Discrimination, capacity and voting rights

The UN Convention on the Rights of Persons with Disabilities (CRPD) has prompted critiques that mental capacity based laws are discriminatory against people with disabilities.  These critiques are in particular connected with Article 12(2) CRPD, which states that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.’  With some trepidation, I will be presenting on these arguments at a conference in July (trepidation because mental capacity law is complicated enough, without the added complexity of discrimination law…).  With this in mind, I was rummaging around on the UN Committee on the Rights of Persons with Disabilities website to see if they had heard any complaints about capacity and discrimination issues and how they decided them, and lo – they have!

In Zsolt Bujdosó and five others v. Hungary, six individuals with intellectual disabilities complained to the Committee under the Optional Protocol that their Article 29 rights to political participation and their Article 12(2) rights to recognition of legal capacity on an equal basis with others were violated by Hungarian laws which stripped people who were subject to guardianship of their ability to vote.  The law which affected the applicants had in fact been repealed and replaced following a ruling by the European Court of Human Rights in Alajos Kiss v Hungary, which had found that it violated Article 3 of Protocol 1 of the European Convention on Human Rights (the right to free elections).  The new law would examine a person’s competence to vote during guardianship proceedings on the basis of an individualised assessment of whether their ‘discretionary power required for exercising suffrage (a) has been significantly reduced, whether permanently or recurrently, due to his or her mental state, intellectual disability or addiction; or (b) is permanently missing in its entirety, due to his or her mental state or intellectual disability’.  So the new law would formally decouple guardianship and restrictions on suffrage, but the question of a person’s ability to vote would only be examined if guardianship proceedings were instituted.  Despite this new law, the applicant’s rights to vote had not been restored as the assessments for suffrage purposes only happen in new guardianship cases.

The Harvard Law School Project on Disability (HLSPD) intervened in the case.  I can’t find a copy of their intervention online (which is a shame), but their arguments are set out at length in the Committee’s decision.  The HLSPD do not only criticise the old law, which affected the applicants, but also the new law based on individualised assessments of competence.  The arguments they deployed are very familiar from the wider literature on the CRPD – they sounded a lot like arguments that Amita Dhanda has made in various articles.  They were as follows:

Capacity assessment as discrimination on the basis of disability

5.7 Assessments of voting capacity rest on the assumption that it is permissible to protect the integrity of the political system from individuals who are unable to formulate a valid political opinion. According to the argument, those objectively found to lack capacity to vote are by definition unable to vote competently. According to the interveners however, the legitimacy of such aim is itself questionable, since it is not for the state to determine what is a valid political opinion. While conceding that there are persons with disabilities who are unable to formulate a rational political opinion, the interveners stress that the inability to cast a “competent” or “rational” vote is by no means specific to persons with disabilities. Consequently, if there are both disabled and non-disabled persons unable to cast a competent vote, it cannot be maintained that only the latter should be subject to assessment of their capacity. Only long-entrenched prejudice against persons with disabilities justifies the current practice, and must be rejected under the Convention.

Inevitable disenfranchisement of capable individuals

5.8 According to the interveners, capacity assessments are not a proportionate means of assessing competence in this context.  Capacity assessments rest on the assumption that it is possible to objectively separate the “incapable” voters from the rest. However, that assumption is not well-founded according to psychological experts. There is no scientifically determinable cut-off point between persons having and those lacking capacity to vote. Accordingly, incapacity assessments will always result in disenfranchisement of at least some capable voters with disabilities.

5.9 The interveners add that the state’s goal of protecting the integrity of the electoral system is neither compelling—given that it targets only a small subset of the potentially incompetent voters, those who are labelled as having a disability—nor legitimate since it is discriminatory.

       Capacity assessment in practice

5.10               Additionally, the interveners stress that the practice of many countries shows that if capacity assessment on the basis of disability is permitted, it will result in the disenfranchisement of a large number of persons with disabilities based solely on their disability status. The interveners refer to the Committee’s Concluding Observations on Spain, in which it noted with concern “the number of persons with disabilities denied their right to vote”, and that “the deprivation of this right appears to be the rule and not the exception.”[1]According to the interveners, the situation in the State party equally infringes the rights of persons with disabilities: as of 1 January 2011, 71,862 persons, constituting some 0.9 per cent of the adult population of the State party were excluded from the right to vote.[2] However, only 1,394 persons are registered under the qualification of “severe or profound intellectual disabilities”, therefore being the primary target and justification of the policy of exclusion.[3] There is thus a huge disconnect between the number of those whose competence to vote could conceivably be questioned and those currently disenfranchised, with the number of the latter constantly growing. Regardless of how these assessments will be changed by the State party’s government in the future, it is a fair prediction that the number of disenfranchised persons will be much larger than those who could be reasonably considered “incapable of voting” under any scientifically acceptable test.

5.11               The interveners underscore the long-entrenched beliefs that persons with disabilities are incapable to manage their affairs, to make competent decisions, and to participate in public affairs. They add that professionals participating in the assessment process, such as judges, psychologists, psychiatrists, social workers and others, are also not immune to this prejudice. This is why any system permitting exclusion will produce a disproportionate number of disenfranchised persons with disabilities, and this is one of the reasons why it should be abolished under the Convention.[4]  Article 29 of the Convention requires states to adapt their voting procedures to facilitate the exercise of the right to vote by persons with disabilities, and to ensure that they are able to cast a competent vote. Their capacity to vote should not be contested, and nobody should be forced to undergo an assessment of voting capacity as a precondition of participating in elections.

The Committee found that the rights of the complainants had been violated.  They stated that Article 29 CRPD ‘does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities’.  Accordingly, restrictions on the right to vote based on ‘a perceived, or actual psychosocial or intellectual disability,  including a restriction pursuant to an individualized assessment’ constituted disability discrimination within the meaning of Article 2 CRPD [9.4].  They went on to say that states must recognise and uphold the lgal capacity of persons with disabilities ‘on an equal basis with others in all aspects of their lives’, including political life.  They held that ‘by depriving the authors of their right to vote, based on a perceived or actual intellectual disability’ Hungary had violated Article 29 CRPD read alone, and in conjunction with Article 12 CRPD [9.5].

Defences to discrimination and the CRPD?

Many human rights and equality instruments have defences against discrimination, to the effect that provided a difference in treatment is proportionate and pursues a legitimate aim, and the criterion for the difference in treatment has a ‘reasonable and objective relationship’ to the matter in question, then it will not constitute unlawful discrimination.  Only last year, the United Nations Human Rights Committee (which monitors the implementation of the International Covenant on Civil and Political Rights), stated that the Czech Republic should ‘ensure that it does not discriminate against persons with mental, intellectual or psychosocial disabilities by denying them the right to vote on bases that are disproportionate or that have no reasonable and objective relationship to their ability to vote’.  Disability advocacy organisations were angered by this comment as it made no reference to the CRPD and appeared to imply that disability could sometimes form part of a rationale for denying people the right to vote.

Defences against discrimination are not usually explicit in human rights treaties (although they can be in domestic equality laws, which tend to be more detailed), and emerge through the work of treaty bodies.  So I had wondered for some time whether the CRPD would allow similar defences to discrimination as other treaty bodies.  I am still not sure if it does, but the CRPD Committee certainly considered arguments which appeared to be linked to possible defences, saying that as assessments of capacity are discriminatory in nature’ they cannot be legitimate, nor were they proportional as the state could adopt other measures than restricting suffrage:

9.6 Having found the assessment of individuals’ capacity to be discriminatory in nature, the Committee holds that this measure cannot be purported to be legitimate. Nor is it proportional to the objective to preserve the integrity of the State party’s political system. The Committee recalls that, under article 29 of the Convention, the State party is required to adapt its voting procedures, by ensuring that they are “appropriate, accessible, and  easy to understand and use”, and allowing, where necessary, assistance in voting upon request of the person with disability. It is by so doing that the State party will ensure that persons with intellectual disability cast a competent vote, on an equal basis with others, while guaranteeing the secrecy of the vote.

Implications

This case tells us a number of important things.  Firstly, it’s interesting to note that the discrimination arguments by the intervenors didn’t dispute that some people might be ‘incompetent’ to vote, in fact they did appear to confirm that in some cases this might be correct.  Rather they pointed out that a) the same could be said for a lot of people, but only people with disabilities were subject to assessments and might have their suffrage restricted on this basis, b) that assessing competence to vote in an objective way was extremely problematic, as voting is perhaps the paradigm case of decisions made on the basis of personal preferences and is not amendable to ‘scientific’ measurement, and c) because such assessments were not objective they were likely to be informed by prejudice and thus these procedures aimed at restricting ‘incompetent’ voters were likely to be not only discriminatory (as they are only applied to people with disabilities) but also over-inclusive (include people with disabilities who in fact are competent to vote).  Whether these arguments would translate across to other kinds of denials of legal capacity remains to be seen.  I suspect for the Committee they would, given the General Comment, but voting rights do raise very different issues to other issues that can come up in capacity law, since voting doesn’t typically present a risk to the individual whereas other decisions that capacity laws try to restrict can do.

Secondly, this case at least holds out the possibility that there may be defences to discrimination under the CRPD, as there are under other treaties: that possibility certainly wasn’t rejected outright.

Thirdly, this case suggests that the CRPD Committee may take a different line on disability and voting rights than both the UN Human Rights Committee and the European Court of Human Rights.  This raises potential conflict of laws issues.  However, neither body has explicitly stated that individualised assessments of capacity are a legitimate ground to restrict suffrage, rather they have held that blanket denials are not; neither have they explicitly considered and decided upon the discrimination arguments which were put before the Committee.

On a positive note, this ruling affirms the position on voting rights taken in the UK. Section 73 of the Electoral Administration Act 2006 abolished ‘incapacity’ based limitations on voting rights.  Accordingly, suffrage is universal in the UK as far as disability is concerned.  Or at least, it is nearly universal, because there are still restrictions on proxy voting linked to capacity, and in practice people are often either actively denied electoral registration by care providers, or else not facilitated to exercise their rights of suffrage.  There is work to be done here, but that work is about supporting and enabling the right to vote, because we’ve already taken steps to deny legal restrictions on it.

Just on a parting note, you might also be interested to learn that Article 12 CRPD and the General Comment on Article 12 have now had their first outing in UK law.  Senior Judge Lush relied upon Article 12 and the General Comment to refuse to appoint a man’s niece as his deputy, in part on the basis of his objections and partly because it was felt that she exercised undue influence over him and had conflicts of interest (LB Haringey v CM, 2014).

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One thought on “Discrimination, capacity and voting rights

  1. Pingback: Spread the word: you DON’T need mental capacity to vote | The Small Places

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