Life without legal capacity in Kazakhstan
Kazakhstan is one of several countries in the post-Soviet region where discriminatory guardianship regimes continue to define the lives of people with disabilities.
Under current laws, persons with mental disabilities can be declared “incapable” by a court and put in the care of a guardian (often a close relative). From that moment on, they are no longer able to make decisions about their lives or exercise their rights.
Today, more than 16,000 persons with mental disabilities are trapped in a vicious circle: they are dependent on the will of a guardian who may not have their best interests at heart, yet they cannot apply to a court to restore their legal capacity or change their guardian. If they are in an institution they have little hope of ever leaving.
In February and August 2018, we visited Kazakhstan and carried out interviews with 15 individuals with psychiatric diagnoses, parents of children with disabilities, psychiatrists, NGO workers, lawyers, and human rights defenders as well as representatives of Kazakhstani government in order to find out what are the alternatives to this discriminatory regime.
The laws aren’t right, but nobody cares. We are like dead souls.
While the ostensible aim of the guardianship regime is to “protect” persons with psychosocial and intellectual disabilities, it in practice often exposes them to exploitation at the hands of self-seeking or inadequate guardians. Usually, guardians fail to act in their best interest or seek to take advantage of their property.
For example, Margarita Luchenkova was deprived of her legal capacity on the request of her brother. She told us that her brother is living in a flat that she owns and has not paid her any rent for over a year.
Having been deprived of legal capacity she cannot apply to a court to defend her interests or to change her guardian. Legal capacity can only be restored if the person is judged to have been “cured” or if their guardian or a prosecutor applies to restore it. In practice, it is very rare for legal capacity to be restored and most people will remain under guardianship for life.
I believe that if a person is autonomous and independent, if she could take care after herself and make a living, the government should review the legal capacity matter.
Why did you do that? Am I an invalid?
The criteria for depriving people of legal capacity are vague and set a very low threshold considering the overwhelming consequences of such a step. The law merely stipulates that a “person who cannot understand the meaning of his actions or cannot control them as a result of mental illness or weak-mindedness” may be declared incapable by a court. Even experts on this issue have failed to explain the criteria or even point to a source where these are clearly outlined.
Nikolai Klochkov has a diagnosis of “medium mental retardation” which seems to be because he has difficulty communicating. He is partially deaf and never received support to enable him to communicate either with sign language or by lip-reading. Despite these barriers, he is able to live independently with minimal assistance.
Nikolai is very good at mending mobile phones and hopes that in the future he might be able to work in a mobile phone repair shop. But right now as an "incapable" person he cannot actually get a job, he cannot enroll in a place of education, marry, apply to a court to defend his rights or vote in elections.
When we met him in February 2018 he was hopeful that he would be able to regain his legal capacity, start a family and be employed on an official employment contract. All those hopes were dashed when he “failed” the forensic medical examination in August 2018.
A psychiatrist who took part in the panel examining him informed the NGO that he did not show any evidence of “improvement” and there was no reason to question the past medical reports. On 17 September a court ruled that there was no “improvement in his mental state” and he, therefore, required guardianship.
Many people told Amnesty International that psychiatrists fear to contradict an existing diagnosis because that would imply that somebody had made a mistake.
Being creative means that you think in a non-standard way, but that doesn’t mean that I am mad.
Alternatives to guardianship
The consequences of the guardianship regime in Kazakhstan are devastating. It stigmatizes persons with mental disabilities by taking away their legal capacity – and with it their rights. Moreover, this regime is incompatible with the Convention on the Rights of Persons with Disabilities (CRPD)’s human rights-based approach to disability.
Even though Kazakhstan ratified CRPD in 2015, and the government has made some progress towards improving support services in the community, more measures should be taken. The next task for Kazakhstan will be to replace the guardianship system for adults with an adequate system of support for persons with mental disabilities.
The new support system should enable people with mental disabilities to exercise their rights as equal members of society without fear of exploitation or coercion.