- Coercive Care Rights, Law and Policy ed. by Bernadette McSherry, Ian Freckleton
Routledge , London , 2013
368 pp ISBN: 0415628199
This book is, I think, a significant collection of law writing, for anyone interested in the legal and ethical challenge of ensuring that people with disabilities are treated equally before the law. It serves to remind its readers that writers on law may take up and seek to help the realisation of substantive positions of principle. In short, that legal commentators who challenge the status quo and urge law reform may be at the heart of society’s ethical conscience.
The ethical and legal challenge which the writers of this volume seek to meet, is set primarily by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and most obviously by Article 12 (Equal recognition before the law), in which the states who are parties to the convention (among other things):
1. … reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. … recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. … shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
Article 12 and the rest of the convention are presented throughout the book as an alternative approach to what we might call the received or traditional applications of coercive care.
The writers in this edited collection are concerned throughout to identify both cases in which those with disabilities either lack this legal equality and cases in which efforts have been made to try to ensure it. Inevitably, in a [End Page 320] volume edited by authors mostly (though not exclusively) from the English-speaking and developed world, the examples identified tend to come from jurisdictions such as Canada, the USA, the UK, Australia and New Zealand (though in one chapter, the law in Colombia is considered). Your reviewer did not find this a drawback—the examples still hit home for him; but it may represent a drawback for readers in other jurisdictions.
Examples of the lack of equality include (centrally) the many in which people with alleged disabilities have their power to make decisions taken from them and decisions made for them by someone else. This includes people with strokes, brain injuries, intellectual difficulties and mental health problems. They are to be found both within and outside the institutions of health and justice. In some cases, this decision-making paternalism seems to be the result of deliberate legislation; in others, it seems to be the result of ingrained behaviours of carers and institutions, sometimes abetted by poorly drafted or overly complex legislation.
The CRPD bases its understanding of the disabled person in the social model of disability. The social model of disability states that disablement results from the way society organises itself. The analysis for the example of coercion in the “care” of disabled persons—that is, their displacement as the decision-makers regarding their own health and lives—suggests that society deprives them of their rights. The justification for this deprivation of decision-making rights and various other liberties is the supposed incapacity of the disabled persons. But the fear is that in many cases, judgements about capacity are made without any effort to support the person to make a decision, or to be part of decision-making. The initial judgement of lack of capacity is taken to be the signal for some other authority to take up the decision-making role in the person’s life. Coercion is not far behind, backing up the substitute decision-maker’s powers.
The CRPD suggests that in such situations, we should look to assess what kind of support the person needs to make the decision—the phrase used is “reasonable accommodation” (Article 2). That is to say, if at first it appears that a person lacks the capacity to make a decision about his healthcare, or about where he wishes to live, or other similar...