Submission to Committee on the Rights of Persons with Disabilities on the
Draft General Comment on Article 12
Introduction
The UN Convention on the Rights of Persons with Disabilities (CRPD) is to be
welcomed. Adopting a social model approach to disability it promotes full and
autonomous living as a reality for all persons with disabilities. It identifies the
enabling of individuals with disabilities and active involvement of states and others
as integral to the achievement of this.
This submission will comment on certain aspects of the Draft General Comment on
Article 12 CRPD by the UN Committee on the Rights of Persons with Disabilities.
Comments on the Draft General Comment on Article 12 CRPD
There is much to commend in the Draft General Comment on Article 12 CRPD, for
instance the reaffirmation1 of the right to universal equality before the law and
Committee’s emphasis of the fact that this principle is fundamental for the full and
effective realisation of all human rights. It reinforces2 the presumption that all
persons with disabilities have full legal capacity and that “perceived or actual deficits
in mental capacity” must not be used as justification to deny or restrict legal capacity.
This is essential (a) to prevent the arbitrary, disproportionate and discriminatory
removal of a person’s legal capacity with often serious repercussions for exercising
rights; (b) to promote the making of choices about how and where one wishes to live
and direct, where necessary, one’s care, treatment and support; (c) to hold and
receive property and deal with one’s own finances; and (d) to ensure respect for
dignity. Moreover, it promotes supported decision-making as a reflection of
autonomy3 and affirms that safeguards and legal and other measures are required to
ensure the proper recognition and protection of legal capacity for individuals with
disabilities4 .
Certain aspects of the Draft General Comment do, however, require particular
consideration and should therefore be mentioned.
1. Status-based denial of legal capacity and the functional capacity tests of
mental capacity
Paragraph 21 of the Draft General Comment directs that states must abolish statusbased systems for the denial of legal capacity. It also, rightly, directs that functional
tests of mental capacity that lead to denials of legal capacity, if they cause the
discriminatory or disproportionate restriction of rights of persons with disabilities,
violate Article 12.
1
Draft General Comment, para 10 (regarding Article 12(1)).
Draft General Comment, paras 8 and 11-13 (regarding Article 12(2)).
3 Draft General Comment, paras 14-17 and 25(a), (c) and (e)-(h) (regarding Article 12(3)).
4 Draft General Comment, paras 18 and 19 (regarding Articles 12(4) and 12(5)).
2
1
However, the presence of mental health issues or learning disabilities may on
occasion inescapably contribute to compromised mental capacity. It is submitted that
the Draft General Comment should acknowledge this even though it is agreed that
under no circumstances must assessments of mental capacity result in the
discriminatory or disproportionate denial or restriction of the rights of individuals with
mental health issues or learning disabilities.
2. Abolition of laws and regimes allowing for substituted decision-making
The Committee states that laws and regimes allowing for substituted decisionmaking, such as guardianship, be abolished and for the promotion of supported
decision-making. This is on the basis that the latter respects an individual’s
autonomy and preferences whilst the former does not5. However, consideration
should be given to the following:
a. It is undeniable that supported decision-making arrangements are to be
preferred where these are possible. However, there may be occasions where
a person’s mental capacity is so impaired that effective supported decisionmaking may not be reasonably practical or is not sought or desired by the
individual concerned. In such circumstances the potential exists for the
individual to be vulnerable and susceptible to physical, emotional and/or
financial abuse and exploitation. Indeed, it is in such situations that they may
be particularly at risk of being subjected to, for example, unlawful deprivation
of their liberty, torture or inhuman and degrading treatment or punishment, as
well as discrimination and being deprived of their property.
b. It may sometimes be difficult to ascertain, in the case of persons with
fluctuating mental capacity or the very vulnerable, the extent to which
supported decision-making results in greater autonomous choices than
substituted decision-making. Care needs to be taken to ensure that the
choices made during supported decision-making are genuinely those of the
individual and not those of the supporter (however well-intentioned these may
be).
c. One option would be to consider rights and principle-based legislation such as
that, for example, adopted in regard to adult incapacity in Scotland.
The general principles underpinning the Adults with Incapacity (Scotland) Act
2000 make it clear that there must be no intervention6 under the Act unless
the intervention will benefit the adult, that such benefit cannot reasonably be
achieved without such intervention and that such intervention shall be the
least restrictive option in those circumstances7. In addition, the past and
present wishes and feelings of the adult must also be taken into account, by
appropriate means of communication. The views of guardians, continuing
(financial) and welfare attorneys who have powers relating to the proposed
intervention and of anyone else the court so directs must be taken into
5
Draft General Comment, paras 22-24, and 25(b) and (d).
In other words, intervention and guardianship orders or medical treatment,
7 Ss.1(2) and 1(3).
6
2
account. However, guardians and attorneys, and managers of any
establishment exercising functions under the Act must encourage, where it is
reasonable and practical to do so, the adult to develop and exercise relevant
skills concerning their property, financial affairs and personal welfare8. A
conscious decision was made in the drafting of the legislation to refer to
“benefit” in relation to adults and to not adopt the “best interests” test given its
vagueness and paternalistic undertones9. Moreover, the Act specifically
provides that any intervention under the Act must be in accordance with that
which is specifically authorised by the Act and that guardians and welfare
attorneys cannot place the adult in hospital for treatment for mental disorder
against their will10.
d. It is also worth emphasising that an individual voluntarily granting a Power of
Attorney as a means of supported decision-making or substituted decisionmaking is an expression of personal autonomy. Similarly, the value of
advance statements relating to care and treatment, particularly where given
legal weight, should not be undervalued.
