Legal Capacity Law Reform in Europe: An Urgent Challenge
![handle is hein.journals/euydisl1 and id is 71 raw text is: LEGAL CAPACITY LAw REFORM IN EUROPE:
AN URGENT CHALLENGE
Mary Keys'
1. INTRODUCTION
The right of autonomy and self detennination, strongly supported in many juris-
dictions, is central to full participation in society, and yet legal capacity can be
achieved only if the law permits persons to make their own decisions or assists
them in doing so.2 In many countries, legal systems prevent people from reaching
their full human potential by excluding them from control over their own lives.3
Being regarded by others as having legal capacity for decision-making is what
allows people to participate as fully as possible in society. Impaired cognitive
functioning, resulting from intellectual disability, mental illness, brain damage or
any form of neurological degeneration, may mean a person is partially or wholly
unable to make decisions for himself at a particular time.' In these situations the
state should provide a range of responses appropriate to the needs of the person,
ranging from support and assistance in making a decision, through to substituted
decision-making for some or all decisions. This area of law is concerned with
decision-making and vulnerable people, and must balance the need for protection
against the right to autonomy as far as possible. The European Court of Human
Rights stated that consideration should be given to the need for 'special procedur-
al safeguards... to protect the interests of persons who, on account of their mental
disabilities, are not fully capable of acting for themselves.'
Legal developments in this area are addressing the core of what it means to
be human.
1 Lecturer, School of Law, National University of Ireland, Galway, Academic Associ-
ate and a founding member of the Centre for Disability Law and Policy Research
at the School of Law, Member of the Mental Health Comiission (Ireland), of the
National Disability Authority (Ireland) Mental Health Advisory Comiittee and of
the board of the Brothers of Charity Services, Galway.
2 Schloendorffv. Society of New York Hospitals [1914] 211 NY 125; Malette v. Shul-
man [1990] 67 DLR (4th) 321 at 336; Department ofHealth v. JWB & SMB (1992)
66 ALJR 300 at 317; Re T [1993] Fam 95 at 102.
3 This article is concerned with countries in the Council of Europe region.
4 The term 'mental disability' is used in this article as an umbrella term covering this
range of conditions.
5 Winterwerp v. Netherlands (App. No.6301/73), [1979] 2 EHRR 387, para. 60.
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Intersentia](ViewImageLocal?handle=hein.journals/euydisl1&div=7&collection=&method=preview&ext=.png&size=3)
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Legal Capacity Law Reform in Europe: An Urgent Challenge
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