Welcome to e-include, the e-journal of Inclusion Europe.

The Council of Europe is a group of 47 European countries. The Council of Europe works to make sure that all people in these countries have rights. The Council of Europe wants these 47 countries to make sure that people with intellectual disabilities and mental health problems have legal capacity. This means they can make their own decisions and choices and have them recognised by law. The person who deals with rights at the Council of Europe wrote a paper to explain what needs to be done.

Last week, the Council of Europe Commissioner for Human Rights Thomas Hammerberg published an issue paper on the right to legal capacity for persons with intellectual and psychosocial disabilities. “The bulk of European legal capacity systems are out-dated and in urgent need of law reform”, says the paper and proposes a list of recommendations addressed to the Council of Europe member states.

The Paper describes the challenges faced by Council of Europe member states in dealing with this issue. These include the flaws of current guardianship systems and procedures, the automatic loss of human rights of those placed under guardianship regimes and the pressing need to develop support alternatives giving persons with disabilities equal opportunities to shape their life paths. The paper outlines the applicable international human rights framework, including the relevant case-law from the European Court of Human Rights. It concludes with examples of good practice to show the way forward.

In the introductory part, the Commissioner also presents the following 10 recommendations to the Council of Europe member states:

1. Ratify the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol.
2. Review existing legislation on legal capacity in the light of current human rights standards.
3. Abolish full incapacitation and plenary guardianship. 
4. Ensure that persons with disabilities enjoy the rights to property, to family life, to consent to or reject medical interventions, to vote, to associate freely and to access justice on an equal basis with others.
5. Review judicial procedures to guarantee that a person who is placed under guardianship has the possibility to take legal proceedings against the guardianship or the way it is administrated.
6. End "voluntary" placements of persons in closed wards and social care homes against their will.
7. Develop supported decision-making alternatives for those who want assistance in making decisions or communicating them to others. 
8. Establish robust safeguards to ensure that any support provided respects the person receiving it and his or her preferences.
9. Create a legal obligation for governmental and local authorities, the judiciary, health care, financial, insurance and other service providers to provide reasonable accommodation to persons with disabilities who wish to access their services. 
10. Involve persons with intellectual and psychosocial disabilities and the organisations in the process of reforming legal capacity legislation and in development of support-decision making alternatives.

The full text of the issue paper can be found at https://wcd.coe.int/ViewDoc.jsp?id=1908555

The Commissioner for Human Rights is an independent institution within the Council of Europe, mandated to promote the awareness of and respect for human rights in 47 Council of Europe member states.

Issue Papers are commissioned and published by the Commissioner for Human Rights, to contribute to debate and reflection on important current human rights issues. This Issue Paper was prepared by Anna Nilsson, doctoral student at the faculty of Law at Lund University and international expert on human rights and persons with disabilities.

Issue Papers are available on the Commissioner’s website: www.commissioner.coe.int