4. Legal Capacity, Decision-Making, Discriminatory Statutes and Practice

  1. Felicity Callard1,
  2. Norman Sartorius2,
  3. Julio Arboleda-Flórez3,
  4. Peter Bartlett4,
  5. Hanfried Helmchen5,
  6. Heather Stuart3,
  7. Jose Taborda6 and
  8. Graham Thornicroft1

Published Online: 17 APR 2012

DOI: 10.1002/9781119945352.ch4

Mental Illness, Discrimination and the Law: Fighting for Social Justice

Mental Illness, Discrimination and the Law: Fighting for Social Justice

How to Cite

Callard, F., Sartorius, N., Arboleda-Flórez, J., Bartlett, P., Helmchen, H., Stuart, H., Taborda, J. and Thornicroft, G. (2012) Legal Capacity, Decision-Making, Discriminatory Statutes and Practice, in Mental Illness, Discrimination and the Law: Fighting for Social Justice, John Wiley & Sons, Ltd, Chichester, UK. doi: 10.1002/9781119945352.ch4

Author Information

  1. 1

    Health Service and Population Research Department, Institute of Psychiatry, King's College London, UK

  2. 2

    Association for the Improvement of Mental Health Programmes, Geneva, Switzerland

  3. 3

    Queen's University, Kingston, Ontario, Canada

  4. 4

    School of Law and Institute of Mental Health, University of Nottingham, UK

  5. 5

    Charité – University Medicine Berlin, Germany

  6. 6

    Federal University of Health Sciences of Porto Alegre, Porto Alegre, Brazil

Publication History

  1. Published Online: 17 APR 2012
  2. Published Print: 13 APR 2012

ISBN Information

Print ISBN: 9781119953548

Online ISBN: 9781119945352

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Keywords:

  • advance directive;
  • capacity;
  • consent;
  • guardianship;
  • incapacity;
  • lasting power of attorney;
  • legal capacity;
  • plenary guardianship;
  • UN CRPD Article 12

Summary

We clarify how guardianship statutes can curtail a vast range of possible decisions that individuals are able to make and have a profound effect on the everyday lives of people with mental health problems who are judged not to have capacity under the law. We emphasise that the prevalent model of ‘plenary guardianship’ – legislation that allows a guardian to be given the power to exercise all legal rights on behalf of someone who is judged not to have capacity – runs directly counter to the provisions of the UN Convention on the Rights of Persons with Disabilities. This demands the overhauling of legal systems so that they can be tailored to the actual and specific needs of individuals and can provide individuals, if necessary, with supports so that they are able to exercise their decision-making capacity in various domains. There are examples of legislation that is grounded in the presumption of capacity.