Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Disability Rights Considerations in Mental Health Law:
An interview with Peter Edwards
Research carried out in fulfillment of an internship on
The discrimination encountered by disabled
Persons for Disability Rights UK
March 28, 2015
Submitted by Suzanna Georgopoulou, Hua Ong and Femi Owolade
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
1. Abstract
This report will explore the human rights of disabled people in the United Kingdom, by focusing
particularly on certain pieces of legislation, namely the Human Rights Act and United Nations
Convention of the Rights of Persons with Disability, alongside an interview with Peter Edwards a renowned Mental Health Lawyer - to discuss various issues and non-issues pertinent to the rights
of a disabled person. Our aim in this research is to demonstrate that explicit human rights laws and
laws with implicit human rights connotations have a key role to play in ensuring the rights of
disability persons are respected. We start by giving an introduction on the Human Rights Act and
determining if the Mental Capacity Act comply with the requirements set by United Nations
Convention of the Rights of Persons with Disability. We then carry out our task of answering the
latter question by conducting an interview with Peter Edwards on the nexus between Human
Rights Act, Mental Capacity Act and the Right of a Disabled Person.
2. Disability Rights in UK
A. Human Rights Act 1998
Every day we encounter the notion of “human rights”; the idea that individuals possess certain
rights, which are fundamental and should not be violated. The intertwining of the idea of
safeguarding fundamental rights and the strong drive for equality and protection from
discrimination in the recent years can lead one to explore the notion of human rights in relation to
a sector of the society, which has experienced significant discrimination; the people with
disabilities.
First, it is essential to give some information concerning the Human Rights Act, 1998. In the UK
there is no codified constitution; the Parliament is the supreme legislative power and the acts it
passes constitute the primary legislation of the UK. This idea of parliamentary supremacy has an
important impact on the way in which European or International legislation is applied within the
UK. Namely, before any such legislation is applied in the United Kingdom, it has to be approved
through an act of Parliament. Likewise, the Human Rights Act 1998 was passed in order to give
effect to the European Convention on Human Rights. Hence, the act contains articles such as those
protecting the freedom of expression, freedom of association, as well as derogations, which state
when it is appropriate to restrict those rights.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Although this Act at a first glance seems ideal, the responses to it have not been very positive. The
Conservative government seeks to repeal the Human Rights Act, because it considers that the
“declaration of incompatibility” the courts can make with regards to legislation passed by
Parliament is a threat to parliamentary supremacy. The government thereby seeks to repeal the
Human Rights Act and replace it with a British Bill of Rights. However, this proposal poses certain
dangers for the United Kingdom. Repealing the Human Rights Act would possibly entail that the
European Convention on Human Rights would not be binding upon the United Kingdom. This
would pose an issue for the safeguarding of human rights within the United Kingdom. Moreover,
repealing the Human Rights Act could negatively affect the adherence of the United Kingdom, not
only to the ECHR, but also to other international conventions, which safeguard human rights. For
example, this could have a negative effect on the extent to which the United Kingdom would be
keen to follow conventions such as the UN Convention on the Rights of the Disabled people. This
would create doubt and disillusionment towards the way in which the human rights and the rights
of the disabled people are safeguarded in the United Kingdom.
B. Mental Capacity Act's (2005) apparent non-compliance with the
requirements of the United Nations Convention of the Rights of Persons with
Disability 2008
The Convention of the Rights of Persons with Disability was passed by the General Assembly of
the United Nations in December 2006 and became effective in May 2008. The purpose of the
Convention is ‘to promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities, and to promote respect for their inherent
dignity’. 1
The Convention of the Rights of Persons with Disability contains the classic array of civil and
political rights, such as the right to liberty (Article 14) and integrity of the person (Article 17),
rights to freedom of expression (Article 21) and privacy (Article 22), the right to freedom from
torture and inhuman treatment (Article 15), and rights to equal recognition before the law (Article
12) and access to justice (Article 13).2
Even though countries are placed under various obligations to take measures to modify or abolish
existing discriminatory laws, regulations and practices, as well as to provide programs to support
the rights of persons with disabilities (Article 4),3 it is worth noting that the Convention is not part
1
United Nations Convention of the Rights of Persons with Disability (2008) Article 1
George Szmukler, Rowena Daw, and Felicity Callard, ‘Mental health law and the UN Convention on the rights of
persons with disabilities’ Int. Journal of Law and Psychiatry; 2014 May. 37 (3). 245-252
3
Ibid
2
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
of the domestic law of signatory countries unless incorporated into law by their legislation.4 To
this end, it is not binding on domestic courts, but like any other international convention to which
a state is party, it can be referred to by courts and can be used to interpret domestic law.
