Gerard Quinn What could/should a support oriented law look like
NextGen What Could/should a Support Oriented Law Look Like? Gerard Quinn. 1.
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Transcript of NextGen What Could/should a Support Oriented Law Look Like? Gerard Quinn. 1.
NextGenNextGen
What Could/should a Support Oriented Law Look Like?
Gerard Quinn.www.nuigalway.ie/cdlp
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‘Pacta Sunt Servanda’‘Pacta Sunt Servanda’
States are Presumed to Enter Treaty Obligations in ‘Good Faith’
Which means they are expected to take their obligations seriously
AndThe Obligations in Article 12 go to the very ‘object & purpose’
of the UN CRPD.
Therefore – the Core Obligations are not ‘add-ons’ – they go to the heart of future legislation
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The Support Paradigm
Delicate dance between Independence and Inter-Dependence
Article 12 speaks of support to ‘enable a person exercise their legal capacity’
This includes supported ‘decision-making’
But also spans augmenting capacity where, e.g., people are transiting form Institutions to community living
This is about Expanding Civil Rights to make them effective – its is not aboutlimiting civil rights
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What should the Act Contain?What should the Act Contain?
Task 1. Act should enshrine ♯ ‘Will & Preferences’ as its core.Task 1. Act should enshrine ♯ ‘Will & Preferences’ as its core.
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8 Core Tasks for the Act
Task 2. Act should acknowledge an Evolving Spectrum of Supports♯Task 2. Act should acknowledge an Evolving Spectrum of Supports♯
Assume supports are equally relevant across spectrum and intensity of disability
Specify/Acknowledge Supports that augment capacity
Specify/Acknowledge Supports to assist a person make choices/decisions
Specify/Acknowledge Supports to help individuals express their will and preference (representation agreements)
Specify/Acknowledge Co-decision – provided the centrality of ‘will & preferences’
Emphasize that Supports are not mandatory
Emphasize that Supports are to be found mainly in the community
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Task 3. Act should be clear on the legal implications of support♯Task 3. Act should be clear on the legal implications of support♯
3rd parties are to be bound by ‘will and preference’ that emanates directly or indirectly viathe supports.
Conversely, individual is bound.
No islands of non-application. Art 12 speaks of ‘all spheres of life’
Can provide detailed legislation in these outlying fields – but in principle no sphere is left out.6
Task 4. Act should provide for effective safeguards with respect ♯to the support regime.
Task 4. Act should provide for effective safeguards with respect ♯to the support regime.
The usual challenges need to be safeguarded against – e.g., conflictsof interest
The elusive line between ‘support’ and ‘supplanting’ the will and preferenceneeds particular attention – which will evolve as experienceevolves
Safeguards should not be used as a Trojan horse to re-introduce aProtective agenda that nearly always smoothers the individual
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Task 5. Act should set out an APPROPRIATE Institutional ♯Architecture to advance & safeguard the system.Task 5. Act should set out an APPROPRIATE Institutional ♯Architecture to advance & safeguard the system.
SYMBOLICALLY: Its Institutional Home has to be Appropriate – NOT from traditionalprotection oriented institutions [too much negative legacy] – this is about expandingcivil rights – not limiting them. Name it POSITIVELY
PRACTIALLY: Its Tasks should include:
Help grow the field by issuing Good Practice Guidelines
Help develop safeguards through Good Practice Guidelines
Register all representation and similar agreements
Connect with community development programmes to ensure they extend to growingSupport regimes
Interact/contribute/learn from international best practice
Interact/contribute/learn from bodies like Irish Human Rights & Equality Commission.
Keep system under review – develop research – play a key role in reviewing the Act. 8
Task 6. Act should ♯ ‘Look Outwards’ to Linkages and grow them.Task 6. Act should ♯ ‘Look Outwards’ to Linkages and grow them.
Act & new apparatus will not have all the capabilities. But other parts of the systemhas valuable assets to put at disposal of support philosophy.
-acknowledge/develop link with advocacy system (NAS)
-Acknowledge/develop link with community development apparatus
-Acknowledge/develop link with general adult protection system to ensureprotection ‘on an equal basis with others
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Task 7. Act should specify clear Transitional Arrangements & Timelines- if needed♯Task 7. Act should specify clear Transitional Arrangements & Timelines- if needed♯
Conceptual Challenge: How do you transition from one Protection system to another Support System?
You Need: Cut-offs, timelines, milestones. No new entries to wardship. Automatic reviewfor everyone on wardship to get support.
What triggers are identified to graduate from one phase to another?
Doctrine of ‘Progressive Achievement’ kicks in – with clear limiting principles
But is Was Built………./
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Task 8. Act has to have a Clear & Purposeful Review Mechanism♯Task 8. Act has to have a Clear & Purposeful Review Mechanism♯
Be Clear on What turns on the review?
Reflect on what worked/what didn’t work – identify critical success factors as well as major inhibiting factors?
Identify new areas that can be innovated?
5 Year trigger.
Can there be an interim review?
How/Who conducts it? How to ensure adequate civil society input. How to ensure independence of the process
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Act is Part of a Bigger project: Expunging the Ghosts of the PastAct is Part of a Bigger project: Expunging the Ghosts of the PastHimmler: Some Persons are not persons – ‘human animals’ – ‘untermenschen’
Objects – not subjects.
Subterranean impulse in all cultures
Sir William Blackstone: Upon Marriage woman suffers ‘civil death’
Exclusion rooted in civil law – policy choices
Law rendering people invisible - objectification
The Irish Gulag – Implicitly lesser forms of persons
Concentric circles of exclusion.
No cognitive dissonance – no moral outrage
Social ordering on a theory of lesser humans
Last Enclave: What about those with Intellectual disabilities
Are they ‘lesser’ humans…does ‘ordinary’ law apply? 12
Enact this Law not just because the UN requires it
Enact it because it fits with the Republican Nature of the State
“The Irish Republic fully realises the necessity of abolishing the present odious, degrading and foreign Poor Law System, substituting therefor a sympathetic native scheme for the care of the Nation's aged and infirm, who shall not be regarded as a burden, but rather entitled to the Nation's gratitude and consideration.”
Programme for Democratic Action, First Dail, 1919.
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