3.3.1.3 Type A members in the governance of the Koispe legal form

According to Article 12(9) of the Mental Health Services Law of 1999, the members of the management board vote openly to appoint a president, vice president, secretary, and treasurer. Specifically Type A members can be appointed as board member but they are explicitly excluded from being appointed in these high-level decision-making positions. The exclusion is justified in the applicable legal framework on Type A members’ ineligibility to undertake the legal transactions that these positions may require.1 As such, they are deprived from the right to be appointed in these positions.

Additionally, all the appointed representatives of Type A members are excluded from acquiring higher managerial positions in the management board. The exclusion applies regardless of their status as legally capacitated or otherwise. The foregoing deprivations are justified as necessary to safeguard the perceived legality and the legal certainty of transactions performed by the Koispe members-representatives with third parties.2

Type A members are also excluded from their appointment as members of the supervisory board. The justification of this exclusion rests on the grave responsibility and the important role of the supervisory board.3 In particular, the competence of the supervisory board rests on ensuring that the actions of the management board comply with the decisions produced by the general meeting. Accordingly, the members of the supervisory board have the right and the obligation: (i) to inspect the accounting books, documents and materials produced by the Koispe administration and operation; (ii) to carry out ad hoc controls; and (iii) to monitor the financial and operational position of the Koispe. Hence, Type A members are precluded from these tasks of supervising the organisation.

Therefore, it is understood that Type A members, i.e. the persons with mental disabilities, are capable of being forming part of the membership and governance of a Koispe, but they do not enjoy their governance rights equally with other Koispe members. This is done regardless of whether they are able to undertake physically and/or legally such responsibilities.

It is also understood that Type A members may exercise most of the rights in the decision-making processes of the Koispe, such as ownership of the cooperative shares and admittance into membership, exercising also their voting rights in the general meeting. Additionally, they may equally appoint or be appointed as members of the management board. However, they are not yet equally and fairly included in the governance of the Koispe legal model. They and their representatives are excluded by law from the higher positions of the management board based on their legal capacity.

The arguments, which are used in the Explanatory Notes of the Mental Health Services Law of 1999 to justify the exclusion of Type A members from the higher managerial positions of the Koispe are largely discriminatory based on disability and legal capacity. Those arguments are contrary to the existing normative framework regarding the human rights of persons with disabilities in all aspects of life, which recognises that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’.4 Such arguments may jeopardise the social purpose of the Koispe legal form, which is the process of integration of persons with mental disabilities into society and economy.

The precarious effects of the provisions that exclude Type A members from the governance of Koispe are demonstrated in the empirical study of a Greek scholar, i.e. Adam.5 In her doctoral thesis, she empirically examined the multi-stakeholder character and governance of sixteen Koispe social enterprises. She concluded that the multi-stakeholder character of the Koispe legal form does not entail the formal participation of stakeholders into the governance of the Koispe in contrast to the findings of the study conducted by Campi et al.6 This particular finding in Adam’s study was then tailored to stakeholders, such as persons with mental disabilities, i.e. Type A members, and the strategic and community partners of Koispe, such public hospitals and disability associations, i.e. Type C members.

In particular, Adam demonstrated that the greatest advantage of the multi- stakeholder structure of the management board of a Koispe is furnished when Type A members are empowered and determined to participate in labour and in governance.7 She also noted the potential for Type A members to gain ground and power in the organisation and to obtain a more comprehensive view of the cooperative operation.8

However, Adam also revealed that the equal participation of Type A members with members from categories B and C in the management board is perceived by the members from other categories (i.e. Type B and C) as detrimental to the functioning of the organisation for certain reasons. First, she demonstrated that members from other categories perceived that Type A members are unstable and they may relapse during the decision-making processes due to their mental disability and their psychiatric institutionalisation background. Other respondents perceived that Type A members are often low class individuals with lower education and socio-economic standing. Second, Adam criticised the omission of the Greek legal framework to embrace equality and the human rights of mentally disabled people in the Koispe legal framework.9 Third, she noted that there are risks for Type A members, if they have knowledge of sensitive information that may relate to their mental health status or the status of others. Lastly, she considered that the knowledge of the financial position of the Koispe could make Type A members susceptible to uncertainty and frustration.10

Indeed, in Adam’s study, the majority of Type B members, i.e. mental health professionals, admitted that a barrier to integrating Type A members in the higher management board positions is the absence of their social skills and training.11 The lack of social skills and training of Type A members exceeded in quantified terms their lack of willingness to participate in the higher managerial positions of the organisation in Adam’s study.12 Adam also noted that some of the examined Koispe organisations lacked a uniform and systematic process that promotes the confidence of Type A members to participate in the higher positions of governance.13 In her study, Type B members indicated that Type A members should be first encouraged to participate in the formal governance bodies, i.e. the management board and the general meeting. Likewise, Type A members indicated that they perceive their participation in the processes of the management board to be the most essential for their integration, due to the importance of its content and the greater frequency of meetings.

However, the undermined position of persons with mental disabilities in the management of the Greek Koispe may actually impede their integration and participation with equal terms in all Koispe’s decision-making levels. As such, it is the objective of this article to investigate, through the development of an in-depth single case study, how the legal framework regarding the participation of stakeholders, i.e. (Type A) members is implemented in practice. The single case study also aims to examine the effect of law on the governance of the examined organisation. Consequently, the following Sub-sections examine how the stipulated legal provisions regarding governance and management shape the participatory governance of a selected Koispe, and whether other processes have been developed in the organisational governance of the examined Koispe to provide for a fairer participation of persons with mental disabilities in all the levels of governance.

The research examines the exerted influence of legislation (the legal form and the rules included in the applicable framework) over one selected social enterprise. We employ empirical research to allow for an in-depth examination of the implementation of legal provisions and their effect in terms of how they shape the governance and organisational functioning of the selected social enterprise. In other words, by virtue of employing empirical techniques, this article aspires to outline the concrete role of the various types of stakeholder in the governance of the selected social enterprise and unravel even further the concept of participatory governance.