CRPD Article 12 and the Alternative to Functional Capacity: Preliminary Thoughts Towards Transformation

Abstract

Legal capacity can be deprived in two ways. A person is assigned the status of a legally incapable person (usually by a formal proceeding in which a guardian is also appointed). Or, a person is denied validity in their exercise of autonomy, particularly in relation to formal legal acts or areas of life where the person’s consent is ordinarily required. The second type of legal capacity deprivation is sometimes rationalized as not being about legal capacity but rather as operation of the doctrine of “mental capacity” or “functional capacity.” The distinction is nonsense. Without an acknowledgement that legal capacity is validly exercised through the person’s own voluntary acts, there is no equality in the enjoyment of legal capacity (as required by CRPD Article 12.2). This is true whether there is a blanket deprivation over a long period of time, or whether it only applies to a single act, and whether the deprivation is pursuant to a court adjudication or is only the determination of a notary, banker or doctor that the person “lacks capacity” to make a particular decision. “Functional capacity,” which has been used to retain the binary system of legal capacity/incapacity, has a definite adverse impact on people with psychosocial disabilities - most significantly as a rationalization for forced psychiatric interventions (which amount to ill-treatment and arguably to torture, and should be subject to an absolute ban, according to the Special Rapporteur on Torture), as well as with respect to the insanity defense or criminal unimputability. In this essay I explore the philosophical underpinnings supporting a thorough and complete rejection of the “functional capacity” doctrine and of all deprivations of legal capacity, examining key issues from a psychosocial disability perspective.