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The CRPD and a Paradigm Shift to Legal Capacity: A Human Rights Based Examination of the Right to Equal Recognition Before the Law of Persons with Intellectual Disabilities in Finland

Opinnäytetyöt 13.3.2017, Gradut ja muut tutkielmat

Regimes of guardianship have been subject to various legal reforms around the world, but the current wave challenges their very existence. Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) has been considered as the embodiment of a paradigm shift in legal capacity. This thesis examines the normative content of the right to equal recognition before the law of Article 12 of the CRPD and the obligations it sets out to States parties. In addition, this thesis reviews the relevant Finnish legislation in order to assess what changes might be required to be made after Finland has ratified the Convention.

Article 12 has been one of the most contentious Articles in the Convention and, consequently, it has generated several interpretations. The debate concerns the issue of whether Article 12 of the CRPD obligates States parties to abolish all regimes of substituted decision-making or if substituted decision-making could still be allowed as a last resort. Article 12 provides persons with disabilities with a right to receive support in the exercise of legal capacity. The right to support has potential to influence the foundational premises of personhood in moral philosophy and our understanding of autonomy. The CRPD is based on a perception of personhood which does not give primacy to rationality and recognizes the interdependence of all individuals.

During the negotiations of the CRPD a system of supported decision-making was presented as the legal framework that could fulfill the obligation to provide support in the exercise of legal capacity. A system of supported decision-making can take various different forms, which allows States parties to take into account their specific cultural and political framework. Supported decision-making respects person’s will and preferences while also protecting the right to be free from abuse and exploitation. The prominent difference between substituted decision-making and supported decision-making is that supported decision-making demands replacing the principle of objective “best interests” of a person with the principle of respecting the person’s will and preferences.

The Guardianship Services Act (GSA) in Finland is not regulated upon the kind of construction of a person’s right to self-determination required by the CRPD. The GSA is precisely based on the principle of “best interests” and the opinion of a principal is not binding on the guardian. Furthermore, the GSA allows the declaration of incapacity as well as restrictions on a principal’s right to exercise rights, which can be argued to be discriminatory in effect. The support guardian in the GSA has potential to fulfill the requirements for supported decision-making, if the necessary changes to the Act will be made. The Act concerning special services of persons with disabilities, which is currently being drafted, would contain a provision on the right to receive support in decision-making. It appears promising that Finland will have a statutory provision on supported decision-making in the near future.

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