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.