1. Introduction
Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) no longer needs much introduction. It reaffirms that persons with disabilities have a right to recognition as persons before the law, and it lays out some of the implications of this right. The focus of attention in this paper, like in so many others on Article 12, is on two of the article’s five paragraphs: 12(2) and 12(3). Article 12(2) requires that states parties ‘recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. Article 12(3) further demands of them that they ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. This paper addresses some unresolved issues about the meaning of those two paragraphs and the relationship between them. More precisely, we discuss the purpose of the support provided for in Article 12(3) and how the interpretation of the right to legal capacity in Article 12(2) bears on how we could understand that purpose.
While the literature on the right to legal capacity and on the obligation to provide access to support is extensive, some issues have received surprisingly little attention, given their critical importance to determining the implications of the right granted and the corresponding state obligation. Central among these is the question of what exactly the support referred to in Article 12(3) is meant to accomplish. Until this fundamental issue has been clarified, policymakers and support persons are left without clear guidelines on what is required of them. And without clarification of the purpose of Article 12 support, it will not only be impossible to assess the adequacy of any given support arrangement, but also to make informed suggestions about appropriate research and reform agendas.
The debate about Article 12 is, unsurprisingly, framed as a debate about the right to legal capacity, but in certain respects it would be more fruitful to construe it as being about several distinct rights. While the literature is rarely precise about what the relevant rights (or elements of the right) are—something this article will elaborate on and lament—they are sometimes thought of as located on a spectrum between civil, and largely negative, rights, and socio-economic, positive, rights. Some of what is within the scope of the right to legal capacity may not require that much by way of services and resources, and could be ensured by states without delay. Other rights under the umbrella right to legal capacity may require more ambitious efforts and more resources, and may allow for progressive realization. How to view the right to legal capacity in these terms—as civil or socioeconomic, negative or positive—is certainly critical to the issue of what obligations states parties have under Article 12, and to the prospects of prompt implementation. They are not, however, particularly relevant to the issues that we shall discuss here, which concern the content of the rights in question (and of the associated support), rather than how the rights should be classified along the dimensions just mentioned.
The exposition of the paper is as follows: in the next section, we present the two main approaches to enabling the exercise of what we may call minimal legal capacity. The first approach focuses on ensuring access to support for persons with disabilities so that they may meet certain requirements for legally valid decisions imposed by society. The other approach insists on the abolishment of these requirements, thereby eliminating the need for persons with disabilities to meet any. The latter option raises the issue of what the purpose of the support called for in Article 12(3) could then be. Should support perhaps aim to facilitate decisions reflecting the individual’s ‘true’ will? Or to develop the capacity (skills)? Or is the aim to ‘empower’ persons with disabilities? Or something else? In section 3, we address this general idea of more ambitious purposes of Article 12 support, and very briefly elaborate on the virtues and challenges of interpreting Article 12 along one of the lines just indicated. We then contend, in section 4, that whatever the purpose of support for legal capacity is taken to be, this purpose ought to strongly guide the implementation of Article 12, as well as future research. The paper ends, in section 5, with some concluding remarks.
2. Two Approaches to Enabling the Exercise of Legal Capacity
2.1 Different types of capacity threshold
Article 12 of the CRPD grants persons with disabilities a right to legal capacity on an equal basis with others, but what the implications of this right are has been one of the most intensely debated issues in connection with the whole Convention. Whether the issue has been framed as one about the scope of the relevant right—for instance, whether it requires, without exception, the legal recognition also of decisions made by those with, say, profound intellectual disabilities or advanced Alzheimer’s disease, or whether it has been framed in terms of the legitimacy of so-called substitute decision-making—Article 12 has given rise to considerable legal and academic controversy. Some important interpretative questions do not depend on these much-discussed issues, however. For example, the right to legal capacity may be absolute or have limitations, but in either case, we need to address the issue of how the exercise of legal capacity, when applicable, could and should be enabled.
