JEAN-JACQUES GAUTIER NPM SYMPOSIUM 2016
During the Symposium, the participants highlighted the significant
gap between the legal framework for consent and its daily
implementation in psychiatric institutions. Indeed, the visiting
teams often found that the existence of a (real or perceived) mental
impairment justified decisions being taken without even seeking to
find out the will of the person involved, who is often ill-informed or
not informed of his/her rights. In many cases, there is also a close
correlation between deprivation of legal capacity and deprivation of
liberty followed by involuntary treatments. Persons who are deprived
of their legal capacity (and under full or partial guardianship) are
indeed often placed without consent and are wrongly considered to
be “voluntary” patients if the institution has obtained the consent of
their guardian.
The CRPD proposes a paradigm shift that assumes a person has the
capacity to make decisions on her/his treatment in every situation.
The consent must therefore be sought even if the person does not a
priori has the capacity to understand the information provided or to
communicate effectively.
“We acknowledge that there are situations where people are
not able to express their consent or decide on their will and
preferences on treatments that would be life-saving. But we
must embrace an approach that presumes capacity. We have
witnessed over decades that, unless we take that approach, we
presume that people are incapable of making decisions and
giving consent. This is the paradigm shift we are talking about:
we should presume capacity in any situation because every
person has moments of clarity.”
Dragana Ćirić, Mental Disability Rights Initiative, Serbia
18
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents