Black and White

Summary

The Black and White project  aims to better implement Article 12 in the Czech Republic. It combines legal expertise and fieldwork conducted with people with intellectual and psychosocial disabilities, their families or circles of support. The project is implemented by QUIP and the Association for support of people with intellectual disabilities and their families in the Czech Republic (Inclusion Czech Republic).

Issue addressed

Black and White is the first pilot project on supported decision-making in the Czech Republic. It mainly aims to develop and test concrete methods to work with people with intellectual and psychosocial disabilities and their circles of support, based on the principles and tools of Person-Centered Planning.

Background information

The Black and White has been realized in a critical period in the Czech Republic, before and after the entry into force of the new Civil Code. Until the end of 2013, full and partial guardianship were included in the law, and full guardianship was largely prevalent and commonly used for people with intellectual disabilities (+/- 25 000 versus 5 000). Full guardianship meant legal death and was in most cases permanent. While the new Civil Code is definitely not in compliance with Article 12, it provides a larger panel of less restrictive instruments, including some where legal capacity is not restricted at all. Partial guardianship, although with some improvements, like regular review, is still present in the new law.

The project aimed to support persons and organisations in gaining experience in the field of supported decision making, reach strategic court decisions and create jurisprudence to open the social and the judiciary systems to the paradigm shift towards a human rights based approach. The project results therefore provide solid arguments for the necessary reforms and for a comprehensive implementation of the CRPD Article 12 in the Czech Republic.

Description of practice

The project started by developing a synthesis report named “Black Book,” based on an analysis of individual case-studies (interviews), which describes the situation of people with intellectual and psychosocial disabilities in regards to their legal capacity. The analysis includes a discussion of relevant legislation and implementation before the new Civil Code. The objective of the Black Book is to illustrate the myths about benefits of restrictions of legal capacity, to demonstrate the gaps in the system and the violations of human rights they imply and give arguments for the implementation of Art. 12. This publication aimed to raise awareness about the problems and the support needs of people with intellectual and psychosocial disabilities  as well the myths concerning current guardianship law among people with intellectual and psychosocial disabilities, their families and professionals (public guardians, doctors, judges, school and social services staff).

Individual social and legal work with 27 persons with disabilities took place. Based on the method of Person-Centered Planning, social workers supported each person to create or extend his or her network to create a circle of support. The outcome of this work is a Guidebook mainly for social workers describing method for creating long-term circles of support that promote assisted decision-making, based on case studies.

Strategic litigation is also part of the project and significant court decisions have been achieved for people who wished to restore or maintain their full legal capacity. The only suitable provision in the former Civil Code that enabled people to be represented by a chosen person was through an appointed guardian without any restriction of legal capacity. The term for this representation was still “guardianship,” but it was crucially a different kind of guardianship. First of all, because it preserved the full legal capacity of a person, and secondly because it was possible to design competencies and duties for a guardian in a court decision tailored to the needs of a person with disability. Using this tool needed a real shift in thinking about legal capacity, but this strategy has been quite successful.

In one case, in county court, a young women maintained her legal capacity and her mother was appointed as her guardian, to represent her in legal relationships based on the will of the daughter. In three other cases, full restoration of legal capacity was achieved, along with the appointment of a guardian to represent a person’s will in legal acts. In one case, the State Attorney appealed, which in the end led to a positive decision of the Highest appeal court.

During the year 2014, the team started to work with the new tools provided in the new Civil Code. The project designed the first agreement on support in decision-making for a client with psycho-social disability, that was consequently approved by the court.

In total, the project provided legal support to about 40 people directly, and to several others through their service providers. Also, 18 people were represented in courts, and in 10 cases partners were fully successful. As a result of lobbying activities, the project partners were invited to deliver courses for judges on new legal capacity legislation, in programmes organised by the Judicial Academy.

Finally, a White Book including a synthesis of experiences from the project, good practices and recommendations for the implementation of CRPD Article 12 has been developed in the last part of the project.

Analysis

This project has brought a lot of positive experiences in a country where guardianship law was completely obsolete. The pilot project took place during a transition from one system to another. In addition, because the legal framework is not yet finished, there are a lot of pending issues.

The project has been equally successful in the social and legal fields, and has brought many positive results, thanks to the combination of legal expertise and fieldwork with people with intellectual and psychosocial disabilities and their families.

Creating and enlarging circles of support has proven to be successful not only for people with intellectual disabilities but also for people with psychosocial disabilities, and to a certain extent for elderly people. The project partners involved 11  representative organisations and service providers, who tested the method for creating and expanding circles of support. In addition, the project showed that work with the community is possible in a socio-cultural background where it is not a common nor a recognised resource.

A number of conflicting situations did appear in the circles, as visions can be very different, and this may have blocked the effective functioning of the circle. In addition, the lack of planning and the lack of confidence in the system, together with the uncertainty of social and support services in the future, makes it difficult to reach important life decisions.

Legal support and strategic litigation, also thanks to the introduction of the new Civil Code, created crucial precedents and points of reference for the implementation of the new Civil Code tools. Thanks to the new Civil Code and the existing jurisprudence and to strategic litigation, Courts have restored full legal capacity and have successfully use some of the new tool brought by the fresh Civil Code.

The project should continue if the funding is renewed, which should allow the partners to scale-up and deepen the work with the new tools of the Civil Code, and address the barriers in the functioning of the circles of support, while expending the concept and working methods to more and more people in the country.

Further reading

http://www.kvalitavpraxi.cz/en/black-white.html
http://www.spmpcr.cz/cs/cerna_bila/

2014 Inclusion Europe. Rue d'Arlon 55, 1040 Brussels, Belgium