Achieving UNCRPD Compliance

Lead Research Organisation: University of Essex
Department Name: School of Philosophy and Art History

Abstract

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 In the Republic of Ireland, a proposed mental capacity bill modelled on the MCA was withdrawn amid insistent criticism from the Irish disability rights community that its best-interest and guardianship provisions violated UNCRPD precepts.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.

Planned Impact

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.

Publications

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Description 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 and was ratified by the UK in 2009. At the time of its ratification, 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 been increasingly called into question. 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 Essex Autonomy Project has undertaken a six month project to specifically explore these issues. The project has brought together researchers, civil servants, lawyers, judges and social care and medical practitioners, service users and organisations representing them to discuss the issues raised by the UNCRPD and to propose workable solutions to the challenges of applying the UNCRPD to the MCA.

Our findings are as follows:

1. The Mental Capacity Act of England and Wales is not fully compliant with the United Nations Convention on the Rights of Persons with Disabilities, to which the UK is a signatory.

2. The definition of "mental incapacity" in s.2(1) of the MCA violates the anti-discrimination provisions of CRPD Art. 5, specifically in its restriction of mental incapacity to those who suffer from "an impairment of, or a disturbance in the functioning of, the mind or brain."

3. The best-interests decision-making framework of Section 4 of the MCA fails to satisfy the requirements of CRPD Art. 12(4), which requires safeguards to ensure respect for the rights, will and preferences of disabled persons in matters pertaining to the exercise of legal capacity.

4. MCA s.2(1) should be amended to remove the following words: "because of an impairment of, or a disturbance in the functioning of, the mind or brain."

5. The best-interests decision-making framework on which the MCA relies should be amended to establish a rebuttable presumption that, when a decision must be made on behalf of a person lacking in mental capacity, and the wishes of that person can be reasonably ascertained, the best-interests decision-maker shall make the decision that accords with those wishes.

6. The United Nations Committee on the Rights of Persons with Disabilities is not correct in its claim that compliance with the CRPD requires the abolition of substitute decision making and the best-interests decision-making framework.
Exploitation Route Our report has been submitted to the UK Ministry of Justice in the context of their ongoing review of UK compliance with the CRPD. The report has also been received by the Northern Ireland Mental Health Bill Team, who are discussing similar issues in the Northern Ireland Assembly. In addition, the report has been made available to the public via our website and has been accessed by service user groups. The report informed the work of the team involved in preparing for the first UK viva voce engagement with the UN Committee on the Rights of Persons with Disabilities.

We continue to work with NGOs and government bodies across the UK and around the world in the ongoing process of achieving compliance with the UNCRPD.
Sectors Communities and Social Services/Policy,Healthcare,Government, Democracy and Justice

URL https://autonomy.essex.ac.uk/crpd/
 
Description The Essex Autonomy Project's contribution to the debate over compliance with the UNCRPD began with evidence submitted to both the House of Lords and the UN Committee on the Rights of Persons with Disabilities. The team followed this with a knowledge exchange collaboration with the Ministry of Justice, during the period when it was reviewing the compliance of the Mental Capacity Act (MCA) with the UNCRPD. Through May and June 2014 the EAP hosted three public policy round-table discussions, each held under Chatham House rules at the Ministry of Justice Headquarters, guided by a briefing paper prepared by the project team, and resulting in a summary report for participants. The round-tables were followed by a larger conference on the 11 July held at the Institute for Government in Westminster, which included discussion of the issues raised during the roundtables. The collaboration culminated in an EAP report submitted to the Ministry of Justice. The report summarises the findings of the EAP engagement with stakeholders and provides technical advice for the MoJ's ongoing assessment of the MCA, thus contributing the findings of EAP research to the UK government's review of mental health legislation. In December 2015, the Ministry of Justice and the Department of Health responded to a review of the Mental Capacity Act undertaken by the Law Commission. In their response, the UK government agreed with the EAP position that the basic architecture of the Mental Capacity Act is UNCRPD compliant. It is extremely difficult to persuade the relevant government departments to confirm on record that their stated position has been influenced by the EAP. However EAP's network of contacts in the civil service have informally confirmed that the work of this project has contributed significantly to the government's decision to take this position. EAP team members' engagement with the UK government is ongoing. One notable feature of EAP's continued impact activity within the UK is our collaboration with Alex Ruck Keene, who served as consultant to the Law Commission during its review of the Mental Capacity Act and as legal adviser to the Independent Review of the Mental Heath Act. In addition to this work within the UK, EAP hosted a side event at the 15th session of the UN Committee on the Rights of Persons with Disabilities Committee in Geneva in March 2016, communicating EAP findings to the work of the UN Committee. The hour-long meeting was entirely devoted to consideration of EAP research findings, which included recommendations about how persons in care can be better supported by advocates, and about legal strategies for enhancing the autonomy of persons whose decision-making abilities may be impaired. Our analysis of the anti-discrimination provisions of the UNCRPD has been used by Lana Kerzer in preparing a commissioned analysis for the Canadian government on achieving compliance with UNCRPD Art 12 in Canada.
First Year Of Impact 2014
Sector Communities and Social Services/Policy,Government, Democracy and Justice
Impact Types Policy & public services

