Conference on Legal capacity and guardianship - Discrepancy between the practice and the CRPD, 4 and 5 October 2011 in Sibenik, hotel Solaris, Croatia

The conference was organised by Office of the ombudswoman for persons with disabilities

In cooperation with United Nations Development Programme
Resident Representative Office in Croatia and Judicial Academy, under the auspices of the Ministry of Health and Social Welfare of the Republic of Croatia and sponsored by the UNDP Bratislava Regional Centre, Office of the Special Attache for social-political affairs in Croatia and Macedonia and the Embassy of the United States of America in Zagreb.

There were 340 participants at the conference. The participants were professionals from all parts of Croatia: judges of municipal courts presiding in cases of legal capacity deprivation, expert witnesses - psychiatrists who make assessments in proceedings of legal capacity deprivation, social workers and lawyers from social welfare centers from all parts of Croatia, representatives of the Ministry of Health and Social Welfare and the Ministry of family, veterans' affairs and intergenerational solidarity of the Republic of Croatia, National federation of associations for persons with mental retardation (parents' association), association of persons with psycho-social disability, association for promotion of inclusion of persons with intellectual disabilities, self-advocates, representatives of ombudsman' offices from Croatia (ombudswoman for children, advisor to the people's ombudsman), representatives of the ombudsman offices from the countries in the region: advisor to the ombudsman of the Republic of Serbia Dragana Grabovica, advisor to the ombudsman of Macedonia Tamara Stefanovska, advisor to the ombudsman of Monte Negro Ivan Krkeljić, deputy ombudsman of Kosovo Isa Hasani, a representative of the Ministry of Labour and Social Affairs of Bosnia and Herzegovina Tomislav Pupić as well as people from the media. The ombudswoman gave interviews for Croatian radio and television, spoke in a TV show on the topic of rights of persons with mental disabilities and the deputy ombudswoman took part in a TV programme speaking about the conference and the situation of persons with mental disabilities in Croatia.

PURPOSE OF THE CONFERENCE:

The level of awareness on the CRPD and its provisions in Croatia and the countries in the region among practitioners and policy makers is, to our knowledge, quite low. A lot of them are not even familiar with the Convention and find it difficult to change ther mindsets and think beyond the guardianship model of 'protection' of rights of persons with mental disabilities. Both the practitioners and policy makers are even less familiar with the concepts of supported decision making, supportive network and safeguards. For these reasons awareness raising and introduction of these concepts is a starting point in the change of legal framework.

A large number of persons with intellectual and mental impairments are fully deprived of legal capacity (90 % out of 17 000 persons in Croatia according to the survey conducted by the Office of the ombudsman for persons with disabilities, Croatia). The inability to exercise their legal capacity influences their other rights such as the right to marry, work, vote in elections and in general make other important decisions affecting their lives including choosing where and who they will live with.

Enabling persons with mental disabilities to get the required support for exercising their legal capacity would have a significant impact on the quality of their lives at the same time ensuring their wishes and interests are respected to the extent they are capable of expressing them.

In accordance with this, the main aim of the conference was: 1) to effect some immediate changes in Croatian guardianship practice, 2) raise awareness on the need to reform the present system in the light of the CRPD and introduce the participants to the notions introduced by the CRPD: supported decision-making, supportive network and safeguards as well as teh paradigm shift introduced by the CRPD.

Since the countries in the region inherited the same guardianship system and accordingly face very similar challenges of reforming them in accordance with the Article 12 of the CRPD, representatives of the ombudsman offices from the countries in the region were present to learn from Croatian experiences.

The aim of immediate enforcement of human rights provisions of the existing acts was realised through presentations of carefully selected Croatian experts from all three sides involved in the legal capacity deprivation process: Social Welfare Centers, courts and expert witneses-psychiatrists. Since the Office closely adhers to the principle Nothing about persons with disabilities without them, representatives of NGOs advocating for the rights of persons with mental disabilities and a person him/herslef presented their experiences and violations that arise in everyday life of persons as a result of current legal framework. Members of self-advocacy organisations were also invited.

The second objective of the conference: raising awareness of the necessity of reforming the present system of quardianship, explaining the provisions laid down in the UN CRPD was carried out by the international expert who took part in drafting the Convention and is a member of the UN Committee on the rights of persons with disabilities (Gabor Gambos). Jan Fiala indicated deficiencies in the present quardianship system and described reforms undertaken in the Czech Republic, Slovakia and Hungary and Sandor Gurbai, a representative of a Mental Disability Advocacy Center outlined the characteristics of a supported decision-making model and challenges of establishing a supportive network. Professor from the Faculty of Law, University of Zagreb spoke about alternatives to guardianship model.

