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Supporting Legal Capacity in Socio-Legal Context

Supporting Legal Capacity in Socio-Legal Context

Author: Mary Donnelly; Rosie Harding; Ezgi Tascioglu
Publisher: Hart Publishing
ISBN: 9781509940349

Published In: May 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509959075

List Price: AU$247.00

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This collection brings together leading international socio-legal and medico-legal scholars to explore the dilemma of how to support legal capacity in theory and practice. Traditionally, decisions for persons found to lack capacity are made by others, generally without reference to the person, and this applies especially to those with cognitive and psycho-social disabilities. This book examines the difficulties in establishing effective and deliverable supported decision-making, concluding that approaches to capacity need to be informed by a grounded understanding of how it operates in 'real life' contexts.

The book focuses on the UN Convention on the Rights of Persons with Disabilities (CRPD), which recognises the equal right to legal capacity of people with disabilities and requires States Parties to provide support for the exercise of this right. However, 10 years after the CRPD came into force, the shift to legal frameworks for supported decision-making remains at best only partial.

With 16 chapters written by contributors from the UK, Canada, Finland, India, Ireland, Spain, Sweden, and Turkey, the collection takes a comparative and interdisciplinary approach. Many of the contributors have been directly involved in law reform processes in their home jurisdictions, and thus can combine both academic expertise and practical, grounded awareness of the challenges of legal change.

1. Introduction: Supporting Legal Capacity in Socio-Legal Context

Mary Donnelly (University College Cork, Ireland), Rosie Harding (University of Birmingham, UK) and Ezgi Tascioglu (Keele University, UK)

Part 1: Mapping the Conceptual Contours of Capacity Law

2. Anatomy of Support: Framing, Fictions and the (Un)Responsive State

Mary Donnelly (University College Cork, Ireland)

3. The Problem of Influence: Autonomy, Legal Capacity and the Risk of Theoretical Incoherence

Amanda Keeling (University of Leeds, UK)

4. The Significance of Strong Evaluation and Narrativity in Supporting Capacity

Camillia Kong (Birkbeck, University of London, UK)

5. Charting a Path to Non-Coercive Mental Healthcare: The Rhizomatic Nature of Universal Legal Capacity and the Support Paradigm

Suzanne Doyle Guilloud (University of Bristol, UK)

Part 2: Reforming Capacity Law: Making, Shaping and Interpreting Legal Frameworks

6. The (Contested) Role of the Academy in Activist Movements for Legal Capacity Reform: A Personal Reflection

Eilionór Flynn (National University of Ireland Galway, Ireland)

7. Enabling Supported Decision-Making in India's Mental Healthcare Act, 2017: Learnings from a Low-Resource Country Setting

Soumitra Pathare (ILS Law College, India) and Arjun Kapoor (ILS Law College, India)

8. Reflections on the Proposed Reform of Spanish Civil Legislation on Legal Capacity of Persons with Disabilities

Patricia Cuenca (Universidad Carlos III de Madrid, Spain)

9. Adapting or Discarding the Status Quo? Supporting the Exercise of Legal Capacity in Scottish Law and Practice

Jill Stavert (Edinburgh Napier University, UK)

10. Performing Disability Rights: State Reporting and Turkey's (Non)Engagement with the CRPD

Ezgi Tascioglu (Keele University, UK)

Part 3: Supporting Capacity in Everyday Life: Balancing Empowerment and Safeguards

11. Functional Capacity Assessments by Healthcare Professionals: Problems and Mitigating Strategies

Shaun O'Keeffe (National University of Ireland Galway, Ireland)

12. Autonomy of a Person under Guardianship: Self-Determination in the Theory and Practice of Guardianship Law in Finland

Anna Mäki-Petäjä-Leinonen (University of Eastern Finland, Finland)

13. Autonomy, Capacity and Vulnerability: Making Decisions on Social Services for Persons with Dementia in Sweden

Titti Mattsson (Lund University, Sweden)

14. Law's Legitimacy and Social Work Support in Safeguarding Adults at Risk of Abuse

Jaime Lindsey (University of Essex, UK)

15. Putting the Pieces Together: Article 12, “Safeguarding” and the Right to Legal Capacity

Margaret Isabel Hall (Simon Fraser University, Canada)

16. Supporting Everyday Legal Capacity: Navigating the Complexities of Putting Rights into Practice

Rosie Harding (University of Birmingham, UK)

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