Assessment of the Guardianship System for Persons with Psychosocial Disability in Indonesia

Data collection

In the first stage of the project, the research team collected court decisions on guardianship requests for PPDs from 2015 to 2018. The year 2015 was chosen because the Mental Health Bill, which provided an additional basis for capacity assessment, was expected to take effect that year. The documents were obtained from the Supreme Court’s official website using keywords such as pengampuan (guardianship), gangguan jiwa (mental illness) and disabilitas mental (mental disability). The collected data were categorized into variables describing the administration of the case (e.g. application submission location, hearing date) and the substance of the case (e.g. purpose of applicants, witnesses, evidence).

In the second stage, qualitative data were gathered through focus group discussions with three groups of 8–10 participants each: 10 PPDs, 10 caregivers, and 8 mental health or disability experts (disabled persons’ organization (DPO) advocates, mental health professionals, and psychiatrists working with communities of people with mental illnesses). The participants with psychosocial disabilities came from three DPOs: Komunitas Peduli Skizofrenia Indonesia (Indonesian Community Care for Schizophrenia), Bipolar Care Indonesia, and Perhimpunan Jiwa Sehat (Indonesia Mental Health Association). Researchers also collaborated with Indonesian Community Care for Schizophrenia and the Indonesia Mental Health Association to find caregiver respondents. The expert participants were selected from the Lembaga Bantuan Hukum Masyarakat (LBHM) list of experts in related issues. At this stage, researchers presented quantitative data from the court document analysis to focus group discussion participants and discussed guardianship provisions and related topics using guiding questions.

Data analysis

The court decisions were categorized using Microsoft Excel and IBM Statistical Package for the Social Science (SPSS) 22.0. The data were grouped into several categories, including administrative details about the court, demographics of applicants and respondents, purposes of applications, evidence, judges’ considerations, and court decisions. Researchers also transcribed the focus group discussion participants’ testimonies and organized the information in Excel sheets to further categorize their responses.

Administrative issues

Basis for the guardianship application

There are various reasons why someone might request guardianship for their family members. The basis for placing someone under guardianship is included in the court decision as one of the factors that judges should consider. Our findings in this regard are presented in Table 2 below.

The findings demonstrate that most applications were related to financial or economic motives. These included asset sale/purchase (14), inheritance (11), and collecting wages (10). Additionally, nine applications vaguely mentioned the objective of entering into legal actions on behalf of PPDs, without specifying particular legal actions. If granted, these nine cases would give the guardian boundless authority to take legal action on behalf of PPDs.

The basis of these applications is supported by other articles in the Indonesian Civil Code. Article 1320 states that the capacity to make contracts is a requirement for making a binding agreement. Article 1330 further states that people who have been placed under guardianship cannot make contracts or agreements. It can be assumed that applicants are aware of these provisions when submitting their applications to the court.

In addition to these findings, during one of our focus group discussions, only one out of ten caregivers testified that the PPDs they took care of had their own bank accounts and managed their own finances (Ahmad et al. 2019). It therefore seems that PPDs may not only have the right to manage their own finances removed by formal legal decisions, but also via more informal mechanisms.

Evidence provided during hearings

According to Indonesia’s civil procedure law, Herzien Inlandsch Reglement (HIR), there are five kinds of legitimate evidence in civil lawsuits (Indonesian Government 1941). However, only two of them—written evidence and witness testimonies—can be extracted from the court decision documents.

Applicants presented various types of written evidence, as shown in Table 3 below. Applicants can present more than one piece of evidence in a case.

Some forms of the written evidence provided are not sufficiently credible to properly assess the fluctuating mental condition of PPDs. Documents such as patient cards, referral letters, and medicine prescriptions are unlikely to provide an adequate basis for assessing a PPDs’ functional skills. In addition, in some cases unspecified letters were provided by private rehabilitation centers without detailed information about what they describe.

The use of patient cards, medicine prescriptions, medical records and referral letters provides an insufficient basis for making a guardianship order. Patient cards mostly serve administrative purposes, indicating whether patients have consulted with doctors in a healthcare facility or have been admitted to such a facility. While medical records show patients’ conditions over time, and medicine prescriptions show which medications patients should take, neither provides a comprehensive description of one’s mental health condition and its impact on decision-making capabilities, which is needed in guardianship determinations.

