End of the road for Britain’s mental capacity laws?

(Updated upon publication of the General Comment 11th April 2014)

It seems likely, given the lack of engagement from UK-based NGO’s and disabled people’s organisations, that a development eagerly awaited by disability activists around the world has gone largely unnoticed here in the UK.   Yesterday the United Nations Committee on the Rights of Persons with Disabilities agreed a ‘general comment’  regarding Article 12 of the UN Convention on the Rights of Persons with Disabilities, which concerns equal recognition before the law.  A general comment is an interpretative text explaining in some detail how an Article in a Treaty should be properly understood, and is relied upon by the Committee in appraising the performance of States in implementing the Convention as well as others such as Courts when drawing on the UNCRPD in particular cases.

In summary the Committee has said that:

‘Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment. These practices must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others’

Further it has also confirmed that States ‘ that may be must provide persons with disabilities access to the support necessary to enable them to make decisions that have legal effect’ and that ‘support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making.’

What are the implications for the UK’s laws regarding legal capacity? Well, in a nutshell the laws in England and Wales and in Scotland are now technically non-compliant with Article 12 of the Convention, as they both provide that legal capacity can be denied on grounds of mental capacity and include models of substitute decision making. Coming off the back of the recent damning report of the House of Lords Committee on Deprivation of Liberty Safeguards and the Supreme Court Judgement in Surrey County Council v P and Others (see ‘A gilded cage is still a cage‘) the General Comment of the UNCRPD Committee only adds to the building pressure to reform the UK’s laws regarding legal/mental capacity, something I hope we might see included in the political Party manifesto’s ahead of the next election (and separately to be taken forward by the Scottish Government).

But of course this is not simply a question of law reform.  The Convention demands an expansive approach to nurturing the will and preferences of people requiring support with decision making in all spheres of life, with the general comment noting that:

‘Article 12, paragraph 3, does not specify what form the support should take. “Support” is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity. For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for certain types of decisions, or may call on other forms of support, such as peer support, advocacy (including self-advocacy support), or assistance with communication. Support to persons with disabilities in the exercise of their legal capacity might include measures relating to universal design and accessibility, — for example a measure requiring private and public actors such as banks and financial institutions to provide understandable information —, in order to enable persons with disabilities to perform the legal acts required to open a bank account, conclude contracts or conduct other social transactions. (Support can also constitute the development and recognition of diverse, non-conventional methods of communication, especially for those who use non-verbal forms of communication to express their will and preferences.)’

Thus a clear link is made between Article 12 and all other articles in the Convention – whether access to justice, the right to political participation, access to goods and services, the right to work, the right to freedom of expression, opinion and access to information or the right to choose where and with who to live.  Without the right to equal recognition before the law and the support to make decisions these other rights are rendered meaningless.  Conversely, these other rights are the vehicles through which the will and preferences of disabled people find expression, and hence equal recognition before the law only has meaning if people have the opportunity to vote, choose where and with who to live, to be supported to express themselves and to be fully included in every area of life. This is also why, although people may point to weaknesses in approaches such as personal budgets or ‘self-directed support’, the clock cannot be turned back regarding the rights of people to be supported to be the authors of their own lives – any shortcomings in current approaches must invite only the quest for better solutions.

Moreover, much evidence now indicates strongly that our capacity to make decisions and direct our own lives depends heavily upon the size and quality of our social networks.  The more socially isolated we are, the weaker our ability to successfully navigate life.  This completely challenges the idea of autonomy residing in the ‘atomised self’ (every man is an island) and suggests instead that we need to understand better at the level of principle and practice notions of shared personhood and relational autonomy (autonomy that derives from ‘being in the world’).  In this sense inclusion in family, community and associational life is a precursor to being able to exercise choice and control, not simply an outcome.  Supported decision making is then in large part the business of building networks and community and of supporting people to live, learn, work and enjoy their spare time alongside their non disabled peers.

The position of the Committee is challenging and remains controversial.  Implementing these ideas is not at all straightforward and there is much thinking still to be done.  But it is clear that our current law and approach is seriously wanting, and no longer compliant with international law.  We need to reopen this debate.

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