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25.15The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was concluded in 2006 and ratified by the United Kingdom in 2009. The convention seeks to bring about a radical change in the approach adopted in the social, political and legal arenas to those suffering from disabilities (and, indeed, to the very concept of disability). Among other provisions, it seeks to bring about a fundamental shift away from the taking of decisions on behalf of individuals on the basis of an asserted lack of capacity. A good guide to the CRPD and its implications for English law can be found in Lucy Series, ‘Comparing old and new paradigms of legal capacity’.
1[2014] Eld LJ 62. See also the report by the Essex Autonomy Project Three Jurisdictions Project entitled Towards Compliance with CRPD Art. 12 in Capacity/Incapacity Legislation across the UK (2016), available at http://autonomy.essex.ac.uk/eap-three-jurisdictions-report.25.16At least as interpreted by the Committee on the Rights of Persons with Disabilities, compliance with Article 12 CPRD (which provides for equal recognition before the law) means that states party to the CPRD should replace legislation providing for substitute decision-making for incapacitated adults 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’.
2Committee on the Rights of Persons with Disabilities, ‘General Comment on Article 12: Equal Recognition before the law’, para 23; available at: www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx.25.17There is a considerable debate as to the precise meaning of Article 12 and its implications for national legislatures, in particular those of the countries which are also bound by obligations under the ECHR.
3See, for instance, Philip Fennell and Urfan Khaliq, ‘Conflicting or complementary obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English law’, European Human Rights Law Review, No 6 (2011): pp662–674. However, on its face, the MCA 2005 is not compatible with Article 12, not least because reliance on a ‘diagnostic threshold’ as a component of the test for mental incapacity (see further chapter 3) does not comply with the anti-discrimination requirements of Article CRPD. Further, there is a good argument that the current configuration of its best interests standard fails to incorporate the safeguards required by Article 12(4), by failing to ensure that sufficient weight is placed upon the person’s wishes and feelings (or in the language of the Convention) their ‘will and preferences’.
4See further the report by the Essex Autonomy Project Three Jurisdictions Project entitled Towards Compliance with CRPD Art. 12 in Capacity/Incapacity Legislation across the UK (2016). Available at http://autonomy.essex.ac.uk/eap-three-jurisdictions-report. There are other Articles of the CRPD with which the compatibility of the MCA 2005 is doubtful,
5Most obviously Article 14, which on its face cannot be squared with ECHR Article 5 (right to liberty). but Article 12 poses the most direct challenge to the MCA 2005 as currently drafted.
25.18While the CRPD has not been incorporated into domestic law, the Court of Appeal has endorsed it as having persuasive authority as an aid to interpretation.
6Burnip v Birmingham City Council and another [2012] EWCA Civ 629, [2013] PTSR 117 (obiter, in the context of interpretation of Article 14 ECHR). It was referred to by the Supreme Court in the seminal decision upon deprivation of liberty under the MCA 2005,
P v Cheshire West7P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another, and P and Q (by their litigation friend the Official Solicitor) v Surrey CC [2014] UKSC 19, [2014] 2 WLR 642, (2014) 17 CCLR 5. (discussed in more detail in chapter 21), has been referred to, essentially in passing, in a number of cases before the Court of Protection
8The first being An NHS Trust v DE [2013] EWHC 2562 (Fam), [2013] COPLR 531. and it is now regularly referred to by the European Court of Human Rights. It has, though, yet to be the subject of any detailed consideration by the Court of Protection. This may, in part, be because the obligations that it imposes are at the state level, rather than (for instance) at the level of the discharge by either public authorities or courts of their respective functions under domestic legislation. It is also likely, however, that this is as much a function of the fact that the CRPD is – as yet – remarkably little known by practitioners.
25.19That having been said, the CRPD is already beginning to make its impact in law reform terms. The Law Commission of England and Wales has provisionally proposed that the MCA 2005 should be amended to establish that decision-makers should begin with the assumption that the person’s past and present wishes and feelings should be determinative of the best interests’ decision.
9Law Commission, 2015: Mental Capacity and Deprivation of Liberty: A Consultation Paper (Consultation Paper No 222). The final report of the Law Commission and draft legislation is anticipated by the end of 2016.
25.20The Committee on the Rights of Persons with Disabilities is due to consider the UK’s compliance with the CRPD (both in respect of England and Wales and the regimes in Northern Ireland and Scotland) in the course of 2017; what will happen in this regard (and what the government will do in response either to the Committee’s report or the Law Commission’s recommendation) is not clear at the time of writing.
25.21In the interim, however, it is suggested that it is entirely in order for practitioners to rely upon the provisions of the CRPD to support arguments that:
•In deciding whether all practicable steps have been taken without success before concluding that P lacks capacity (MCA 2005 s1(3)), the Court of Protection must be astute to examine precisely what support mechanisms have been put in place to enable P to participate in the decision in respect of which their capacity is questioned and – where necessary – to direct that such support mechanisms be provided. An example of such support – directed during the currency of proceedings – would be that given to DE
10An NHS Trust v DE [2013] EWHC 2562 (Fam), [2013] COPLR 531. by way of education, which allowed him to attain capacity to consent to sexual relations.
•P must be supported to participate as fully as possible in the proceedings before the Court of Protection (consistent with the emphasis also placed by the European Court of Human Rights of the importance of such participation by reference to the provisions of the ECHR: see paras 15.34ff);
•Particular weight must be placed upon P’s wishes and feelings in the determination of where their best interests may lie. Indeed, it can be suggested that, where it is possible to identify which of the available options P would have chosen then that gives the answer as to where their best interests will lie for purposes of MCA 2005 s4, regardless of whether this is an option that the professionals (or indeed the court) consider to be ‘wise’.