Even psychological assessment letters are arguably insufficient as a basis for guardianship. Although a psychological assessment letter could describe one’s psychological condition, it is uncertain whether this condition determines one’s overall capabilities. In the focus group discussion with experts, one forensic psychiatrist expressed her concern in this regard:

In Indonesia, a psychological assessment letter does not differentiate between one purpose and another. Letters for administrative purposes, condition diagnosis, and assessments of one’s capability to do something are all named psychological assessment letters despite their different assessment techniques. However, the assessment of one’s capability is regulated in the Ministry of Health’s regulation Psychological Assessment for Legal Purposes, which states that the assessment should be done by a team consisting of several professionals including clinical psychologists (Damayanti et al. 2019).

Unfortunately, the court documents collected in this research do not provide further details on the content of the psychological assessment letters.

Moreover, even though the most common evidence (35) is Mental Health Check-up Documents (MHCD), these often lack currency. For example, during a hearing in 2016, an applicant presented an MHCD made in 2012, assuming that the PPDs’ mental health condition remained the same for at least three years. Using old MHCDs as a basis for making guardianship determinations is questionable due to their potential inaccuracy in determining the respondent’s current condition. As that condition is likely to change over time, the MHCD can give incorrect information.

Researchers also gathered information about the witnesses who provided evidence in guardianship hearings, as summarized in Table 4 below.

Out of 99 witnesses, most (24) were the applicant’s neighbors, while the rest were from the applicant’s family. These witnesses typically described the daily condition of the respondent based on their observations, such as how they behaved every day. Although the selection of these witnesses complies with Articles 437–438 of the Indonesian Civil Code, their accounts could be biased and based on discriminatory presumptions.

Additionally, Article 7 of the Indonesian Doctor’s Ethical Code and its Implementing Guideline states that only doctors can provide written evidence explaining one’s mental health condition (Indonesian Medical Association 2002). This means that statements about the respondent’s mental illness or impairment, including their diagnosis, should only come from a doctor. However, out of the 49 hearings analyzed, 44 cases included witness testimonies related to mental health, 43 confirmed that PPDs have mental illnesses, and 21 described respondents’ symptoms. These statements, coming from people with unconfirmed backgrounds in mental health, could potentially threaten PPDs’ rights due to their arbitrary judgments.

The selection of witnesses also indicated that judges handling guardianship hearings may not be informed about recent laws, such as the Mental Health Bill and the Disability Bill, which require more rigorous evidence for legal processes. The Mental Health Bill states that a mental health check-up should be done by a team consisting of mental health specialized doctors. The Disability Bill states that judicial officers must seek consideration from doctors, psychologists, or social workers before assessing people with disabilities. However, findings show that these health professionals did not appear at all in the guardianship hearings.

Result of the hearings

The final matter to consider in relation to guardianship hearings is the judge’s determination. This is a particularly important matter, as the judge’s decision can significantly impact the respondent’s life for a long period of time. The results of the hearings are presented in Table 5 below.

Out of the 48 applications with complete documents, 46 were accepted and 2 were rejected. In other words, most of the applications (93.8%) were granted by the court.

The Indonesian Civil Code does not differentiate between plenary guardianship (where the guardian is given full authority over all of a PPDs’ decision-making) and partial guardianship (where the guardian is only given authority in a specific regard). However, it is possible for the court to order either. In the cases analyzed, 28 guardians were given plenary authority and 18 were granted partial authority (with the court specifying which decisions the guardians could make on behalf of the respondent, such as collecting their wages or managing their assets).

Perspectives of persons with psychosocial disabilities, caregivers and experts on guardianship

In addition to analyzing the court documents, we spoke to PPDs, caregivers, and experts about their views of the guardianship system. Some expressed fears regarding the prospect of guardianship orders being imposed on them. Although none had ever been formally placed under guardianship, one of them spoke of how her life was controlled by her relatives. She stated:

My part of the inheritance was controlled by my sibling, although my name was mentioned in the will. It was even difficult to hang out with my friends or form new friendships because I needed my sibling’s permission to go out. I was afraid that my sibling would punish me if he ever heard me telling such stories (Rahardian et al. 2019).

This kind of experience relates to the treatment experienced by PPDs in real life. One participant said:

Someone forcefully carried me to a rehabilitation center because my family perceived me as abnormal, notwithstanding the absence of a guardianship order. I experienced this twice (Rahardian et al. 2019).

