UK Preparation for the UN CRPD Engagement Process: A Three-Jurisdiction Approach

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

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is a major international human rights treaty to which the UK is a signatory. The UK will soon be formally reviewed by the CRPD treaty body (the UN Committee on the Rights of Persons with Disabilities) in order to assess UK progress towards CRPD-compliance.

This AHRC impact and engagement project will support the UK's preparation for the UN Engagement Process. It will ensure that the UK representative is informed by recent research on legal and ethical issues pertaining to CRPD-compliance, and it will co-ordinate a series of consultations to develop a broad consensus as to the best path towards CRPD-compliance in the UK.

The project will focus upon the provisions of law in three distinct legal jurisdictions (England & Wales, Scotland, Northern Ireland) as regards persons with impaired decision-making capacity.

Some persons with disabilities suffer from impaired decision-making capacity. A person suffering from dementia may have difficulty thinking through important financial information; a person with a learning disability may not be able to make decisions about medical treatment; a person with a brain injury may not be able to make a decision about a proposed settlement from an insurance company, etc.

In the UK, legal arrangements governing such circumstances are devolved. There is one statute that governs England and Wales: The Mental Capacity Act 2005 (MCA). In Scotland, the Adults with Incapacity Act 2000 (AWI) applies. In Northern Ireland, matters pertaining to adult incapacity are currently governed by case law, but a new piece of legislation is being prepared for consideration by the Northern Ireland Assembly.

This legal diversity presents both a challenge and an opportunity.

The challenge is to ensure that the UK representative in the UN Engagement Process has the benefit of adequate research as regards progress towards CRPD compliance across the UK.

The opportunity is to use this legal diversity as a tool in identifying the best ways to deal with circumstances of incapacity while ensuring respect for the rights of persons with disabilities and compliance with the UK's obligations under the CRPD.

The issues around compliance with the CRPD are sensitive and contentious, and the stakes are high. For example, in England and Wales, the MCA provides for "best-interests decision-making" on behalf of persons lacking in decision-making capacity. In Scotland, the AWI avoids any mention of "best interests." The UN Committee on the Rights of Persons with Disabilities has maintained that "the best interests paradigm must be abolished." Does this mean that England and Wales must repeal or amend the MCA? If so, does the AWI present a better alternative? What strategy should Northern Ireland adopt, as it prepares to legislate on this matter?

The AHRC-funded Essex Autonomy Project (EAP) is an interdisciplinary research and public policy initiative with expertise on the ethical and legal imperative to respect the autonomy of persons suffering from mental disorders or other mental impairments. It has played a key role in educating policy makers about the legal and ethical challenges associated with CRPD-compliance. In 2014, the EAP co-ordinated a consultation exercise and provided technical research support to the UK Ministry of Justice in developing a formal legal opinion as to whether the MCA is compliant with the CRPD -- and about what to do if it is not. In this project the EAP team will collaborate with the Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University) in order to assess CRPD-compliance on mental capacity/adult incapacity across all three jurisdictions of the UK. The project will ensure that the UK is prepared for the UN Engagement Process, and contribute to the international reform of law and practice as regards persons with impaired decision-making capacity.

Planned Impact

This project has a distinctive set of impact opportunities occasioned by the upcoming UN review of UK compliance with the UN Convention on the Rights of Persons with Disabilities (CRPD).

The EAP research team already has established working relationships with Westminster officials who will play a role in preparing for the UK's appearance before the UN Committee on the Rights of Persons with Disabilities. These include: Joan Goulbourn and Liz Eaton (Capacity Leads at Ministry of Justice), Niall Fry (Capacity Lead at the Department of Health), Denzil Lush (Senior Judge of the Court of Protection, England and Wales), Alan Eccles (The Public Guardian, England & Wales). We will extend our collaborations with these individuals, many of whom played substantial roles in the 2014 EAP consultation roundtables regarding the Mental Capacity Act (England & Wales).

The EAP will collaborate with the Centre for Mental Health and Incapacity Law, Rights and Policy, Edinburgh Napier University. The Centre has established working relationships with key officials in Scottish Government and civil service positions who are directly engaged with the challenges of achieving CRPD-compliance. These include Sandra McDonald (The Public Guardian, Scotland), Colin McKay (Chief Executive of the Mental Welfare Commission for Scotland), Hilary Third (Adult Incapacity Lead in the Equality Unit, Scottish Government), and Adrian Ward (Law Society of Scotland and Scottish Law Commission). It was a group of these individuals who originally proposed extending the EAP's 2014 consultation project on the MCA so as to cover the corresponding legislation in Scotland. These individuals will participate directly in project events, and will be well-placed to take forward any recommendations from the project regarding CRPD-compliance in Scotland.

The project team has developing relationships with relevant public officials in Northern Ireland. A key individual in the ongoing reform of mental health legislation in Northern Ireland is Allison McCaffrey, who serves as Principal of the Mental Capacity Legislation Unit for the Department for Social Services and Public Safety, Northern Ireland. McCaffrey closely followed the findings of the 2014 EAP consultation process regarding the CRPD and the Mental Capacity Act of England and Wales, and flew from Belfast to London to attend the final conference from the 2014 project. Along with McCaffrey, we will work with two individuals with close knowledge of the legislative reform underway in Northern Ireland: Colin Caughey (Northern Ireland Human Rights Commission) and Iris Elliott (Mental Health Foundation, formerly Northern Ireland Association for Mental Health). Caughey will serve as an advisor on the project, and Elliott as a paid consultant. We will use these three contacts to ensure that deliberations by the Northern Ireland Assembly over the proposed new unified mental health bill are informed by the findings of the consultation process.

As the UN Engagement Process formally gets underway, Her Majesty's Government (HMG) will name an individual to represent the UK in the process and appear in person before the CRPD treaty body in Geneva. Niall Fry (Department of Health) has agreed to assist us in approaching the UK representative once identified. We will provide that individual with outputs from the consultation process and make the project research team available to address any outstanding research questions.

Internationally, we have already been contacted by public officials in (inter alia) Norway, Australia, and the Republic of Ireland who wish to be kept apprised of project findings. Our "Fringe Event" in Geneva will provide a mechanism to ensure broad international dissemination of project findings to public officials and opinion-shapers around the world who are directly involved in an unprecedented world-wide reform of legislation pertaining to persons who may suffer from impaired decision-making capacity.
 
Description 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 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 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 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.
Exploitation Route Our findings have been submitted to staff at the Ministry of Justice and are being disseminated by the research team to contacts at the UN, in Human Rights NGOs and to service user groups across the UK.
Sectors Communities and Social Services/Policy,Healthcare,Government, Democracy and Justice

URL http://autonomy.essex.ac.uk/uncrpd
 
Description The findings of the project have been used in the following ways: - By the organisation Mental Health Europe in drafting their position paper on Article 12. - For a commissioned research project by the Netherlands Institution on Human Rights, drafted by Associate Professor Kees Blankman from the Vrjie Universiteit Amsterdam. - In a fact-sheet for practitioners on the CRPD produced by the Royal College of Psychiatrists. - Has been put on the internal circulation of documents for the German Federal Constitutional Court. - An article reporting on the research was submitted as part of the papers for a case to the UK Supreme Court. - The Law Society of Scotland used the report in their submission to the UN in response to the UN review of UK CRPD compliance. - The Law Society of Scotland also endorsed the report's recommendations for amending the Scottish Adults with Incapacity Act. - The Council of Europe cited the report in a report on measures to enhance the autonomy of vulnerable persons.
First Year Of Impact 2016
Sector Communities and Social Services/Policy,Government, Democracy and Justice
Impact Types Policy & public services

 
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 Impact of Essex Autonomy Project Research on Implementatin of New Legislation in the Republic of Ireland
Geographic Reach National 
Policy Influence Type Influenced training of practitioners or researchers
Impact The Irish Assisted Decision-Making (Capacity) Act was adopted by the Oireachtas in 2015. A team of Irish civil servants have been assigned to write a series of Codes of Practice that will play a vital role in implementing the new legislation when it fully comes into force. The members of that team of civil servants, which is led by Patricia Rickard-Clarke from the Department of Justice and Equality, have made extensive use of EAP research materials on CRPD Compliance, and regularly attend EAP research and training events. The whole team has now twice attended the annual residential Essex Autonomy Summer School, and have made use of of our "Autonomy Clinic Session" (which forms part of the Summer School) to work through challenging case studies they are addressing in their work.
 
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 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 Edinburgh Napier University 
Organisation Edinburgh Napier University
Country United Kingdom 
Sector Academic/University 
PI Contribution The Essex Autonomy Project and research staff from Edinburgh Napier University are working collaboratively on this research project. The Essex Autonomy Project has provided administrative and project management support, but both institutions have worked in producing the research and interacting with policy makers and mental health organisations.
Collaborator Contribution In addition to the work above, Edinburgh Napier has contributed research support through the allocation of a post-doctoral researcher to the project,
Impact No outputs yet, as the project is still ongoing. Outputs will be included in the next reporting cycle.
Start Year 2015
 
Description Mental Health Foundation 
Organisation Mental Health Foundation
Country United Kingdom 
Sector Charity/Non Profit 
PI Contribution The Mental Health Foundation are partnering with the Essex Autonomy Project for the 'Three Jurisdictions' research project. The Essex Autonomy Project is providing consultants from the Mental Health Foundation with a theoretical framework for their practical work and the opportunity to work with researchers from across the UK. The Mental Health Foundation were included in the AHRC grant, submitted by the Essex Autonomy Project, and have received financial support for a consultant to work with the project.
Collaborator Contribution The Mental Health Foundation are contributing their expertise in mental health issues, particularly the perspective of service users. They will also be preparing an 'easy read' version of the final project report.
Impact The project is still in progress, so outputs will be appearing for the next reporting period.
Start Year 2015
 
Description TC Young Solicitors 
Organisation TC Young Solicitors
Country United Kingdom 
Sector Private 
PI Contribution The Essex Autonomy Project is providing collaborative support to staff at TC Young Solicitors who are working in the area of mental capacity legislation.
Collaborator Contribution TC Young have contributed staff time to the project, in addition to hosting one of the roundtable consultation meetings and providing financial support for the two meetings held in Scotland.
Impact No outputs yet, as the project is still in progress. Outputs will be available for the next reporting cycle.
Start Year 2015
 
Description Forget-me-nots Group visit 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Patients, carers and/or patient groups
Results and Impact The research team were invited to discuss the Three Jurisdictions Project with members of the Forget-me-nots group, a service user led support group for people with dementia and their carers, based in Canterbury, Kent. The research team attended one of the regular Forget-me-nots meetings, gave an explanation of the project and invited discussion and comments on their experiences of the Mental Capacity Act and the UN Disability Rights Convention. The group gave some extremely useful comments, particularly on how current guidelines are applied in practice. Forget-me-nots has stayed in touch with the project and we have been able to update them on our work.
Year(s) Of Engagement Activity 2016
 
Description International Consultation on the Right of Everyone to Mental Health 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Patients, carers and/or patient groups
Results and Impact Wayne Martin was invited to participate in the International Consultation on the Right of Everyone to Mental Health, held at Vilnius University on 13 October 2016. Martin was part of an expert panel who discussed the 'right of everyone to good mental health: the interplay between mental health and its underlying determinants'.
Year(s) Of Engagement Activity 2016
 
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 Presentation to the World Congress on Adult Guardianship 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact Adrian Ward gave a keynote speech at this international congress on the 'Legal Protection of Adults - an International Comparison'.
Year(s) Of Engagement Activity 2016
URL http://www.wcag2016.de/plenum-panels-arbeitsgruppen.html?&L=1
 
Description Retort to a Rebuttal: Use or Weigh; A reply to Alastair Pitblado 
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 Wayne Martin and Fabian Freyenhagen wrote this article for the Mental Capacity Law Newsletter, no. 63.
Year(s) Of Engagement Activity 2016
 
Description Roundtable Meeting: Northern Ireland Mental Capacity Bill 
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 Roundtable meeting took place in Belfast and particularly focussed on the development of the draft Northern Ireland Mental Capacity Bill. Twenty two people attend this meeting, a collection of policy makers, lawyers, researchers, medical practitioners and representatives of mental health NGOs. The event included background briefings on the current situation in Northern Ireland and discussions on the respect for Will and Preference in mental capacity legislation in the Three Jurisdictions of the UK and whether the NI Mental Capacity Bill is Complaint with the CRPD. This meeting was the first of three held across the UK.
Year(s) Of Engagement Activity 2015
 
