L’affaire Lambert et la Convention internationale relative aux droits des personnes handicapées (CIDPH)

While the Conseil d’État once again confirmed the legality of the medical decision to stop treatment of Vincent Lambert, the Cour de Cassation held that the French State is not required to suspend the execution of the said decision pending the opinion of the Committee on the Rights of Persons with Disabilities, a United Nations’ body. Nevertheless, the High jurisdiction does not directly pronounce itself on the question of the binding force of the provisions of the Convention on the Rights of Persons with Disabilities and its additional protocol, nor on the scope of these texts.     

‘The witness who saw, /he left little doubt’: a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence—especially when mental disability is an issue—raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context—in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.     

Cognitive Impairment and the Right to Vote: A Strategic Approach

Most democratic countries either limit or deny altogether voting rights for people with cognitive impairments or mental health conditions. Against this weight of legal and practical exclusion, disability advocacy and developments in international human rights law increasingly push in the direction of full voting rights for people with cognitive impairments. Particularly influential has been the adoption by the UN of the Convention on the Rights of Persons with Disabilities in 2007. Article 29 declares that states must ‘ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected’. This article also argues for the right of all people to vote, including people with cognitive impairments, by adopting a uniquely strategic approach. Firstly, some of the strategic limitations of existing arguments in favour of extending the franchise are highlighted. Most such arguments are flawed because they run the risk of inviting disparaging philosophical commentary which compares disabled people to animals, or because they are based on implausible empirical claims, or because they inadvertently tie the case for voting rights for the disabled to other cases unlikely to ever enjoy widespread acceptance. This article, instead, justifies extending voting rights to all people with cognitive impairments based on a simple cost‐benefit analysis that avoids all of these problems.     

Freedom and Disability Rights: Dependence,Independence, and Interdependence

The increasing focus on disability rights—as found, for instance, in the U.N. Convention on the Rights of Persons with Disabilities (CRPD)—challenges philosophical imaginaries. This article broadens the philosophical imaginary of freedom by exploring the relation of dependence, independence, and interdependence in the lives of people with disabilities. It argues (1) that traditional concepts of freedom are rather insensitive to difference within humanity, and (2) that the lives of people with severe disabilities challenge philosophers to argue and conceptualize freedom not only as independence and interdependence but also as dependence. After tracing this need through a Hegelian understanding, via Julia Kristeva's work on disability, and finally the CRPD, it concludes that a unified solution might not be possible. Hence, it argues that disability issues necessitate philosophical modesty.     

Freedom of Religion or Belief in the Jurisprudence of the Bulgarian Constitutional Court1

Abstract

This article discusses the evolution of the jurisprudence of the Bulgarian Constitutional Court (BCC) in the area of freedom of religion or belief by reference to its most recent judgment, which among other things considered the legality of a provision of establishment ex lege of the majority religion. While the court was unable to reach the majority needed for a decisive judgment, the elaborations of the two groups of judges illustrate two distinctive trends in BCC jurisprudence in the area of freedom of religion or belief. At one end of the spectrum the dissenting judges presented very detailed elaborations for the justification of establishment ex lege against the background of Article 9 of the European Convention on Human Rights, with notions similar to the Hartian rule of recognition, using sources such as canon law and Ottoman law as legally relevant facts for the constitution of a ‘background culture’ (via establishing the majority religion ex lege). At the other end of the spectrum dissenting judges presented a more sceptical approach to establishment ex lege through a very literal interpretation of the principles and some of the European Court of Human Rights jurisprudence dealing with Article 9. While the decision was not conclusive it flagged a new dimension to the BCC's approach in the area of human rights and freedom of religion or belief – the blending of political and legal analytical philosophy with a detailed analysis of European Court of Human Rights case law.     

Between Theory and Practice: A Dilemma for the Morawetz‐Wittgenstein View of Law

Drawing deeply from Wittgenstein's later works, Thomas Morawetz has articulated a vision of legal decision making according to which it is not a defect, but inherent in the very nature of law, for there to be disagreement among judges regarding their legal decision‐making strategies. Central to Morawetz's account is the notion of a legal grammatical proposition. This essay argues that because legal grammatical remarks lack any truth‐value, they cannot play a justificatory role. This would imply that the rule of law is no more justifiable than the violent alternatives used by anarchists and religious fanatics.     