Although both comments have a different context, they show that PPDs who live under someone else’s control experience hardship in exercising their rights.

In addition, it is also important to highlight caregivers’ perspectives since they are relatively close to PPDs on a daily basis. According to caregivers, they tend to experience hardship in assisting PPDs to take care of themselves and socialize with others, especially during periods of relapse. One caregiver stated:

We often need to stay overnight in order to accompany PPDs during their relapse condition (Ahmad et al. 2019).

Another caregiver said:

There was once when I moved to a new place without telling the neighbors about my child’s condition of schizophrenia. One night, my child relapsed and then shouted at some neighbors which made them upset. My other children tried to tell them: ‘My sibling is mentally ill’, but they did not believe her since my child was fine at noon. They almost acted violently toward my kid. Fortunately, I shouted ‘he’s insane’, and then the neighbors stopped (Ahmad et al. 2019).

These difficulties in caring for PPDs result in some being supportive of the guardianship mechanism. During our focus group discussion with experts, a representative of a DPO stated his concern about how PPDs, especially people with schizophrenia, spend their money. He said:

There are cases where people with schizophrenia spend their money uncontrollably, and even take a huge amount of loans. This issue might become troubling for PPDs and their family to pay the loan bills. Therefore, we view guardianship as a means to protect PPDs’ belongings and acts (Damayanti et al. 2019).

However, these hardships do not necessarily translate into support for the guardianship scheme, as many caregivers remain uncertain about the benefits of using a legal mechanism.

Lastly, several problems with the guardianship system were highlighted by various experts. An expert from a DPO stated:

Indonesia has a weak acknowledgment regarding consent, especially for PPDs, which results in PPDs’ rights violations. Thus, guardianship orders are often imposed informally (without hearings) on PPDs, such as when they underwent mental health treatment or rehabilitation without their consent, which is a kind of deprivation of liberty (Damayanti et al. 2019).

This was corroborated by a comment from a psychiatrist during the focus group discussions:

Mental health assessment documents such as clinical records or letters that recommend patients to be hospitalized are usually misused for guardianship orders (Damayanti et al. 2019).

During the expert discussion, concerns about Indonesia’s legal framework were also raised. Indonesia has ratified the CRPD, which purposefully preserves PPDs’ rights, including the right to legal capacity. In line with this ratification, the state is responsible for establishing a disability support system that is person-centered, self-directed, and maximizes PPDs’ independence and participation (Damayanti et al. 2019). Such a system is not currently in place.

Non-compliance with the CRPD

Indonesia’s guardianship system preserves a substitute decision-making legal framework, despite Indonesia having ratified the CRPD which prohibits such a framework. In other words, it is evident that Indonesia has yet to adopt the CRPD as a moral compass to create regulations or measure appropriate actions for existing laws. This is also apparent in the Disability Act of 2016, which states that persons with disabilities can be deemed incapable (clause 32). Although there is no further explanation of the term ‘incapable’, clause 33 states that the determination of a person’s incapability must be decided through the guardianship process.

One contributing factor to this situation is the use of unclear, undefined terms in much Indonesian legislation. For example, although the Civil Code provides that ‘no person can be deprived of their civil rights’ (Article 3), this principle is not clarified, undermining its utility. In this regard, a recently concluded challenge in the Constitutional Court to Article 433 of the Civil Code (the Article which sets out the criteria for guardianship) involved arguments about whether this Article deprived PPDs of their civil rights. While the representatives of the government and parliament agreed that Article 3 prevented people from having their civil rights removed, they argued that Article 433 did not do so. In their view, people under a guardianship order still have their civil rights; however, they need to have a guardian exercise those rights for them. The parliament representative further stated that there was nothing wrong with the current guardianship system, because guardianship appointments are determined in a court hearing (case number 93/PUU-XX/2022).

These two arguments neglect the principle of equality before the law set out in Article 12 of the CRPD. This Article explicitly provides that a state party States Parties must recognize the legal capacity of a PPD and provide the assistance necessary for them to exercise that legal capacity, and to stand equally with others as a subject of law. Additionally, the CRPD Committee’s General Comment 1 of 2014 regarding Article 12 explains that legal capacity is a combination of two components: legal agency and legal standing (CRPD Committee 2014: para 13). Thus, legal capacity should not be interpreted merely as having civil rights. It should be viewed holistically as both having such rights and being enabled to exercise them personally (without them being given to others to exercise on their behalf) (CRPD Committee 2014: para 13).