Whatever else the right to legal capacity may amount to, there is a broad consensus that it involves having one’s actions in the legal realm recognized on an equal basis with others. The question of how to enable the exercise of such minimal legal capacity arises because most, if not all, modern legal systems have set up requirements that must be met if a person’s acts and decisions are to be treated as legally effective within that system.1 To have a decision legally recognized typically requires more than the mere expression of one’s wish to make that decision. It often requires that the person has the ability to understand and appreciate the consequences of their decision. For example, a legal system may require that for the sale of a property to be valid and have legal force, not only must the seller own the property in question, but they must also, at the time of the sale, have sufficient awareness of the content and consequences of the contract. It is this kind of requirement that has been taken to disqualify persons with certain disabilities as legal actors.
Let us, in this context, introduce the notions of independent- versus supported-mental-capacity thresholds. On what we might call the old view of the relationship between mental capacity and minimal legal capacity, every person needs to have, on their own, sufficient mental capacity for the person’s decisions to be recognized as legally valid. A traditional independent-mental-capacity criterion might, for example, say that for a property transaction to be valid, the seller needs to be able—without any special help—to understand what a sales contract is, what the most immediate and salient consequences of selling one’s property are, how a sale relates to the rights and obligations of a buyer, etc. Moreover, the person must be able to—without the support of others—make at least a minimally rational use of that understanding in making up their mind whether to proceed. A supported-mental-capacity threshold, in contrast, is a capacity threshold that a person must attain (at least) after having received support. Hence, a person may fail to reach an independent-mental-capacity threshold while still reaching a supported-mental-capacity threshold. For example, a seller left to their own may have a hard time grasping what is necessary for the transaction to be deemed valid, but may well meet the relevant standards of comprehension ability when provided with help in the form of, say, repeated explanations and simplification of language.
Independent-mental-capacity thresholds and supported-mental-capacity thresholds are both legal requirements; they need to be met for an act (or a decision) to be legally recognized. Their status in relation to the CRPD may not be the same, however. There is a large consensus that under Article 12, imposing independent-mental-capacity thresholds is impermissible; arguably, this is the very core of the prohibition against discrimination on the basis of disability in the context of legal agency (Committee on the Rights of Persons with Disabilities 2014, para. 9 and 15; Bach and Kerzner 2010, 67). Prohibiting independent-mental-capacity thresholds is, however, consistent with permitting supported-mental-capacity thresholds—which Article 12 may or may not do (more about this later, in section 2.3).
2.2 Is the purpose of support to enable persons with disabilities to comply with supported-mental-capacity thresholds?
If states are allowed to use supported-mental-capacity thresholds, one critical role of support is obvious. It aims, at least in part, to enable legally valid decisions in situations where the individual may fail to reach an independent-mental-capacity threshold.2 According to what we might call the legal ramp view of the exercise of minimal legal capacity, states would indeed be permitted to set supported-mental-capacity thresholds for legally valid decisions, but must ensure—by providing access to support—that the decisions made by persons with disabilities may reach those thresholds.
The legal ramp view accords not only with the letter of 12(3), but seems to have been endorsed by the CRPD Committee and many scholarly commentators. The CRPD Committee (2014) advocated this position in several places in its General Comment 1, but most clearly in paragraph 16, which says that ‘States parties must refrain from denying persons with disabilities their legal capacity and must, rather, provide persons with disabilities access to the support necessary to enable them to make decisions that have legal effect’ [our emphasis]. Several authors have made similar general descriptions, at least implicitly assuming that one important purpose of Article 12 support for the exercise of legal capacity is to help persons with disabilities attain supported-mental-capacity thresholds (Bach and Kerzner 2010, 84; Browning, Bigby, and Douglas 2014, 36f; Series 2018, 366; de Bhailís and Flynn 2017, 13).
Proponents of the legal ramp view could, presumably, advocate this view either because they have great faith in what support can achieve—the conviction that with enough efforts and ingenuity, persons with decision-making related impairments could be supported to reliably attain whatever thresholds for legal validity society has settled on—or because they believe that thresholds could and should be set low (for the available support to have a better chance of being sufficient).
