Achieving UNCRPD Compliance

In 2006, the UN adopted the Convention on the Rights of Persons with Disabilities (UNCRPD), a landmark international human rights instrument. The Convention came into effect internationally in 2008, was ratified by the UK in 2009, and by the EU (on behalf of all member states) in 2010. At the time of ratification there was fairly minimal review by UK government ministries, and little public discussion. Those who were aware of the Convention generally assumed that UK law was already compliant with its provisions. In the last three years that assumption has increasingly been called into question. It has been argued that the Mental Capacity Act (MCA) in particular stands in violation of the requirements of the Convention. The argument was first formulated by activists in the disability rights community, but has since come to be endorsed by some academic lawyers and more recently by some senior judges. Their claim has been that the MCA fails to attain compliance on several counts: it fails to guarantee legal capacity to all on an equal basis; it violates UNCRPD prohibitions on discrimination; it lacks the requisite safeguarding mechanisms; and its best interests provisions violate the requirement to respect the rights, will and preferences of the disabled individual.

The criticism has now begun to affect public policy in the UK. In the Summer of 2013, a House of Lords Select Committee issued a Call for Evidence in which it explicitly posed the question concerning MCA compliance with the UNCRPD. On September 19, 2013, the UN Committee on the Rights of Persons with Disabilities invited comment on a draft document that provides commentary on Article 12 of the Convention. Although the draft UN document does not mention the MCA in particular, it takes a hard line in calling for "the abolition of substitute decision-making regimes," of which the MCA is a leading example. In the Republic of Ireland, a proposed mental capacity bill modelled on the MCA was withdrawn amid insistent criticism from the Irish disability rights community that its best-interest and guardianship provisions violated UNCRPD precepts. This summer a new bill was introduced into the Oireachtas; all mention of best interests had been eliminated from the new bill. The settling of this question will have consequences both domestically and internationally. Commonwealth Parliaments often look to statutory precedent in the UK in shaping their own domestic law (Singapore adopted the MCA verbatim in 2008, for example); the question now is whether the MCA can itself be adopted or adapted as a template in achieving compliance with the new UN Convention, or whether an entirely different approach is required.

We propose to extend the collaboration between the AHRC and the Essex Autonomy Project (EAP) by organising a six month public policy project which would bring AHRC-funded research to bear on this issue. The focus will be on the challenge of bringing the Mental Capacity Act of England and Wales (2005) into full compliance with the Convention. Under this proposal, the EAP would organise a series of three public policy meetings and one conference over the course of the project. The proposed project would build upon the earlier round of AHRC-commissioned research undertaken by the EAP, which focussed on contested autonomy in public policy and professional practice.

The ultimate aim of this project is to help shape the course of the national and international reform of capacity legislation by informing the review of domestic regulations concerning the provision of care for disabled persons. This has emerged as a key area of human rights activism and research in the past two years. The foundational work of the EAP on mental capacity legislation makes it ideally placed to develop this public policy work in the area of UN compliance. The timeliness of the project is such that policy discussion hosted by the EAP and guided by EAP research will feed into the wider national and international debate on the MCA and UNCRPD.

The immediate impact of the project will be to advance understanding of the UNCRPD among a select group of strategically placed public figures who will be personally involved in framing the UK response to the challenge of achieving UNCRPD compliance. The proceedings of the proposed events will be designed to prepare participants to assess the results that will emerge from the formal investigations underway in the House of Lords, Ministry of Justice, and the UN Committee on the Rights of Persons with Disabilities. Participants will be better prepared to translate the results on these reviews into concrete administrative and/or legislative action.

Nationally, the broader dissemination of results of the project will advance public understanding of the Convention and its role in shaping mental capacity legislation and the practice of care. Results of the project will be used to inform the training of professionals in health, psychiatric and social care, and in law, both through the EAP workforce training programmes and via the participation of senior practitioners at the planned events. By extending our strategy of "training the trainers," impact and dissemination of results of the project will be amplified through professional networks. For the capture of impact we will use the same methodology that was developed for earlier EAP public policy work, starting with a 'value added' survey at project events and following up with individual contacts. Results of this method of feedback-capture can be seen in the EAP Final Report cited in fn 12, above. The results of the project will be disseminated to the public using existing relationships with journalists at the BBC, the Guardian, Community Care and other trade publications, and outcomes will be published on the existing EAP website.