Summer School - Tuesday 18th june, 2013. session 3

Music I have been doing research in this field of legal capacity for four years, the last two years I have been working here in the centre, specifically on Law Reform and more recently doing strategic litigation around the issue. And Eilionoir and I have done a presentation on the ABCs of Article 12, several times now to different audiences and this is probably one of the most diverse audiences that we have done it in, in terms of background knowledge. So we're going to try to provide the basics for people in the room that maybe haven't heard about Article 12 and a right to legal capacity and what the implications and obligations are around it, and we also want to delve into some of the deeper issues for people in the room who have maybe already heard the basics and are going to be looking to get into the analysis and talk about how the problems arise in practice and how change can actually occur in this area. So this is what we want to cover in the next hour and a half. We want to start with a discussion of personhood, equality and capacity. What those three things are and how they interact with each other, and how they affect human rights. Then we want to move on to talk about Article 12 of the Convention, its history and interpretation and Rosemarie was there during the drafting of the article and she is going to provide us with a really valuable look into exactly what happened around the language and some of the politics as well. Then finally we're going to talk about implementing Article 12, and how to achieve equal recognition before the law for people with disabilities through mechanisms of support. What I want to do right now requires your participation, so try to get out of the food coma from lunch and I just want to think first, before we get into all the legal stuff, about what personhood is and what it means to be a person. Particularly recently actually there has been a lot of court cases around the personhood of corporations and whether and how far personhood is extended in that context, and Article 12 has a very specific emphasis on personhood, so first I just want to get from you guys I want you to answer the question what does it mean to be a person, it can be a philosophical or legal answer or whatever first popped into your mind, so what does it mean to be a person in our society? SPEAKER: Not an animal. MS KERSLAKE: That's a perfect answer. So there is a distinction between an animal and a person, so in that sense maybe it's okay to be a little bit species ist, what else does it mean to be a person? What are the qualities of personhood? SPEAKER: To have rights. MS KERSLAKE: Yes do you want to explain that a little more? Now you're on the spot. SPEAKER: I suppose what we were talking about, to have the right to recognition and to have the right to recognition and everyone have the same dignity. To have rights respected, to be different and that's all. MS KERSLAKE: The right to recognition under the law and the right to recognition and dignity in personhood, that's exactly right. Then addressing the second question here what exactly are those rights and responsibilities of persons? Are they the same for everyone or do we give different groups of people do we classify people differently and give them different rights and responsibilities? SPEAKER: Treat people equally. MS KERSLAKE: Yes, for example do women have different rights and responsibilities than men? SPEAKER: They do but sometimes you have to take steps to help people realise rights, so for example for women equal access to the workplace right require steps to be to be taken to provide for maternity rights for example. MS KERSLAKE: So rights and responsibilities are different for men and women? No, they are not different SPEAKER: But you have to do different things to realise the rights. MS KERSLAKE: Yes exactly. And does anybody think that there are any groups that would have separate and distinct rights and responsibilities from other groups? SPEAKER: Of course. You might put it all people are equal but some are more equal than others! MS KERSLAKE: Can you explain that more? SPEAKER: Yeah of course. My name is Jorge, you know people are not equal, the society is not a flat landscape, it's vertically segregated, so it means people actually have different rights and obligations, even if it might sound a little bit tough I suppose, at least in this context. MS KERSLAKE: I think a really clear legal example of that actually are immigrants, to keep it out of the disability realm for a second. Immigrants and undocumented ones in particular, do not have the same rights and responsibilities in a jurisdiction as documented citizens and immigrants. So that's a really clear distinction that our legal systems made. But are we striving to change that? Do we want that to be different? SPEAKER: Can I just ask a question, back to personhood again and the concept of it, there is one or two people that may argue people with maybe less intelligence, and the classification, I'm not saying I agree with it, but perhaps people with more severe profound intellectual disabilities and an IQ below 20? And it brought me back to some of the freak photography and the images and where they words came out of, like vegetable or perhaps somebody in a coma where does this personhood lie and how does legal capacity come into it. MS KERSLAKE: I'm glad you brought that up that's where I'm going with the discussion, that's true, there is discussions of that in moral philosophy, but we can see that, can't we. Everything day in the kind of demonstrations that Rannveig spoke of yesterday the freak photography, there is as