Recomposing Regulations in Mental capacity Assessment and guardianship (REGULCAP research project) (2015- )

In civil law, human beings are presumed to have mental capacity to take actions and decisions on their own. However, the civil capacity (legal competence) may be partly fractured when individuals are not in position to decide for themselves and in their own interests. Under these particular circumstances and medical assessments, judicial authorities may break an individual’s autonomy and have them protected by outsiders who can act and make decisions on their behalf in cooperation with them. The French Civil Code organises this protection through two distinct provisions, called « tutelle » or « curatelle ». Common laws traditions organises this protection with guardianship.

This research aims to contribute to a better understanding of mainstream policies on vulnerability, including psychiatry, mental health, public welfare and disabilities. They also constitute an invitation to explore autonomy schemes from social and civil perspective.

 Support to exercise rights and freedoms as citizens: establishing forums based on the UN Convention on the Rights of Persons with Disabilities (CAPDROITS) (2016- )

The participation of persons with disabilities in the activities taking place in their communities is a major challenge for democratic life and current public policies. One of the decisive keys to such participation is the effective capacity people have to exercise their rights on the social, economic, civil and political levels, i.e., their citizenship. However, in particularly vulnerable situations where people have very little possibility of recourse, these capacities are drawn on very little, diminished or sometimes even denied. These situations apply to persons with mental health disorders and illnesses, cognitive disorders due to neurodegenerative processes or injuries, intellectual disabilities or other types of impairment.

Due to the fact that Article 12 of the UN Convention on the Rights of Persons with Disabilities provides that the legal capacity of persons must not be restricted, the Convention – ratified by France in 2010 – has set in motion a new debate focusing on the challenge to access rights in the French context. The “Capdroits” project is a contribution to this debate, launched as a follow-up to the multidisciplinary international conference (ConfCap) organized in October 2015 with the support of a significant number of institutional and non-profit sector partners. It was the difficulty people directly concerned have (persons with disabilities, mental health services users) in communicating about those conditions that would allow for the effective exercise of their rights as provided for in the Convention that led the researchers from Collectif Contrast, together with the Conseil français des personnes handicapées pour les questions européennes (French Council of persons with disabilities for European issues – “CFHE”) to design this research project. A Monitoring Committee composed of partners and a Scientific and Ethical Committee (French and International) will participate in the governance of the project.

The Capdroits project has a three-fold objective:

• Foster the participation of persons with disabilities in debates on issues which first and foremost concern them directly;
• Promote the acceptance of their contributions by relevant academic researchers and public authorities;
• Shed new and experience-based light on how these persons may exercise their rights.

ACSEDROITS research project (2016- )

We assist today to an increase of the ageing population (in France and in Quebec, ⅓ of the population will have more than 60 years in 2050) along with a risk of vulnerabilisation of elderly people. To cope with this demographic challenge, States have set up legal mechanisms of protection as well as socio-medical services. These mechanisms and services rest on social rights that need to be activated. The access to these rights is rendered difficult when the cognitive vulnerability of the elders weakens their capacity to exercise their rights and to put forward their interests. This creates a series of situations in which the respect of their fundamental rights is endangered, in spite of or because of the recourse to these legal mechanisms of protection. The increase in the recourse to these mechanisms poses various types of problems, the more so as their legal foundation is disputed today. The need assessment for protection rests on dubious criteria; the control of the decisions taken and of the actions conducted for the person by others remains scarce; the respect of the preferences of the person is difficult to realize. This poses the problem of the access to their rights by the persons with cognitive vulnerability.

Project ACSEDROITS will assess whether the current legal tools and their social uses in France and in Quebec make it possible to solve or on the contrary contribute to worsen the difficulties of access to their rights by the elders with cognitive vulnerability. It will be articulated around two hypothesis: 1) the difficulties of access to the rights are reinforced by the lack of communication between social and civil rights, at the legal level (legislation, case law and doctrinal), and at the level of social uses and legal conscientiousness that persons have of their rights; 2) a better respect of the rights of the vulnerable elders implies a new delimitation of the concept of legal capacity leaning towards a procedural comprehension of the decision-making processes leading to the opening of the protection regimes, the limitation of fundamental rights and the legal imposition of care and services. To test these hypothesis, the project will be based on an interdisciplinary scientific program implying an ethnographic approach of the difficulties met by the actors, a theoretical analysis of the anthropo-legal concept of capacity, and an analysis of comparative law.