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Following the Convention
You will be aware of the European Convention on Human Rights and all the impact it has had on recent mental health and mental capacity legislation. There’s another convention which the UK Government has signed up to that may well have an equal impact on our law and policy in months and years to come. It’s the United Nations Convention on the Rights of Persons with Disabilities (UN Disability Convention for short) and what we’ve subscribed to may cause some difficulties in terms of compatibility with mental capacity law.
This convention is an extension of the UN declaration on human rights to try and counter discrimination against people with a whole range of disabilities where there might not be laws in place to support their rights. The convention’s definition of disability includes what they call ‘mental impairment’. If you’ve been following the Law Commission’s consultation on proposals to replace the Deprivation of Liberty safeguards you’ll have seen that they are trying to anticipate the changes that might be needed to meet the requirements of the UN convention.
No justification for Deprivation of Liberty
So what are the issues that are potentially going to cause our current laws a problem? Article 14 states that “the existence of a disability shall in no case justify a deprivation of liberty”. So bluntly, lacking mental capacity as a result of mental impairment cannot be used as justification for depriving someone of their liberty. Well, that’s the Deprivation of Liberty Safeguards scheme completely running at odds with the Convention! Remember the DOLS process includes an assessment of mental health to determine that they have a mental disorder. This suggests to comply we’ll need changes to the way deprivations of liberty are authorised.
Giving people real choice
Article 12 of the convention rejects the idea of what they call substitute decision making for someone who lacks mental capacity to make a decision themselves. The convention says that people should get support to exercise legal capacity and that should ‘respect the rights, will and preferences of the person’. There is some debate about whether that is in conflict with the Mental Capacity Act process of someone else deciding something is in the person’s best interest. There’s a recent judgement (M v N and Bury CCG) where the judge stressed the importance of respecting the wishes and feelings of the person, even where they lack mental capacity to make decisions about their life. I’m sure we’ll hear many more similar judgements and much more discussion as to whether the Mental Capacity Act is going to have to change.