Inadequate understanding of legal and mental capacity

Many problems with the Indonesian guardianship system might be traced back to the lack of consensus on what constitutes mental capacity and legal capacity, or the criteria for someone losing capacity. Quinn (2010) has criticized the use of rationality to value capacity, noting that human decisions are often a mix of rationality and raw preferences. Similarly, Series (2015) posits that feminist writings on relational autonomy were influential in CRPD negotiations and challenge dominant liberal notions of autonomy that are strictly conceived in terms of self-sufficiency, rationality, and independence from others’ influence. Without a more contemporary understanding of legal capacity, the court risks placing everyone with mental health conditions under guardianship schemes without providing the types of supports to exercise legal capacity required by PPDs and their families under the CRPD, in combination with other measures that promote their rights, such as the right to the highest attainable physical and mental healthcare on an equal basis with others.

De Bhailís and Flynn (2017) further explain the distinction between legal capacity and mental capacity, emphasizing that legal capacity is the right to be recognized as a person before the law and to have one’s decisions legally recognized. This involves having the power to create, modify, or end legal relationships. On the other hand, mental capacity refers to a combination of cognitive ability, impairment, and a person’s understanding of the consequences of their actions. This distinction is crucial to calls for ‘universal support’ to exercise legal capacity (CRPD Committee 2014) because it helps turn attention from the point at which a person lacks mental capacity, to the kinds of support (and safeguards) required for a person to have the power to create, modify, or end legal relationships. This power might include appointing people to support a person to make decisions, or may—at the more intensive end—involve ‘representatives’ being appointed to help make decisions based on the ‘best interpretation of will and preference’ and the person’s rights (CRPD Committee 2014: para 21).

Lack of clear definitions

From the discussion above, it should be clear that part of the problem of guardianship in the Indonesian context lies in the lack of clear legal definitions regarding ‘simplemindedness’, ‘insanity’, and ‘rage’. These terms suggest a static and persistent definition of a person’s mental health condition, while it is clear that mental health conditions are dynamic. Despite this fact, a person can be placed under a guardianship order with just a patient card as evidence. Such occurrences might result from unclear and inadequate definitions of mental capacity, while also conflating legal and mental capacity.

Unlawful and inappropriate use of religious courts

Aside from conceptual problems, the finding that some applications were decided in religious courts indicates poor administrative systems, usually involving administrative/clerical staff and the Head of Court. Despite religious courts having overlapping authorities in civil affairs, such as adjudicating divorce, inheritances, and Sharia economics according to Islamic laws, their authority does not extend to guardianship matters (Idri 2009). Therefore, guardianship hearings held in religious courts are unlawful.

The use of different courts to adjudicate guardianship matters could generate inconsistent legal approaches. For example, a research article by Sharfina and Sukananda (2019) analyzing the protection of civil rights for people under guardianship based on the Bantul Religious Court Document found that a person’s civil rights were considered absolute despite guardianship. This is because such individuals still have property rights: the guardianship order simply means that in exercising those rights, they must be represented by their guardian. However, the CRPD provides that a person’s rights should not be reduced by any means, including appointing someone else to exercise those rights. This system is still part of a prohibited substitute decision-making system, where a person’s legal capacity can be removed and given to someone else who is assumed to act in their ‘best interest’ rather than according to their ‘rights, will and preference’ (CRPD, Article 12(4); CRPD Committee 2014).

Problematic hearing process

The neglect of PPDs’ legal capacity might be driven by the assumption that their psychosocial condition permanently affects their decision-making capacity. However, even if some determination of mental incapacity is retained, it remains the case that not all mental impairments are permanent; some are episodic, meaning there are instances when PPDs can make decisions independently even as they may require support at other times. Such a fact is yet to be acknowledged by the Indonesian guardianship system. Instead of considering the episodic nature of mental impairment, the existing system relies on evidence from uninformed, non-expert parties such as applicants or neighbors. This problematic system allows a party who might have only witnessed a mental impairment episode once or twice to give a witness statement in the hearing that could profoundly affect a PPDs’ entire life.