 
Description British Association of Brain Injury Case Managers Training
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Court of Protection Practitioners Association
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Hertfordshire County Council training day: Liberty and Care
Geographic Reach Local/Municipal/Regional 
Policy Influence Type Influenced training of practitioners or researchers
 
Description MCA Compliance with the UNCRPD
Geographic Reach National 
Policy Influence Type Gave evidence to a government review
URL http://autonomy.essex.ac.uk/mca-compliance-with-the-uncrpd
 
Description Maudsley Masterclass in Mental Capacity
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description National Advocacy Conference
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description National IMCA Conference
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Submitted response to UN Draft General Comment 1 on Art 12 of UNCRPD
Geographic Reach Multiple continents/international 
Policy Influence Type Gave evidence to a government review
 
Description Submitted response to UN Draft General Comment 6 on Art 5 of UNCRPD (2017)
Geographic Reach Multiple continents/international 
Policy Influence Type Gave evidence to a government review
 
Description Testimony to Northern Ireland Assembly
Geographic Reach National 
Policy Influence Type Gave evidence to a government review
 
Description West Midlands Update Training for Best Interests Assessors and Mental Health Assessors
Geographic Reach Local/Municipal/Regional 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Yorkshire and Humber BIA and Mental Health Assessors Regional Training
Geographic Reach Local/Municipal/Regional 
Policy Influence Type Influenced training of practitioners or researchers
 
Description Conference: Is the MCA compliant with the UNCRPD? And if not, what next? 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Type Of Presentation workshop facilitator
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact The Essex Autonomy Project organised a one-day conference at the Institute for Government, which addressed the issues raised at the Roundtable meetings. This conference was the opportunity to share some of the discussion from the roundtables with the wider public, service user groups, practitioners and researchers. The conference generated significant debate on the issues of CRPD compliance and sought to bring the service user perspective to the debate.

A number of useful contacts were made through this conference, in particular, with the Mental Health Foundation. Since the conference, the policy director of the MHF has visited the Essex Autonomy Project and plans are being discussed for future collaborative work.
Year(s) Of Engagement Activity 2014
URL http://autonomy.essex.ac.uk/mca-compliance-with-the-uncrpd
 
Description Mental Capacity Law Discussion Paper 
Form Of Engagement Activity A magazine, newsletter or online publication
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact The Essex Autonomy Project was invited by 39 Essex Street to contribute an article on the consultation on the MCA and the UNCRPD to the Mental Capacity Law Newsletter. This was circulated in October 2014. The purpose of the paper was to stimulate discussion on this issue.

This paper has only just been published, so it is too soon to determine what impact it might have.
Year(s) Of Engagement Activity 2014
 
Description Norwegian Human Rights Commission 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Committee representatives from the Norwegian Human Rights Commission visited the Essex Autonomy Project in October 2015 to discuss the findings from the UNCRPD engagement project. Norway is also currently discussing compliance with the UNCRPD and wanted to compare the UK experience with their own process. During the visit the Committee representatives met with the research team, plus members of the Essex Human Rights Centre.
Year(s) Of Engagement Activity 2015
 
Description Roundtable Meeting: Does the MCA Recognise Legal Capacity on an Equal Basis? 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact This third roundtable meeting opened with a presentation from Anna Arstein-Kerslake on the role of UN Committee Shadow Reports and how organisations in the UK could contribute to this reporting process.
The meeting then discussed the nature of legal capacity, whether this is an active or passive activity and whether the legal concept of mental capacity was helpful in making decisions about individuals. The meeting also discussed the need to recognise the difference between the non-articulation of preferences and individuals who express preferences different form the norm.


It is too soon to determine what impact this activity has had, as the matter is still being discussed in government and won't be reported on until 2015.
Year(s) Of Engagement Activity 2014
URL http://autonomy.essex.ac.uk/mca-compliance-with-the-uncrpd
 
Description Roundtable Meeting: Does the MCA Respect the Will and Preference of Disabled Persons? 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Invited participants debated whether the MCA respected the will and preference of disabled persons, in particular whether the UK regime of best interests decision-making was compliant with Article 12 of the UNCRPD, which protects the rights of all persons to have legal capacity in all aspects of their life, irrespective of any disability. The roundtable also included two short presentations:
Anna Arstein-Kerslake (NUI, Galway): An outline of the engagement process between the UK and the Committee on the Rights of Persons with Disabilities.
Professor Sabine Michalowski (EAP): The Legal Status of UN General Comments.

It is too soon to determine the impact of this activity, as the government is still formulating its response the the UN.
Year(s) Of Engagement Activity 2014
URL http://autonomy.essex.ac.uk/mca-compliance-with-the-uncrpd
 
Description Roundtable Meeting: Is the MCA diagnostic text to assess capacity compatible with the UNCRPD? 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact The roundtable was part of a series of meetings which provided technical guidance to the Ministry of Justice on whether the Mental Capacity Act is compliant with the UNCRPD. Invited participants discussed whether the diagnostic threshold of the MCA constituted a violation of the anti-discrimination provisions of the UNCRPD.

It is too soon to judge the impact of this work, as it is still being discussed in government and will not be reported on until 2015.
Year(s) Of Engagement Activity 2014
URL http://autonomy.essex.ac.uk/mca-compliance-with-the-uncrpd