United Nation Convention on the Rights of Persons with Disabilities
Convention on the Rights of Persons with Disabilities (CRPD) Joint
Committee
Independent Mechanism for Northern Ireland:
Mental Capacity (Health, Welfare and Finance) Bill
Introduction
1.
The Equality Commission for Northern Ireland and the Northern
Ireland Human Rights Commission are jointly designated as the
“Independent Mechanism” in Northern Ireland to promote, protect
and monitor the implementation of the United Nations Convention
on the Rights of Persons with Disabilities (UNCRPD).
2.
In furtherance of our role as the Independent Mechanism we have
drafted this advice to assist the Mental Capacity (Health, Finance
and Welfare) Bill Team (‘the Bill team’) in ensuring compliance with
UNCRPD.
3.
The Independent Mechanism has kept the developing reforms under
review. We consider the provision of advice to the Bill team at this
time as important, given the current public consultation on the
extension of mental capacity legislation to the criminal justice
system in Northern Ireland and the current debate regarding the
capacity and decision making for those under 16 years of age.
UNCRPD and the Mental Capacity (Health, Finance and Welfare) Bill
4.
The UK ratified the UNCRPD in 2009.It introduces binding
obligations on the UK Government and devolved institutions. At its
core the UNCRPD seeks to promote, protect and ensure full and
equal enjoyment of all human rights and fundamental freedoms by
all persons with disabilities, and to promote respect for their dignity.
Persons with disabilities should be able to enjoy the same human
rights as everyone else and be able to lead their lives as full citizens
who can make a valuable contribution to society. It provides a
holistic framework which Government can rely upon to develop a
human rights approach to the issue of disability.
5.
The Independent Mechanism has developed this advice on the basis
of information provided by the Bill Team, principally explanatory
notes on proposed clauses for inclusion in the Bill. This advice is
focused on the issue of decision making and considers the position
of children specifically. It should be noted from the outset that the
UNCRPD is one of the most recently developed treaties. The
Committee of the UNCRPD has to date not published any general
comments; however we understand that the Committee’s first
general comment will be on Article 12 (Equal recognition before the
law).
Article 12; Equal Recognition before the Law
6.
The principles underpinning the United Nations Convention on the
Rights of Persons with Disabilities (‘UNCRPD’) recognise the “respect
for inherent dignity, individual autonomy including the freedom to
make one’s own choices, and independence of persons”.
Article 12 of the UNCRPD states:
“1. States Parties reaffirm that persons with disabilities have the
right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities
enjoy legal capacity on an equal basis with others in all aspects
of life.
3. States Parties shall take appropriate measures to provide
access by persons with disabilities to the support they may
require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the
exercise of legal capacity provide for appropriate and effective
safeguards to prevent abuse in accordance with international
human rights law. Such safeguards shall ensure that measures
relating to the exercise of legal capacity respect the rights, will
and preferences of the person, are free of conflict of interest and
undue influence, are proportional and tailored to the person's
circumstances, apply for the shortest time possible and are
subject to regular review by a competent, independent and
impartial authority or judicial body. The safeguards shall be
proportional to the degree to which such measures affect the
person's rights and interests.
5. Subject to the provisions of this article, States Parties shall
take all appropriate and effective measures to ensure the equal
right of persons with disabilities to own or inherit property, to
control their own financial affairs and to have equal access to
bank loans, mortgages and other forms of financial credit, and
shall ensure that persons with disabilities are not arbitrarily
deprived of their property.”
7.
In summary, Article 12 of the CRPD guarantees equal recognition
before the law; provides that legal capacity be recognised on an
equal basis; with access to appropriate supports and safeguards
provided.
8.
The Mental Capacity (Health, Welfare and Finance) Bill provides for
a presumption of capacity similar to that contained in the Mental
Capacity Act 2005; a person is presumed to have capacity unless it
is established otherwise. Therefore, it is only where it has been
established that a person does not have capacity that the Bill and
its safeguards will apply.
9.
The Independent Mechanism supports the Bill’s clarity at Clause 1
that “a person must not be treated as lacking capacity unless all
practical steps to help him / her make the decision have been
taken”. The Independent Mechanism considers that this should also
be made clear in the explanatory memorandum and any guidance
associated with the eventual Act.