Mental health criminal defenses in persons with neuropsychiatric disorders

Persons with neuropsychiatric disorders present specific and unique challenges for forensic experts and defense attorneys in the criminal justice system. This article reviews two potential criminal defenses: legal insanity and the various legal standards or tests of criminal responsibility that are used in jurisdictions throughout the United States (i.e., the M’Naghten standard and the American Law Institute's Model Penal Code), and the partial legal defense of diminished capacity (lacking the mental state necessary to be found guilty of a specific intent crime). The process of evaluating criminal responsibility or diminished capacity is also presented with a specific emphasis on common issues that arise in evaluating defendants with Intellectual Developmental Disorder (Intellectual Disability), Parasomnias, Seizure Disorders, and Neurocognitive Disorders.     

Stability of choices in a risky decision‐making task: a 3‐year longitudinal study with children and adults

In a 3‐year follow‐up to Levin and Hart's ( 2003 ) study, we observed the same children, now 9–11 years old, and their parents in the same risky decision‐making task. At the aggregate level the same pattern of means was observed across time periods. At the individual level the key variables were significantly correlated across time periods for both children and adults. Taken together with the results from the original study and earlier studies, these results solidify the following conclusions: children utilize both probability and outcome information in risky decision‐making; the tendency to make more risky choices to avoid a loss than to achieve a gain of equal magnitude, which is a major tenet of the leading theories of risky decision‐making, occurs for children as well as adults; children make more risky choices than adults; temperamental predictors of risky choice are valid for children as well as for adults. Copyright © 2006 John Wiley & Sons, Ltd.     

Mental strategies,mental capacity,and instruction: A neo-Piagetian investigation

Pascual-Leone's neo-Piagetian theory of development was used to predict the pre- and postinstruction distributions of scores on a subject-controlled digit placement task as a function of three parameters: (1) the mental strategy which subjects attempted to apply, (2) the demand which attempting to apply this strategy placed on their mental capacity, and (3) the maximum mental capacity which they were capable of mobilizing. The predicted and obtained distributions corresponded quite closely for each kind of strategy at each age level sampled (6, 8, and 10). The discussion focused on the methodological and analytic requirements which must be met if the same approach is to be applied to making successful predictions in more naturalistic paradigms.     

Abuse and neglect of adults with mental retardation in different residential settings

Eighty-two per cent of all cases of abuse or neglect of an adult with mental retardation substantiated by the Abuse Investigation Division of the Connecticut Office of Protection and Advocacy for Persons with Disabilities over a five-year period occurred in the victim's residence. Chi square analyses revealed that there was significantly more abuse in institutions and group homes and significantly less in the individual's own home. Furthermore, analyses revealed that there was significantly more personal neglect in group homes and community training homes and significantly less in own homes. The results were discussed and recommendations made regarding ways of reducing abuse and neglect.     

A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights1

Abstract

The article examines the strategies the European Court of Human Rights (ECHR) employs to apply the concept of neutrality in relation to Article 9 (freedom of religion or belief) of the European Convention on Human Rights. Having explored the theoretical background of the concept of neutrality and its specific application in the case law, the authors argue that neutrality is often used to display a bias towards a particular world view or societal paradigm, rather than representing unbiased perspectives of legal reasoning. The article studies the specific justifications for such biased approaches in the context of relevant ECHR cases and argues that in this way neutrality has discredited itself as a credible legal tool and as a form of legal argumentation. Furthermore the difficulty of handling the complexities of Article 9 claims by applying the principle of neutrality has led to a stronger trend of avoiding Article 9 by dealing with Article 9 claims through other Convention articles. Finally the authors discuss possible new approaches to legal reasoning which could take on board the dynamics of freedom of religion or belief through independent reasoning beyond the myth of neutrality.     

