Equal recognition before the law 2014, para. 15

Paragraph
Paragraph text
In most of the State party reports that the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed. This is decided simply on the basis of the diagnosis of an impairment (status approach), or where a person makes a decision that is considered to have negative consequences (outcome approach), or where a person's decision-making skills are considered to be deficient (functional approach). The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right - the right to equal recognition before the law. In all of those approaches, a person's disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.
Legal status
Non-negotiated soft law
Body
Committee on the Rights of Persons with Disabilities
Document type
General Comment / Recommendation
Means of adoption
N.A.
Topic(s)
  • Equality & Inclusion
  • Health
Person(s) affected
  • Persons with disabilities
Year
2014
Paragraph type
Other
Reference
CRPD General Comment No. 1, Equal recognition before the law (2014), para. 15.
Paragraph number
15