2.3 Enabling the exercise of legal capacity by abolishing mental-capacity thresholds
While the provision of support may seem to be the obvious way of enabling the exercise of minimal legal capacity, another way of ensuring that persons with disabilities could make legally valid decisions would be to prohibit states parties from setting not only independent-mental-capacity thresholds, but supported-mental-capacity thresholds as well. Such a position would imply that any person must have their decision recognized as legally valid, regardless of whether support is offered and accepted by the person, and regardless of what that support actually accomplishes (in terms of increased understanding, reasoning ability, etc.). Let us call this the no-thresholds view, as it contends that no legal thresholds whatsoever may be set, be they traditional mental-capacity thresholds or thresholds regarding what a supported individual can accomplish.
The no-thresholds view is certainly the more radical view (for criticism, see e.g., Dawson 2015; Dute 2015; Scholten and Gather 2018; Duffy 2023), but for any committed egalitarian who also thinks that self-determination reigns supreme among human interests and is an inviolable moral right, it would make sense to claim that all capacity-based legal requirements, including supported-mental-capacity thresholds, are unjustified, as long as persons without disabilities have an easier time meeting them. And while it is unclear just who would explicitly endorse the no-thresholds view, as we have articulated it, influential commentators of Article 12 have certainly made remarks that, individually or jointly, may be taken to commit them to this view. The CRPD Committee has seemingly endorsed the legal ramp view but has also stated that legal capacity, including legal agency, is ‘an attribute inherent in all persons by virtue of their humanity’ (2014, para. 8)—a claim often cited in the literature (Dhanda 2012; Flynn and Arstein-Kerslake 2014b, 127–129; Brosnan and Flynn 2017, 63). This suggests a no-thresholds view, as it is hard to reconcile with the idea that legal capacity could depend on whether support actually will enable individuals to meet certain mental capacity standards (cf. Minkowitz 2017, 79 and 85). More recent clarifications by the Committee further support this no-thresholds interpretation (see e.g., General Comment 6, paras. 47 and 49).
Another indication that the no-thresholds view is sometimes embraced is what is occasionally said about the voluntariness of accepting, or making use of, support. In paragraph 19 of General Comment 1, for example, the Committee states: ‘Some persons with disabilities only seek recognition of their right to legal capacity on an equal basis with others, […] and may not wish to exercise their right to support […].’ On at least one interpretation of this statement, it implies that the right to have one’s actions recognized as legally valid does not depend on support being utilized, even if that would be required for supported-mental-capacity thresholds to be met. From this, in turn, it follows that such thresholds are impermissible.
Similarly, it has sometimes been suggested that the need for support cannot or should not be ‘objectively’ assessed by a third party, but that it should be up to persons with disabilities themselves to determine what that need is (CRPD Committee 2014, para. 29(i); Flynn and Kerslake 2014a, 89). Again, interpreting the notion of need in this subjective way appears to conflict with the idea that certain mental capacity thresholds may be set, such that it is a contingent matter whether support provided is sufficient to help persons with disabilities attain those thresholds. Only on a no-thresholds view, it would seem, could such a position on needs determinations be sustained.
Finally, there is widespread opposition to ‘mental capacity tests’, of whatever variety. The CRPD Committee (2014, para. 15) rejects such tests by questioning their potential to accurately assess the inner workings of the human mind, and asserting that they are nevertheless applied in a manner that discriminates against persons with disabilities and is thereby in violation of the CRPD. Similar criticism of mental capacity tests is voiced by Bartlett (2012, 762f); Flynn and Arstein-Kerslake (2014a, 89); Series (2018, 355ff); Flynn (2019); and Litins’ka (2018, 137–138). However, assessing whether a supported-mental-capacity threshold is met is, in effect, applying a version of that ‘functional’ test asking whether the individual is able—with the support provided—to meet certain legal requirements. The view that all mental capacity tests are impermissible amounts, therefore, for all practical purposes at least, to a no-thresholds view.
