Mental Capacity Law and Human Rights : A Sociological Perspective from a French Reform Example

• In Event: 300 - Section on Human Rights Refereed Roundtable Session and Business Meeting
  In Refereed Roundtable 60min: Table 03. Person Rights and Social Movements

Abstract

Democratic societies are based on the legal principle of equal civil (or legal) capacity of all citizens to decide and act for themselves in all areas of social life, principle outlined in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. This “civil capacity,” which may involve both material property of an individual, as well as private life in matters ranging from health to personal relationships, is ordinary presumed by the law (both codified law and common law). But Civil capacity of a person can be legally diminished because his or her "natural” abilities, capacity, or competence are reduced. Then, a judge has to appoint a guardian. Recent social changes have lead to increased uses of legal measures of protection. In the same time, these measures are very controversial and can be considered as a denial of disabled people human rights.
The reasons for these paradoxical changes are complex. In this paper, we examine these debates by highlighting certain social issues of mental capacity rights based on the French example. We discuss the slow emergence of the concern for human rights pertaining to mental capacity by focusing on issues related to the democratization of mental capacity rights, to the assessment of a person's ability to consent, to the exercise of the protection, and to the ownership of those safeguards by the person.
The proposal is based on an analysis of available literature and on observations and interviews conducted by the Collectif Contrast team (https://contrastcollectif.wordpress.com/english/)

Author

• Benoît Hippolyte Eyraud, Université de Lyon