Book Review: János Fiala-Butoria, Implementing the Right to Decide under the Convention on the Rights of Persons with Disabilities: Supporting the Legal Capacity of All Persons with Disabilities (Bloomsbury, 2025, 167 pp, hardback / ebook, £81.00 / £64.80)
I should start this review with a confession. I asked to be provided with this book for review out of a slight sense of duty, so as to keep myself abreast of the literature in this area. The title made me think that I might be going to be reading (yet) another argument in favour of supported decision-making based upon (in essence) the assertion that this is what the Committee on the Rights of Persons with Disabilities has said is necessary. I was, I have to confess, mentally preparing myself for the sound of distinctly ill horses being flogged.
I was completely wrong.
This is quite the most interesting and useful book that I can remember reading in relation to this issue for a very long time.
To start with the base level reason it is interesting; it serves as a state of the art review of the (extensive) debates about the meaning of the right to legal capacity in Article 12 of the CRPD. The body of the text summarises positions fairly and accurately, and the footnotes provide a ready-made reading list.
But the book is much more than that, and that it is I think has a considerable amount to do with the author’s background. He is a practising lawyer, having been the first legal officer at the Mental Disability Advocacy Centre (now Validity), an NGO which has, through directly supporting, and intervening in, cases before the European Court of Human Rights, done more than any other body to shift the dial in the thinking of the Strasbourg court. He is also an academic, having studied at Harvard, and now Lecturer at the Centre for Disability Law and Policy, University of Galway, Ireland, carrying out his legal work now on a part-time basis through this firm he has established with his wife.
The book combines the twin streams of practice and academia to powerful effect, ensuring that the book remains clear-eyed about what both law and theory can, and cannot, do.
After a chapter discussing the concept of legal capacity, the book moves to a clear exposition of how neither those advocating for the ‘absolutist’ or the ‘constricted’ position regarding legal capacity are able to find definitive support for their position in the language of Article 12 CRPD itself. The book then turns to delineating the inherent features of guardianship and its alternative – supported decision-making – but, importantly, and unusually, without seeking to denigrate the good faith of those wedded to either approach.[1] By taking both at their ideal, and then their ‘actual’ (although, in the case of supported decision-making, recognising the extent to which it is often theoretical, so ‘actual’ is perhaps more difficult to analyse), Fiala-Butoria allows the reader to think for themselves as to whether, on balance, the harms from guardianship outweigh the potential harms from supported decision-making. He also, importantly, allows readers to see for themselves how the nature and scale of those harms may vary in subtle ways depending on the perspective adopted.
In the last chapter, Fiala-Butoria lays out his proposed model for addressing the case of persons with high support needs, addressing the shortcomings in both the ‘support only’ framework advocated by abolitionists, and the ‘some guardianship’ framework advocated by those who take a ‘constricted’ position. His model of a modified support framework is upfront as to the fact that some decisions made by supporters will be substitute decisions, the ‘cut-off’ being as to whether the person is able to make their wishes known to an outside person.[2] He is also upfront that it is not a perfect solution – and his modesty in this regard is refreshing in a field too often dominated by confident assertion – but lays out with clarity his case for it being no worse than, and in significant ways better than either of the alternatives.
Readers familiar with the Mental Capacity Act 2005 might instinctively react to the analysis of guardianship to the effect that ‘this has nothing to do with us, because our model is not based on guardianship.’ This is not entirely true, especially in the sphere of property and affairs, but it would be interesting to think further about (and I hope to be able to do in a conversation with Fiala-Butoria in due course from the shed) how the ‘relative harms’ arguments apply to a model such as the MCA 2005 which is much less reliant on guardianship in the health and welfare field. But I would absolutely emphasise that this is a book which challenges, or should challenge, those familiar with the MCA 2005 just as much as those who operate ‘old-style’ guardianship frameworks.
Overall, therefore, this is an excellent book, explaining why I immediately asked King’s College Library to order copies for the Masters’ students on my Mental Health and Capacity Law course, as well as recommending it to all the policy makers, law reformers and academics that I have seen in the weeks since reading it.
[Full disclosure: I am grateful to the publishers for providing me with a copy of this book. I am always happy to review works in or related to the field of mental capacity (broadly defined)]
[1] I should, perhaps, declare an interest in that the book engages on several occasions in a thoughtful and nuanced fashion with this article I co-wrote in 2023 which lies in the ‘constricted’ camp.
[2] Through a very strange coincidence of timing, this model is, in some ways, precisely the model that is being considered by the Supreme Court in the context of the Attorney General for Northern Ireland’s reference, as it is being asked to consider whether the test for consenting to confinement is that set out in the relevant domestic capacity legislation, or whether it can be answered in a broader fashion focusing on the reliability of the person’s wishes and feelings. I will not comment further on that here, given my involvement in the case, but the written cases and recordings of the hearing can be found here.
