Loper and Petersen on Legal Capacity, the Disability Convention, and Domestic Law Reform (J Comp Law)

"Legal Capacity and the Convention on the Rights of Persons with Disabilities: An Alternative Framework to Promote Law Reform in Hong Kong and Beyond"
Kelley Loper  and Carole J. Petersen

The Journal of Comparative Law

Published in September 2021

Abstract:

Although widely ratified, the Convention on the Rights of Persons with Disabilities (CRPD) has proven challenging for governments to implement. This article focusses on the right to legal capacity, which is protected by Article 12. According to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee), Article 12 requires governments to abolish all forms of substitute decision-making and provide, instead, mechanisms of supported decision-making for those who need assistance implementing decisions that reflect their own will and preferences. Rather than try to meet that standard, it appears that many governments are choosing not to engage in the process of reforming laws governing adult guardianship, compulsory treatment, and detention on the ground of disability. Hong Kong provides an excellent example of such a jurisdiction. Although bound by the CRPD since 2008, the government has not implemented Article 12 and largely ignored the issue in its 2018 report to the CRPD Committee. Meanwhile, the problems in Hong Kong’s legal framework have become critical. This is partly because the political unrest of 2019 and the crackdown by Beijing in 2020-21 have contributed to a mental health crisis in the territory. Fortunately, the CRPD Committee has requested more detailed information on the right to legal capacity for its upcoming review of Hong Kong. It is, therefore, an ideal time to consider what Hong Kong and other jurisdictions can do to better meet their obligations. This article recognises that the right to legal capacity is a contentious area of law and policy and that it is unrealistic to expect governments to immediately abolish all forms of substitute decision-making. We therefore propose an alternative theoretical framework for interpreting Article 12, one that we hope will promote law reform. Although our approach differs from that taken by the CRPD Committee, it is consistent with the holistic approach to rights that is the hallmark of the CRPD and with the doctrines of interpretation for human rights treaties.