The Essex Autonomy Project has just published a major report entitled “Towards Compliance with CRPD Art.12 in Capacity/Incapacity Legislation across the UK.” It follows a research project over the past 16 months carried out with a number of collabarators, including me, and I would (im)modestly venture to suggest that it will make a major contribution both to the debate as to the meaning and import of the CRPD in relation to the three legal jurisdictions of the United Kingdom and also in relation to the way in which the ambitions of Article 12 can be given effect more broadly.
I reproduce below the Executive Summary, but would thoroughly recommend a read of the full report. [A technical glitch meant that I posted this previously without a title so am re-posting]
The Essex Autonomy Project Three Jurisdictions Report is a contribution to an ongoing process of legal reform across the UK and around the world, the broad aim of which is to ensure respect for the rights of persons with disabilities.
The report is the culmination of a collaborative sixteen-month project undertaking an assessment of mental capacity/adult incapacity legislation in the three legal jurisdictions of the United Kingdom: England & Wales (which together comprise one jurisdiction for these purposes), Scotland, and Northern Ireland. It is intended (i) to provide technical research support to UK officials who will be involved in the forthcoming UN review of UK compliance with the United Nations Convention on the Rights of Persons with Disabilities (CRPD); (ii) to make recommendations in support of ongoing efforts across the UK to reform mental capacity/adult incapacity legislation in order to achieve CRPD compliance; and (iii) to provide analysis, both of current legislation and possible alternatives, that will be useful to those around the world who are involved in the reform of mental health and mental capacity legislation in accordance with the human rights requirements of the CRPD.
Compliance with the CRPD is a work-in-progress in the three jurisdictions of the UK, and this work must continue. We identify a number of recent legislative innovations that have the potential to bring the UK closer to compliance. We consider measures commonly employed in the three jurisdictions but hitherto hardly addressed in discussion of CRPD compliance, in particular autonomous measures such as powers of attorney and advance directives, which present particular challenges and opportunities in the context of CRPD compliance. We also identify a number of other areas in which the statutory arrangements in the UK still fall short of compliance with CRPD Art. 12. We advance a series of recommendations about how the three UK jurisdictions can remedy these areas of non-compliance.
The main recommendations of the report are as follows:
Recommendation 1: Respect for the full range of the rights, will and preferences of everyone must lie at the heart of every legal regime. That must be achieved regardless of the existence and nature of any disabilities. Achieving such respect must be the prime responsibility of anyone who has a role in taking action or making a decision, with legal effect, on behalf of a person whose ability to take that action or make that decision is impaired. The role may arise from authorisation or obligation. The individual with that role should be obliged to operate with the rebuttable presumption that effect should be given to the person’s reasonably ascertainable will and preferences, subject to the constraints of possibility and non-criminality. That presumption should be rebuttable only if stringent criteria are satisfied. Action which contravenes the person’s known will and preferences should only be permissible if it is shown to be a proportional and necessary means of effectively protecting the full range of the person’s rights, freedoms and interests.
Recommendation 2: All three UK capacity/adult incapacity statutes should incorporate an attributable duty to undertake all practicable steps to determine the will and preferences of persons with disabilities in applying any measure designed to respond to impairments in that person’s capabilities.
Recommendation 3: In any process that impacts upon the ability of a person with disability to exercise their legal capacity, the primary obligation of an independent advocate shall be to support the person to overcome obstacles to such matters as comprehension or communication so as to enable them to exercise that capacity for themselves. If such support does not secure the independent exercise of their legal capacity, the duty of the advocate shall be to support the person by identifying and articulating, insofar as it is practicable to do so, the will and preferences of the disabled person in the matter.
Recommendation 4: Statutory advocacy services should be funded at a level that ensures genuine and effective access to independent advocates by persons with disabilities in any matter that impacts upon their ability to exercise legal capacity.
Recommendation 5: The scope of statutory requirements regarding the provision of support should be expanded to encompass support for the exercise of legal capacity, not simply support for communication (as in AWIA s1(6)) or support for decision-making capacity (as in MCA s1(3)).
Recommendation 6: Statutory provisions regarding support in the exercise of legal capacity must be attributable. For example, statutes that state only that support should be provided must be supplemented with clear guidance about who bears the responsibility for providing that support.
Recommendation 7: Existing measures such as powers of attorney and advance directives should be recognised for their potential as instruments of support for the exercise of legal agency in circumstances where decision-specific decision-making capacity is impaired, intermittent or absent. In order to fulfil this potential, however, such measures must be embedded in robust Art. 12.4 safeguards.
Recommendation 8: The three jurisdictions should develop definitions (and related guidance) on the concepts of undue influence and conflicts of interest which will be suitable for providing robust safeguards across all aspects of exercise of legal capacity, and in so doing should include consideration of weaving in aspects of related concepts such as “facility, circumvention, lesion” in Scots law and “unconscionable bargains” in English law.
Recommendation 9: Principal mental capacity/adult incapacity legislation should be structured to ensure that provisions and procedures necessary to ensure CRPD compliance apply throughout each respective legal system, and not only to measures relating to the exercise of legal capacity contained within the principal legislation.
Recommendation 10: A regular programme of monitoring and review should be maintained to review compliance with capacity/adult incapacity legislation in all three jurisdictions of the UK.