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7 - Indigenous Peoples with Disabilities and Canadian Mental Capacity Law

Published online by Cambridge University Press:  18 January 2024

Camillia Kong
Affiliation:
Birkbeck College, University of London
John Coggon
Affiliation:
University of Bristol
Penny Cooper
Affiliation:
Birkbeck College, University of London
Michael Dunn
Affiliation:
University of Oxford
Alex Ruck Keene
Affiliation:
King's College London
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Summary

Introduction

Indigenous peoples with disabilities are extremely vulnerable when interacting with Canadian mental capacity law. They are disproportionately at risk of experiencing barriers to accessing justice, undermining their cultural values and Charter-protected rights of autonomy, medical selfdetermination and equality. There is a dearth of research addressing the values underlying supported decision-making and substitute decisionmaking for Indigenous communities in Canada. This chapter analyses the legal framing of mental capacity in Canada and the values and principles that are relevant for Indigenous peoples in Canada. I highlight the significant perspectives of Indigenous peoples in the framing of capacity and the types of intersectional barriers they experience accessing equitable decision-making processes in capacity law. The analysis reveals how Indigenous peoples with disabilities are isolated and denied autonomy. Their participation is curtailed as a result of lack of access to culturally appropriate treatment and systemic discrimination.

Three broad questions are examined:

  • 1. Does the law seek to identify and give effect to the values of Indigenous peoples with disabilities and if not, whose/what values are prioritised?

  • 2. Does the law provide the participation of Indigenous peoples in decision-making?

  • 3. Are Indigenous values embedded within the legal framing/principles of capacity law?

Before addressing those questions, this chapter gives a brief overview of the approaches to mental health and mental capacity law in Canadian provinces and territories. It pays particular attention to British Columbia – a jurisdiction widely regarded as progressive on account of its supported decision-making legislation.

Overview of legislative framing: supported decision-making in Canada

Canada has ten provinces and three territories, each a legally distinct jurisdiction. Legislation addressing mental health capacity and competency in Canada is dealt with differently in every province and territory. A number of Canadian jurisdictions have included supported decision-making in their legislation, such as British Columbia, Yukon, Alberta, Saskatchewan and Manitoba. There are also a number of jurisdictions which rely on more informal supported decision-making processes.

Canada signed the Convention on the Rights of Persons with Disabilities (CRPD) on 30 March 2007, and ratified it on 11 March 2010.

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Publisher: Bristol University Press
Print publication year: 2023

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