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Autonomy, Respect, and The Rights of Persons with Disabilities in Crisis

Burch, Matthew (2017) 'Autonomy, Respect, and The Rights of Persons with Disabilities in Crisis.' Journal of Applied Philosophy, 34 (3). pp. 389-402. ISSN 0264-3758

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Article 12 (2) of the UN Convention on the Rights of Persons with Disabilities guarantees persons with disabilities ?the right to legal capacity on an equal basis with others in all aspects of life.? In its General Comment on Article 12, the Committee on the Rights of Persons with Disabilities claims that this guarantee necessitates the abolition of the world?s dominant approach to mental capacity law. According to this approach, when a person lacks the mental capacity to make a particular legal decision at the material time, the state authorizes a third-party to make it on her behalf. The Committee declares such substituted decision-making a violation of the Convention?s guarantee of legal capacity on an equal basis, and therefore demands it be replaced by an allegedly non-discriminatory alternative called supported decision-making. This paper argues that we should reject the Committee?s demand in its current form, because the most influential version of the new approach to supported decision-making suffers from serious conceptual flaws that make it inferior to the mental capacity approach. However, I then argue that the Committee?s demand stems from a legitimate ethical concern with respect and equality that ought to inform the CRPD's implementation process.

Item Type: Article
Subjects: B Philosophy. Psychology. Religion > B Philosophy (General)
R Medicine > RA Public aspects of medicine > RA1001 Forensic Medicine. Medical jurisprudence. Legal medicine
Divisions: Faculty of Humanities
Faculty of Humanities > Philosophy and Art History, School of
SWORD Depositor: Elements
Depositing User: Elements
Date Deposited: 18 Oct 2016 08:45
Last Modified: 06 Jan 2022 13:25

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