Again, the no-thresholds view and legal ramp view are views about how to enable the exercise of minimal legal capacity. To flesh out the familiar analogy from rights to physical access in relation to physical impairments (see e.g., Salzman 2010, 165f; Browning, Bigby, and Douglas 2014, 36), a no-thresholds view would be one where every building to which persons have a right to access must be designed in such a way that anyone can automatically access it without significant effort. In contrast, the sufficient support version of that right would acknowledge that states may construct buildings that expect most people to enter them through a set of stairs, but must then guarantee access for others by the provision of ramps, elevators, or the like. As already hinted at, while these are the two basic ways of implementing a right to legal capacity, one’s approach obviously need not be all or nothing, but could in effect combine the two ways to facilitate the exercise of legal agency. This would mean not abolishing supported-mental-capacity thresholds, but lowering them, so that less support might be needed.3
Given that so much of the scholarly disagreement about Article 12 has concerned ‘substituted decision-making’, it also bears emphasizing that the positions introduced here are not about the legitimacy of such decision-making, neither on more colloquial understandings of this expression, nor on the CRPD Committee’s specific understanding of it. One could, for example, take the view that substituted decision-making would violate Article 12, while not being committed to whether thresholds are sometimes justified—maybe they could be, but support might be sufficient to ensure that persons with disabilities will meet them. More importantly, there is a significant downside, we contend, to making the discussion about the right to legal capacity almost exclusively about the permissibility of substituted decision-making. By doing so, there is a clear risk that one will never get to the key question of what exactly would make Article 12 support successful. Only when the discussion is explicitly framed in terms of the requirements or thresholds that underlie discussions about substitute decision-making will the issue of the purpose of support come to the fore.
3. The Purpose of Support on the No-Thresholds View
On one level, the literature on Article 12 typically does state what the purpose of support is. Support is that which is required to enable (some) persons with disabilities to ‘exercise their legal capacity’ or simply to ‘make decisions’. It is striking, however, that these standard phrases are seldom unpacked—at least not with any precision. As we have already suggested, if states parties are permitted to set supported-mental-capacity thresholds, decision-making support wears its purpose, or at least one purpose, on its sleeves: to help persons with disabilities make legally valid decisions. If, however, capacity-related requirements on valid legal action may never be imposed, one obviously needs to identify some other purpose (or purposes) that support could serve, and give other answers to why states parties should be obligated to provide access to it. After all, on the no-thresholds reading of the right to legal capacity, this right appears to be immediately realizable; what states need to do is just to recognize everyone’s decisions in legal matters as valid. For that, support would not be necessary.
For what other reason could support be called for? From the early days of the CRPD until this day, many commentators have indeed interpreted Article 12(3) as requiring that states parties provide access to support for seemingly much broader and more ambitious purposes, aiming for substantive equality for persons with disabilities in respects that extend far beyond legal recognition. Let us start with a few quotes:
How do we best formulate the role of the state in ensuring people have access to the basic goods and services that will enable them to identify, plan for and pursue choices that enable a good life? How do we formulate this duty to maximize autonomy, informed now by the CRPD, and its recognition of an equal right to legal capacity without discrimination on the basis of disability? (Bach and Kerzner 2010, 41)
[t]he original intention of supported decision-making: to ensure that people with cognitive disability are provided with the freedom and the tools to participate as equal citizens and for every individual to be free to direct their own life. (Arstein-Kerslake et al. 2017)
Elaborating further on this idea about a significantly broader perspective on the purpose of Article 12 support, we have Gerald Quinn:
We are all persons. We all exhibit a mix—often stable sometimes unstable—of the rational and irrational. We are all socially embedded—even as we strive to individuate away from our context. And we all rely on a web of supports that augment our personhood. These supports go beyond decision-making. They prop up and valorize our sense of self. They give us enough confidence to begin auto-nomy—shaping our world in accordance without [sic] own life-choices. This is woven so deep we hardly ever notice it—but it is there. And of course, few of us seldom make important decisions without consulting trusted family, friends and mentors.