underlying and sometimes explicit assumption that particularly people with cognitive disabilities, so psychosocial disabilities, intellectual disabilities, developmental disabilities somehow don't merit the same status of person as others and therefore don't have the same rights and responsibilities. Most people wouldn't say this outright, but if you look at the practices and the way that the law restricts the rights and responsibilities of people with cognitive disabilities you can see that our societies are complicit with this conception of personhood that's different, and less. So that's exactly what we're talking about today. SPEAKER: Actually I entirely agree that persons with psychosocial disabilities and intellectual disabilities, they face the problem of denial of legal capacity. It is very true. But this does not mean that people with other disabilities, they don't face the problem of denial of legal capacity. Just two days ago I myself faced the problem of denial of legal capacity, a small example, I applied for a credit card, and the bank says that because you don't sign you will not get the credit card because your credit card may be misused by somebody. I told the bank that don't act like my mother, I will take care of myself, if my card is lost I will be responsible. No, but they said no, anybody can put a mark on your card and it may be misused. This is only a small example. Therefore I believe that denial of legal capacity indeed the examples of the psychosocial disabilities and intellectual disabilities are very clear examples, but that does not mean that other disabilities do not face this problem. This is one issue. And the second point which I would like to make is, it is one thing to have rights in that sense most of the persons with disabilities are vested with rights and on paper it may be I said that they have legal capacity, but we need to appreciate the distinction between a right to legal capacity and capacity to act. Capacity to act is crucial and when it comes to capacity to act there are huge problems with persons with disabilities. MS KERSLAKE: Thank you for that comment you are exactly of course right but the problem spans more than just cognitive disability and very much true. It's more about the barriers that are put up, the social barriers that are put up to exercise legal capacity and a lot of times people with cognitive disabilities are disproportionately affected. But it affects people with disabilities, without disabilities, with physical disabilities, with intellectual disabilities and thanks very much for sharing that story, I think that's a perfect example of exactly what those barriers are. And the question now is, and Article 12 has brought this question to the fore, do we want equality under the law? Are we searching for that or do we actually believe that some equality is okay but there is areas in which we're okay with actually formal equality not being met in this area? And when I say that, obviously I'm bias so I'm structuring it in a way that makes it sound terrible, but there is many, many people in the world and structures in the world that are perpetuating the idea that equality in the area of legal capacity is not something that's appropriate for certain groups. And mostly that group is people with disabilities at this point. This slide is just re emphasising what I have just said. Is it important that we are all persons before the law? Or is it okay that the law takes a paternalistic approach to some people, particularly people labelled with certain disabilities and says these individuals we're actually going to protect and they are not going to be counted as people under the law in the same as everyone else, instead we are going to do what's needed in their best interests. Does that mean also that you are not a person? That's an issue that comes up, where does personhood lie and how far can the State infringe on your rights and responsibilities before your personhood is removed, and that's something to really think about, where is that line, and does that line have to be the same for everyone. As was spoken about, I think yesterday, this discussion of equal basis with others, that's absolutely critical that phrase in Article 12, it's absolutely critical when you're talking about equality and personhood. Because what Article 12 really asks for when you look at this phrase, is not that no one's legal capacity is ever restricted, because in a way that's what the State is. We all live under the State and we agree to have our legal capacity restricted in certain ways. If we break the law our legal capacity is restricted. We can't if we're convicted of a crime, we do not have the same rights and responsibilities as people that haven't been convicted of a crime. Declaring bankruptcy, you lose some legal capacity in that context. And those are, in theory anyway, baseline ways that the State infringes upon legal capacity, that should be in theory equal, and is not based on any form of disability. And Article 12 is really asking that legal capacity is respected on the same baseline for everyone and not just formally, but in both purpose and effect which we'll talk a bit more about later. And it has a lot to do with this distinction. So it's easy to say a functional test of capacity is applied to everyone on an equal basis because you are not asking if someone has a disability, you are asking if they can understand and weigh the information that they have been given and if they can then make a decision based on that information. And the argument is that that could in theory be applied to anyone and it's not specific to disability. But the problem is if you look at who it's