CONFERENCE EVALUATION BY THE PARTICIPANTS: All participants were asked to fill in an anonymous evaluation survey. To make the filling in process easier for the participants, the possible answeres were written and they only had to choose one or more of the options offered. 114 participants submitted the filled out forms. 55 of them were social workers, 11 psychiatrists, 7 judges, 5 members of associations, 4 representatives of ministries and 32 respondents were not in any of these categories.

The general evaluation of the conference in terms of organisation and quality was very good on the scale from 1 to 5 (1 being inadequate and 5 being excellent).

Particularly interesting was the question in the survey which probed the participants' attitudes towards guardianship and the influence the conference had on them.

Below are the options which were offered and the number of respondents who chose a particular option:

 

A-at this event I acquired new information on the Convention on the rights of persons with disabilities (43 respondents)

B- I started thinking about human rights of persons with disabilities in a new way (27 respondents)

C- I think it is already possible to change the practice (49 respondents)

D- I think the whole guardianship system should be changed (46 respondents)

E- I think our legal system in the are aof guardianship sufficiently respects human rights (23 respondents)

F- the way I have been working so far does not have to be changed (14 respondents)

G- guardianship should be abolished (1 respondent, adding: such guardianship)

H- guardianship protects persons with disabilities from abuses (39 respondents)

In the opinion of organisers the goals of the conference have been achieved:

OUTCOMES:

  • professionals from all over Croatia directly influencing the lives of persons with disabilities were educated on the human rights approach to persons with mental disabilities (psycho-social and intellectual impairments), especially about the Convention on the rights of persons with disabilities and European Convention Conventionfor the Protection ofHuman Rightsand Fundamental Freedoms
  • employees in social welfare centers receive little education and in particular in the field of human rights so with support of the Ministry off health and social welfare employees from all over Croatia gathered together with other 2 groups of professionals engaged in guardianship matters. This was the first time that all three professions came together to exchange experiences and become aware of the necessity of their mutual cooperation which is often found to be lacking especially in the part of critical reviewing of the decisions from the human rights perspective.
  • One of the unexpected and very positive outcomes was that the event stimulated other initiatives on the same topic in Croatia but also in Bosnia and Herzegovina. Association of medical professionals and Association of persons with psycho-social disability are already organising a conference on the topic of legal capacity deprivation. For this even they took over the format and even some of the speakers from the event in Sibenik. Judicial academy plans to organise an event on the topic of legal capacity from the human rights perspective in January.
  • All the participants received promotional materials: a conference bag, pen, a notebook, print out of conference materials (presentations prepared by the speakers) and most importantly a printed brochure with recommendation on how to improve the work with respect to persons with disabilities with the aim of greater implementation of human rights provisions of the Conventions to which Croatia is a party. The brochure contained Articles 12 and 19 of teh CRPD especially relevant for inclusion of persons with disabilities (mental disabilities in particular) into the society.
  • Participants took a very active role in discussions and requested the Minsitry in charge to send them clearer guidance on how to implement human rights principles in their everyday practice
  • Persons with mental disabilities themselves were present at the conference but not sufficiently. Invitations were sent to all self-advocating groups but organisers were not able to provide funding for costs of participation and the associations mostly sent people in governance who are not persons with disabilities. The fact that a self-advocate spoke at the opening of the conference and later on was very important to show porfessionals that they should not discuss matters concerning persons with disabilities without them being present. This is however area that should be further addressed.

PROMOTIONAL MATERIAL:

Apart from the brochure and other conference materials for the participants, promotional materials included posters and banners as well as gifts for foreign speakers.

CONCLUSIONS:

-          Although a lot can be done by implementing the provisions of the existing acts in the light of greater protection of human rights, the general attitude among all the participants was that the guardianship system should be reformed through modifications of legal framework so as to harmonise it with the principles of the Convention on the rights of persons with disabilities. Both the presentations of the speakers and contributions from the participants during discussions led to the conclusion that the guardianship system to a significant extent limits rights of persons with disabilities placed under guardianship and is very often used as a substitute for a more efficient systems of support which should be developed. In other words, guardianship very often does not address the issues for which it is porposed as a solution. Guardianship is in Croatia regulated within the Family Act. The Family Act was modified in 2011 but the provisions pertaining to guardianship have not been modified which is in itself an indicator that at the level of the Ministry in charge there is no awareness on the need to reform this area especially with the view of harmonising the law with obligations undertaken by ratifying the Convention on the rights of persons with disabilities.

-          Since the reform process might take time, the practice should be improved immediately withing the existing legal framework by:

-          Establishing cooperation among a social worker, guardian and expert witness

-          Introducing multidisciplinary assessment and include psychologists as members of the assessment team and if required other professionals

-          Carrying out ongoing education of expert witnesses-psychiatrists working on assessment of legal capacity

-          Educating judges and social workers on human rights approach to persons with disabilities

-          Carry out ongoing education of all parties involved in the guardianship process to inform them with the provisions of the DRPD and ECHR especially on the obligation of all state bodies to implement their porvisions in everyday work and interpret legal provisions in tehir light

-          Guardianship should be prevented by introduction of support services and rehabilitation in the community

The gathered professionals pointed out at a great number of issues they face in everyday work in the area of equality before the law, the need to prevent guardianship and develop mechanisms for supported decision-making.

