Author: Hawi Asfaw
Associate Human Rights Officer, Ethiopian Human Rights Commission
Recognition of legal capacity is inseparably linked with the enjoyment of rights in the health sector since it is a prerequisite for a person to fully control his or her health and to make a free and informed decision concerning sexual, reproductive, and mental health. Article 12 of the Convention on the Right of Persons with Disability (CRPD) to which Ethiopia is a party, provides that states should recognize the legal capacity of persons with disability and provide them with access to support in the exercise of their legal capacity which in no way amount to substitute decision making. Additionally, article 25(d) of the CRPD states that the right to health includes the right to health care on the bases of free and informed consent which presupposes the recognition and protection of legal capacity by the state for its enforcement.
Article 339 of the Ethiopian Civil Code defines a person with a psychosocial disability as ‘… one who, as a consequence of his being insufficiently developed or as a consequence of a mental disease or his senility, is not capable to understand the importance of his actions’. It also refers to persons with psychosocial disability as ‘insane’ and ‘notorious insane’ which is a derogatory language. Regarding legal capacity, though there is no condition under the CRPD that can be used to draw exception to full legal capacity, article 192 of the Ethiopian Civil Code states that ‘all physical persons have the capacity to perform acts of civil life unless declared incapable by law’. It also provides two grounds on which a person with psychosocial disability might be deprived of his/her legal capacity. One is the presumption of legal incapacity which applies in the case of ‘notorious insanity’ and the other is judicial interdiction of ‘insane person’ who is not notorious following an application made by the person, his spouse, or close relatives or by the public prosecutor per article 351 of the Civil Code. According to articles 341&342 of the Civil Code a person will be considered ‘notoriously insane’ if he is an ‘inmate of a hospital or of an institution for insane persons or of a nursing home’ or in a rural community where there are less than two thousand inhabitants, if ‘the family of that person, or those with whom he lives, keep over him a watch because of his mental status.’
Both the presumption of legal incapacity and judicial interdiction under the Ethiopian legal system restrict the right of persons with psychosocial disabilities to full enjoyment and exercise of their rights in the health sector contrary to articles 12&25 of the CRPD by putting the person declared incapable under full guardianship. Furthermore, article 377 of the Civil Code denies a person with a psychosocial disability the right to apply for withdrawal of the interdiction.
The absence of specific mental health legislation is also another challenge in guaranteeing health treatments for persons with psychosocial disability based on the standards of human rights in Ethiopia. The absence of legislative guarantees which could address challenges related to access to health care services, involuntary admission, and non-consensual treatment practices enables violation of human rights of persons with psychosocial disability in the health sector of Ethiopia. It also gives medical practitioners a ‘blank cheque’ which allows them to act arbitrarily without the informed consent of the person with psychosocial disability seeking health services. Since there is no judicial review for involuntarily admitted persons, it limits the right to hearing in cases of involuntary admission or non-consensual treatment in the health sector.
Another problem is that once a person is ‘judicially interdicted’ and a guardian is appointed, there is no further timely judicial review about the change in capacity of the person admitted to the hospital. This gives limitless power which can be abused by guardians until the person recovers from the disability.
Denial of legal capacity and the absence of legislative guarantees coupled with the substituted decision-making process results in involuntary admission to health facilities and non-consensual treatment of persons with psychosocial disabilities. As state party to the CRPD, Ethiopia has an obligation to align its laws with article 12 of the CRPD to recognize the legal capacity of persons with psychosocial disability to give free informed consent and to shift its laws from substituted decision-making paradigm to supported decision making. In line with this obligation should adopt specific legislation on mental health, which protects persons with psychosocial disability from involuntary admission, non-consensual treatments, undue influence, and provide a right to hearing in all cases of involuntary treatment. Regular and timely review by a competent, independent, and impartial authority as provided under article 12 of the CRPD should also be provided.
About the Author:
Hawi Asfaw is Associate Human Rights Officer at the Ethiopian Human Rights Commission. She holds an LLM Human Rights and Democratisation in Africa from Centre for Human rights, University of Pretoria, South Africa and LLB from Wolaita Sodo University, Ethiopia. She is also former lecturer and Dean of Wolaita Sodo University School of Law, Ethiopia.
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