Right to legal capacity in therapeutic jurisprudence: Insights from critical disability theory and the convention on the rights of persons with disabilities

Abstract

This article addresses whether autonomy is being adequately protected within therapeutic jurisprudence models. It first outlines the history and theory of therapeutic jurisprudence – noting that protection for autonomy has been theorised as a key component of therapeutic jurisprudence. It then examines therapeutic jurisprudence in light of critical disability theory and identifies that traditional therapeutic models, which often prioritises the decision-making of professionals, can undermine the autonomy of the individual. The article then describes the protection for autonomy provided by the right to legal capacity in Article 12 of the Convention on the Rights of Persons with Disabilities. An analysis is undertaken of practical examples of where therapeutic jurisprudence falls short of the demands of Article 12. Finally, the article presents solutions for how therapeutic jurisprudence models could better protect autonomy via respect for the right to legal capacity in Article 12.