May 10, 2017
By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights
The recently adopted judgment in the case A.-M.V. v. Finland on the right of an intellectually disabled man to decide where and with whom to live makes for a fascinating, although frustrating reading. This is a timely reminder of the considerable challenges remaining on the journey towards the goal of independent living, celebrated on the 5th of May across Europe.
The applicant, an intellectually disabled young man born in 1990, was taken into care and placed with a foster family in 2001. The foster family moved to northern Finland in 2006 and were planning to enrol the applicant in a vocational school located far from their village. These decisions were taken without authorisation, so in 2007 the child welfare authorities removed the applicant from the foster family and placed him in a children’s home in his hometown in southern Finland. In 2008, after he turned eighteen, the applicant was appointed a mentor, who was asked to assess his best interests with a view to settling the matter of his abode. In 2009, the social welfare authorities had to enlist police help to bring the applicant back from northern Finland, where he eloped to his former foster parents. At this point, a local court made a finding that the applicant was unable to look after his own interests due to diminished mental faculties, ordering the appointment of a mentor to deal with issues related to his person to the extent that he could not understand their significance. In 2011, the mentor decided that the applicant had to live in his hometown in southern Finland nearby his biological family members, where he would benefit from better educational and work opportunities. This was based on a psychologist’s report concluding that the applicant had the decision-making skills of a 6-to-9-year-old.
In 2011, the applicant applied to have his mentor replaced insofar as matters pertaining to his place of residence and education were concerned. A local court rejected the request, taking into account his limited decision-making skills, his apparent lack of understanding of the implications of a move, that his former foster parents may have influenced him, that he appeared to enjoy his life in his hometown and that life in northern Finland was relatively harsh. In these circumstances, the mentor had to act in his best interests, which he assessed to require settling in southern Finland, even at the price of disregarding his wishes and preferences. The judgment was upheld on appeal, with one dissenting judge emphasizing the importance of the relationship of trust that the applicant had with his former foster mother, that he was broadly aware of circumstances in northern Finland and taking into account that he lost trust in his mentor.
The applicant complained about his inability to replace his mentor with the consequence that he was denied the right to choose freely where and with whom to live. The Court, which focused its analysis on the right to respect for private life under Article 8, rejected his claim, taking the view that, as the applicant was unable to understand the consequences of a move to northern Finland, the authorities were entitled to disregard his wishes and preferences and take a decision in his best interests. The interference with the applicant’s right to private life was proportionate with the aim of protecting his well-being, whereas the applicable procedure contained sufficient safeguards against abuse, including review by a court and his personal involvement at all stages.
The Court stated from the outset that it would take into consideration the cornerstone provision on legal capacity in the Convention on the Rights of Persons with Disabilities (‘CRPD’) – Article 12, along with relevant Council of Europe instruments, which predate the CRPD and differ from it significantly. However, it ended up providing a significantly different interpretation of Article 12 from that of the CRPD Committee. Thus, the Court held that the mentor was entitled to decide on his ward’s behalf to the extent that he was unable to understand the significance of the issue at hand, suggesting that this arrangement was CRPD-compliant. In that respect, the Court endorsed the authorities’ assessment of the applicant’s decision-making skills, emphasizing that the mentor arrangement was tailored to his individual circumstances, that his cognitive abilities were measured in relation to the particular decision in question and that the interference with his legal capacity was subject to safeguards.
For its part, the CRPD Committee made it clear on numerous occasions that Article 12 banned all forms of substitute-decision making, which restricted legal capacity based on “perceived or actual deficits in mental capacity” associated with cognitive or psychosocial disabilities. The CRPD Committee also clarified that the functional method of measuring decision-making skills in relation to a concrete decision (endorsed by the Court in the present case) was flawed for being discriminatory and unscientific. Furthermore, “best interests” decision-making has to be abandoned as inherently paternalistic. Instead, Article 12 requires that substitute decision-making be replaced with systems offering support in the exercise of legal capacity.
Besides pledging to follow the CRPD, with its focus on personal autonomy and non-discrimination, the Court recalled that the margin of appreciation in cases involving people with disabilities should be narrow, that very weighty reasons should be adduced to justify any restriction in that respect, while highlighting the importance of finding the right balance between the dignity and self-determination and the need to protect the individual. However, one cannot but feel that despite the Court’s best intentions, this judgment is but the latest iteration of its long-standing practice of providing national authorities with carte blanche in cases involving serious violations of disabled people’s human rights. Although the Court claims to engage in a balancing exercise, it only cites the arguments on one side of the balance, attaching very little weight to the applicant’s wishes and preferences and focusing instead on the procedural safeguards against abuse available at the national level. Furthermore, the Court extends the scope of the concept of “protection of health” in Article 8§2 to cover the woolly notion of “well-being”, in order to accommodate interferences with the right to respect for private life in the ‘best interests’ of the person concerned, beyond traditional concerns with harm to self or others. In addition, by citing international law provisions on the need to protect people with disabilities from exploitation and abuse, the Court appears to make a factual determination that the applicant was a victim in that respect, which does not necessarily reflect the divided opinion at the national level. This is relevant as safety concerns would require and not merely permit an intervention in the person’s “best interests,” feeding into the narrative of paternalism that dominates the Court’s disability jurisprudence.
In these circumstances, imagining an alternative approach that would privilege the applicant’s autonomy and his right to live independently makes for an interesting exercise. First, the Court could have interrogated more closely the notion that the applicant’s views were not legally relevant. Notably, the wish to move to northern Finland was not altogether unreasonable, a fact reflected in the divided high court opinion, whereas his steadfast attachment to the same views through the years may also signal a degree of cogency. The notion of mental age, which assimilates people with disabilities to children, could also be subjected to more intense scrutiny. Second, the Court could have scrutinised more closely the options available to the applicant, including that of moving to northern Finland. In this, it may have been worth considering another CRPD provision, Article 19, which guarantees the right to live independently and to be included in the community with choices equal to others, including with respect to the place of residence and to where and with whom to live, and which requires States to provide a diverse range of support services to achieve the goal of independent living. Notably, this case does not feature any argument around resources, a major stumbling block in so many other disability cases. The Court would then have to compare the different options on the table, taking into account that some support would still be available in northern Finland from the former foster family as well as potentially from social services that presumably cover the whole Finnish territory, and in the process afford the applicant’s wishes and preferences due weight.
The A.-M.V. v. Finland judgment is part of trend towards articulating at the European level a competing and more conservative view of Article 12 that would considerably stunt its transformative potential and safeguard the status quo. This trend also includes events such as the recent German Constitutional Court judgment on forced psychiatric treatment or a draft Additional Protocol to the Oviedo Convention that would provide an additional mandate for involuntary measures justified on the basis of disability. Looking more closely at the Court’s jurisprudence, a pattern emerges of loosely worded concerns for ‘protection’ or ‘best interests’ being used to trump the fundamental rights of persons with disabilities. In A.-M.V. v. Finland the Court relied on a vague concern for “well-being” to justify a serious interference with the right to self-determination. In other cases, the justification for involuntary detention was extended from concerns related to harm to self or others to the need to avert neglect and the failure to observe “principles of hygiene and nutrition” (for example K.C. v. Poland). In yet other psychiatric detention cases, the Court’s focus shifted from a scrutiny of the conditions for lawful deprivation of liberty to the failure to protect the victim through guardianship. With this latest development, the Court is moving further apart from trends in the disability field at the global level.