There are several brilliant pieces of writing about mental capacity and deprivation of liberty readers might be interested in.
The first is a blog post by Mark Neary relating ‘a complete work of fiction’ which describes the difficulty a person may have in challenging a detention if it isn’t authorised under the DoLS. The problem is that often authorisation is never sought by managing authorities, or it might be sought but later on revoked because the supervisory body decide it’s not actually a deprivation of liberty because the person has nowhere else to go, or their assessors hadn’t heard the person object – even though everybody else has, or because the restrictions are ‘necessary’, or whatnot (assisted, no doubt, by the high level of uncertainty and contradiction in Article 5 case law). Without a DoLS authorisation there’s no more advocacy rights, no more legal aid, no more permission-free routes to the Court of Protection to challenge it. So getting there requires a huge level of determination and awareness of the legal process, not to mention a hefty injection of your own cash – which you might never see again because of the general rule on costs in the Court of Protection. Basically, there’s a technical right to challenge this “non-detention”, but it’s pretty inaccessible and comes with a huge price tag. Cynical supervisory bodies could revoke DoLS authorisations as a particularly sneaky chess move where litigation looks likely, and those deprived of the safeguards will struggle to have recourse against this. And as Mark points out – and particularly for older people – sometimes by the time these cases actually get heard, a person may have been detained for so long that the odds are stacked against them being released from detention to return home due to skills lost to institutionalisation, declines in health or even homes sold to pay for care or lost tenancies. Frankly some certainty as to the scope of Article 5, to help detainees and their supporters argue forcibly that the DoLS should apply, cannot come soon enough. In the longer term, the whole approach will have to be rethought.
More food for thought is contained in the latest edition of the Human Rights Brief from Washington Law School, which contains several interesting papers on the Convention on the Rights of Persons with Disabilities (CRPD) and issues relating to guardianship and legal capacity. One article is by Oliver Lewis, the director of the Mental Disability Advocacy Centre, about the recent ruling in Stanev v Bulgaria, which I previously wrote about here. Lewis’ article discusses various limitations and interesting features of the case and judgment, including the relationship between incapacity and institutionalisation, the narrow and somewhat ‘technocratic’ analysis of Article 6 and legal capacity, and an interesting discussion of the ECtHR’s use of the CRPD in general (
frustratingly, the endnotes are missing from the online version, and “page 70” doesn’t seem to be available online for that edition, so you’ll just have to guess what cases he’s referring to! endnotes are here). Here are a few choice passages:
“Judge Kalaydjieva further notes the access to justice argument which was missed in the majority judgment; namely that Mr Stanev had to rely totally on the discretion of the guardian to initiate legal proceedings to restore his legal capacity, and to get out of the institution. Her insight highlights the way in which guardianship and institutionalization conspire not only to invalidate a person’s will and preferences, but how they segregate people from our societies, exclude them from the political sphere and erase them from our legal consciousness”
‘It is surely a jurisprudential failure that the Court did not directly address the right to legal capacity, and it is frustrating that the Court is not yet willing or able to offer macro comments about societal exclusion of people with disabilities. I share the frustration, but am not yet overly concerned. The Court is not a UN treaty body that comments on government progress and makes recommendations and has a more personable relation-ship with civil society. Nor is it an international think-tank or an advocacy organization. We are still in the early days of disability litigation: this is a relatively new and unsettled area in the European legal system, however backward that may seem to we advocates who operate in the CRPD ecosystem. The ECtHR is a judicial body that currently faces a barrage of criticism from governments for overstepping the boundary between national sovereignty and universal human rights. Perhaps these political considerations were at play in the Stanev case.’
Another paper by Professor Robert Dinerstein considers the implementation of Article 12 CRPD (the right to equal recognition before the law, the one that causes big problems for the MCA – not to mention various provisions of the MHA), and there is also an interview with Oliver Lewis here. Here’s an extract from the interview on whether the CRPD ‘falls short’ in any places:
‘The CRPD is a human rights text. As such it is a result of intense negotiation and ultimately of horse-trading and political compromise. The CRPD really does express rights in a fresh and different way, and innovates by, for example, establishing national implementation and monitoring mechanisms. That said, a number of provisions which have given rise to intense debate. For example some people argue that Article 14 read together with Articles 12 and 25(d) of the CRPD mean that no-one can ever be subject to forced psychiatric interventions (medication usually injected, electroshock, or physical restraints and seclusion). Others justify such treatment for people lacking capacity to make healthcare decisions need to have access to healthcare on an equal basis with others, whether they have disabilities or not, and one might assess ‘capacity’. Given that nothing will change if the medical fraternity digs in its heels, I think the UN Committee on the Rights of Persons with Disabilities should reach out to the psychiatric community, and bring them into the discourse and provide clearer guidance. There are logistical and political hurdles to overcome, but it is possible.’
I think many here would agree that the CRPD needs to work harder to reach out to psychiatrists – and to this I would add and lawyers, social workers, carers, disability organisations, and cultivating a different set of expectations from the media and the general public about disability (challenging discourses embodied in articles like this, and this, for example…). Reaching out will be difficult, given that the CRPD Committee is only resourced to meet for three weeks of the year, and that time will be largely spent consulting monitoring reports. It will be left up to national mechanisms to promote the work of the treaty. The various Equalities and Human Rights Commissions of the UK are national mechanism here, but I’m not sure to what extent they’re really working to promote the treaty in the public eye and facilitate discussions and interest (although the Joint Committee on Human Rights’ work on Article 19 was groundbreaking, and garnered a great deal of interest nationally and internationally). National human rights and disabilities organisations will have a role to play as well, as will forward thinking health authorities and local authorities.
The CRPD is an amazing, inventive and deeply thought provoking treaty, yet nobody who is working at the coal face seems to have heard of it. The fact delegates was able to push so hard for a treaty that was attentive to the concerns of disabled people with relatively few concessions to dominant discourses is probably testimony to the fact the voices of disabled people were not drowned out by ‘professionals’ and others during the drafting process, but at some point these groups will have to be brought on board. How can we work harder to do that? I think we all need to do some deep thinking about how the CRPD could change the way we work and the goals we aim for, and we need to publicise it wherever we can. Even if you find it challenging (I know there are parts of it I find challenging), we can’t turn our backs on a treaty that speaks from a place of such deep understanding of disabled peoples’ concerns; it must be engaged with. Can I encourage you, one more time, to have a go at my ‘re-imagining capacity challenge‘? Oh go on…