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The UN Challenge to Guardianship and Surrogate Decision-Making.

  • Academic Journal
  • The Hastings Center report [Hastings Cent Rep] 2022 Mar; Vol. 52 (2), pp. 4-6.
  • English
  • In 2006, the United Nations issued the Convention on the Rights of Persons with Disabilities. The Convention, together with an accompanying commentary, urges governments to abandon laws authorizing guardianship and substitute decision-making for people with intellectual disabilities and to replace them with supportive decision-making laws that give all individuals the freedom to make choices reflecting their "will and preferences." Although critics point to ethical and legal problems with this approach, the Convention and commentary offer guidance to clinicians, ethicists, and others involved in evaluating medical decision-making. Whether or not it leads to formal legal action, the Convention rightly urges us to give people with cognitive impairments a greater role in decisions about their lives.
    (© 2022 The Hastings Center.)
Additional Information
Publisher: Wiley-Blackwell Country of Publication: United States NLM ID: 0410447 Publication Model: Print Cited Medium: Internet ISSN: 1552-146X (Electronic) Linking ISSN: 00930334 NLM ISO Abbreviation: Hastings Cent Rep Subsets: MEDLINE
Publication: 2012- : Malden, MA : Wiley-Blackwell
Original Publication: Hastings-on-Hudson, N. Y., Institute of Society, Ethics and the Life Sciences.
Department of Economic and Social Affairs, Disability, “Convention on the Rights of Persons with Disabilities (CRPD),” United Nations, 2006, https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html.
B. D. Kelly, “Mental Capacity, Human Rights, and the UN's Convention on the Rights of Persons with Disabilities,” Journal of the American Academy of Psychiatry and the Law 49, no. 2 (2021): 152-56.
United Nations Human Rights Committee on the Rights of Persons with Disabilities, “Article 12: Equal recognition before the law,” in “General Comment No. 1,” May 19, 2014, at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/1&Lang=en.
Ibid., 1 (in the English-language PDF of this commentary).
Ibid., 4.
A. Arstein-Kerslake and E. Flynn, “The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A Roadmap for Equality before the Law,” International Journal of Human Rights 20, no. 4 (2016): 471-90.
United Nations Human Rights Committee on the Rights of Persons with Disabilities, “Article 12: Equal recognition before the law,” 4.
See K. DeSabbata, “Dementia, Treatment Decisions, and the UN Convention on the Rights of Persons with Disabilities: A New Framework for Old Problems,” Frontiers in Psychiatry 11 (2020): doi:103389/fpsyt.2020.571722; M. S. Wright, “Dementia, Autonomy, and Supported Healthcare Decision Making,” Maryland Law Review 79, no. 2 (2020): 257-324.
P. S. Appelbaum, “Saving the UN Convention on the Rights of Persons with Disabilities-from Itself,” World Psychiatry 18, no. 1 (2019): 1-2, at 1.
M. Scholten and J. Gather, “Adverse Consequences of Article 12 of the UN Convention on the Rights of Persons with Disabilities for Persons with Mental Disabilities and an Alternative Way Forward,” Journal of Medical Ethics 44 (2018): 226-33.
Ibid., 227. See also R. Dresser, “Beyond Cruzan: Dementia and the Best Interests Standard,” Southern Methodist University Law Review 73, no. 1 (2020): 71-90.
P. Bartlett, “At the Interface between Paradigms: English Mental Capacity Law and the CRPD,” Frontiers in Psychiatry 11 (2020): doi:10.3389/fpsyt.2020.570735.
R. S. Morrison, “Advance Directives/Care Planning: Clear, Simple, and Wrong,” Journal of Palliative Medicine 23 (2020): 878-79.
Wright, “Dementia, Autonomy, and Supported Healthcare Decision Making,” 286-96.
Keywords: bioethics*; decision-making capacity*; guardianship*; legal capacity*; supportive decision-making*
Date Created: 20220427 Date Completed: 20220429 Latest Revision: 20220519
20220908
10.1002/hast.1348
35476360

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