Legal capacity as a universal human right and a determinant of social status of people with mental disability
Authors: Markovic Milan 
Published: January 2019

Adoption of the UN Convention on the Right of Persons with Disabilities
(2006) brought about a core shift to how the international community and
human rights law see and treat human disability in general. This paradigm
shift materilizes itself in a number of provisions ranging from those which
catalogue the proclaimed human rights as they are in the context of special
implementation and protection of people with disabilities, to those that
introduce a level of specificity in light of their holders' particular needs.
But the strongest presence of the shift to this regard can be found in the
Article 12 CRPD that sheds new light on the concept of (legal) capacity of
people with (mental) disabilites. According to this norm and put quite simply
- there should be no difference in observing and treating capacity of a
person with disabilities to that of any other person. This is not only the
matter of prohibiting discrimination on grounds of mental impairments, but
furthermore preventing the system from establishing a classification in which
a person with psychosocial or intellectual impairment would be a second-rate
citizen, an object of law or a victim of legal, social and family abuse,
someone who is a burden to his entire environment, someone who does not have
a say in any case concerning his own life and wellbeing. Legal capacity
should not be a goal to be fighting for, but a universal human right. Of
course and unfortunatelly, such a shift is purely a formal one, when not
causing due reform within the national systems and without proper
implementation in the member states. What is thought urgently needed and
directly required by the given provision is removing the system features that
allow deprivation of legal capacity on the bases of mental impairments and
introducing a humane and human rights oriented model in which the decision
making of these people would be autonomous and supported, and with only very
restricted exceptions, done by them and not on their behalf. This novelty is
what some authors call a clash between the systems of capacity and those of
incapacity, i.e. the matter of replacing an environment where incapacity is
presumed by an environment where capacity is presumed, supported and ensured
to the highest attainable degree, and the question of seeing the legal
capacity as the main social determinant for any individual. Therefore, the
present article introduces the ongoing discussion about the values that this
particular international legal norm has embodied and advocates in a way the
urgency for change and reform in order to abolish the outrageously negative
and detrimental practice in which people with mental impairments do not
deserve to be social, economic, political or emotional beings, and are
totally deprived of their right as living humans to decide in almost any
aspects of the human life. As an illustration of certain negative tendencies
existing in the old and current systems of incapacity, some data collected
within the Serbian judicial structure has been employed.