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29 April 2013
An increase in the number of cases of people with mental or intellectual disabilities declared incapacitated and placed under guardianship since 2009 reveals excessive vulnerability to abuse, according to a study (PDF) carried-out at the request of the Moldovan Government to support reforms of the guardianship system that currently applies to people with mental or intellectual disabilities in Moldova, with the support of the UN Human Rights Office.
Under the Moldovan Civil Code, a person who loses his/her legal capacity is placed under guardianship. Once declared “incapable”, this person no longer has the ability to engage in any legal relationships, such as to marry, divorce, conclude a work contract, to own property, claim social benefits, consent to medical treatment or even appeal a guardianship order. Moreover, there is often a direct link between incapacitation measures and institutionalization, which can be life-long in practice.
The study stresses that guardianship is a system that conflicts with the provisions of article 12 of the UN Convention of the Rights of Persons with Disabilities (CRPD). In this article, States recognize that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. States are asked to take necessary measures to provide people with disabilities access to the support they may need to exercise their legal rights.
Once the incapacity is declared, the concerned person is often placed in a “residential social institution”, even though international and domestic law sets out a fundamental right to live in the community.
“In Moldova, problems arising from guardianship are linked directly to very serious abuse issues, both inside and outside residential institutions for people with mental or intellectual disabilities”, said Claude Cahn, Human Rights Adviser with the UN team in Moldova.
Some of the abusive practices cited in the study include forced medication, physical and sexual abuse, arbitrary detention, deprivation of privacy, and arbitrary removal of property.
Among the serious problems of the existing guardianship system in Moldova, the study emphasizes the fact that it does not respect the will, preferences and autonomy of the person concerned. In addition, a person whose legal capacity is removed is frequently not informed about the initial court procedure and his/her rights to participate in it. In practice, this person is not present at the court hearing and has no access to the procedure. After being declared “incapable”, the person has no possibility to initiate legal capacity restoration to regain his/her rights.
“The system is very good at locking people up, but getting out is very difficult”, a patient told the UN High Commissioner for Human Rights, Navi Pillay, during a visit to Chisinau Psychiatric Hospital during a visit to Moldova in November 2011.
Pillay expressed her concerns regarding the deprivation of legal capacity of persons with mental and intellectual disabilities at the end of her visit to Moldova. “It is clear that comprehensive reforms are needed to ensure equality and dignity for people suffering from mental and intellectual disabilities. People with disabilities need as far as possible to be integrated, not segregated, and strenuous efforts need to be made to help people lead an active life in the community rather than be locked away in institutions”, she said.
Another issue highlighted in the study is that requests to declare persons legally incapacitated are most often filed by family members, and motivated by the incentive or pressure to gain access to social benefits, including pensions, patrimonial assets and inheritance of the person with disabilities.
“The study is ground-breaking both for the Republic of Moldova as well as more generally for revealing issues concerning the treatment of persons with mental and intellectual disabilities. It points the way toward reform”, said Shuaib Chalklen, the UN Special Rapporteur on Disability of the Commission for Social Development, when referring to the study on the system of guardianship in Moldova.
Reforming the legal system
In 2011, an inter-ministerial working group was constituted in Moldova to reform the guardianship system and propose amendments to the civil code, family law and other laws that conflict with article 12 of CRPD in order to comply with international law and avoid abuse, as recommended in a report of the UN Committee on Economic, Social and Cultural Rights.
The UN Committee had, in particular recommended to the Moldovan Government to amend existing legal provisions allowing complete removal or suspension of legal capacity, and develop provisions for assisted decision-making for persons with mental, intellectual or other disabilities.
“I look forward to progress in ending guardianship arrangements, and moving toward assisted decision-making for persons with such disabilities”, declared Pillay.
An estimated 1.2 million children and adults with disabilities are living in long-stay residential institutions across European Union countries and Turkey, according to a 2011 report on people placed in institutions in Europe (PDF), issued jointly by the UN Human Rights office (OHCHR) and UNICEF. The report deplores the substandard living conditions of institutions and recommends the development of community-based alternatives to institutional care of persons with disabilities.
2013 marks the 20th anniversary of the World Conference on Human Rights, which led to the adoption of the Vienna Declaration and Programme of Action and the establishment of a High Commissioner for Human Rights in 1993. Its creation gave a new impetus to therecognition of human rights principles which has seen fundamental progress in the promotion and protection of human rights. Since then, legal systems to ensure that international human rights treaties are implemented have been improved.
The Convention on the Rights of Persons with Disabilities (CRPD) was adopted by the United Nations General Assembly on 13 December 2006, and opened for signature on 30 March 2007. Following ratification by the 20th party, it came into force on 3 May 2008.
The video below highlights the experiences of Mikhail in Moldova and Assen in Bulgaria who both grew up in institutional care.
29 April 2013