Therése Fridström Montoya

Project summary

Consent through another person? – Equal recognition before the law through supported decision-making

Therése Fridström Montoya, PhD in Law, examines legal and ethical questions relating to consent and the extent to which people with impaired decision-making capacity can achieve equal recognition before Swedish law through what is known as supported decision-making. A key question is whether, in all circumstances, it is possible for a person to give consent with the assistance of another person.

 

Consent is a central legal act in many contexts. For example, consent is required for medical treatment and for entering into marriage. For people who, because of impaired decision-making capacity, are considered to lack legal capacity to act, requirements for consent can present a problem. Under Article 12 of the UN Convention on the Rights of Persons with Disabilities, equal recognition before the law is a human right. This includes recognising everyone as a person capable of acting with legal effect. Denying a person the capacity to perform legal acts on the basis of disability is regarded as discrimination and as a denial of the right to equal recognition before the law. Those who are unable to perform legal acts independently should receive the support they need to do so.

 

The requirements of the Convention raise many questions. Is it always possible, with support, to “consent through another person”, such as a representative? How can it be ensured that such consent reflects the wishes of the person concerned rather than those of the person providing support? And at what point does support in decision-making become a form of undue influence?

 

Using consent to medical treatment and marriage as examples, the project will examine, from both legal and ethical perspectives, the right to equal recognition before the law in Sweden for people with impaired decision-making capacity. These examples are particularly significant because, during the twentieth century, groups that may require support in giving consent were subjected to involuntary treatment and forced sterilisation and were prevented from marrying.