applied to, it's severely disproportionately applied to people with disabilities and people without disabilities largely don't have to meet that threshold, and that's a huge problem. One of the problems that that has arisen from is this confliction of mental capacity and legal capacity. So what legal capacity is and what I have been talking about in this session is about the right to be a holder of rights as was mentioned earlier, and the right to be an actor under the law, as was also mentioned earlier. So it's not only the ability to have legal personality, to be recognised as a legal subject, but also the ability to interact with third parties and interact with your government and courts as a legal agent and to enforce your rights. So that means the ability to sign contracts, ability to get married, the ability to vote, all of these things are encompassed in the term legal capacity as its used in Article 12. Mental capacity merely refers to decision making skills, which is much different than legal capacity. And I don't think anybody would try to claim that everyone's decision making skills are equal, they're not. Everyone has different decision making skills based on a variety of things, environment, education, wealth even, and sometimes inherited will effect decision making skills. But the fact that someone might have challenges making decisions doesn't mean that their right to legal capacity is any less. That's what Article 12 is telling us. And its telling us that the only way to recognise, to achieve equal recognition before the law is to recognise this right to legal capacity for everyone, regardless of decision making abilities. So the way in which legal capacity has been regulated in the past and currently, although Article 12 has started moving away from this, is substituted decision making. And that is when legal capacity is removed from the individual and vested in another person who makes a decision in the person's best interests. Now this definition of substitute decision making is one that has actually merged from what the CRPD committee has said and also emerged from what the disability community has identified as being problematic and barriers to decision making and the exercise of legal capacity. So this is what we're defining as substituted decision making and the thing that Article 12 doesn't allow. The support model, which is what Article 12 calls for, asks for quite the opposite. No removal of legal capacity and instead the provision of access to support for exercising legal capacity and making decisions regarding, related to legal capacity when people desire that. So they are quite different things, and the distinction there in the paradigm is between vesteds and will and preference. So all decisions about a person compliant will Article 12 should be based on will and preference as oppose to someone else's determination of what's in that person's best interest, which is how most systems work now. And that can come in many, many different forms. This type of support. And this support paradigm and it should be culturally specific. So we're going to talk about it a bit more. But now Eilionoir is going to talk to you about the history of legal capacity in general. MS FLYNN: So as Anna said this issue of legal capacity is something that touches on all areas of law and all areas of our lives, but we kind of tend to think of it as something new that appeared in Article 12 and something that really mostly affects people with disabilities, but in fact the reality is that since there has been organised societies and since the emergence of the State, we have started to think about how certain people are within the circle of who are subjects of that State and citizens with rights, and how certain other people can be exclude the, this is not unique to disability but I would say disability is one of the areas in which we still as a society perhaps accept it, or think it might be permissible, when in a lot of other areas in which we used to deprive people of legal capacity we now accept that was not valid. So I like to think of legal capacity as being part of this continuum so we don't just think it's a unique problem and something to do with people with disabilities we have to fix for people with disabilities, this is an issue for everybody and different people throughout history have been excluded or denied legal capacity. So I have just put a few examples on the slide to get you thinking about it. So slaves is a very obvious example, where you would not be recognised as a person before the law. Women, especially perhaps in more recent history upon entering into marriage would not be recognised as having a separate legal personhood from that of their husband. Asylum seekers as Anna mentioned undocumented immigrants would not be recognised as persons before the law in some jurisdictions, ethnic minorities in others and LGBT Q people who in recent times are continually prohibited from in many jurisdictions entering into the institution of marriage but also into other types of legally binding decisions or denied recognition as persons before the law. But like I said we have mostly assumed deprivation of legal capacity for those individuals is unfair and unjust but we still, most societies still accept it's permissible for disability and we need to think about why that is. Just to give a bit more detail about the ways in which legal capacity is removed from individuals, there are many different ways of doing this, they vary in all the countries that you come from, but these have been categorised mostly into the three different types, I think it's important to understand the different ways in which substitute