This book investigates the complex relationships in law and philosophy between mental capacity, personhood and human rights. The case of people with cognitive disability has been of particular interest to human rights theorists and practitioners, because dominant liberal philosophical and legal traditions ground personhood in recognition of autonomy and the ability to reason. For this reason, both in theory and practice, people with cognitive disabilities have too often been considered and treated as other than human. The Convention on the Rights of Persons with Disabilities has turned this around, by providing that people with disabilities have a right to have their legal capacity – and therefore their decision-making ability, autonomy and personhood – recognised.
This right to legal capacity has been interpreted by many as requiring that adults with disabilities must always be allowed to make decisions for themselves and have those decisions legally recognised. On the other hand, many theorists and practitioners (including the author) acknowledge that in ‘hard cases’, it may be more ethically acceptable for a substitute to decide on the adult’s behalf. Yet given the dominance of the liberal tradition, there has to date been no cohesive argument as to the ethical and legal grounding for such substitute decision-making practices within a human rights framework. This book aims to fill that gap.
The book aims to challenge liberal philosophical and legal traditions which ground personhood in recognition of autonomy and the right to legal capacity, and thereby exclude some adults with cognitive disability. The book does this by re-interpreting the right to legal capacity through the principle of the interdependence and indivisibility of human rights (‘the principle of indivisibility’), arguing that fulfilment of the ostensibly civil and political (‘civil-political) right to legal capacity may depend on the fulfilment of a range of other rights. In recognising interdependencies between rights and the equal importance of economic, social and cultural rights with civil-political rights, the principle of indivisibility disrupts the privileging of the right to legal capacity (and autonomy) as the basis for recognising legal (and philosophical) personhood.
The book argues for human dignity as a more inclusive basis for personhood than autonomy, and to that end proposes an innovative formulation of ‘five-dimensional dignity’. It also applies the UN Disability Committee’s conception of ‘inclusive equality’ to interpret the prescription that legal capacity be recognised on ‘an equal basis with others’. It ultimately concludes that the fundamental human rights values of autonomy, dignity and equality can only be recognised or achieved through fulfilling a range of interdependent human rights to ensure civil, economic, political social and cultural inclusion for all adults with cognitive disabilities.
The ideas in this book grew out of my own experience working with adults with cognitive disabilities who were profoundly disadvantaged and often socially isolated. As head of a state disability agency, it was always these ‘hard cases’ that landed on my desk as potentially unresolvable, unless we took some positive action. The liberal view of human rights, especially in popular discourse, is that they can only be realised if the state refrains from acting in the personal sphere. This book problematises the traditional bifurcations between: public and private; intervention and assistance; and civil-political versus economic social and cultural rights. It illustrates its theoretical position by considering three central case studies; and links theory to practice in the real world of contemporary, individualised social service provision. Such ‘individualised’ systems have proliferated in Western countries in the last twenty years, leaving us asking the questions of what the right to ‘choice and control’ means, and how it can it be realised for those subject to the concrete reality of multiple disadvantages. This book endeavours to make a contribution towards answering those important questions.