Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is a major international human rights treaty to which the UK is a signatory. The UK will soon be formally reviewed by the CRPD treaty body (the UN Committee on the Rights of Persons with Disabilities) in order to assess UK progress towards CRPD-compliance.

This AHRC impact and engagement project will support the UK’s preparation for the UN Engagement Process. It will ensure that the UK representative is informed by recent research on legal and ethical issues pertaining to CRPD-compliance, and it will co-ordinate a series of consultations to develop a broad consensus as to the best path towards CRPD-compliance in the UK.

The project will focus upon the provisions of law in three distinct legal jurisdictions (England & Wales, Scotland, Northern Ireland) as regards persons with impaired decision-making capacity.

Some persons with disabilities suffer from impaired decision-making capacity. A person suffering from dementia may have difficulty thinking through important financial information; a person with a learning disability may not be able to make decisions about medical treatment; a person with a brain injury may not be able to make a decision about a proposed settlement from an insurance company, etc.

In the UK, legal arrangements governing such circumstances are devolved. There is one statute that governs England and Wales: The Mental Capacity Act 2005 (MCA). In Scotland, the Adults with Incapacity Act 2000 (AWI) applies. In Northern Ireland, matters pertaining to adult incapacity are currently governed by case law, but a new piece of legislation is being prepared for consideration by the Northern Ireland Assembly.

This legal diversity presents both a challenge and an opportunity.

The challenge is to ensure that the UK representative in the UN Engagement Process has the benefit of adequate research as regards progress towards CRPD compliance across the UK.

The opportunity is to use this legal diversity as a tool in identifying the best ways to deal with circumstances of incapacity while ensuring respect for the rights of persons with disabilities and compliance with the UK’s obligations under the CRPD.

The issues around compliance with the CRPD are sensitive and contentious, and the stakes are high. For example, in England and Wales, the MCA provides for “best-interests decision-making” on behalf of persons lacking in decision-making capacity. In Scotland, the AWI avoids any mention of “best interests.” The UN Committee on the Rights of Persons with Disabilities has maintained that “the best interests paradigm must be abolished.” Does this mean that England and Wales must repeal or amend the MCA? If so, does the AWI present a better alternative? What strategy should Northern Ireland adopt, as it prepares to legislate on this matter?

The AHRC-funded Essex Autonomy Project (EAP) is an interdisciplinary research and public policy initiative with expertise on the ethical and legal imperative to respect the autonomy of persons suffering from mental disorders or other mental impairments. It has played a key role in educating policy makers about the legal and ethical challenges associated with CRPD-compliance. In 2014, the EAP co-ordinated a consultation exercise and provided technical research support to the UK Ministry of Justice in developing a formal legal opinion as to whether the MCA is compliant with the CRPD — and about what to do if it is not. In this project the EAP team will collaborate with the Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University) in order to assess CRPD-compliance on mental capacity/adult incapacity across all three jurisdictions of the UK. The project will ensure that the UK is prepared for the UN Engagement Process, and contribute to the international reform of law and practice as regards persons with impaired decision-making capacity.

Aims

The project will focus upon the provisions of law in three distinct legal jurisdictions (England & Wales, Scotland, Northern Ireland) as regards persons with impaired decision-making capacity.