Amita Dhanda Professor and Head Centre for Disability Studies NALSAR Hyderabad INDIA Central Question being Addressed in Presentation Background Facts Dilemma before Treaty Body Challenges Faced in the Croatian Law Reform Process ID: 330273
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Slide1
Universal Support and Capacity: Legislating the New Paradigm of Supported Decision Making
Amita
Dhanda
Professor and Head
Centre for Disability Studies, NALSAR Hyderabad, INDIASlide2
Central Question being Addressed in Presentation
Background Facts
-Dilemma before Treaty Body
Challenges Faced in the Croatian Law Reform Process
Central Question
How to legislate for the New Paradigm of Supported Decision Making ?Slide3
What is a new paradigm ?
When the underlying basis of a concept breaks away from the past and makes a new beginning.
In the CRPD this new beginning has happened in the creation of this regime of universal legal capacity and support.
Only Examining the New Paradigm of Support Slide4
Old and New Paradigms of Support
Old Paradigm of Support
New Paradigm of Support
Recipient exception to the self-sufficiency rule
Persons needing support become lesser beings
Needed by minority hence not matter of priority
Underlying basis the inadequacies, vulnerabilities and dependence of
some
beings
Accepts that not needed by some but by all
Life cycle approach and feminist analysis brings home this truth
Not a “ us and them” matter
Underlying basis human interdependence Slide5
Support Duty Not Entitlement
Entitlement
Duty
Its presence could be made integral to the exercise of legal capacity
absence of support could then be the reason for denying legal capacity
Also persons seeking it would need to prove they deserve it
Thus yet again to ask for support one would need to become less
If duty it is correlative to right to legal capacity
Thus the choice to take or not take the support resides with the person with disability
Support in harmony with legal capacity being acceptable
and support which militates against it could be refused.Slide6
Support to Marshal Support
legislating for support should facilitate human
interaction
No one
a
lone
Especially relevant for people in institutionsSlide7
Support and supported decision-making
SDM is a species of support
SDM
cannot happen without
support
Text
of the CRPD speaks of
support
Support is a prerequisite for any system of SDM to flourishAbsent a supporting environment, SDM would be substitution by another name. Slide8
Two Way Inclusion
Legislating
for support in universal terms ensures that persons with disabilities are not just seeking
inclusion
Mainstream also starts
seeing value in disability rights
Vulnerability
of all humans exists,
but
Obtaining its inclusion and recognition in universal support legislations requires leadership from the disability communitySlide9
Universal Support a Route to Universal Capacity
Presumption of legal capacity is countered by factual claims of mental incapacity
Universal Legal capacity tests tend to exclude persons with disabilities
Universal support laws as they are based on human vulnerability
could aid the inclusion of all excluded
Cannot
exclude persons with disabilities
.
Vulnerability and capability can co-exist.Slide10
Intrinsic Value of Universal Support
Seek Universal Support not because that would make support for persons with disabilities more sustainable
I seek universal support cause that is more in accord with the human condition
Universal Support which has been made explicit by disability human rights deepens social solidarity and contributes to cohesion in these divisive times Slide11
Universal but not Standardized
Acknowledge the need for support and facilitate its creation
Not prescribe its form
Support with dignity requires non prescription
Provide Models suggest procedures
Support needs to be a bottoms up approach to be in consonance with respect and dignitySlide12
In the Meantime
Dismantle all that is negating of people’s participation
Educate and retrain
Address the prejudices of the mind
Use the power of the law to make statements of Universal Support
As with Universal Support we Realize
Universal Capacity