Fatigue biases the decoy effect in males but not females

Individuals often need to make critical decisions even when they are in a fatigued state. Mental fatigue may lead to increased susceptibility to distraction and poor information processing but it is unclear exactly how fatigue shapes individuals' decision‐making. We studied how mental fatigue influences sensitivity to contextual information, indexed as decoy bias. Mental fatigue was induced using a multi‐source interference task, and decoy bias was assessed using a gambling task, in 124 young adults. Results showed that mental fatigue increased decoy bias through enhanced perceptual salience of contextual cues, but only in males. The findings provide insight into a gender‐specific relationship between fatigue and poor judgments. This study extends the current literature on links between fatigue and poor decision‐making by documenting a possible mechanism of the association. The results may have practical implications for designing optimal working hours and safeguarding people from suboptimal decisions.     

A Goodness-of-Fit Approach to Informed Consent for Pediatric Intervention Research

As children and adolescents receive increased research attention, ethical issues related to obtaining informed consent for pediatric intervention research have come into greater focus. In this article, we conceptualize parent permission and child assent within a goodness-of-fit framework that encourages investigators to create consent procedures “fitted” to the research context, the child's cognitive and emotional maturity, and the family system. Drawing on relevant literature and a hypothetical case example, we highlight four factors investigators may consider when constructing consent procedures that best reflect participants' rights, concerns, and well-being: (a) the child's current assent capacity and the likely impact of study information on the child's mental and physical development, (b) parents' understanding of their child's treatment needs and distinctions between treatment and clinical trials research, (c) the family's history of shared decision making, and (d) the child's strivings for autonomy within the context of their parents' duty to make decisions in the child's best interest.     

Better to Decide Together: Shared Consumer Decision Making,Perceived Power,and Relationship Satisfaction

Shared consumer decisions, particularly those made with a relationship partner, can be very different from decisions that are made alone. Across multiple studies, we investigate how shared consumer decision making affects perceptions of power and relationship satisfaction. We integrate two streams of research to create a novel theory about consumer decision making and perceived power. Specifically, we suggest that shared consumer decision making combines two necessary components of power—an individual's influence over and a partner's engagement in the decision—and that these combined components drive power perceptions. In other words, individuals who relinquish some control and make a decision with their partner, ironically, perceive having greater power than if they had made the decision alone. We further find that shared decision making and greater perceived power lead to greater satisfaction with the relationship in which the decisions are made. By focusing on consumer decision making within relationships, the current research contributes to the literatures on decision making, social influences in consumer behavior, close relationships, consumer well-being, and power.     

Contextual Themes in Career Decision Making of Female Clients Who Indicate Depression

Difficulties concerning female counseling center clients' career decision making were explored in this qualitative study. The authors reviewed counseling intake and progress notes of 18 female students who sought counseling services at a university counseling center and who presented career concerns and reported feeling depressed. Most women in this study described their career decision‐making difficulties in the context of relationships with their parents or significant others. Both external (i.e., family relationships, family and culture, and relationships with significant others) and internal (i.e., developmental, developmental and mental health issues, and skill deficits) conditions emerged as significantly affecting these women's career decision‐making process.     

Investigating medical decision‐making capacity in patients with cognitive impairment using a protocol based on linguistic features

A critical question is whether cognitively impaired patients have the competence for autonomous decisions regarding participation in clinical trials. The present study aimed to investigate medical decision‐making capacity by use of a Swedish linguistic instrument for medical decision‐making (LIMD) in hypothetical clinical trials in patients with Alzheimer's disease (AD) and mild cognitive impairment (MCI). Three comparable groups (age, education) participated in the study: AD (n = 20; MMSE: 24.1 ± 3.3) and MCI (n = 22; MMSE: 26.7 ± 2.4) patients and healthy controls (n = 37; MMSE: 29.1 ± 1.0). Medical decision‐making capacity was operationalized as answers to questions regarding participation in three hypothetical clinical trials. Answers were scored regarding comprehension, evaluation and intelligibility of decisions, and a total LIMD score was used as the measure of medical decision‐making ability. Groups differed significantly in LIMD with AD patients performing worst and MCI poorer than the control group. A strong association was found between all LIMD scores and diagnosis which supported the assertion that LIMD as it is designed is a one‐dimensional instrument of medical decision‐making capacity (MDMC). The results indicate that a fundamental communicative ability has an impact on the competence for autonomous decisions in cognitive impairment.     

