NextGen
What Could/should a Support Oriented
Law Look Like?
Gerard Quinn.
www.nuigalway.ie/cdlp
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‘Pacta Sunt Servanda’
States are Presumed to Enter Treaty Obligations in ‘Good Faith’
Which means they are expected to take their obligations seriously
And
The Obligations in Article 12 go to the very ‘object & purpose’
of the UN CRPD.
Therefore – the Core Obligations are not ‘add-ons’ – they go to the heart of future legislation
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The Support Paradigm
Delicate dance between Independence and Inter-Dependence
Article 12 speaks of support to ‘enable a person exercise their legal capacity’
This includes supported ‘decision-making’
But also spans augmenting capacity where, e.g., people are transiting form
Institutions to community living
This is about Expanding Civil Rights to make them effective – its is not about
limiting civil rights
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What should the Act Contain?
8 Core Tasks for the Act
Task ♯ 1. Act should enshrine ‘Will & Preferences’ as its core.
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Task ♯ 2. Act should acknowledge an Evolving Spectrum of Supports
Assume supports are equally relevant across spectrum and intensity of disability
Specify/Acknowledge Supports that augment capacity
Specify/Acknowledge Supports to assist a person make choices/decisions
Specify/Acknowledge Supports to help individuals express their will and preference
(representation agreements)
Specify/Acknowledge Co-decision – provided the centrality of ‘will & preferences’
Emphasize that Supports are not mandatory
Emphasize that Supports are to be found mainly in the community
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Task ♯ 3. Act should be clear on the legal implications of support
3rd parties are to be bound by ‘will and preference’ that emanates directly or indirectly via
the supports.
Conversely, individual is bound.
No islands of non-application. Art 12 speaks of ‘all spheres of life’
Can provide detailed legislation in these outlying fields – but in principle no sphere is left
6 out.
Task ♯ 4. Act should provide for effective safeguards with respect
to the support regime.
The usual challenges need to be safeguarded against – e.g., conflicts
of interest
The elusive line between ‘support’ and ‘supplanting’ the will and preference
needs particular attention – which will evolve as experience
evolves
Safeguards should not be used as a Trojan horse to re-introduce a
Protective agenda that nearly always smoothers the individual
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Task ♯ 5. Act should set out an APPROPRIATE Institutional
Architecture to advance & safeguard the system.
SYMBOLICALLY: Its Institutional Home has to be Appropriate – NOT from traditional
protection oriented institutions [too much negative legacy] – this is about expanding
civil rights – not limiting them. Name it POSITIVELY
PRACTIALLY: Its Tasks should include:
Help grow the field by issuing Good Practice Guidelines
Help develop safeguards through Good Practice Guidelines
Register all representation and similar agreements
Connect with community development programmes to ensure
they extend to growing
Support regimes
Interact/contribute/learn from international best practice
Interact/contribute/learn from bodies like Irish Human
Rights & Equality Commission.
Keep system under review – develop research – play a key role in reviewing the Act.
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Task ♯ 6. Act should ‘Look Outwards’ to Linkages and grow them.
Act & new apparatus will not have all the capabilities. But other parts of the system
has valuable assets to put at disposal of support philosophy.
-acknowledge/develop link with advocacy system (NAS)
-Acknowledge/develop link with community development apparatus
-Acknowledge/develop link with general adult protection system to ensure
protection ‘on an equal basis with others
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Task ♯ 7. Act should specify clear Transitional Arrangements & Timelines- if needed
But is Was Built………./
Conceptual Challenge: How do you transition from one Protection system to another
Support System?
You Need: Cut-offs, timelines, milestones. No new entries to wardship. Automatic review
for everyone on wardship to get support.
What triggers are identified to graduate from one phase to another?
Doctrine of ‘Progressive Achievement’ kicks in – with clear limiting principles
Task ♯ 8. Act has to have a Clear & Purposeful Review Mechanism
Be Clear on What turns on the review?
Reflect on what worked/what didn’t work – identify critical success factors as well as major
inhibiting factors?
Identify new areas that can be innovated?
5 Year trigger.
Can there be an interim review?
How/Who conducts it? How to ensure adequate civil society input. How to ensure
independence of the process
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Act is Part of a Bigger project: Expunging the Ghosts of the Past
Himmler: Some Persons are not persons – ‘human animals’ –
‘untermenschen’
Objects – not subjects.
Subterranean impulse in all cultures
Sir William Blackstone: Upon Marriage woman suffers ‘civil death’
Exclusion rooted in civil law – policy choices
Law rendering people invisible - objectification
The Irish Gulag – Implicitly lesser forms of persons
Concentric circles of exclusion.
No cognitive dissonance – no moral outrage
Social ordering on a theory of lesser humans
Last Enclave: What about those with Intellectual disabilities
Are they ‘lesser’ humans…does ‘ordinary’ law apply?
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Enact this Law not just because the UN requires it
Enact it because it fits with the Republican Nature of the State
“The Irish Republic fully realises the necessity of abolishing the
present odious, degrading and foreign Poor Law System,
substituting therefor a sympathetic native scheme for the care of
the Nation's aged and infirm, who shall not be regarded as a
burden, but rather entitled to the Nation's gratitude and
consideration.”
Programme for Democratic Action, First Dail, 1919.
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