Restoring voice to people: realizing the right to equal recognition before the law of people with Cognitive Disabilities

Abstract

This thesis examines the right to equal recognition before the law guaranteed in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). It begins by providing definitions and explanations of the rights and states obligations in Article 12, including: the right to equal recognition as a person before the law; the right to legal capacity on an equal basis; and the state obligation to provide access to support for the exercise of legal capacity.

It incorporates an analysis of personhood from both a legal and philosophical perspective. Legal capacity law is analysed as a tool for the regulation of personhood of individuals with cognitive disabilities. Parallels are drawn with recent debates in moral philosophy as to whether people with cognitive disabilities are included in theories of personhood. The thesis argues that people with cognitive disabilities can and should be granted full personhood, both in theory and through legal structures.

The rights and states obligations in Article 12 are applied to specific jurisdictional examples. It also examines capacity to consent to sex as a discrete area of the law in which the right to legal capacity on an equal basis is routinely denied and can have a profound impact on the most private areas of an individual's life.

It examines the use of support for the exercise of legal capacity, as outlined in Article 12(3). It addresses the nature of a support relationship and highlights potential dangers and the need for safeguards. It also analyses the demands of Article 12(3) and provides potential solutions to the 'hard cases' where individuals are non-communicative or experiencing other barriers to the exercise of their legal capacity.

Finally, the thesis outlines the pragmatics of change, describing the nuts and bolts of implementing Article 12. Recommendations are provided for individuals, states, and civil society for the realization of the right to equal recognition before the law of people with cognitive disabilities.