Retracted: Racist biases in legal decisions are reduced by a justice focus

Six studies investigate whether the effect of racist biases on judges' legal decisions on minority defendants is reduced by a “justice focus.” Given that people associate legal decision‐making with the need to do so in a colorblind manner, a justice focus blocks the effect of racist biases on legal decisions. Experiment 1 shows that explicit instructions to adopt a justice goal decrease biases. Experiment 2 shows that a primed justice focus also decreases biases. Experiments 3a and 3b show the role of pre‐existing legal expertise, which makes people more susceptible a justice goal. Experiments 4a and 4b apply these findings by studying the role of a justice focus among professional courtroom judges. Together, these results demonstrate the importance of a justice focus in preventing racist biases in legal decision‐making. Importantly, a justice focus is a necessary but no sufficient condition for the colorblind administration of justice. Copyright © 2010 John Wiley & Sons, Ltd.     

Beyond the 'Awkward Embrace': DisabilityRights, Dialogue and 'Law, Loveand Language' Revisited

Despite the perceived 'human rights revolution' within Church teaching since Vatican II, a measure of dissonance survives between secular rights theory and practice on the one hand and, on the other, ethical thinking informed by the natural law tradition. This article examines some recent developments in that secular theory and practice for signs of possible rapprochement. In particular, it considers the way in which the emergence of 'disability' as a rights issue, for example in the recently ratified United Nations Convention on the Rights of Persons with Disabilities, has contributed to the transformation of equality and human rights law and so has helped shape a broader transformation of rights theory and practice. Central to that transformation has been the ambition of establishing human rights as the basis of a progressive political programme, as witnessed for example by the work of Sandra Fredman and by the Hamlyn Lectures of Conor Gearty, whose Catholic provenance makes his approach especially salient. The article concludes by considering Herbert McCabe's interpretation of Aquinas' ethics, especially in his Law, Love and Language , and proposes some potentially fruitful points of contact between McCabe's approach and the identified developments in secular rights theory.     

Assessing quality of care and observance of human rights in residential mental health facilities in Greece through the WHO QualityRights tool kit

In this paper, we present and reflect upon the process of evaluating two residential mental health facilities in Thessaloniki, Greece, through the WHO QualityRights tool kit. The QualityRights tool kit is a structured process for assessing quality of care and human rights in mental health and social care facilities, in accordance with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), introduced by the World Health Organization in 2012. We have piloted the use of the Toolkit in two supported accommodation facilities, a hostel and a service supervising independent living in apartments, for individuals with long-term severe mental health problems in the region of Thessaloniki. In this paper, we present the methodology and process of evaluating the facilities, including the challenges posed to the evaluation process by restrictions due to the Covid-19 pandemic. We showcase the outcome of this evaluation through presenting a summary of the results and the ensuing recommendations for improvement. Finally, we reflect on the usefulness, appropriateness and relevance of the Toolkit for evaluating mental health care facilities in the particular context of contemporary Greece.     

When Do I Disclose?

SUMMARY

The Americans with Disabilities Act of 1990 (ADA) heralded a new era of civil rights for the disabled, including the mentally ill. This article concerns Title I of the ADA, protections against discrimination in employment. It is a revised version of an article orginally published in a consumer publication, the MDSG/New York Newsletter (Mood Disorder Support Group) to provide guidance on the pro's and con's of making disclosure of mental illness in the job environment. As such it is a valuable reference for both therapists and service recipients who wish to learn more about how the ADA relates to the employment of people with mental illness and who may be faced with the difficult decision of whether or not they should disclose their condition and request reasonable accommodation. Occupational therapists should be well-informed on this topic, to assist consumers with questions on disclosure, reasonable accommodations and other aspects of Title T. Employers can benefit by providing them with information about appropriate accommodations. And occupational therapists can advise both consumers and employers on how a psychiatric illness may affect work performance.