decision making has been done and has sort of evolved. We like to think that through time we have retained substitute decision making for smaller and smaller groups of people, so we are giving more people back the power to make decisions and limiting the groups that we prevent from making decisions. We try to, many societies try to argue that they have done this in a progressive or human rights complaint way and the Convention is a really radical departure from the development of most legal frameworks on substitute decision making. So the most outdated I guess way of doing substitute decision making is the status approach, which essentially means that the person's status, for example status as a person with an intellectual disability or a person with an IQ below a certain level or with a particular diagnosis or something as vaguely general as a person of unsound mind, means that the person's legal capacity will be removed, it could mean it for all decisions, it usually does, which we call something like plenary guardian ship or your status could mean you don't get to enter into certain types of decisions. There is also the outcome approach; I should say as well for example what we currently have in Ireland the ward of court system is generally categorised as a status based approach, similar to plenary guardianship. The outcome approach is instead of looking at the person's diagnosis or label you think about the outcome of the decision they want to make. So if they want to make a risky decision or a decision what seems that other people might think would be bad consequences, you use that as a reason to deny them to make that decision, the example that's commonly given here is where for example someone has entered into a psychiatric facility willingly and to undergo treatment but at a certain point wants to leave, they are decision to leave might be regarded as risky or unwise if their physicians feel they haven't completed a certain course of treatment. In most legal systems there is a way of retaining that person and not granting their wish to leave, a way of involuntarily detaining and treating that person if it is felt that the outcome of their decision is one that cannot be supported. Then finally there is a functional approach, which is the most common in more modern legal systems, or systems that have evolved from status or outcome based approaches. And this is what Anna referred to earlier as the ability to understand information, to weigh and use that information, to re tape it, to communicate your decision and some functional tests include this idea that you must be able to appreciate the nature and consequences of your decision. Which is actually a really high test, if any of us were asked to undergo it for any given decision there is no guarantee that we would actually pass, depending on what the decision is, depending how much caffeine we've had, all of these things are, as Anna said, decision making skills in an individual vary constantly depending on a broad range of factors. The point I want to make about these three approach sincere they are all premised on the idea that if you don't have a certain mental capacity you no longer deserve legal capacity, whether that's for one area of your life or all areas of your life, and some people in recent times have argued that the functional test is more human rights friendly than previous approaches, that it could be in theory applied to any one of us, that it could, with support, a lot of people might meet the function all test, but in reality as Anna says it's disproportionately applied to people with disabilities and for a way that non disabled people are generally not expected to understand the nature and consequences of their decisions. So in the interests of time I want to get on to Article 12 which you should all have a copy of in front of you, but we've highlighted particular bits that we think are important and Anna and I are just going to go through the text with you now and then Rosemarie will explain how they got to that text. MS KERSLAKE: We just want to introduce you now to you Article 12 which we didn't want to do before because we wanted to first give you a bit of background on the issue before we bias you with the actual text that we think you should take on and absorb and use. The first thing that's important about Article 12 is the title, equal recognition before the law. Does anybody happen to know if this is the first time we've ever seen that right in human rights instrument? No one? It's not. It's a very popular human right, it's been in many instruments, including the Universal Declaration of Human Rights and the international covenant on civil and political rights, and also importantly in Convention on the elimination of discrimination against women. And it is one of the recognised fundamental civil and political rights, what's interesting being it is that a lot of times people overlook it, maybe because they don't understand exactly what it means or how to do it. But what CEDAW and now CRPD have done is enumerated specifically how this right can be realised, for those groups but also for society as a whole, for humanity, how the right what the obligations are under the right and what rights actually attach to the individuals. So the first line is that states parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. So this is referring broadly to legal personhood as we've been discussing. And the right that attaches to the individual. Because this is a civil political right and as I mentioned, well documented as a civil political right, it attaches immediately upon ratification and there is a, as Rosemarie described earlier, a right