The Mental Capacity Act (a domestic law in UK) provisions relating to involuntary treatment of
persons without capacity appear, prima facie, to infringe some provisions of the Convention of the
Rights of Persons with Disability, namely Article 4 (no discrimination of any kind on the basis of
disability), Article 12 (persons shall enjoy legal capacity on an equal basis with others in all aspects
of life) and Article 14 (the existence of a disability shall in no case justify a deprivation of liberty).5
This key consideration in relation to the focus of this research, which will be addressed in the
interview below, is then whether involuntary treatment of persons with disabilities comply with
the Convention of the Rights of Persons with Disability.
3. The Interview
A. Mr Peter Edward’s Biography
Mr. Peter Edwards is Director of Peter Edwards Law, which focuses on Mental Health and
Incapacity Law. Following a traumatic incident in the 1970s, where Peter witnessed a detained
individual being declared incapacitated and mistreated in hospital, Peter has been tirelessly
working to help patients on issues of mental health and capacity, eventually establishing his
practice in 1995.
Peter was formerly the President of the Mental Health Lawyers Association, and is now the
President of the Mental Health Charity, Imagine. Just last year, he was nominated Mental Health
Lawyer of the Year. He is also a member of the Law Society Mental Health Accreditation Scheme.
B. Interview Abstract
Human Rights Act 1998
On the effect of the Human Rights Act
4
5
Ibid
Ibid
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
After the Human Rights Act came into force, and case law developed on top of its statutory
provisions, it was easier for practitioners to protect Human Rights, because there was and still is a
more coherent and unified body of law for them to draw on.
Recent cuts in funding for judicial review and legal aid, however, have made it significantly harder
for practitioners. Family law is a sector which has been hit hard.
On the relationship between the Human Rights Act with the European Convention of Human
Rights
In his experience as a practitioner in the Mental Health field, Peter has relied substantially on the
Human Rights Act 1998, especially section 6 of the Human Rights Act. That section requires
decision makers to comply with decisions that are compliant with the European Convention of
Human Rights.
Although the courts can only issue declarations of incompatibility with legislation that does not
comply with the European Convention of Human Rights, the Human Rights Act provides an
invaluable tool for judges in their day-to-day work in the courts, where they hold agents of state
control – doctors, nurses and the like – responsible by the standards of the Convention. The Human
Rights Act itself, although a piece of UK legislation, drew heavily from the Convention, and still
respects decisions made by the Convention.
On the threat to replace the Human Rights Act with a British Bill of Rights
Despite the threat to replace the Human Rights Act with a Bill of Rights, it seems unlikely that any
concrete steps are being taken in this direction. It remains more as a piece of Party campaign
promises that do not seem likely to be fulfilled.
Mental Capacity Act
On the efficacy of the Mental Health Capacity Act
To Peter, the Mental Capacity Act is a piece of legislation that can work, despite its conflict with
the United Nations Convention of the Rights of Persons with Disability (UNCPRD). It takes into
account the best interests of the patient, meaning that its starting point for making decisions for
the patient would be to ask what decisions the patient would make for themselves, if they had the
capacity to do so.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
To him, the problem is ensuring the correct implementation of this legislation. The Mental
Capacity Act contains guidelines on best interests, and also guidance for decision-makers, in the
event that they are required to make decisions for the patient. This information, however, is poorly
disseminated, and most who are involved in this process have minimal, if any, training in how to
interpret and follow the provisions of the Mental Capacity Act. Even some experienced
practitioners require more training in this area.
C. Interview Questions
Interviewer: Good afternoon, Mr Edwards. I’m Hua Xin, from Disability Rights UK. Thank you
for agreeing to this interview. Just to let you know, I’ll be recording this call for interview
purposes. Would this be acceptable to you? I’ll also be transcribing this interview, and will send a
copy of the transcript to you for your verification before including it as a case study.
To start off, let’s talk about your firm. We notice that you have a team of lawyers dealing with
mental health and incapacity legal issues. Could you tell us a bit about the work you and your firm
do?
