The Committee on the Rights of Persons with Disabilities has now adopted its General Comment on Article 12 (Equal Recognition before the Law). I will be returning to this in due course, and we hope to have at least part of the June Mental Capacity Law Newsletter dedicated to a discussion of the import of this General Comment and of the CRPD more widely. But in the meantime, I would draw your attention to paragraphs 22 and 23:
“22. In its concluding observations relating to article 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that the State parties concerned must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences”.
23. Substitute decision-making regimes can take many different forms, including plenary guardianship, judicial interdiction and partial guardianship. However, these regimes have certain common characteristics: they can be defined as systems where
(i) legal capacity is removed from a person, even if this is just in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will or (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences.”
On its face, this interpretation of the CRPD, by the treaty body charged with its oversight, suggests that the MCA 2005 is incompatible with the Convention. The full implications of the CRPD in this regard are being worked out over time: watch this space.