Chapter

Universal Legal Capacity as a Universal Human Right

Amita Dhanda

in Mental Health and Human Rights

Published on behalf of Oxford University Press

Published in print June 2012 | ISBN: 9780199213962
Published online February 2013 | e-ISBN: 9780191754500 | DOI: http://dx.doi.org/10.1093/med/9780199213962.003.0011
Universal Legal Capacity as a Universal Human Right

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Amita Dhanda discusses universal legal capacity as a universal human right. She accepts the enriching value of universalism for human rights discourse, provided (with some postmodern and feminist critiques) it is inclusive and does not privilege the preferences of dominant groups, nor allow hierarchies within groups such as people with disabilities. She contends the CRPD in Article 12 recognises universal legal capacity for people with disabilities, whilst acknowledging differences between them in exercising this, through strategies such as reasonable accommodation and support through co-facilitation or joint decision-making. Universal legal capacity promotes social interaction between all members of society, disabled and non disabled. This inclusive mode of social relationship creates opportunity for developing the capabilities of empathy and social solidarity, and supports self-determination. It challenges the privileging of cognitive faculties, recognizes multiple intelligences potentially affecting decision-making, and confronts the discriminatory denial of legal capacity to those suffering mental disorders compared with physical disorders. It extends general defences for criminal responsibility already available to non-disabled persons, as well as individuated procedures in these cases. The author details the battle, often with states parties, for universal capacity with support against the paradigm of selective capacity with provision for substitution. These arguments are of central significance to mental health law.

Chapter.  7150 words. 

Subjects: Psychiatry

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