To me Article 12.3. builds on this background reality that affects all of us. It assures us the supports necessary to enable us to enjoy our legal capacity. Again, to me at least, this goes deeper than decision-making. And yes it does apply to even those who—to all outward appearances—cannot form or express a preference or exert their will. The purpose of the supports in this instance is to work to retrieve the will—no matter how hidden—or to create conditions of social embededness to spark the will. (Quinn 2010, 20)
And Julia Duffy, invoking the notion of ‘inclusive equality’ in General Comment 6 of the CRPD Committee, suggests:
To ensure equality of results and social inclusion, substantive, inclusive equality demands recognition of difference to provide support for decision-making for adults with cognitive disability. The right to supported decision-making acknowledges the residual impacts of impairment, even after legal capacity is recognised at a formal, legal level. According to the precepts of inclusive equality, supported decision-making will be used to redress economic disadvantage, combat stigma and violence and enable social inclusion, all based on a recognition of difference and dignity. It is a specific or appropriate measure in the form of the provision of socio-economic resources, which recognises difference and allows for (or demands) the State to be involved in personal relationships to ensure the right to equality. (Duffy 2023, 229)
These are just some among many possible quotes identifying (or hinting at) goals for decision-making support, largely based on Article 12, that go beyond legal recognition. While it is clear that these goals are broader, it is less clear just what they are, however.
The most broadly adopted idea, perhaps, is that respect for individuals’ ‘will and preferences’ is not merely a constraint on the safeguards that shall ensure the exercise of legal capacity, as required by Article 12(4), but that the satisfaction of individuals’ will and preferences is a free-standing goal for the support called for in Article 12(3). While it is far from obvious how ‘will and preferences’ should be interpreted (see e.g., Szmukler 2017, 2019; Skowron 2019; Carney et al. 2019; Hosseiny 2025), it appears that there is fairly broad agreement that Article 12 establishes a right to make legal decisions that are, on an equal basis with others, in the interest of persons with disabilities, as judged by themselves. That is, a right to act in a way that is not only legally recognized, but that has an equal chance of ‘making sense’, in the light of such persons’ lives and aspirations. Now, getting to the bottom of this widely embraced idea and seriously assessing its strengths and weaknesses is beyond the scope of this paper, and would also risk distracting from its key points. Some brief elaboration of what could be at stake here might be in order, however.
First, skeptics could argue that interpreting Article 12 along the lines just described takes too many liberties in relation to the text of the treaty and postulates rights that no one else enjoys. On this view, when understood in accordance with the rules of interpretation of international human rights law, Article 12 does not establish a right to support for, in the relevant (subjective) sense, good decision-making—however much one may wish there was such a right and could argue that there should be one. According to the first paragraph of Article 31.1 of the Vienna Convention on the Law of Treaties (VCLT), ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (VCLT 1969, 1155 UNTS 331). Article 12(2) of the CRPD contends that persons with disabilities enjoy ‘legal capacity’ on an equal basis with others, and the obligations that states parties have under Article 12(3) likewise relate to the exercise of ‘legal capacity’ (our emphases). This clearly suggests, the argument would go, that the purpose of the support called for in 12(3) is to ensure that persons with disabilities are not deprived of whatever rights the law grants to others, and that the decisions persons with disabilities make, for whatever reasons, must be recognized as legally valid if they are so recognized when persons without disabilities make them. But the law arguably does not grant to any person—with or without disabilities—a right to make (subjectively) good legal decisions, or legal decisions that align with what the person (would) take to be in their own interest, or with their most deeply held values.
The skeptic could also point out that effective implementation of human rights obligations requires obligations that are clear enough for a responsible government to put to practice. While it is true that human rights are often crafted in abstract terms to provide states with the discretion and flexibility necessary to implement these rights in domestic settings with varying political, cultural, and legal contexts, it is equally true that human rights are claimable rights. And for states parties to be obligated to provide access to the relevant support, it must be possible for them to determine, with reasonable reliability, how to discharge this obligation, and determine whether or not they have succeeded. And for support persons, the task also needs to be sufficiently well defined for there to be a good chance of knowing how to proceed and whether one has been successful or not. Training programs, tools development, etc., need to be based on a clear enough goal, just as there must be some yardstick with which to exercise oversight and ascribe accountability; the existence of such standards and the associated foreseeability is the bedrock of legal orders with claimable rights. And the purpose under discussion does seem quite elusive.