Description Roundtable Meeting: Supported Decision-Making 
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 Roundtable Meeting was hosted by the Centre for Mental Health and Incapacity Law, Rights and Policy at Edinburgh Napier University and focussed on both the support needed for decision-making capacity to be exercised and the function of support in the absence of decision-making capacity. The roundtable was attended by 20 people from the fields of law, philosophy, psychiatry, plus government policy makers and representatives from mental health NGOs. This meeting was the third and final meeting to be held to discuss the UK compliance with the UNCRPD.
Year(s) Of Engagement Activity 2016
 
Description Roundtable Meeting: Undue Influence and Conflicts of Interest 
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 Roundtable meeting was hosted by the Law Society of Scotland and considered issues around Undue Influence and Conflicts of Interest in mental capacity legislation and the application of the UNCRPD. The meeting was attended by 22 people drawn from the fields of law, philosophy, psychiatry, plus policy makers and representatives from mental health NGOs. This meeting was the second in a series of three and brought the focus of the project on to the specifics of Scottish law.
Year(s) Of Engagement Activity 2015
 
Description Think Tank on a new formula for the right to legal capacity 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Patients, carers and/or patient groups
Results and Impact Wayne Martin participated in a panel session on 'conceptualising "Will and Preferences" as a ground of legal capacity.
Year(s) Of Engagement Activity 2016
 
Description Three Jurisdictions Project Conference 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact The conference 'Towards Compliance with CRPD Article 12 in Capacity/Incapacity Legislation across the UK' was held on 12th May 2016 and presented the initial findings of the project. The Conference brought together the key stakeholders in the consultation process, the project team and other interested practitioners and service user groups to debate the issues raised by the project and to comment on the draft final report.

The Conference included the following presentations:

With and Without Best Interests
Alex Ruck Keene, 39 Essex Chambers, University of Manchester and Kings College London, and Adrian Ward, TC Young Solicitors

Support for the Exercise of Legal Capacity in the Three Jurisdictions of the UK
Jill Stavert, Edinburgh Napier University, and Colin Caughey, Northern Ireland Human Rights Commission

The CRPD Art. 12 Travaux and the Vienna Convention
Peter Bartlett, University of Nottingham, and Wayne Martin, University of Essex

The Right to Life, the Right to Freedom: Striking the Balance
Graham Morgan, Mental Welfare Commission for Scotland

Operationalising Article 12.4 Safeguards
Sabine Michalowski, University of Essex, Alex Ruck Keene, 39 Essex Chambers, University of Manchester and Kings College London, and Wayne Martin, University of Essex
Year(s) Of Engagement Activity 2016
 
Description UN Committee on the Rights of Persons with Disabilities Side Event 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact The Essex Autonomy Project was invited to host a Side Event to the meeting of the UN Committee on the Rights of Persons with Disabilities. This event took place on 31 March 2016. The research team of Professor Wayne Martin (University of Essex), Professor Jill Stavert (Edinburgh Napier University), Adrian Ward (TC Young Solicitors) and Colin Caughey (Northern Ireland Human Rights Commission) presented their findings on 'Operationalising Article 12.4 Safeguards: Lessons from the Three Jurisdictions of the UK.' The Side Event was attended by 11 of the 18 members of the Committee, plus third sector and service user groups. The presentation was followed by discussion and questions from the Committee members.
Year(s) Of Engagement Activity 2016
 
Description Voices of Experience User Meeting 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Patients, carers and/or patient groups
Results and Impact The Essex Autonomy Project was invited to speak at the winter meeting of the Scottish Voices of Experience (VOX) group. Members of the research team presented the current findings of the research on UNCRPD compliance in the three jurisdictions of the UK and then led group discussion on individuals experience of support for decision-making. The meeting has led to several useful collaborations with service users and the project has been invited to have continued involvement with the VOX group.
Year(s) Of Engagement Activity 2016
 
Description Voices of Individuals presentation by Alex Ruck Keene 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Patients, carers and/or patient groups
Results and Impact Alex Ruck Keene was invited to give a presentation on 'Rethinking contractual capacity in the light of the CRPD' at a workshop organised by Voices of Individuals.
Year(s) Of Engagement Activity 2016
URL https://ercvoices.com/events/contracts-workshop/