10.
There is a contrast between Article 12, which emphasises supported
decision making and the Bill, which establishes a system of
substitute decision making. Article 12 aims to facilitate decision
making with the person, rather than for the person. In this context,
the Bill must ensure that persons experiencing difficulties with
decision making have access to the support necessary to make a
decision themselves.
11.
The Independent Mechanism considers that the Bill should make
clear that the potential for an individual to make the decision
him/herself should be fully explored before substitute decision
making is considered. If substitute decision making must take
place, it must be a measure of last resort and must be applied
restrictively and consistently with other rights and freedoms of the
CRPD. The Independent Mechanism considers that careful drafting
of the Bill with an emphasis placed on supported decision making,
where possible, could ensure an approach consistent with Article 12.
12.
The Independent Mechanism notes that the Bill includes that a
person taking a decision on an impaired person’s behalf will be
required to permit and encourage the impaired person to participate
in the decision making process and to take account of the impaired
person’s past and present beliefs and values and any views he / she
may have expressed in the past. In addition, the requirement to
consult with an impaired person’s nominated person and others
interested in his / her welfare is an important safeguard. We
consider that these safeguards will go some way to preserving an
element of self determination, ensuring that individuals suffering
from a mental impairment are not overly marginalised or
disempowered. It is important that the obligation to involve the
impaired persons in decisions and to take account of his / her views
is made explicit throughout the Bill, Explanatory Memorandum and
relevant guidance.
13.
The Independent Mechanism notes that the Bill puts into statute the
common-law defence of ‘necessity’. Where an intervention is to be
made concerning a person's health, welfare or finances that would
otherwise require the consent of that person, the person intervening
would be protected from civil or criminal liability to the extent that
they would have been protected had the person had capacity and
consented. The Bill will not protect a person who intervenes from
any liability arising from a negligent act. The protection from
liability can only be relied on provided that it has been established
that the person lacks the mental capacity to consent and provided
that the safeguards included in the Bill had been met.
14.
It is unclear (from the ‘Safeguards’ paper provided by the Bill team)
if a person relying on the defence of ‘necessity’ will be required to
demonstrate that he / she has considered what practical steps
might be taken to support a person to make a decision him /
herself. The Independent Mechanism would welcome clarification in
this regard.
Article 7: Children with Disabilities
15.
In respect of children the UNCRPD states at Article 7:
“1. States Parties shall take all necessary measures to ensure
the full enjoyment by children with disabilities of all human
rights and fundamental freedoms on an equal basis with other
children.
2. In all actions concerning children with disabilities, the best
interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have
the right to express their views freely on all matters affecting
them, their views being given due weight in accordance with
their age and maturity, on an equal basis with other children,
and to be provided with disability and age-appropriate
assistance to realize that right.[our emphasis]
16.
In addition as a general principle the UNCRPD obligates state
parties to show “respect for the evolving capacities of children with
disabilities and respect for the right of children with disabilities to
preserve their identities.” (Article 3(h))
17.
The wording of UNCRPD recognises a right to express views along
with the concept of evolving capacities. Children of all ages are
entitled to express their views and participate in decision making
relating to their welfare. Furthermore, they must have access to
information to enable them to do so. Therefore, where the Bill
relates to children we consider that participation rights should be
provided for. The concepts of participation and capacity are distinct
and in order for the legislation to comply with legally binding
obligations under the UNCRPD the views of the child must be taken
into consideration in line with their developing age and maturity;
and the child must be provided with disability and age-appropriate
assistance to realise that right.
18.
We welcome the undertaking by the Department to carry out a
separate exercise looking into how the evolving capacities of
children are provided for in the law of Northern Ireland generally.
In undertaking this exercise the Department should have specific
regard for the rights of disabled children, as well as taking into
account the multiple identities of disabled children in Northern
Ireland.
Capacity Generally.
19.
The Independent Mechanism notes that the principal focus of the
Bill is on providing for those who have lost capacity to some degree.
In this advice paper the Independent Mechanism has emphasised
the need for the Bill to provide support to persons who retain
capacity. This issues requires broader consideration and we
encourage both the Department of Health and Department of
Justice to consider this matter further.