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Abstract

This paper aims to understand the Islamic perspectives on Legal Capacity governing Healthcare for people with Disabilities. This paper will first focus on Legal capacity in general which derives from the Article 12 of the Convention of the rights of people with disabilities, and will then discuss how this aspect of the CRPD is applied within the context of Sharia'h law in healthcare in Qatar.The recognition of legal capacity allows an Incapacitated individual access to make fundamental decisions, such as where to reside and what kind of medical care to receive. Without legal capacity, a person is relegated to the status of an object rather than an independent human being with thoughts, emotions, and opinions without this (Quinn et al., 2002). This concept of Legal capacity was introduced in the CPRD through the paradigm shift from the Medical Model to the Social/ Human rights model. Before the adoption of the CRPD, the medical model did not permit legal capacity, and as a result, decision-making system followed the substitute decision-making system, carried out through guardianship, conservatorship, and deputyship.The current social/ human rights model in place views disabled people as rights holders and full-fledged members of the society. It places emphasis on the interaction between individuals and social barriers like discrimination, exclusion or prejudice which prevent persons with disabilities from exercising their legal capacity, through empowerment and normality of disability represents a high priority (O’ Mahony 2012). This Human rights model promotes supported decision-making over previously practiced Substituted decision-making, with the intent to remedy unequal treatment of people with disabilities. Islamic countries draw distinction between legal capacity for rights, and legal capacity to act. The Islamic countries use the former as the accepted definition of legal capacity. Legal capacity for rights is interpreted as the fitness of a person to be subject of legal relations, and thus refers to an individual's status within a given legal system. Islamic countries had a reservation to the Article 12, which was in line with their own definition of Legal capacity.Islamic perspectives on legal capacity for people with mental disabilities could be fitting in the medieval context, but cannot necessarily be applied in modern times.Most mental health laws specifically allow for the denial of legal capacity of people with a mental health diagnosis (McSherry & Weller, 2010). This denial of legal capacity on the basis of psycho-social disability is a direct contravention of Article 12(2) of the CRPD.Adopting the substituted decision-making system has anti-therapeutic effects as individuals tend to gradually lose their functional ability to exercise rights and they can hardly recover their decision –making capacities under the guardianship system. In practice – most cases of incapacitation result in plenary guardianship, which eventually means that the person in question will be denied the legal capacity in all areas of life. The Sharia'h compliant Civil Code of Qatar allows people with physical and sensory disabilities the possibility of having a judicial assistant (Article 127).In Qatar, Persons with psycho-social disabilities may be deprived of legal capacity. The culture encourages interdependence, rather than the independence, of individual family members, who internalize a group rather than an individual decision-making process. In 2016, a law on Mental Health was approved. It regulates – for the first time – involuntary hospitalization and forced medical treatment in Qatar.In our view, for Qatar to become fully CRPD compliant, efforts need to be made to extend supported decision-making through the Sharia'h compliant Civil Code (Article 127) to people with intellectual and psycho-social disabilities. ReferencesMcSherry, Bernadette, and Penelope Weller, eds. Rethinking rights-based mental health laws. Bloomsbury Publishing, 2010.O»Mahony, Charles. «Legal capacity and detention: implications of the UN disability convention for the inspection standards of human rights monitoring bodies.» The International Journal of Human Rights 16.6 (2012): 883-901.Quinn, Gerard, et al. «Human rights and disability.» Derechos Humanos y Discapacidad], HR/PUB/02/1, United Nations (2002).

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/content/papers/10.5339/qfarc.2018.SSAHPD1048
2018-03-15
2019-06-25
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