Edwards: I don’t know if you’ve read our website, because that sort of sets out quite clearly what
we do. We are … I think most probably totally the only specialist practice in the UK only working
in the field of the mental health area and the mental capacity act. And … yeah, we’ve been doing
it for quite some time. Slowly getting the hang of it.
Interviewer: Yeah. Perhaps I can just ask you more about the Mental Capacity Act then.
Edwards: Sure.
Interviewer: The Mental Capacity Act's (MCA) provisions relating to involuntary treatment of
persons without capacity. It seems to be a piece of UK legislation that has brought out a lot of
controversy, because it is a piece of UK legislation which appear to infringe some provisions of
the United Nations Convention of the Rights of Persons with Disability (UNCRPD). Do you have
any thoughts on this issue?
Edwards: I struggle with this one, I must confess. As a human rights lawyer, obviously ensuring
that one behaves in a way that respects equality and respects diversity is at the top of my agenda.
The problem I have is that is that most mental health – most health professionals and social workers
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
– most people who work at protecting vulnerable people – frankly know very little about the law
and the protection that it’s meant to provide.
Now, our mental capacity act essentially was built upon the common law doctrine called the
common law doctrine of necessity, which is where this best interest stuff comes in. The problem I
have is not so much the conflict with the convention – I’d be happy to live with the conflict with
the convention if decision-makers abided with the discipline required to make decisions under the
Mental Capacity Act best interests.
What I mean is this. What I meant to do – obviously you’ve got somebody who lacks capacity.
But if a person lacks capacity, what I mean is essentially is that they don’t really understand the
consequences of making that particular decision and you need people to make them on their behalf.
Therefore you need a particular structure in which these decisions can be made. Now, if people
were following the law, which they rarely do, their starting point would be: if this person has
capacity, what decisions would they make for themselves? If that’s your starting point, chances
are the decisions you make will not be discriminatory and it will reflect the culture, background
and experience of Article 8 issues. That should be your starting point.
The second principle is, the nearer someone is to losing capacity, the better reason the decision
maker has for not following what they wish. Now, those two factors alone – if they were being
reflected – and they are both currently part of English law – would go a long way in protecting the
rights of vulnerable people.
Interviewer: So you feel that these factors are not respected currently.
Edwards: I know they’re not. I know the House of Lords did a review of the Mental Capacity Act
last year, and that’s what they found.
For me, there are two separate issues. One is, if you like, sort of on the higher plane – almost the
principle, even the philosophy of respecting human rights. And that’s important, of course it is.
But my focus, as a practicing lawyer representing vulnerable people, is - how do I ensure that a
law is complied with, because if it was, that will go a long way in representing their fundamental
rights.
Interviewer: Could you elaborate a bit more on – because you say that the issue is [the law] is not
complied with, and you mentioned that health professionals and social workers know very little
about the law –
Edwards: and police officers – and anybody if you like, really Interviewer: So it’s more about ensuring that the law is implemented correctly.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Edwards: I think so. I think the Mental Capacity Act is an immensely sensible piece of legislation.
Interviewer: That’s great, that’s something I can appreciate a lot as well. Could you elaborate
more on how health professionals and social workers are lacking in knowledge about the Mental
Capacity Act? What are the areas that they are lacking in knowledge in?
Edwards: Very simply, the Mental Capacity Act, as a piece of law, says that decision-makers
follow the right processes in following the law. They follow the right process, and they are
protected in court. That’s under section 5. Many of them don’t know about the process, they go oh, best interests, as though that’s something that they can decide. And they justify it by saying
best interests. That’s not how you go about it. You know, Section 4 of the MCA sets out best
interests. And the other thing is, you know if you go into hospital in the UK, the first question that
you’re going to get is, who is your next of kin? Why do they ask that?
Interviewer: It’s a decision-making process?
Edwards: Absolutely not. The next of kin don’t have any decision-making powers under English
law, and have never had. So they are conned into believing they do, because they ask bad
questions. The term next of kin does not appear in the Mental Capacity Act.
Interviewer: Yeah, I think that’s a great example of why more education is required.
Edwards: And the other point I want to make is that a wonderful document called the Code of
Practice for the Mental Capacity Act. It’s a green document. There is also a blue one, called the
Code of Practice, Affirmation of the Safeguards. These ones are designed to help decision-makers,
put into very simple language, how to comply with the law. And
The House of Lords, a good few years ago, which says that decision makers have to comply with
the code, or to write down a good reason why they’re not complying with the code. I will guarantee
that 90% of professionals working in our field have never read the code, and most probably 60%
don’t even know that a code exists.