The extent of a PPDs’ impairment will depend on the nature of their condition as well as the support they are provided with. For example, although a person who experiences schizophrenia will often find it difficult to take care of themselves, caregiver support, including support for the person to take care of themselves, can significantly help improve their condition and achieve recovery (Rahayuningrum et al. 2021). This includes placing the person in a position where they can make reliable decisions like everyone else. However, instead of focusing on how to help or provide appropriate assistance to PPDs so that they can recover and exercise their rights, the current system simply transfers their rights to another person. This is evident from our finding that 46 out of 48 applications for guardianship were accepted (granted).

Inadequate consideration of complex matters

Data on the length of guardianship hearings indicates that judges are dedicating insufficient time to resolving highly complex matters. PPDs are generally placed under guardianship orders after only one or two court sessions. Data shows that there were seven hearings decided in less than seven days. In such cases, there is likely to have been just one hearing, as a hearing is usually held once a week. Even where cases took up to a month to resolve (as was the case in 30 matters), the time taken to resolve the matter is unlikely to have been sufficient to assess the complex issues that frequently arise in guardianship matters.

Inappropriate scope of guardianship orders

The widespread provision of plenary guardianship likely means that guardians are expected to perform tasks they are not prepared for. While applicants might know how to apply for guardianship, they might not be ready for the responsibilities that come with it. This approach conflicts with the supported decision-making process recommended by the CRPD Committee (2014: para 28). Such an approach has been adopted in some Australian jurisdictions (Gooding & Carney 2023; Wirya & Muzaki 2021). For example, under the Guardianship and Administration Act 2019 (Vic) ‘supported decision-making’ is included and can arise in two ways. First, the person themselves (the ‘principal’) can designate a ‘supportive guardian’ or ‘supportive administrator’ to have legal authority to assist with decision-making in personal affairs and financial management respectively. Alternatively, the Victorian Civil and Administrative Tribunal (‘VCAT’) can make an appointment (section 87). In either case, it is deemed to be the decision of the principal, grounded in agreement between the principal and the supporter (section 87(2)). These different options have different objectives and are carried out by different people. Unfortunately, such a division of responsibilities is not well-regulated by Indonesia’s Civil Code. This means that the provision of partial, rather than plenary, authority usually occurs at the discretion of the judges and is not common.

In addition, when a guardian has been appointed, any legal agreement made by a person under guardianship is considered null and void (Civil Code Articles 1320 & 1330). This includes any contracts signed by the person, as well as associated matters such as their ability to possess inheritance, receive wages/pension money or sell or purchase goods. In addition, their ability to enter into legal action can be taken over by the guardian. These provisions go against the CRPD, which mandates that the state ensures that PPDs retain their economic rights and benefits, including the right to manage their transactions or obtain their inheritance rights (CRPD Article 12(5); Epstein 2011). Article 12(3) and (5) of the CRPD makes clear that a person’s disability should not be the basis to deny them access to finance and property, including inheritance, and support should be provided for them to access their legal capacity in financial matters.

There are also insufficient constraints on the length of guardianship orders. No decision we examined limited the period for which the person was placed under guardianship, making the already plenary guardianship limitless. Although Article 459 of Civil Law states that a guardian’s duty lasts for eight years, this provision only applies if the guardian wants to end the guardianship order. There is no provision for the PPD to seek to terminate the guardianship themselves.

Many people have claimed that plenary guardianship can result in a kind of ‘civil death’; a situation where someone cannot hold the ‘right to have rights’ and perform basic liberties in determining their life (Sell 2019: 228). The lack of monitoring and evaluation of limitless plenary guardianship in the Indonesian legal system risks arbitrary treatment given by the guardian to a PPD, especially when the guardian is a close relative or another family member living with them in a closed setting. There is a general sense amongst reformists (rather than those who adopt the wider interpretation of Article 12 adopted by the CRPD Committee) that limited (not plenary) guardianship is appropriate in most cases.

Confusing system

It has been found that 60.5% of Indonesians with legal problems tend to avoid the formal legal system for resolving issues, preferring informal mechanisms (such as those involving local government or traditional or religious figures) (Wicaksana et al. 2022: 1–14). This is especially likely to be the case in the guardianship context, where many PPDs and caregivers in Indonesia have said that they are unfamiliar with and confused by the guardianship system. This creates a strong impetus for reform, to create a more modern and clear system, such as the supported decision-making system mandated by the CRPD. Reforming the guardianship mechanism is necessary to find new and innovative methods of communication and support measures between PPDs and their families, allowing PPDs to retain individual autonomy as decision-makers, while receiving sufficient and appropriate supports where needed.