Event Report: Seminars on Systems/Policies concerning Survival "Disability/Society" No.7 "Legislation for People with Mental Disorders and Agendas of Adult Guardianship"
On October 16, 2015 (Fri.), the Research Center for Ars Vivendi of Ritsumeikan University organized in the Suzaku Campus the seventh seminar in the Systems/Policies concerning Survival: “Disability/Society” series entitled “Legislation for People with Mental Disorders and Agendas of Adult Guardianship”.
The seminar was organized as a part of the outreach activities of the Center's ongoing research project “Systems/Policies concerning Survival” on the problems of disabilities, aging, illnesses, and differences, and is the seventh event of this initiative. For the event, we invited Mr. Yoshikazu Ikehara, lawyer of the Tokyo Advocacy Law Office. Mr. Ikehara gave a lecture on the legal issues surrounding people with mental disabilities.
Firstly, Mr. Ikehara focused on the fact that the concept of disability in the Convention on the Rights of Persons with Disabilities is perceived as an “evolving concept” and emphasized the point that its way of perceiving disability is the social model. Based on this understanding, he then explained that the ability to make decisions, which in the past used to be attributed to the individual, can be reconsidered in the social model of disability framework. In the medical model of disability, the ability to make decisions is determined based on the degree of mental functions and functions of the brain. If, on the other hand, we look at it based on the social model of disability, we can say that those who have been categorized as having low ability to make decisions lose their opportunities to make decisions due to social conventions and, as a result, are perceived as people who do not/cannot make such decisions.
Next, Mr. Ikehara stated the need to reconceptualize the principle of autonomy of individual intent (principle of private autonomy) in the modern law from the viewpoint of the social model of disability. In terms of the principle of private autonomy as it is construed in modern law, “intention for legal effect” is an abstraction of social relations including motivation and is constructed as skillfully extracted and very limited inner workings of the mind such as an intention to buy, to give something as a present, and so on. However, the transacting society that involves all kinds of inner workings of the mind inevitably entails creating some problems. Mr. Ikehara proposed that there are a number of directions for measures to address these problems such as open dialog, family group conferences such as those conducted in Netherlands, or community mental health in Italy.
Concerning the adult guardianship, people call for the need to implement it within a reasonable necessary minimum in regions including Europe and the U.S, and there have been attempts to establish procedures to achieve this goal. However, no country has successfully managed to truly limit the use of the system to a reasonable necessary minimum. Nobody would like to restrict individual right to self-determination and he/she agrees that such rights should only be restricted when there is no other way and such restrictions must be kept to the necessary minimum. In reality, however, there are often times when things go smoother when the right to self-determination is restricted, and that is why the necessary minimum principle is rarely observed. Mr. Ikehara posed a question: if we compare the number of people who will suffer if we leave the adult guardianship as it is with the number of people who will suffer if we abolish it, which would be larger? This was a tough question made by the legal practitioner who squarely faced reality.
Moreover, he posed another question: concerning the approach to those for whom self-determination is difficult, is the existence of the person who makes the decision (the guardian) the matter or is the content of the decisions the matter? If the answer is the latter, there may be a possibility to establish a framework based on yet another kind of consent.
In the questions and answers session that was held after the lecture, an active and constructive discussion ensued with a number of issues raised including 1) If a problem already exists, for example, when determination in which motivation does not connect to results is made, can we really rely on the system of self-determination, and if we can, then what concrete support can be offered? 2) What is the relation between a factual act, such as consent given regarding medical treatment, and restrictions of legal actions? 3) What is the difference between the adult guardianship and the decision-making support systems in the first place?
(The original report in Japanese is prepared by Mr. Naoyuki Kirihara, student of the Graduate School of Core Ethics and Frontier Sciences, Ritsumeikan University. It is translated into English by the Research Center for Ars Vivendi, Ritsumeikan University.)