International Conference on Legal Capacity and Access to Justice of Persons with Intellectual Disabilities
On 10 and 11 March 2016 in Sofia the International Conference entitled "Legal capacity and access to justice for people with intellectual disabilities" was held. The Forum was organized by the National Alliance for Social Responsibility (NASO), the partners in project AJuPID, Ministry of Justice, Ministry of labour and social policy (MLSP), Bulgarian Center for not-for-profit law (BCNP) and the Bulgarian Association for persons with intellectual disabilities (BAPID). The Conference was attended by a wide range of interested on the subject parties of Bulgaria – representatives of the criminal justice system, municipal and regional administrations, non-governmental organizations, providers of social services, educators and students, experts in the field of disability and more than 30 experts and representatives of organizations and institutions from Europe. Greetings to the participants and an introduction to the subject headed Mr. Georgi Georgiev, President of NASO, Mr. Luk Zelderloo, Secretary General of the European Association of Service Providers for Persons with Disabilities (EASPD), Ms. Verginia Micheva-Russeva, Deputy Minister of Justice, Mr. Lazar Lazarov, Deputy Minister of labour and social policy through Ms Lilyana Arsova, Chief expert in the MLSP, Ms. Diana Kovatcheva, Deputy Ombudsman and Ms Leda Shiiakova Advisor, "Political analysis" to the EC representation in Bulgaria.
Approximately 4.5 million people with intellectual disabilities live in the European Union (EU), and as many people with disabilities they are limited in their capacity. They have a legal guardian, which takes some or all of the decisions for them. Their access to justice is also limited due to the lack of accessibility. In accordance with articles 12 and 13 of the United Nations Convention on the rights of persons with disabilities (UNCRPD) everyone has the right of full legal capacity and access to justice. People with intellectual disabilities should be able to take legally binding decisions for themselves and to have equal access to the judicial system with all the others.
The Ministry of Justice expects support from all concerned institutions for the draft law on individuals and support measures in order to submit the Draft within the next month to the Council of Ministers, pointed out the Deputy Minister Micheva-Russeva. "After the ratification of the UN Convention on the rights of persons with disabilities in 2012, we've come a long way whereby society and our institutions have undergone a change in its attitude towards people with intellectual disabilities. It is time to take the next step and change the legislation to adjust the capacity of people with intellectual disability and that will make the lives of more than 7 000 Bulgarians much better, "said Ms. Micheva-Russeva. Without a special law all expressed positions of social service providers, of the people’s rights and their actual implementation would not happen, said she. For this reason, it is extremely important for the Ministry of Justice to receive the support of all Bulgarian society. In answer of that, the Ministry of Labour and Social Policy pointed out that "the joint activities on the development and implementation of policies for integration of people with disabilities will strengthen the achievements of defending the rights and interests of people with intellectual disabilities."
In his speech Prof. Gerard Quinn of the National University of Ireland, Galway, stressed that "Governments are not sure how to implement the change of the UNCRDP paradigm, i.e. the transition from full or partial custody to supported decision-making. Even those Governments that have more experience in the field, are cautious in developing legislative alternatives that fully replace guardianship. "Therefore, the change in the legislation, in particular the guardianship of people with intellectual disabilities, remains a challenge. Following the implementation of the UN Convention on the rights of people with disabilities, the law that regulates the exercise of legal capacity should be based on the will and personal preferences of people with disabilities, rather than from the so-called "best interest", which is the basis of guardianship.
After Prof. Quinn, Marieta Petrova, Chairman of the national platform of self-advocates - BAPID, grabbed the attention of the audience presenting the point of view of people with intellectual disabilities, whereby it was pointed out that despite the intellectual difficulties, everyone has dreams and wants to have the opportunity to accomplish them without being limited in his or her ability of independent or supported decision-making.
The AJuPID project- "Access to justice for people with intellectual disabilities", was presented by Mrs Patricia Scherer, head of “European activities"of FEGAPEI. The project is a study in five countries (Bulgaria, Finland, France, Hungary and Ireland), which indicates that the systems of guardianship and mechanisms for access to justice are different. And yet, the results indicate connectivity between legislation and policies with regard to guardianship, as well as the access to justice of elderly people with intellectual disabilities. In this connection, the partners of the project AJuPID recommended to the Governments to consider the implementation of existing mechanisms with the aim of replacing the system of guardianship, assessment of mental capacity and the decisions taken on the basis of the "best interest", by a system of supported decision-making. Even within the existing systems of guardianship, efforts for respecting the will and personal preferences of adults with intellectual disabilities are made. During the transition from guardianship to supported decision-making the forms of support promoting the rights of older people with intellectual disabilities may be kept, while measures that restrict or deny capacity should be removed. Project AJuPID aims to inform potential interested and supporting Parties (family members, supporters and professionals), as well as those working in the criminal justice system, concerning the rights of people with intellectual disabilities and how to support them adequately. The project includes training, awareness-raising events, website and guide with promising practices related to the independent exercise of rights and access to justice. The project is co-financed by the Directorate-General of Justice of the European Commission. In this regard, best practices and alternatives to guardianshop and adequate implementaion of articles 12 and 13 of the UNCRDP were presented by the project partners-Personality-oriented support through Petra Tihonen, National Service and advocacy KVPS, Maura O'Loughlin, head of quality “Assurance and Compliance training "Services Co Sunbeam Bray Wicklow House.
