Book Review Essay: 'Restoring Voice to People with Cognitive Disabilities: Realizing the Right to Equal Recognition Before the Law'
39 (1) Journal of Legal Medicine 61 (2019)
19 Pages Posted: 31 Jul 2020
Date Written: 2019
In Restoring Voice to People with Cognitive Disabilities, Anna Arstein-Kerslake carefully dissects the text of a United Nations treaty that itself is the product of ardent advocates and activists. The author is keen on translating the terms of Article 12 of the Convention on the Rights of Persons with Disabilities into practical implications for people with cognitive disabilities. Her goal is to examine the elusive juridical concept of “legal capacity” and give real meaning to “supported decision-making” (SDM). The latter is cherished in the disability community as the antidote to guardianship and other antiquated frameworks for governing the lives of people with mental health, psycho-social and intellectual disabilities. In ten chapters, rich in detail and footnoted to a fault, the Melbourne Law School scholar weaves an amalgam of political theory, international human rights doctrine, comparative law and jurisprudence, philosophy and psychology. The book also includes a chapter examining cases decided by the European Court of Human Rights and various domestic courts.
The author’s insistence that the right to support is “narrow” and “only applies to situations in which an individual is acting as a legal agent” may underestimate the difficulty in its ope-rationalization and overestimate a realization of the exercise of legal capacity without “all types of support.” This definition also does little to bridge the factions on whether substituted decision-making should be eradicated in its entirety for persons with a cognitive disability. Her analysis points to promising developments in the case law, and disappointments, but could expound more on the benefits and costs of strategic litigation as a means for furthering Article 12 rights. A discussion of the elements of diverse jurisdictions’ support systems would also be useful to readers and how those elements might be incorporated in a model law. And, while the fiscal implications of Article 12 may go beyond the scope of this treatise, one is left wanting some answers about cost and effectiveness. In her last chapter, the author poses questions for future research and is earnest in her proposition for “rights-based research” in which the voice of disabled people is included at all levels. However, to ensure that “nothing about us without us” is more than a mantra, advocates and policy makers need to conscientiously design and execute an appropriately tailored research or self-advocacy vehicle for persons with cognitive disabilities. Article 12 is “so contentious,” Arstein-Kerslake reminds us, because “it requires real changes to existing legal systems and challenges the popular notion that people with disabilities lack decision-making skills."
Keywords: Article 12, UN Convention on the Rights of Persons with Disabilities, Supported Decision-Making, Legal Capacity
JEL Classification: K39
Suggested Citation: Suggested Citation