Those who embrace the idea that the right to legal capacity involves a (derivative) right to support for decision-making in accordance with ‘will and preferences’, on the other hand, may counter that when determining the purpose of decision-making support, one must look not only to Article 12, but give considerable weight to the guiding principles of the Convention and to the other rights granted. Among those general principles are respect for ‘individual autonomy including the freedom to make one’s own choices’, ‘non-discrimination’, ‘full and effective participation and inclusion in society’, and ‘equality of opportunity’. A contextual interpretation of Article 12, taking these guiding principles and relevant substantive rights into account, may indeed suggest a more ambitious or progressive role for decision-making support than to merely make sure that the legal playing field is level (cf. VCLT 1969, Article 31.1–3). Moreover, these principles and rights reflect a recognition that many persons with disabilities have been, and still are, treated unfairly, not only in being disqualified as legal agents but also in not being sufficiently assisted in making legal choices that make the most sense—in the light of these persons’ own interests—and that contribute to their full participation in society, with dignity, on an equal basis with others. And making ‘good’ legal decisions, it could be argued, is often a prerequisite for fully enjoying other rights, ones which persons with disabilities are transparently granted by the CRPD. Such consideration of the ‘indivisibility’ of human rights has been emphasized by several commentators and could be viewed as a powerful interpretative tool also when it comes to Article 12 (see e.g., Duffy 2023).
As to the worry that ambiguities about ‘will and preferences’ will hamper effective implementation of Article 12(3), this may not be an insurmountable problem either. Over time, greater clarity is achieved through the development of jurisprudence and best practices, facilitated by collaboration between states, monitoring mechanisms, and civil society. Or so the argument might go.
This and related debates will no doubt continue, but again, the aim of the present paper is not to make real progress on the issue of what the most plausible interpretation of Article 12(2) and 12(3) is, as our focus is on the need for greater clarity with respect to the whole range of possible positions on this issue.
The starting point of this section was a few quotes identifying objectives of support that seem significantly broader than helping to ensure formal equality under the law. But instead of centering the discussion around what exactly this or that commentator on the CRPD has indicated that the objective of providing access to support is, one could also start with a cleaner slate, and just distinguish between a number of different conceivable purposes of Article 12 support. At the risk of appearing overly pedantic, under the right to legal capacity umbrella, there could be a right, on an equal basis with others, to…
have one’s actions in the legal realm recognized (when successfully communicated)
have one’s actions in the legal realm successfully communicated (to those in a position to recognize them)
realize that there are actions in the legal realm that could be taken (when they could)
realize that acting in the legal realm could be in one’s interest/in accordance with one’s will and preferences
be empowered, incentivized, to act in the legal realm when doing so could be in one’s interest/in accordance with one’s will and preferences
have one’s actions in the legal realm accord with one’s interests/will and preferences
become (more) capable of taking legally recognized action, or of acting in the legal realm in accordance with one’s interests/will and preferences (with less support)
have one’s actions in the legal realm result in outcomes where one’s (other) human rights are respected
We imagine that quite a few readers would respond, ‘Oh, it’s all of that!’ (and possibly more), embracing the idea that the overall right to legal capacity encompasses both certain basic civil rights and a series of significantly more demanding socio-economic rights associated with decision-making. But by insisting that it is all of that, while virtually never making these more fine-grained distinctions between the various elements of the umbrella right, one will inevitably fail to see that such distinct rights may call for quite different policy solutions and support skills. We now turn to this.
4. Implications for Implementation and Research
Being clear about what one takes the purpose of decision-making support to be is important because different interpretations lead to different conclusions about what needs to be better known and, ultimately, what needs to be done to successfully implement Article 12.
