In an unusual step, the Committee on the Rights of Persons with Disabilities has published a correction to General Comment 1, on Article 12 and equal recognition before the law. The original version provided, at paragraph 27, that substitute decision-making regimes, which the Committee considers are impermissible by reference to the CRPD:
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 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; and (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.
The corrected version reads the same, save for the replacement of a key ‘and’ with an ‘or’:
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 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.
It will be seen that this – disjunctive – definition captures a very much wider group of legal frameworks than the General Comment as published, as any one of the circumstances outlined in the paragraph is – on the Committee’s interpretation of Article 12 – impermissible. It is undoubtedly the case that this reflects the underlying intention of the Committee, so this is clearly a correction, rather than a further expansion of their interpretation.
That the Committee’s interpretation of Article 12 is not shared by all states[1] was confirmed when the Republic of Ireland ratified the CRPD, to take effect on 19 April 2018. Ireland entered the following declarations and reservations:
Declaration and reservation: Article 12
Ireland recognises that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Ireland declares its understanding that the Convention permits supported and substitute decision-making arrangements which provide for decisions to be made on behalf of a person, where such arrangements are necessary, in accordance with the law, and subject to appropriate and effective safeguards.
To the extent article 12 may be interpreted as requiring the elimination of all substitute decision making arrangements, Ireland reserves the right to permit such arrangements in appropriate circumstances and subject to appropriate and effective safeguards.
Declaration: Articles 12 and 14
Ireland recognises that all persons with disabilities enjoy the right to liberty and security of person, and a right to respect for physical and mental integrity on an equal basis with others. Furthermore, Ireland declares its understanding that the Convention allows for compulsory care or treatment of persons, including measures to treat mental disorders, when circumstances render treatment of this kind necessary as a last resort, and the treatment is subject to legal safeguards.
Finally, it is perhaps of interest[2] to note that the Committee’s Concluding Observations upon the United Kingdom as finally published 3 October 2017 contained a subtle, but important, change from the advance version commented upon in our September 2017 Mental Capacity Report. The advance version provided this:
Right to life (art. 10)
26. The Committee observes with concern the substituted decision-making in matters of termination or withdrawal of life-sustaining treatment and care that is inconsistent with the right to life of persons with disabilities as equal and contributing members of society.
27. The Committee recalls that the right to life is absolute from which no derogations are permitted and recommends that the State party adopt a plan of action aimed at eliminating perceptions towards persons with disabilities as not having “a good and decent life”, but rather recognising persons with disabilities as equal persons and part of the diversity of humankind, and ensure access to life-sustaining treatment and/or care.
The final version reads:
26. The Committee notes with concern that the substituted decision-making applied in matters of termination or withdrawal of life-sustaining treatment and care is inconsistent with the right to life of persons with disabilities as equal and contributing members of society.
27. The Committee recommends that the State party adopt a plan of action aimed at eliminating perceptions towards persons with disabilities as not having “a good and decent life” and recognizing persons with disabilities as equal to others and part of the diversity of humankind. It also recommends that the State party ensure access to life- sustaining treatment and/or care.
As explained in the September 2017 Mental Capacity Report, the underlined part of the first sentence in the original version of paragraph 27 took us into very strange and difficult territory in a case such as that of Mr Briggs; its removal (whether or not this has anything to do with the commentary we gave) undoubtedly allows the correct focus to be placed on the real issues raised by the Committee in this part of its Observations, and is therefore to be welcomed.
[1] See in this regard, for instance, the work of the Essex Autonomy Project.
[2] With due credit to Professor Wayne Martin of the EAP for spotting this.