Foreign experts have been invited but the general impression is that there are no best practices developed and not many mechanisms for supported-decision making have been developed, tested in the practice and introduced into the law. What we have seen as examples of good practice from countries in central Europe who undertook guardianship reform was mainly abolishing plenary guardianship and insisting on partial guardianship.

The conference showed readiness of most of participants to accept changes in the present guardianship system which will undoubtedly follow as Croatia has to harmonise its legal system with international obligations and commitments.

The office of the ombudswoman for persons with disabilities as the organisers wanted to gather all stakeholders in guardianship process regardless of their mutual disagreements on the certain points and the fact that some of the opinions that were expressed by certain speakers while reflecting the situation in the field are in contradiction with the Convention on the rifgts of persons with disabilities. The organiser was aware of discrepancy between ceratin opinions expressed at the conference and the CRPD but we consciously allowed them to be expressed since they express the current state of the play in Croatia and a starting point for the future reform. It was also important to involve all the stakeholders into a constructive dialogue and educate them on human rights paradigm introduced by the CRPD and not leave them out because they express ceratin reservations while at the same time they reflect attitudes and opinions of a great number of persons who will be affected by the reform and whose resistance to change will have to be addressed in the reform process.

The conference confirmed our initial assumption that most participants are not well informed about the CRPD and the paradigm shift it introduced nor with the obligations of the state arising from Art. 12. Therefore the conference that gathered such a big number of primarily practitionars but also representatives of the ministries in charge of drafting laws has significantly contributed to promoting the CRPD and raising awareness on the necessity to implement human rights principles in provision of care and support to persons with mental disabilities.

PROPOSAL OF FOLLOW-UP ACTIVITIES:

ACTIVITY 1. The conference showed the necessity to continue educational activities on human righst and the CRPD at all levels: from employees in social welfare centers, judges, expert witnesses – psychiatrists and other medical staff, ministries, associations that gather persons with disabilities, their parents and families with a greater participation of persons with disabilities themselves.

The conference in Sibenik was to a large extent focused on employees in social welfare centers (190 of participants form the whole Croatia). The next activity should therefore focuss on psychiatrists but also employees in social welfare institutions where employees are also not familiar with human rights of persons they provide care for.

ACTIVITY 2: Publishing and distributing of presentations delivered at the conference.

ACTIVITY 3: Require from the ministry in charge (The Ministry of family) to inform the Office on its plans and strategies regarding guardianship and recommend reform.

One of the presenters, Jan Fiala took part in guardianship reforms in Hungary, Slovakia and the Czech Republic. He offered a short model for reform in other countries including Croatia.

How to reform guardianship laws in Central Europe?

Step-by-step approach by Jan Fiala

  1. Identify what are the main problems of the current guardianship problem (desk research, field studies and interviews if resources permit)
  2. Bring together civil society organizations and supporters affected by these problems
  3. Together adopt the basic list of what you would like to change about guardianship. You have to prepare a suggestion, but the group will change it and add its own issues. This will serve as a sort of “constitution” for the whole reform – it is very important for legitimacy and mobilization purposes. (I have a specific idea of how this should look like: it should be in simple form, divided to points. The Hungarian one had 33 points, the Czech 27).
  4. Using these points, prepare a broader analysis offering a solution (with justifications) to these points.
  5. Send the points and the proposal to the relevant ministries.
  6. Organize a roundtable to discuss the proposals. Invite the Ministry people as well, so that they can also state their opinion.
  7. Based on the discussion, prepare a legislative proposal, send it to the Ministry, and ask the groups representatives to be met by the relevant legislative people to discuss the proposal.
  8. If a discussion and legislative process starts, the group’s representatives will be involved. If not, political pressure should be exercised or put outside pressure (media, demonstration) on the government.

The whole group does not have to be actively involved in the legislative process. They formulate the starting points, they should be updated regularly and have a say in all major decisions (e.g. making compromises), but most of them do not come to legislative meeting. In fact very few do. So it is crucial to find 1-2 advocates who will represent the whole group to the government.

An informal working group could be set up (by the UNDP Croatia) possibly to prepare a list of points that should be modified and provide possible solutions. Some of the presenters from the conference including persons with disabilities and their NGOs could be involved as the working group members.

ACTIVITY 4: Suggest to the Ministry of health and social welfare to carry out education of employees in social welfare centers in the first plan through distributing written recommendations on how to implement provisions of the CRPD and ECHR.

Specifically warn the Ministry that decisions on legal capacity deprivation should be reviewed. Request concrete results of undertaken measures – statistical indicators.