Equal Rights, Equal Voices: The Crpd and the Pursuit of Legal Capacity for Persons with Intellectual and Psychosocial Disability

The adoption of the UN CRPD marked a new social, legal, and political paradigm that recognizes to all persons, regardless the complexity of their support needs, the right to “equality before the law, on equal terms with all other citizens, in all areas of their life” (art. 12). From ‘objects’ of charity and pity, persons with disabilities were recast as ‘subjects’ and holders of rights, while States were required to put in place the necessary supports to ensure citizenship and participation for all. However, prevailing notions derived from the so-called ‘capacity contract’ (Simplican, 2015), which bases full citizenship on a threshold level of mental capacity and excludes those who fall below it, coupled with the lack of adequate supports for wellbeing and full exercise of rights in the community, continue to prevent participation and citizenship to many persons, even where (as in Portugal), legal reforms have been initiated.

This paper explores these tensions, through six case studies that encompassed the collection of life stories of persons with intellectual and psychosocial disabilities who have been deprived or limited in their legal capacity. These narratives provide an in-depth understanding of the trajectories and experiences of these persons, their perceptions about their rights and the challenges they have encountered to exercise self-determination. These narratives are contrasted with the analysis of the court sentences and related documents to understand the arguments used by the courts to justify the sentences, and discuss the paradoxes and contradictions they entail.

This analysis is informed by a Sociology of Human Rights lens, which is useful to uncover how social contexts and power relations, institutional arrangements, societal reactions and representations hinder the realisation of human rights and provide a justification for measures intended to “protect” persons with disabilities that may, in fact, compound their vulnerability to abuse and violence.