to immediate realisation or to take steps to immediately realise civil, political rights, so this right falls under that category. The second bit is that states parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. CEDAW and the CRPD are the first conventions, international human rights conventions that specifically said there is a right to legal capacity on an equal basis, although it all falls under the penumbra of equal recognition before the law, which again is well established. The third is that State parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. So this is new. This we haven't seen in another Convention. This is a description of how the right to equal recognition before the law can be realised in the context of disability specifically. And Rosemarie will talk more about how that came about. But the important thing is that it recognises that autonomy doesn't mean isolation and exercising legal capacity doesn't have to mean in isolation, doesn't have to mean that an individual can only exercise legal capacity if they can do it without anyone around, without any support. This paragraph says everyone is entitled to legal capacity and not only that, they are entitled to the support they need to exercise that legal capacity. So it's a really important hybrid of autonomy rights and support rights, and in that way it's really not a kind of neoliberal focus on autonomy, it's actually a focus on the interdependence of everyone. So Eilionoir will cover the last couple of paragraphs and then we'll talk about requirements. MS FLYNN: Usually when we talk about Article 12 Anna and I just do one, two and three because we think those are the really important bits, but since we have an hour and a half we thought we'd look at the last two paragraphs also. Paragraph four is sometimes talked about, I remember the first time I read Article 12 I thought paragraph four was really confusing because the first three are really empowering everyone is a person before the law, you have a right to legal capacity on an equal basis with others an a right to support. Then paragraph four talks about safeguards, but some of the things that it says like that measures relating to the exercise of legal capacity should apply for the shortest time possible and are subject to regular review sound very much like the safeguards that you already have in a guardianship system which remove legal caps fee for people, I got confused and thought paragraph sounds like substitute decision making might be okay but the rest doesn't sound like it then I talk to Anna and she said read paragraph four in light of the whole article and the Convention and the drafting which Rosemarie will tell us more and you focus on the fact that the safeguard, the committee elaborated on that phase which is why I highlighted it that any measures related to legal capacity must respect the rights, will and preferences of the person. So there is actually a way to read this discussion about safeguards that is fully in keeping with the idea of no substitute decision making, support to exercise legal capacity is the only way forward. But of course as Rosemarie will tell you, this was a negotiated text so Rosemarie will talk more about some of the politics behind some of the language in here. But essentially I think the main thing is not to get bogged down in 12.4 but to read it in light of the rest of the article and to focus on the fact that 12.4 can be read in a way that allows only for supported decision making or support to exercise legal capacity. And then paragraph five, I was also a little bit interested or confused about why this was in here because if you've got the right to legal capacity in all aspects of life which it already says that you do, why would we've specific section about property, but again Rosemarie knows the history of the drafting in terms of why this was something particularly important and worthy of specific mention, and as the experience of people with disabilities shows all around the world, the right to legal capacity is often only brought into question where there is an issue of property, certainly for example the ward of court system in Ireland is one that was designed for people who had assets or wealth an there were question marks raised over whether they were able to exercise their rights in respect of those assets. So that's why paragraph 5 is there separately talking about the right to inherited property, to control financial affairs, equal access to credit and that people are not deprived arbitrarily of their right to property. Sop Anna will just explain what we think Article 12 means from what the committee have said and what the discussions around it since it has come into force have been. SPEAKER: Could you elaborate the point that legal capacity is purely a civil and political right and therefore the obligation is immediate? MS KERSLAKE: Sure that's my favourite one to do actually! So we talked a little bit already at the summer school about this division between social, economic and civil political rights. And I believe we've covered also that the moving trend, which we can see in CEDAW and the CRPD is actually to recognise, you can see it in many other places as well, to recognise the interdependence of all these rights. So there is kind of, I think I want to answer your question by first giving a disclaimer that I think this distinction is becoming less and less meaningful and I think even the distinction between progressive realisation and immediate realisation is becoming less and less meaningful. Also because immediate realisation all, the only requirement is to take steps to immediately realise the big difference actually