I’m drowning under a mountain of introductory chapter drafts, but if you’re looking for a good read you couldn’t go far wrong with the latest issue of the European Human Rights Law Review. I do hate recommending paywalled journal articles on this blog, as the frustrations of not being able to read academic papers when I was working in care aren’t long behind me, but if you can get your mits on Issue 6 of 2011 there’s a lot of interesting reading from a legal capacity and disability rights perspective:
- In his introduction to the issue (‘Disability rights: from charity to equality’) Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe, writes that progress on human rights of people with disabilities has been slow. I agree! He talks about the ‘radical’ achievement of the Convention on the Rights of Persons with Disabilities CRPD, and the importance of policies to ensure that rights to employment, education, access to services and voting rights are all supported.
- Constantin Cojocariu wrote the submission for Interights and the ECtHR case Stanev v Bulgaria, a case that may yet prove to be vitally important on a range of issues including legal capacity, the meaning of ‘detention’ in social care institutions, and positive obligations to provide community based alternatives to detention. The case was hear by the Grand Chamber of the ECtHR in February and judgment is still, tantalisingly, awaited. It has the potential to reinvigorate the entire debate over the meaning of deprivation of liberty, and potentially ignite concerns around litigation capacity arrangements in the UK. But I digress… Cojacariu’s piece concerns whether the ‘admissibility rules related to standing and victim status can in certain circumstances exclude persons with disabilities held in mental health institutions from the protection of the European Convention on Human Rights by denying them access to proceedings before the European Court of Human Rights’. He argues that other organisations and individuals should be permitted to sue on behalf of disabled persons.
- Oliver Lewis is the legal director of the Mental Disability Advocacy Centre (who, incidentally, were involved in the case Stanev v Bulgaria alongside Interrights) and author and editor of several books on my bookshelves! He gives a review of European jurisprudence on ‘legal capacity’ and highlights a role for strategic litigation. Lewis is critical of plenary Guardianship, which no longer operates in England and Wales, but lest we feel smug he is also critical of the functional approach to capacity that underpins the Mental Capacity Act. Lewis’ arguments are part of a family of critical approaches to substitute decision making mechanisms that surround Article 12 CRPD; I have discussed these previously, and continue to read and consider this topic with great interest.
- Phil Fennell and Urfan Khaliq from Cardiff Law School discuss emerging tensions between Articles 12 and 14 CRPD and the European Convention on Human Rights. As Peter Bartlett and others have pointed out, it does seem very hard to reconcile Article 14 CRPD, which states that people with disabilities must only be deprived of their liberty on a basis equal to others, with Article 5(1)(e), which permits detention on grounds of ‘unsound mind’. Domestically we’ve seen a lot of discussion of ‘Fusion Law’ (there’s a great free summary in this edition of the Mind e-Newsletter), but Fusion Law would still presumably permit coercive treatment and confinement on grounds of incapacity – an approach which increasingly may come be seen as invalid under the interpretations of Article 12 CRPD discussed in this piece.
- And Luke Clements, also from Cardiff Law School, writes a flaming criticism of the courts’ failure to protect the dignity of disabled people, in stark contrast with their rhetoric. The article makes frequent reference to the Supreme Court ruling in McDonald v Kensington and Chelsea (which I discussed here), but also has a lot of interesting thoughts to offer on Article 5 jurisprudence. Clements also writes an opinion piece introducing this special issue.
I can’t recommend this journal issue enough for anyone interested in disability and human rights, and a sense of where future (and, indeed, current) debates around mental capacity and human rights may lie. I’m glad to see more domestic lawyers taking an interest in the CRPD. It’s depressing to see that whereas legal textbooks and policy papers make frequent reference to ‘safe’ instruments like the Hague Convention on the International Protection of Adults, there is a real reluctance to engage with the challenges of the CRPD. The CRPD may well pose a challenge to many UK practices in relation to mental incapacity, mental health and independent living, and yet there are very few visible signs of awareness of these debates among mainstream academics, legal practitioners or civil servants. Indeed, the Law Commission was pretty dismissive of the right to independent living contained in the CRPD in their adult social care statute report, and there are few signs that the Office of Disability Issues are aware that there may be tensions between the MCA and Article 12 in their report on the CRPD. I think it’s time we started to get a grip, and this edition of the EHRLR is a great place to start.
I probably won’t be blogging now until the new year. On the backburner at the moment is a piece comparing the relative benefits of DoLS and Guardianship as a safeguard for liberty, and I have a lovely 14 page table to share! If there’s anything you think I should consider, or you have any comments you’d like me to include, just drop me a line. Seasons greetings, enjoy your holidays.