicially criticised.

Ms Delova was represented by Dmitri Bartenev, an attorney practicing in St. Petersburg who is MDAC’s contracted Russian attorney. The case was supported by MDAC as well as the St. Petersburg NGO “Perspektivy” and the Independent Psychiatric Association of Russia.

Commenting on the decision, Dmitri Bartenev said, “This is a historic moment for Russia in combatting the social exclusion of hundreds of thousands of people with disabilities. Depriving someone of their legal capacity is routinely used by family members and local government to then to lock people up in an institution for the rest of their lives.”

MDAC will make the full text of the decision in Russian available on its website as soon as it is available and will post an English translation shortly. MDAC’s litigation in Russia has been supported financially by the Open Society Foundations. MDAC is the only international NGO that challenges these violations, which would otherwise remain hidden. We need your help to continue taking cases such as Ms Delova’s to court, creating a legal deterrent to prevent future abuses of this kind. The change MDAC creates is long-lasting and will ultimately improve the lives of many future generations of people. Your support is needed because, in all cases, the clients who we help have no funds, and legal aid is not available to pay lawyers.

MDAC

A law that enables

The National Advisory Council’s suggestions for strengthening the draft law on the Rights of Persons With Disabilities (PWD) is a potentially far-reaching intervention. The step is in sync with the recent notification of a separate Department for Disabilities in the Union Ministry of Social Justice and Empowerment, which was announced in the President’s 2012 address to Parliament. Ever since India ratified the United Nations Convention on the rights of PWDs in 2007, the formulation of a comprehensive law became imperative and these two developments suggest things are finally moving ahead. Currently, there are four separate pieces of legislation pertaining to India’s disabled population.

The earliest, the 1987 Mental Health Act, predates the discourse on affirmative action for the disabled in India and, to that extent, the status of mental illness as a disability remains ambiguous. Then, there is a separate law that deals with the creation of qualified and trained personnel for the provision of rehabilitation and education services for this segment of the population. The third, the PWD Act of 1995, is underpinned by an emphasis on anti-discrimination and guarantees of equal opportunities. Although the latter was envisaged as a comprehensive law, it did not address fully the conditions of persons with other equally severe disabling conditions. Hence the 1999 Act for people with autism, cerebral palsy, mental retardation and multiple disabilities.

It is hardly surprising that these four laws in themselves have not mitigated the sense of apathy and bureaucratic red tape that hamper the creation of an enabling environment. The mechanisms and procedures involved are riddled with duplication and inconsistencies, as evidenced by the evolving case law over questions of jurisdiction and interpretation of different laws. More than a billion people around the world experience one or another form of disability, according to the World Health Organisation and World Bank 2011 report. On other estimates, about 10 per cent of the population in developing countries is disabled. By any reckoning, India’s numbers would be much larger than what governments are prepared to acknowledge, given the detrimental influences of poverty, illiteracy and poor health on disability. It follows that stepping up investments in health and education is one of the important ways of preventing disabilities and mitigating their impact over the long term.

Requiring service providers to furnish a declaration of conformity with the relevant laws is the other means to ensure accountability and effective enforcement. An umbrella legislation will go a long way in altering the present state of affairs.

The Hindu

Judges to assess capacity of intellectually disabled witnesses

By Jennifer Hough

JUDGES will be given the power to assess whether a person with an intellectual disability has the "capacity" for decision-making, or to be a reliable witness in a court of law.  Under proposed capacity legislation, it is hoped that legal loopholes whereby people with an intellectual disability are often deemed "incapable" of making decisions, or giving evidence, will be closed.  The laws — dating back to the Lunacy Act of 1871 — create barriers for disabled people on a wide range of issues such as access to justice, medical treatment, control of money and the right to marry.  Submissions to the joint committee on Justice, Defence and Equality relating to the promised legislation must be received by Friday.  Campaigning group Inclusion Ireland said it receives many queries about problems arising from the lack of a modern legal framework.

"Under current law, parents, carers and service providers have no legal authority to take necessary decisions on behalf of adults with disabilities. Hardly a week goes by without this problem being raised by a parent, family member, professional or service provider and, more frequently, by the person themselves," the group’s submission states.  "The complete absence of any guidance on how to assess capacity for this group of people, who may not have capacity to make decisions, and/or may not be able to communicate their decision, means that decisions that need to be taken are sometimes not taken, or that decisions are taken that may involve an infringement of the person’s rights." 

Inclusion Ireland said decisions are often made for people because the family or service provider feels the person lacks decision-making capacity, without attempting to find out what that capacity may be.  "They may have a paternalistic view, based on the assumption that people with greater intellectual ability know better."  There is concern this view could continue, however, as judges who are assessing people will be relying on medical evidence and definitions.

In Britain, specialist judges are put in place to carry out this function, but here it is understood it will become a role of the high court.  The inadequacies of the law in serious issues such as abuse have been highlighted many times.  In one case, a 23-year-old woman, Laura Kelly, was prohibited from giving evidence about her alleged sexual assault by a judge who deemed she did not have the capacity to testify in court. Legislation has been signalled for some years and is required to ratify the UN Convention on the Rights of Persons with Disabilities.