Let us see how this call for ensuring that support is effective plays out for some candidate support purposes. The legal ramp view, we stipulated, acknowledges the permissibility of setting supported-mental-capacity thresholds for valid legal action, as long as persons with disabilities could be guaranteed to at least have a decent chance of attaining those thresholds. Whether decision-making support will be able to fulfill this role obviously depends both on the nature of the relevant support and on the legal thresholds that must be attained. For any proponent of the legal ramp view who wants to see Article 12 fully implemented, this could be expected to translate into a strong interest in learning several things that we clearly do not know enough about today. For one thing, it should translate into an interest in learning whether existing support measures already do the job, and if not, in what ways they fall short. Proponents of the legal ramp view should want to identify the kinds of support most likely to help persons with disabilities attain the thresholds set, to ensure that the support with the best chance of success is implemented. Since on this interpretation, support which is not yet sufficient could be made so either by being improved or by supported-mental-capacity thresholds being lowered, it would also be of major importance to learn more about what supported-mental-capacity thresholds states impose, and whether one could lower them to optimize persons with disabilities’ opportunities to meet them with adequate assistance.
Assume instead that the purpose of support is to help persons with disabilities attain loftier goals: to help them—on an equal basis with others—to flourish, perhaps, to realize their own conception of the good, or facilitate deeply autonomous decision-making. This, too, would point to particular questions for research and policy, but different ones. When it comes to research, the relevant outcome measures would first have to be better defined, and ways to learn about how various support arrangements fare with respect to them would then have to be developed. As to the first step, what constitutes an individual’s ‘conception of the good’, for instance, and what makes their wishes ‘authentic’? There is, of course, a plethora of philosophical analyses addressing such thorny issues, but these are typically competing accounts, not equivalent ones. One would have to argue why the favored analysis deserves to be so, and then try to devise ways in which one could reliably assess what kinds of support and support policies will promote these goals, so interpreted. Or if one would settle with everyday, less theoretical notions of someone’s conception of the good, or of their authentic will, there would nonetheless need to be efforts to tailor support mechanisms and support regulations to those particular objectives.
These are some of the research and policy implications of two different views on the role of Article 12 support, but the argument would be the same for any other candidate purpose. And it goes beyond lamenting the fact that support policies and support measures haven’t been empirically evaluated to the extent one might wish for. Such criticism has, appropriately, been raised before (see e.g., Kohn, Blumenthal, and Campbell 2013; Douglas et al. 2015, 38f; Glen 2018, 64f; Douglas, Bigby, and Smith 2020; Arstein-Kerslake et al. 2017). What we are highlighting is the insufficient attention to whether proposed ways of evaluating the success of Article 12 support line up with the suggested purpose(s) of such support.4
Another reason to view this call for greater precision not merely as an academic matter, but as important to the implementation of the right to legal capacity, is this: If too little attention is paid to the purpose of Article 12 support, work on disability policy will deprive itself of a rational basis for resolving any tensions there might be with other important considerations or goals. Good disability policy, we contend, is one that acknowledges such tensions, and makes responsible prioritizations when different goals or interests may not be satisfied simultaneously. One of the more obvious potential conflicts in this context is the one between having a support person who is qualified to provide the support called for, and having a support person that the person with a disability has chosen. Article 12(4), we can recall, provides that safeguards must be in place to ensure that any support given respects the will and preferences of the person with a disability, one implication of which is that support persons, or modes of support, must at least be accepted by the supportee. At the same time, the supporters and modes of support preferred by the person in need of help just may turn out to be significantly less effective, setting up a potential conflict within the right to legal capacity itself. Only when we know what exactly the purpose of support is, can we tell just how (un)qualified the favored supporter is to provide that support, and only then can we fairly assess the relevant tension and try to resolve it.
There could also be tension between the demands imposed by one particular purpose and the demands imposed by some different purpose. To illustrate, a support person with an understanding of what is needed to help an individual make a decision recognized as valid by the legal system, and with the skills to provide it, may not be well-equipped to help that individual make a decision anchored in their deepest or most authentic wishes, as that support person may not know the person with a disability intimately enough to make the latter kind of determination. And vice versa: A loved one may have a deep understanding of the person’s values and desires, but little ability to explain things in a way that would ensure that the person with a disability could demonstrate sufficient grasp of the most relevant legal aspects of a sales contract.