3. Abolition of non-consensual detention and psychiatric and medical
treatment
The Committee asserts that equal respect for legal capacity requires that detention
and psychiatric and medical treatment must not take place either without the consent
of the individual with disabilities or with the consent of a substitute decision-maker11.
In this connection, it is submitted that consideration should also be given to the
following:
a. Even where it is accepted that respect for legal capacity requires that lifesaving or symptom improving care and treatment is not administered without
free and informed consent, this does not, however, take into account
situations where harm may be caused to others.
b. In addition, no account appears to be taken of those situations where
individuals have impaired decision-making ability owing to mental illness that
may cause them to refuse voluntary treatment but which, in the absence of
such impairment, they would readily accept.
c. Again, consideration might be given to rights and principle-based legislation.
In Scotland, for example, when considering interventions under the Mental
8
Ss1(4) and 1(5) Adults with Incapacity (Scotland) Act 2000.
See Scottish Law Commission, Report on Incapable Adults, Scot Law Com No 151, 1995, para 2.50
and A Ward, Adults with Incapacity Legislation, W Green, 2008, pp11-12.
10 S.16(6)(a) (welfare attorneys) and s. 64(1)(a) (guardians). In such cases, use of mental health
legislation may be considered (see later in this submission).For full details of the Adults with
Incapacity (Scotland) Act’s contents please see http://www.legislation.gov.uk/asp/2000/4/contents
(accessed 19 February 2014).
11 Draft General Comment, paras 36-37.
9
3
Health (Care and Treatment)(Scotland) Act 200312 those exercising functions
under it must consider a number of factors. These include having regard to
the range of available options, the least restrictive option, whether the
intervention will be of maximum benefit to the individual and nondiscrimination. Additionally, and importantly, the patient’s wishes and the
views of named persons, carers, guardians and attorneys must be taken into
account as well as encouraging patient participation13. For children or young
persons under 18 years of age, in addition to these considerations, any
functions must be discharged in a “manner that best secures the welfare of
the patient”14.
Moreover, and by way of further example, the presence of mental disorder
alone is insufficient justification for compulsory treatment to be ordered by the
Mental Health Tribunal15. Issues of treatability, risk, the existence of
significantly impaired decision making ability about the treatment because of
the mental disorder, and the necessity for such involuntary treatment, must
also be considered16. The patient, their named person, primary carer and
welfare attorney, amongst others, also have the right to make oral or written
representations and to lead or produce evidence before the Mental Health
Tribunal17. The Act also provides for a right of access to independent
advocacy for anyone who has a mental disorder and duties are imposed on
local authorities and health boards to secure the availability of this18.
Conclusion
Individuals with mental health issues and learning disabilities must not be subjected
to a denial of their legal capacity that leads to a discriminatory and disproportionate
restriction of their human rights. Equally, it is important to ensure that measures are
available to protect their rights when they are at their most vulnerable and, as a
result of this, are at risk of human rights violations. Moreover, in endeavouring to
create equality individuals with mental health problems and learning disabilities
should not be denied the support and protection necessary for them to address
issues that are particular to their condition19.
For more detail on the Act’s provisions see http://www.legislation.gov.uk/asp/2003/13/contents
(accessed 20 February 2014).
13 Ss1(3) Mental Health (Care and Treatment) (Scotland) Act 2003.
14 S.2(4) Mental Health (Care and Treatment) (Scotland) Act 2003.
15 The Mental Health Tribunal for Scotland was established by the Mental Health (Care and
Treatment) (Scotland) Act 2003 and determines applications for compulsory treatment orders. It also
considers appeals against compulsory measures made under the legislation and periodically reviews
such measures.
16 S.64(5) Mental Health (Care and Treatment) (Scotland) Act 2003.
17 S.64(2) and (3) Mental Health (Care and Treatment) (Scotland) Act 2003.
18 S.259 Mental Health (Care and Treatment) (Scotland) Act 2003.
19 See R Kayess and P French, “Out of darkness and into light? Introducing the Convention on the
Rights of Persons with Disabilities”, (2008) 8(1) Human Rights Law Review 1, 7; P Bartlett, “The
United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law” (2012)
75(5) Modern Law Review 752, 764.
12
4
However, rights and principle-based laws and policies can only provide the
framework within which such a system can operate. It is imperative that their
implementation is in accordance with human rights standards for the full and
effective realisation of such rights. This needs to be addressed through information
and education so that anyone involved in the actual or prospective support, care and
treatment of individuals with mental health issues and learning disabilities better
understands (a) the rights and principles underpinning such legislation and policy;
and (b) legal capacity and mental capacity. The potential for misinformed,
paternalistic and discriminatory attitudes and approaches will thereby be reduced.
The need for adequately resourced support and legal representation is also essential
for the protection of the rights of individuals with mental health issues and learning
disabilities.
If further clarification or expansion of any of the contents of this submission is
required please do not hesitate to contact the author.
20th February 2014
Dr Jill Stavert
Reader in Law
Director, Centre for Mental Health and Incapacity Law, Rights and Policy
School of Accounting, Financial Services and Law
The Business School
Edinburgh Napier University
Edinburgh
EH14 1DJ
Tel: 0131 4554553
Email:j.stavert@napier.ac.uk
Centre webpage: http://www.napier.ac.uk/faculties/business/schoolscentres/CMHILRP/Pages/Homepage.aspx
5