is that the rights attach immediately upon ratification. But that being said, that I kind of think those distinctions are fading, governments are still quite interested in them, especially as Eilionoir and I have done this talk and spoken to people in governments in a few different country that is are trying to reform their laws to bring them into clients with Article 12. It is one of the questions they still ask, because they want to know what their responsibilities are, and if they are going to get in trouble or not basically. So I think the answer, and the answer that I can give is that the title of Article 12 is equal recognition before the law. That's the title, and the paragraphs within it are enumerating how we achieve equal recognition before the law and there isn't any question that the right to equal recognition before the law is a civil political right. And all of the ways in which you realise that rights are rooted in the civil political, in the civil political silo, to use Gerard's term, of rights. And then you can say that if these distinctions between rights still exist, if civil political and social economic are truly different things that have different State obligations, some progressive, some immediate, then the right to equal recognition before the law falls into civil political and there is an immediate obligation to realise those rights. MS FLYNN: I think what governments have often wondered about is, as Anna say what is do they need to do immediately, so some governments might say okay if we abolish guardianship right now then we have fulfilled the immediate obligation, and if it takes us 20 years to construct a support system to enable people to exercise their right, well that's progressive realisation we'll do that later, we don't need to worry about that. So what Anna is saying and what we argue is that no, because support to exercise legal capacity is part of the civil political content of the right, it needs to happen now and you can't separate out the distinction between oh abolishing substitute decision making and waiting before introducing a support system. MS KERSLAKE: Exactly. I think a good example of this is the right to vote, the right to participate. That's a civil political right, it's accepted as that, everyone knows that. In order to do that the State has to provide a really well established structure to allow for that right to be actually realised so people can actually vote. That's a huge burden on the State to do that and it recognises that as an immediate obligation because the right to political participation is a civil political right. Similarly the right to equal recognition before the law is a civil political right and there are State obligations that are resource intensive related to realising that right. That's my argument are you satisfied? SPEAKER: I'm not, because at one hand you are saying the distinction is most importantly don't take the easy example. If I want if the application is immediate and if I were to close down the institution then where will I put the people? How can you link institutions and support systems at once, the support system takes time? MS KERSLAKE: That's a great question, I think I'll leave it for tomorrow when we talk about de institutionalisation and community living but thank you for raising it, I think we have another question in the middle. SPEAKER: Yes I'm from Norway I just wanted to hear your comment on what I myself tried to underline in paragraph 3 which you didn't say anything because I think the Norwegian new act of guardianship is in conflict with paragraph 3 because it says to give people guardianship if they may require, may require support. It's not taken for granted that anyone needs support. But they may. And I think that's a very, very important distinction. Because in the Norwegian legislation, which they have drafted just because of this new Article 12, they have taken for granted that people, that it is still the State which decides if someone is to get support. So I think that's very important that we are not taking for granted that anyone needs support, but that they may require support to exercise their legal capacity, is that an important point or is it not? MS FLYNN: I think there are two important points there. One is who gets to decide if someone requires support which is really important, so it should, on my understanding of Article 12 be the person's decision, whether or not they would like support and what kind of support and when that support is no longer required, not a decision of an outside party like the State or a social worker or the person's family members, so that's really important, and I think it comes back to that issue of choice which of course is quite central to Article 19 as well and the theme of this wholesome is school. So the issue of who decides is important. And also a starting point that I think we have to acknowledge two things, one that all of us in fact pretty much use some kind of support in how we make decisions, we talk to our friends, the people with trust, we might ignore them but we talk to them, so on the one hand recognising that interdependence, but also recognising that it's ultimately our own decision and we can't just presume that everyone will require a certain level of support or that a certain diagnosis or label will mean a certain level of support is needed, it really needs to be the individual's choice as to what support they will get. CHAIR: We'll just take those three questions and then we'll move on. SPEAKER: Eilionoir I don't know but the previous question just prompted something, the very, very difficult issue of deciding who that group is who needs