The law adopts a cliff-edge approach to capacity, drawing a bright line between those who are deemed to have the capacity to make a decision and those who are not. This reflects Enlightenment ideas about the limits of legitimate state authority, according to which substantial justification is required before the state can interfere with the autonomous choices of its citizens. Given its role in distinguishing those who are capable of making autonomous choices (to whom the state defers) from those who are not, it is generally assumed that the test for capacity must be neutral as to the substance of the values, beliefs, or reasons underpinning any given decision, so as to leave proper space for individual autonomy. As a result, the Mental Capacity Act 2005 adopts a process-orientated account of capacity, which focuses on whether certain of the person’s cognitive capacities are intact, and not on the outcome of the decision, or on the substance or origins of values or beliefs which underpin it.

Chapter 7 summarises the book’s findings and explains their implications for advocacy and law reform. It argues that recognition of the indivisibility of human rights is important to ensure that targeted services are provided for people with disability to address their disproportionate levels of socio-economic disadvantage. It decries the privileging of civil and political rights especially the right to legal capacity over all other rights, for encouraging the ‘lazy state’ that erroneously justifies its neglect of marginalised people in the name of upholding their human rights. It provides the example of personalised or individualised services premised on simplistic notions of choice and control, which often fail to uphold the rights of people with cognitive disabilities. It stresses the importance for the state and community of acknowledging difference to promote services that ensure civil, economic, political, social and cultural inclusion in all cases.

Chapter 6 argues that in interpreting the right to legal capacity ‘on an equal basis with others’, a substantive notion of inclusive equality must be applied. In doing so, it applies but also critiques General Comment No 6: On Equality and Non-Discrimination, published by the United Nations Committee on the Rights of Persons with Disabilities. Inclusive equality demands recognition of the difference of impairment and associated disadvantages. Once difference is acknowledged, either supported decision-making or decision-making by substitutes may be required to recognise an adult’s legal capacity ‘on an equal basis with others’ and to promote inclusion. This chapter draws on existing commentary explaining the ‘hybrid’ nature of the right to equality in bridging both socio-economic and civil and political rights and driving the principle of indivisibility.

This chapter introduces the research problem – how to interpret Article 12 of the Convention on the Rights of Persons with Disabilities (‘CRPD’) – the right to legal capacity on an equal basis with others. There is contention as to whether Article 12 allows for decision-making by substitutes as a last resort in ‘hard cases’, or whether people with cognitive disability can always be supported to make their own decisions and have their legal capacity recognised. The chapter explains how the CRPD developed against a history of people with disability being excluded as subjects of human rights, so that the convention was hailed as a ‘paradigm shift’. It introduces the book’s argument that interpreting Article 12 through the principle of the indivisibility and independence of human rights means that in ‘hard cases’ decision-making by a substitute may be required to recognise an adult’s human dignity and achieve inclusive equality.

this chapter will discuss the regulation of personal capacity (ahliya) and agency under the civil law of Qatar and will not deal with the issue of competence pertinent to foreign investors or specific competence of state (or administrative) entities, even if said competence concerns contractual freedom. The chapter deals with the most important types of agency and hence several are missing from this discussion. It will become clear from the discussion relating to personal capacity that several (but not all) principles underpinning classical Islamic law have been incorporated in the Qatari CC, despite the fact that they are to a large degree antiquated and out of touch with Qatar’s international obligations.

There is a (r)evolution in decision-making with dementia. The traditionally applied cognitive approach based on mental capacity is radically questioned by the UN Convention on the Rights of Persons with Disabilities. Although there are still gaps in the alternative they suggest, the UN Convention should be applauded for doing justice to what a person living with dementia really wants. After setting out the puzzle raised by the UN Convention, this contribution aims to explore to what extent two already known ways of dealing with dementia could be part of the quest to uncover what a person who lives with dementia really wants. First, we look at advance care planning. As a process that foreshadows future choices, it has a major potential. Second, we shift to a less self-evident practice; existing dementia care literature that explores holistic hermeneutics and ‘in the moment’ frameworks to better understand the subjective experience of living with dementia. By looking at both a holistic hermeneutic approach and an ‘in the moment’ frame, we question whether these frameworks currently applied for understanding lived experiences of persons living dementia could be applied to disclose a person’s real will and can therewith be a footing for decision-making.

Based on a neo-Confucian vision that the monarch’s mandate relied on listening to his people’s grievances, the Joseon state (1392–1910) empowered subjects regardless of gender or status to petition the sovereign regarding grievances not rectified in lower courts. While Joseon-era women are usually considered to have been silent subjects outside the home, their petitioning activity shows that women, irrespective of their status, had the same legal rights as men to appeal grievances to the state. This chapter parses women’s linguistic practices in claims-making to show how their petitioning rights complicated gender dynamics of Confucian society. The gender hierarchy was reinforced through women’s narrative strategy as they appropriated discourses of domesticity. At the same time, I posit that women as legal agents were re-gendering legal identity by constructing a sense of personhood via their petitioning. Through gendered claims, women struggled to defend not only themselves and their sense of morality but also their entire family.

Using the framework exposed in Chapter 6, this chapter presents how the SPS and TBT transparency mechanisms serve to address a number of the factors needed by WTO Members to adjudicate. In particular, it shows the extent to which SPS and TBT transparency allows to gain access to information about other Members’ regulations, to reduce some resource inequalities through equal access to information and to offer alternative fora to discuss conflicts and work towards a mutually acceptable solution. Still, this chapter underlines inequalities that remain in the access to WTO transparency, suggesting some explanations for unequal access to dispute settlement.

The dispute settlement system is a costly and burdensome process that may be worth turning to only in cases of high trade losses. It is arguably in any country’s interest to avoid disputes. Building on the premise that disputes intervene only as a last resort, Chapter 7 explores the reasons that explain the difficulty to ‘climb’ the disputing pyramid. Based on pre-existing literature, it identified three general factors to explain WTO Members’ access to WTO adjudication: Members are likely to bring disputes as long as they have information, resources, and they lack alternative fora to solve the conflict. This serves as a basis for arguments in the subsequent chapter about the possible roles for transparency in accessing formal dispute settlement.

Chapter 6 explores the concept of legal capacity and its relationship with human dignity and independence of persons with disabilities. It focuses on the scope and normative content of Article 12 CRPD, which requires States Parties to move away from substitute decision-making regimes to supported decision-making. The latter entails a range of positive measures to facilitate the exercise of legal capacity by all persons with disabilities. This chapter distinguishes between the concepts of legal capacity and mental capacity and examines States Parties’ obligations in relation to the legal capacity of disabled persons. It further delineates the interrelationship between Article 12 and Article 19 CRPD (on living independently and being included in the community). Finally, the chapter outlines the links between Article 12 and Article 23 CRPD (on family and reproductive rights).

Chapter 6 explores the concept of legal capacity and its relationship with human dignity and independence of persons with disabilities. It focuses on the scope and normative content of Article 12 CRPD, which requires States Parties to move away from substitute decision-making regimes to supported decision-making. The latter entails a range of positive measures to facilitate the exercise of legal capacity by all persons with disabilities. This chapter distinguishes between the concepts of legal capacity and mental capacity and examines States Parties’ obligations in relation to the legal capacity of disabled persons. It further delineates the interrelationship between Article 12 and Article 19 CRPD (on living independently and being included in the community). Finally, the chapter outlines the links between Article 12 and Article 23 CRPD (on family and reproductive rights).