Yet another way to see the significance of being more probing about the purpose of support and its connection to legal capacity is to consider combining the no-thresholds view with the view that Article 12 support aims to help persons with disabilities make choices (in the legal realm) that accord with these individuals’ will and preferences. If that is the position, arguably much policy work should indeed be oriented toward implementing programs with the prospects of delivering the relevant kind of support. Presumably, however, ensuring that persons with disabilities get to make decisions that are not disqualified by the legal system should be equally important. And on the no-thresholds view, ensuring this is not achieved by the provision of access to support, but by the abolition of thresholds. Rather than going all in on ‘supported decision-making’, then, as the way to enable the exercise of legal capacity, this requires making states parties aware of the particular thresholds they (unjustifiably) impose, and figuring out the most promising ways to convince states to do away with them.
To sum up, unless we are clear about what decision-making support in any given situation aims to achieve, we are bound to be disoriented when it comes to supporter choice, education needs, oversight etc., and be blind to any tensions between different interests, which may need to be resolved. We are also more likely to forget that the exercise of some kinds of legal capacity can be enabled not by the provision of support at all, but by other means. That, in turn, surely doesn’t translate into rational disability policy.
5. Concluding Remarks
Article 12 is characterized by ‘ambiguity’ when it comes to what it permits and requires (Quinn 2010, 5). This ambiguity was perhaps inevitable, given the political challenges of including an Article on legal capacity at all (cf. Dhanda 2007). And the indeterminacy may in some regards have served us well, prompting rich discussions about autonomy, equality, and their interrelation. We believe, however, that the time is ripe for greater precision, to the ultimate benefit of persons with disabilities. Without such precision, it is very hard to assess where we are and where we should go—and to hold not-so-progressive states parties, simply claiming that they already live up to the demands of this article, responsible.
The focus of this paper has been the purpose of the support in the legal realm invoked in Article 12(3) of the CRPD. Our line of argument, however, readily extends to broader agendas. Regardless of whether the support concerns legal or extra-legal decision-making on equal terms, clarity about the purpose of support is essential. Different kinds of decision-making support may serve different legitimate aims, but identifying these aims explicitly is key to designing effective policies and ensuring equality in practice.
Notes
[1] See for examples from different European countries: https://www.fl-eur.eu/working_field_1__empowerment_and_protection/country-reports.
[2] Discussions about decision-making support often concern decision-making outside the legal realm. Everyday decisions without legal implications could also call for support (Browning, Bigby, and Douglas 2014, 41f; Gooding 2015, 51; de Bhailís and Flynn 2017, 13). And given how important this could be for the full enjoyment of human rights, the CRPD arguably obligates states parties to ensure that there is the support needed for decision-making in all areas covered by the Convention. In this article, we focus on making decisions in the legal domain, as Article 12 clearly concerns legal capacity, and the right to be an actor under the law.
[3] One might, of course, also consider a two-stage approach, where thresholds are not permissible, but as long as states insist on them, at least access to support must be provided, as an interim solution.
[4] Nina Kohn and colleagues, in perhaps the most thorough call for ambitious research in this area, assumes that there could be different goals in play, and even touches on the possibility that some of them could be in tension with one another (Kohn, Blumenthal, and Campbell 2013, 1142). One of few other scholars highlighting that quality of support will depend on purpose is Jillian Craigie, in her paper on undue influence in the context of Article 12 support (Craigie 2021, 52ff).
Acknowledgements
We are grateful for the valuable comments from three anonymous reviewers and from the human rights seminar at Lund University.
Competing Interests
The authors have no competing interests to declare.
Author Contributions
Linus Broström conceived the idea for the paper, made substantial contributions to the analysis, drafted much of the paper, and revised it critically for important intellectual content.
Anna Nilsson made substantial contributions to the analysis, drafted parts of the paper, and revised it critically for important intellectual content.
Therése Fridström Montoya made substantial contributions to the analysis, and revised the paper critically for important intellectual content.