This appeared in the printed version of the Irish Examiner Tuesday, August 16, 2011

Differently-abled, academicians discuss rights and inclusion

AHMEDABAD: The perception of a differently-abled person has undergone a great change in last decade with more and more such persons coming forward to assert their rights and be included in the mainstream. This was the underlying thread of the one-day convention on guidelines laid down by United Nations (UN) for rights of the differently-abled, conducted by Indian NGOs working in the sector.   Unnati Organization for Development Education and Blind People’s Association (BPA) organized a programme to present pilot case studies that documented action research projects for the differently-abled at Ahmedabad Management Association (AMA) on Friday.

"A joint regional consultation was organized to present, discuss and learn from existing programmes and practices promoting inclusion. The process involved leading disability activists, practitioners, corporate employers, persons with disabilities, donors and academicians," said a BPA official. 

"It was a special experience learning about the aggravation of disability due to conflicts in society. We would not have thought of it If we did not have this opportunity to meet the differently-able from areas like Jammu and Kashmir and discussing that law has to be subservient to people and consider what people require" said Dr Amita Dhanda from UNCRPD, a UN body for rights of differently-abled. Dhandha was member of drafting committee of the new disability law.   Kanubhai Shelar, 61, a differently-abled person and participant at the event, said that the direct sharing of opinions to guide the disabled was a great experience.

Times of India

Hungary: Parliament reforms legal capacity laws

Budapest, 22 September 2009. Members of the Hungarian Parliament voted for a new Civil Code yesterday evening. In doing so they ensured that Hungary becomes the first country in the world to reform its legal capacity legislation in line with its obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD).  Hungary’s old Civil Code was the piece of legislation which regulated a range of civil law issues. In the area of disability it allowed for the total deprivation or partial restriction of a person’s legal capacity and their placement under guardianship. There were no alternatives to guardianship for people who required assistance to make legally-binding choices in their lives. Approximately 80,000 adults in Hungary are under guardianship, two thirds of whom are legally prohibited from making important decisions. Under full guardianship people were denied the right to a range of civil and political rights such as the right to decide where to live, which meant that the majority of people in long-term residential institutions were placed there by their guardians, irrespective of the adult’s wishes. The right to marry and found a family, as well as the right to manage one’s own property, to work and to vote were also compromised.  The new Civil Code changes this legislative landscape. Highlights of the new legislation include:

• A legislative ban on plenary guardianship.
• The provision of a new form of partial guardianship: partial in terms of specific areas of decision-making, and partial in terms of decisions needing to be made jointly between the adult and the guardian.
• Supported decision-making, which is an alternative to guardianship. Supported decision-making means that the adult’s legal capacity remains intact. It enables a network of supporters to assist the adult in making their own decisions, thereby enhancing their self-determination.
• Advance directives, whereby adults can plan for their future when cognitive difficulties may prevent them from making decisions without assistance.
• All of the above measures are available to persons who need assistance because of their mental condition, intellectual capabilities or addiction.

This legislative reform marks significant progress towards Hungary’s compliance with international human rights law, notably the CRPD, which is legally binding upon Hungary. MDAC has been working for the past two years in a coalition with other non-governmental organisations. The coalition has advocated intensively for guardianship reform and the introduction of alternatives, reminding the government of its obligations under the CRPD to include the involvement of persons with disabilities in legislative and policy reform. The coalition welcomes the legislative process leading to the adoption of a Civil Code that has realized the principle of “Nothing about us without us”.  Whilst MDAC and ÉFOÉSZ congratulates Members of the Hungarian Parliament, they call on politicians to continue to bring Hungary in line with its obligations under the CRPD. Included in MDAC’s and ÉFOÉSZ’s wish-list of legislative and policy reform are:

• Ensuring that the legal definition of disability is broadened to include persons with (or labelled with) psycho-social (mental health) disabilities (to fulfil the obligation in Article 1 CRPD).
• Changing the Constitution to remove the prohibition on the right to vote for adults without full legal capacity (to fulfil the obligation in Article 29 CRPD).
• Taking measurable steps to make real the right to live in the community by reducing the numbers of people in large residential institutions, and creating a range of services in community settings (to fulfil the obligation in Article 19 CRPD).
• Removing from the quasi-governmental National Disability Council the responsibility for independent monitoring of the Convention’s implementation, and giving the mandate to the Parliamentary Ombudsman with an increased funding to match the expanded mandate (to fulfil the obligation in Article 33(2) CRPD).
• Ensuring that a Government minister oversees a “focal point” to coordinate disability policy across Government departments (to fulfil the obligation in Article 33(1) CRPD).

More information

For interviews please contact Gábor Gombos, MDAC Senior Advocacy Officer, tel. +361 413 2730, mdac@mdac.info.  The English text of the relevant parts of the Civil Code can be downloaded from MDAC’s website as soon as we have ensured an accurate translation.  The members of the coalition were: Foundation for the Human Rights of the Mentally Ill, Down Foundation, György Könczei Professor at Eötvös Loránd University – Bárczi Gusztáv Faculty of Special Education, Hungarian Association of Persons with Intellectual Disabilities, Hand in Hand Foundation, Hungarian Helsinki Committee, Mental Disability Advocacy Center, Mental Health Interest Forum, Szigony Foundation, Soteria Foundation, National Association of the Deaf and Hard of Hearing, Hungarian Civil Liberties Union.

MDAC