Maria Metodieva, BAPID and Nadia Shabani, Program Director, BCNP, presented the extremely successful work of both organizations in the field of supported decision-making, as well as the results achieved, which demonstrated that adequate solutions for legal capacity and equal access to justice for people with intellectual disabilities, as well as for their social inclusion are developed and implemented in Bulgaria. Special attention was also devoted to the Bulgarian draft law for individuals and support measures drawn up by the Ministry of Justice and placed for public discussion in April 2015. The draft law aims at the implementation of the standards for equality in front of the law by removing the guardianship systems and measures to supported decision-making in Bulgaria, in accordance with the requirements of article 12 of the Convention. Bulgarian Center for not-for-profit law and Bulgarian Association of persons with disabilities presented the gained experince and the results of the piloting of workshops on support measures for people with intellectual disabilities, who are at the heart of the draft law.
In two interactive forms – game-demonstration of the differences in the possibility of exercising rights and discussion groups, the conference participants confirmed the need for intensified development of practices and models for supported decision-making. The mutual conclusions pointed out that the legislation governing the exercise of competence should be based on the will and personal preferences of people with intellectual disabilities, rather than the so-called "best interest", which is the basis of guardianship. It was also pointed out that in many coutries the legislation provides an opportunity for guardians appointment and that people do not have legal capacity in different areas of their lives (e.g. regarding their lifestyle, financial issues or health related), thus the decisions taken by the guardian are generally based on the notion of what would be in the "best interests" for the person with a disability and not the real will and personal preferences. The model of supported decision-making, i.e. decisions taken with assistance, was highly recommended on European level. Supported decision-making may cover various forms of support, giving voice to the person’s desires and preferences, as well as protecting all rights, including those associated with the autonomy and freedom from violence and abuse. When supporting a decision-making, the supporter should help the person with intellectual disability to express freely his or her will and personal preferences and develop a capability for independent decision-making. When expressing free will and personal preferences, the person with intellectual disability may use any means of communication, which would give him the ability to understand and to have the opportunity his cultural and linguistic characteristics to be recognized. In cases where the will and preferences of the person cannot be determined, the supporter should refer to article 12 (4) of the UNCRDP and should take a decision based on the common person information, including through consultation with the family, social and health workers, and others who play an important role in the person’s life. If it is not possible to determine what the person would want, the supporter should promote and protect the human rights of this person and proceed in a manner that least restricts human rights. Supported decision-making can be achieved in many ways, but they should be in accordance with article 12 of the UNCRDP and accessible for all, even for those with limited communication and in need of more intensive support.
In the final part of the Conference, Mr. Dimitris Nikolski, Chairman of the Expert Group on the rights of persons with disabilities, Council of Europe, stressed that "all stakeholders, including Governments and providers of social services for people with disabilities, should make more efforts. If we want to respect the rights of people with disabilities limitation of legal capacity and access to justice is no longer a potential opportunity," he said. At European level the Government were recommended to consider the implementation of existing mechanisms to replace the guardianship system, incl. of assessment of mental capacity and the decisions taken on the basis of the" best interest ", by a system of supported decision-making. The latter could include the implementation of legislative reform to replace the assessment of mental capacity by providing support for the exercise of legal capacity; prioritization of the will and preferences of the person with intellectual disability; developing a model of supported decision-making through the preparation of policy and its implementation in practice based on promising practices at international level; dissemination of information and resources among supporters in order to change the system of guardianship and build alternative models that do not restrict the legal capacity. Recommended measures for promoting access to justice for people with intellectual disabilities include also the study on the specific barriers that promote access to justice, such as: the lack of accessibility due to the language barriers of people with intellectual disabilities during the legal proceedings; gathering information on the types of support required by people with disabilities or necessary in legal proceedings; ensuring accessibility for people with disabilities from the courts to the administrative tribunes; and legislative changes that define the refusal of accessibility for people with disabilities as a discriminatory act.
National Alliance for Social Responsibility as a leading organizer and coordinator of the International Conference, through Mr. Georgiev, NASO President, closed the event expressing gratitude to all partners and participants in the Conference, and the commitments for future further successful development of the access to justice for people with intellectual disabilities. It was stressed that active work for the successful implementation of the UN Convention will continue and it will include a wider range of stakeholders, members of NASO and partners on various topics. An invitation to the upcoming forums of NASO – the 11th national forum for providers of social services, which will be held on 13 and 14 April this year in Veliko Tarnovo and national forum/exhibition of social services, which is from 8 to 10 June in Varna was addressed to the participants.