Interviewer: That’s actually pretty shocking.
Edwards: Isn’t that pretty shocking? I spend a lot of my time on the road teaching. And I teach
very experienced people. And the vast majority of experienced people I teach have never heard of
the Code of Practice.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Interviewer: I truly hope that this situation will improve in the future.
Edwards: One can aspire.
Interviewer: How about I ask you more about the Human Rights Act now? Since our time is
running short.
Edwards: Yeah.
Interviewer: Oh, you love the Human Rights Act.
Edwards: Oh, section 6 of the Human Rights Act is my daily bread. An obligation on decision
makers to basically ensure that when they make decisions, they make decisions that are consistent
with the European Convention of Human Rights. And that’s a piece of UK law. The Human Rights
Act is UK law.
Interviewer: Yes, but currently the only power that judges have is to declare legislation
incompatible with the Human Rights Act.
Edwards: I totally disagree.
Interviewer: Ok, why so? Yeah, I mean, great, but - educate me.
Edwards: Well technically – obviously, when you say that, I know exactly where you’re coming
from. Judges cannot make findings of breaches of Human Rights by UK legislation. Because if
they are in that position, they have to declare a position of incompatibility. But that’s once in a
blue moon. Day in, day out, all over the country, judges are using the Human Rights Act to assist
their decision-making. So, for example, I spend a lot of my time in a court called the Court of
Protection. The Court of Protection, as its sort of leading beacon, considers Article 8. A wonderful
term invented by them is state decision makers, by judges of the Supreme Court, called Baroness
Hale, where she describes agents of state control. It’s brilliant. Doctors, agents and nurses, who
are given powers by the state to control the lives of others.
Now, agents of state control are held to account to whether they have complied with the
convention. They use it day in, and day out to good effect. So for example, day after tomorrow,
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
I’ve got a big case in London. A very vulnerable young lady who hurt yourself, and the hospital
staff is asking for permission to let her die. There is a judge who is making the decision, and that
judge will be very influenced by Article 2 [of the Human Rights Act]. So the judges are used to
incorporating international processes in the decision, the principles of the convention.
Interviewer: That is - I feel very heartened hearing that, because as a law student, we kind of
learn more about the legal theory of law, as opposed to how it’s supposed to work.
Edwards: As a lawyer, I function on two levels. On one level, this is the law, this is what you’ve
got to do. But the other reason, and I’m very very conscious – if the law was being complied with,
you know, people’s rights would be better respected. The problem is, people tend to look at how
people’s rights aren’t respected, and say that the law’s like that and the law doesn’t work – well,
the law’s not working because people aren’t respecting the law.
Interviewer: In a sense, people have been calling for the repealing of the Human Rights Act and
its replacement with the Bill of Rights?
Edwards: That’s a bit of conservative party propaganda. I mean, are you based in the UK?
Interviewer: Yes, I’m based in London.
Edwards: Oh, okay. Well, so you pick up the Daily Mail – not too often, the Daily Express, those
anti-uk newspapers where everything foreign is bad, basically. The fact that the Conservatives are
very keen to get into power in the next election, and they know that anything with the tag of Europe
on it is unpopular, and unfortunately, newspapers like the Sun or the Daily Mail have led a
campaign against the Human Rights Act when they don’t even understand what it is.
Interviewer: Exactly. You mention that a lot of judges now incorporate – or use the Human Rights
Act – to guide their judgments.
Edwards: Yes. You read any of the public judgments issued by the Court of Protection and you’ll
see constant references to the Human Rights Act.
Interviewer: The Human Rights Act seems so intertwined with this body of legislation – body of
case law - that has built up over the past decade or so, so it would seem that it would be quite
practically infeasible for it to be removed.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Edwards: Well, obviously, what the Human Rights Act does - for example deprivation of liberty.
How the Mental Capacity Act defines deprivation of liberty – the definition given to it is defined
by the UN Convention of Human Rights. It is defined by decisions of the Court of Human Rights.
So that creates a link, if you were, between decisions in the UK courts and the Court of Human
Rights. Frankly, I have no idea what government is talking about when they talk about a British
Bill of Rights. Clearly, there are minimum standards that that British Bill of Rights has to comply
with in terms of how a treaty obligation – for example, the UN declaration – nobody is drafting it,
as far as I’m aware - and I suspect that as soon as the elections have come and gone, that it will
be dropped.