support, because it becomes a kind of a very difficult to define that group without defining that. Sometimes you want to define them and sometimes you don't and you end up in a legislative mess that you can't get out of. And that's one of the things, one of the reasons why we don't yet have legislation. SPEAKER: My question is linked to that as well, you for Anna, you said is a very quick statement, you said support system has to be culturally specific, I wonder if you can elaborate a little bit on that. SPEAKER: Eilionoir I know you will be sick of me asking you this question, but I think it's no harm to bring it up anyway, in terms of the Irish perspective on the Convention, is there any further updates on what the hold up is here now? I know that there is something with mental health bill or act or something, I just think it's no harm to find out if there is any updates, thanks. MS FLYNN: We're just discussing who will answer what. MS KERSLAKE: We'll say really quickly about the Irish bill, we're actually going to do another 20 minutes I know everyone's excited! On exactly that topic, just in an hour and a half, so you'll get a lot of information on that. The other questions, right the question about how do we decide who needs support. And it's a really interesting question and that's a question, it's a never ending question of how do we provide how does the government provide support to anyone, how do they identify the people that need support and the people they have an obligation to support. It might be highlighted in the context of disability but it applies across the board. I think one thing interesting about Article 12 is that the languages provide access to support and that of course can be used positively or negatively actually. But I think I think what the obligation is, is to start building structures so that the support is available so that there are people that, when someone doesn't have anyone in their family or friends to turn to for support in making decisions, especially like decisions with legal implications, that they have an independent party to go to that is, that knows thousand provide this kind of support and is recognised as providing that support and third parties will recognise that support. So I think that's kind of the first step, having those structures available, and then not and those structures being not forced on people at all. And support should never be forced on anybody. But you don't, for those kind of structures the problem of identifying who needs that support goes away if you start having it available and then people that want it, and making people aware that it's there and then people that want it will start coming to it. So you don't have that problem of trying to reach into the community and pull those people out and give them the support in that way, instead you start building those mechanisms for support and the people start coming to it. I think it's actually really dangerous to start going down the road of assessing for support, because that really quickly becomes a test of mental capacity and a limiting of rights again. So that it's a legitimate challenge but I don't think it's actually a new challenge that governments have had to deal with, I think it's going governments deal with whenever they are giving out benefits or support, and it is something to tackle but like I said the first step is making it available and letting people come to it. MS FLYNN: You mentioned culturally specific but I think what you mean is that for example it depends on the legal system that you're talking about and what opportunities for reform are there, and what is actually useful to individuals in that country. So in some countries where there is no institutionalisation because it never occurred to anyone to institutionalise people that's not saying that everyone with a disability in that country might have an amazing life but nonetheless, where there might be no formal way of depriving a person of legal capacity in that country currently, even though people would be in practice not allowed take decisions, whether prevented by family members or their interactions with others wouldn't be recognised. The most important thing then is to try to build grass roots, community initiatives that are realistic, practical, that mean something to people's lives, that connect with the individuals and the community that is people actually interact with, not to try and impose some sort of perfect structure. We are not trying to build a model statute out of Article 12 and tell every country to ratify it. Sometimes you might not need law, teams hard to say as lawyers, but if there is no legal barriers to remove legal capacity in that country, the most important thing is to ensure the supports people practically need are available and the interactions with others are recognised, that can be done differently depending on country and the situation, we don't want to be very prescriptive about what legal structure is required to allow support to happen. MS KAYESS: Eilionoir raised a really important point. I think one of the greatest things about equal recognition before the law is that it needs to be recognised as an organic thing, we can't lose sight of this. Once we have more inclusive communities, once people with disabilities are living in the community, developing trusting relationships, have trusting relationships around them that they can depend on and can support them, then supported decision making will be organic and it's not going to be something embedded in legislation, that's structured in any really formal way, it will be organic, like it is for every other person who doesn't have a disability. music