Is the Mental Capacity Act of England and Wales compatible with the UN Convention on the Rights of Persons with Disabilities? If not, what next?
In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice.
The main findings of this report are:
- The Mental Capacity Act of England and Wales is not fully compliant with the United Nations Convention on the Rights of Persons with Disabilities, to which the UK is a signatory.
- The definition of ‘mental incapacity’ in s.2(1) of the MCA violates the anti-discrimination provisions of CRPD Art. 5, specifically in its restriction of mental incapacity to those who suffer from ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’
- The best-interests decision-making framework of Section 4 of the MCA fails to satisfy the requirements of CRPD Art. 12 (4), which requires safeguards to ensure respect for the rights, will and preference of disabled persons in matters pertaining to the exercise of legal capacity.
- MCA s.2 (1) should be amended to remove the following words: “because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
- The best-interests decision-making framework on which the MCA relies should be amended to establish a rebuttable presumption that, when a decision must be made on behalf of a person lacking in mental capacity, and the wishes of that person can be reasonable ascertained, the best-interests decision-maker shall make the decision that accords with those wishes.
- The United Nations Committee on the Rights of Persons with Disabilities is not correct in its claim that compliance with the CRPD requires the abolition of substitute decision making and the best-interests decision-making framework.
The full report can be accessed here: EAP Position Paper