Interviewer: I’m quite happy to hear that.
Edwards: As you’ve gathered, I’m very cynical about that indeed. I think it’s pandering to the
masses, and the masses are singularly ill-informed – ill-informed by the British media, which is
pernicious.
Interviewer: I’m asking a more general question – you’ve been in practice for a few decades now
– you’ve seen the whole process, as the UN Convention of Human Rights was put into practice
and then incorporated by the Human Rights Act into UK law by the Human Rights Act. How do
you think it influenced the development of protection of human rights in UK law?
Edwards: That’s a difficult one to answer because you can answer it on so many different levels.
I mean, certainly, as a practitioner, prior to October 2000, where the Human Rights Act was put
into force, human rights were very rarely referred to in the UK courts. And that was because when
you’re looking at common law principles – common law is essentially what the judges say it is –
and of course, the judges say it in relation to specific cases and specific facts in the cases– so, with
the development of case law, sometimes it’s very difficult to interpret the ripple effect of each
piece of case law. Whereas when you get statute law and regulations, and you get to practice, and
then you get to case law developing on this structure – certainly as a practitioner, it becomes much
more usable and therefore I’d feel in a stronger position trying to defend human rights for my
client, or for people who lack capacity, whether they’re vulnerable, or elderly, or mentally ill, or
people with learning disabilities… and I feel better able to do that now, in light of the Human
Rights Act, then I was before.
Interviewer: Simply because there’s legislation to rely on.
Edwards: It’s still very difficult, but I’m better able to.
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Interviewer: Ok, as a final question – are there any general trends that you can foresee – is the
law heading in the right direction for the protection of Human Rights?
Edwards: If one accepts that Human Rights is the protection of the relationship between the citizen
and the state, and the purpose of Human Rights is to constrain the powers of the state, especially
in a particular way, then Human Rights are always under threat, because governments can find
them a nuisance. So, for example, denigrating prisoners having the right to vote. It’s very easy to
whip up the population, which is stupid. So – you know – those of us who care passionately about
Human Rights must never ever be complacent. That we are the sand in the oyster, that hopefully
creates the pearl. But being a Human Rights lawyer is never ever popular. We are often considered
to be a nuisance, which is what we are. I’m rather proud to be a nuisance. But people – whether it
is the state, or organs of the state, social services – do not like being held to account. You in your
email to me, referred to one of the ways that the State undermines people’s ability to seek advice,
and that is through limiting legal aid. That is part of the way that fewer people can seek legal
advice, and the easier it is for the government.
The whole stuff about judicial review, is an absolute tragedy. Judicial review is the process by
which we hold the government to account, and review unreasonable decisions.
The way legal aid is being structured, a lot of lawyers have now pulled out of judicial review.
Because now it becomes too risky, in terms of cost.
Interviewer: Could you elaborate more on that?
Edwards: Essentially, you don’t get legal aid until the courts have given you permission. And
how do you get permission – well , you have to undertake a long and complex process of gathering
your evidence, paying your court fee, which will be hundreds of pounds – and all that is without
legal aid being in place.
Interviewer: So – sort of the effects of cutting legal aid has already been felt quite drastically so
far.
Edwards: Yes. Different aspects of law are affected in different ways. So, family law lost it
altogether. Different sectors are affected in different ways. I can get legal aid for most of the work
I do, but you have to be very poor to get legal aid. If somebody has been deprived of their liberty
by the State, either under the Mental Health Act or the Mental Capacity Act, wishes to appeal, the
legal aid they get for that is not means – tested.
Interviewer: That’s – isn’t that a good thing?
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Disability Rights Considerations in Mental Health Law: An interview with Peter Edwards
Edwards: Yes, that means that if you’re a millionaire, you can still get legal aid. Your means are
not taken into account, you’re automatically entitled to legal representation, if the state removes
your liberty and you wish to appeal.
Interviewer: That’s great.
Edwards: It’s a very good thing.
Interviewer: So – the area of law that you work is affected, but not that much, I guess?
Edwards: Well, the amount of the legal aid budget that goes towards that is almost about half of
one percent.
Interviewer: On that very grim note, I think we’ll end our interview.
4. Acknowledgement
We are especially indebted to Mr Peter Edward for finding time to give this interview, and for
sharing with us his immense experience in Mental Health Law throughout the course of this
research.
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