Debate on universal legal training and its application

On June 15, the meeting entitled Rights and mental health: towards universal legal capacity took place within the framework of the SOM Mental Health 360 platform.

As Dr. Begoña Román Maestre, professor of ethics at the Faculty of Philosophy of the University of Barcelona, explained, it is important and necessary to talk about mental health rights and universal legal capacity " because legal capacity is not universal and has not been for a long time , despite our boasting of constitutions and democratic systems. And the people who have been traditionally marginalized by the system have been people with disabilities and, specifically, people with mental disorders."

According to Román, “universal legal capacity is a right, a primary good, for every person, anywhere, at any time, and someone must assume the responsibility of guaranteeing it.” But the reality is that many people do not have this right guaranteed, living in a form of “legal death.” To prevent this, legislative changes help, they are necessary, but they are not enough.

A decent society is no longer simply one that strives for justice, but one that fights against injustice. Begoña Román.

Maria Àngels Porxas Roig, a law professor at the University of Girona, points out that reforms regarding legal capacity have occurred in an isolated but continuous manner since the adoption of the New York Convention, and support figures for decision-making that do not require a modification of the person's capacity have been extended.

Porxas identifies three trends depending on the impact of legal reforms on the traditional model of incapacitation and substitution in decision-making:

1. Reforms in which the old system remains unchanged, coexisting with new support models , as could be the case of Catalonia and its 2010 reform of the Civil Code, which incorporates the figure of the assistant.
2. Reforms that eliminate the most rigid forms or regimes of substitute decision-making, but maintain the more flexible ones along with new decision-support models , introducing criteria such as the principle of the least restrictive measure, the principle of necessity, and limitations on the duration of incapacitation. These reforms have been implemented in most states, with the Czech Republic and Brazil serving as prime examples.
3. Reforms that have replaced or completely eliminated substitute decision-making systems and instead established support systems for adults and people with disabilities. These would be a minority of states, including Costa Rica, Peru, and Colombia.

We have much to learn from the reforms other countries have implemented, but the law alone is not enough. Maria Ángels Porxas

Silvia Ventura Mas , a judge specializing in legal capacity and psychiatric hospitalizations, and president of the Clinical Ethics Committee of the Catalan Mental Health Congress Foundation, points out in her presentation the repeated requests made to Spain since 2011 for legislative changes that do not involve the substitution of the will and capacity of people with disabilities. In 2013, guardianship was advocated as the figure that best adapts to the Convention, but until 2019, 90% of court rulings still resulted in total incapacitation. It was not until 2021 that the civil and procedural law was reformed to support people with disabilities in the exercise of their legal capacity, a reform of great significance. This reform stipulates that:

• The support measures will aim to enable the full development of their personality and legal development under conditions of equality.
• The person providing support must act in accordance with the will, desires, and preferences of the person requiring it , to ensure that they can develop their own decision-making process, informing them, helping them in their understanding and reasoning, and facilitating their expression of preferences.
• In exceptional cases, support measures may include representative functions, taking into account the life trajectory of the person with a disability.
• The judicial authority shall put in place the safeguards it deems appropriate to ensure that the exercise of support measures conforms to the criteria resulting from this provision and, in particular, takes into account the will, wishes, and preferences of the person requiring them.

For this reform to be truly effective, Ventura argues that "the immediate implementation of the transitional provisions, resources (in the administration of justice, health services, in guardianship entities…) to provide individualized care to people, as well as means and services to make respect for their needs and preferences a reality, without violating their freedom as has happened until now, is necessary and urgent."

Without resources, without training, and without services, there will be no reform. Silvia Ventura

For his part, Josep Maria Solé Chavero, lawyer, activist and director of Support-Girona, believes that the legal reform does not meet the standards set by the Convention and that until the reform of the Spanish Civil Code comes into force in September, judgments will continue to be issued that, mentioning article 12 of the Convention, will talk about incapacity and guardianship .

Solé explains how, with the publication in 2014 of General Comment No. 1 of the Committee on the Rights of Persons with Disabilities, her organization felt the need to make changes that would bring them ever closer to the new paradigm of support in decision-making.

To continue advancing this new model, Solé points out that " there needs to be recognition of legal capacity in all areas of a person's life and mechanisms that guarantee their rights. One of these mechanisms could be the diversification of support ."

In the social model of human rights, we are all part of the environment, and no one can be a neutral environment. We are either facilitators of rights or we are a barrier. Josep Maria Solé.

According to Josep Pifarré Paredero, medical director of Sant Joan de Déu-Terres de Lleida, "psychiatry must move towards paradigms based on autonomy" and shared decision-making. Currently, the need for support is based on an assessment of a person's capacity, maturity, and vulnerability.

We need to bury the paternalistic model and move towards models of shared decision-making. Laws must help us, but change isn't just about legislation. Josep Pifarré.

Beatriz Tarancón Sánchez, a law graduate and first-person collaborator in the Human Rights Commission of Activament Cataluña Asociación, points out that the concepts of risk and protection still belong to the old paradigm, since " the Convention establishes that respect for difference and acceptance of people who have or may have a mental health problem as part of human diversity and condition is a general principle of the Convention ."

It also mentions that support must be voluntary, and that the person has the right to refuse such support, end or change the support relationship at any time, while such forms of support must be based on their will . In this regard, she points out that the recent Spanish reform remains stuck in the old paradigm and maintains forms of support such as guardianship or de facto custody. A real paradigm shift requires financial resources, as individuals must be able to access support at a nominal cost or free of charge, and people with mental health problems must be fully and effectively integrated into society, participating fully and effectively, and provided with the necessary support to do so.

The reform that has been approved has good intentions, but there is still much to be done. We are only just beginning. Beatriz Tarancón.

The digital meeting concluded with a very interesting debate on the doubts surrounding the application of the imminent entry into force of the reform of the Spanish Civil Code, especially in relation to incapacitations and the figure of guardianship, and the resources available for this, and also on Advance Decision Planning (ADP).