Reflections on Skiing, Caring and Exercising
Katja Karjalainen
Karjalainen is a University lecturer in private international law at UEF Law School and docent at University of Helsinki
The 2006 UN Convention on the Rights of Persons with Disabilities has encouraged countries to critically review and reform their own legislation on adult protection matters (guardianship/adult’s capacity). The Convention lays down that a person with disabilities must have an equal opportunity to make decisions and receive the support they need to make decisions as a person without a disability. In providing support in exercising legal capacity legal systems face challenges, which lead to delicate balancing situations. In addition to safeguarding one’s agency and autonomy, there is a need to provide protection, to ensure the predictability of the legal system and to assess the legitimate interests of third parties.
To kick off the Workshop Series ‘Supported, accessible and equal decision-making’, the Centre for Welfare and Law and the Discipline of Civil Law, Law School (UEF), held a workshop on ‘Supported Decision Making’ in Joensuu on 13 and 14 February 2023. The Law School was grateful for financial support received from the Finnish Lawyer’s Association (Suomalainen lakimiesyhdistys). In the workshop we heard many intriguing contributions that dealt with decision-making and vulnerabilities. I can only mention a few here, but all were of course equally important for an event that turned out to be highly successful and thought-provoking.
We were particularly happy to welcome keynote speaker, Adrian D. Ward from Scotland, who is an eminent and well-known solicitor and advocate for the rights of persons with mental disabilities. Adrian provided critical comments on the name of the workshop ‘Supported Decision Making’. Despite wide international debates on the UNCRPD and its ‘Supported Decision Making’ regimes the Convention does not in fact mention supported decision-making in any way. However, it mentions ‘Support for exercising legal capacity’. On the basis of a comparative study (the Essex Autonomy Project), in which Adrian previously participated, he convincingly argued that the misunderstanding stems from differences between civil and common law jurisdictions concerning the concept of a contract and of contracting. He pointed out that the right question to be asked under the UNCRPD is in fact as follows: What measures should be taken to support the exercise of legal capacity, both by supporting persons with disabilities to make decisions themselves whenever possible, and by supporting their ability to exercise their legal agency even in circumstances when they lack the ability to make the requisite decisions themselves?
In similar vein we were grateful for the contribution made by member of the Finnish Bar Attorney-of-Law Minttu-Maaria Pekkanen, who covered the deficiencies of the current Finnish legislation and the challenges practitioners encounter when it comes to self-determination and autonomy in the Finnish legal reality. She illustrated, in a lively manner, by reference to cases she had encountered, what can go wrong and, in the worst case scenario, how wrong things can go in applying the rules laid down in the Guardianship Services Act. She also discussed how, inter alia, the discretion of the courts and of the public registry office (nowadays the Digital and Population Data Services Agency) officials plays a role in the results. Thematically related research carried out by the Centre of Welfare and Law was presented by Professor Kaijus Ervasti, who introduced ongoing projects (WELGO, VAPA and OITIS) that benefit from interdisciplinary research in assessing and providing the knowledge needed to underpin, inter alia, accessible decision-making.
Many engaging debates followed. Among other things, we debated whether continuing powers of attorney constitute a unilateral or bilateral instrument and whether the Finnish legal system contains norms that may be classified as falling within the scope of ex lege representation. What makes a continuing power of attorney a unilateral or a bilateral instrument? What is ex lege representation and what is the role of next of kin in representing adults in different jurisdictions? In many ways, of course, more questions were raised than answers given, but what could be better than agreeing and disagreeing with your peers? Maybe some answers will be provided by the new research/model law project ‘Advance choices for Future Disablement’ being undertaken by the European Law Institute (ELI), which Adrian leads together with Professor Christiana Fountoulakis. The project draws heavily on comparative and interdisciplinary approaches and I am happy and honoured to contribute to it.
You may wonder why – in addition to piquing your interest (obviously successful if you are still reading) – this blog post is titled as it is. Simply put, you have to care about issues dealing with legal capacity. They are of the utmost importance to us all. Adrian particularly emphasized the point that we all need support from our fellow humans in our big and small life decisions. Each of us exercises our legal capacity every day and, knowingly or unknowingly, we most likely support those close to us – and receive support from them – in exercising their legal capacity on a daily basis. For example, we help our child to choose which dress she wants to put on for daycare or discuss with a friend whether they should look for another job. In principle, supporting people with disabilities in exercising their legal capacity is no different. Both big and small life choices must be broken down into smaller pieces. Those pieces need to be made understandable. Potential consequences must be evaluated. And one must ultimately choose between the various alternatives available. Finally, skiing was the key element in planning the workshop (thank you for the idea Adrian!) and convincing Minttu-Maaria to travel to Joensuu in the middle of the deep dark winter – even though the days on which the seminar was held turned out to be exceptionally sunny. The days spent in the national landscape of Koli before the workshop were all about skiing, good food and friends.
The second workshop ‘Accessibility and Decision-making’ will take place on 8 June 2023 in Helsinki. The keynote speaker will be Professor Rosie Harding from the University of Birmingham. The workshop will build on the results and ideas of the first workshop. How are life’s big and small choices to be made and how are their consequences to be evaluated? What is the legal language that is to be achieved? How, for example, can legal professionals provide support to a person with disabilities to decide on his or her own affairs? What obstacles there are for access to justice and to effective use of human rights? Registration for the seminar is now open. A more detailed programme will be published a few weeks before the seminar. There is no registration fee. The workshop will be arranged in English and only as an in-person meeting. It is possible to attend without submitting a paper.
Ihmisoikeuskeskus ja hyvinvointioikeuden keskus järjestävät 7.6. yhteisen seminaarin ’Haavoittuvassa asemassa olevien ihmisten oikeuksien toteutumisesta: tutkimuksen haasteita ja tuloksia’. Lisätietoja ja ilmoittautumisohjeet julkaistaan myöhemmin. Tervetuloa!
Hyvinvointioikeuden keskus täyttää vuonna 2023 viisi vuotta ja juhlii kasvuaan alan merkittävimmäksi tutkimus- ja opetuskeskittymäksi Suomessa. Hyvinvointioikeuden keskus kokoaa yhteen ihmisten
hyvinvointiin liittyvän monitieteisen oikeudellisen tutkimuksen, asiantuntijuuden ja koulutuksen Itä-Suomen yliopistossa. Itä-Suomen yliopisto on ainoa yliopisto Suomessa, jossa hyvinvointioikeutta voi opiskella pääaineena. Keskuksessa toimii noin 30 tutkijaa hyvinvointioikeuden eri aloilta.
