I came across an article on Community Care this morning by Dimensions UK (a care provider) about voting. I completely support the general thrust of the article, which is that people with learning disabilities should be supported and enabled to vote, and I’m delighted to see care providers taking this seriously. However, the article initially perpetuated a common misconception about voting: that you need to demonstrate mental capacity in order to be allowed to vote [after I wrote this post, this has now been cleared up by Dimensions, which is great]. Specifically, it initially said that ‘People who are non-verbal can vote, as long as they have mental capacity to do so.’ This is a common misconception but it is, not to put too fine a point on it, rubbish. And it’s not just any old rubbish, it’s rubbish that has the potential to prevent people from exercising a fundamental human right. Everybody has the right to vote, regardless of their mental capacity. What I suspect is happening is that the Mental Capacity Act 2005 has permeated thinking in social care to such an extent that people assume that it applies to everything, and in this case, it doesn’t.
After reading this article, I started to look around at other websites to see what they said about voting and learning disabilities. I found a website run by United Response (another care provider) called Every Vote Counts which was funded by no less than the Electoral Commission themselves. This website also perpetuates this myth about voting and mental capacity and offers guidance on assessing the mental capacity to vote (update: I contacted United Response and the Electoral Commission and they’re looking into this and will be updating their website). I went onto the Mencap website, which is usually a good source of information, and was relieved to see that they do not perpetuate this myth in their guide to voting, but neither do they dispel it. I know that in the past the Care Quality Commission has reminded care providers that they must register people to vote. I think it would be a really good idea if influential bodies like the Electoral Commission, the Care Quality Commission and perhaps somebody like the Social Care Institute for Excellence produced some clear guidance dispelling this myth. Given that leading care providers seem to believe it, I worry about what the less progressive ones believe in this respect. And time is ticking on – there is a general election next year, and the sooner we can get the message out there that everybody has the right to vote, and nobody should have to have an assessment of the mental capacity to vote, the better.
What the law actually says about voting and mental capacity
I’ve written about this before, but it’s so important I think it bears repeating. Section 73 of the Electoral Administration Act 2006 explicitly abolished ‘Any rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state’. The Electoral Commission has produced guidance on this, which states that ‘A lack of mental capacity is not a legal incapacity to vote’. It says firstly that people who meet registration requirements are eligible for registration to vote, regardless of mental capacity, but it goes on to say that ‘the decision as to whether and how to vote at an election must be made by the elector themselves and not by any other person on their behalf. ‘
That’s not quite the end of the story, however. Section 29 of the Mental Capacity Act 2005 (MCA) says that ‘Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person’. In other words, nobody can vote on a person’s behalf in their ‘best interests’. This appears to be an explicit prohibition on ‘substitute decisions’ being made on behalf of people in the exercise of their voting rights. The Electoral Commission interprets this to mean that ‘a person must have mental capacity to appoint or to continue to have a proxy, as that can be taken to be a decision on voting.’ Their interpretation seems to be based on the idea that s29 MCA prohibits proxy voting, as a proxy would be making a decision on voting on a person’s behalf. After thinking about this, I’m not totally convinced by this. If a person with mental capacity can appoint a trusted person to vote on their behalf, and tell them how to vote, I do not see why a person without mental capacity should be disqualified from doing so. That seems to me to be potentially discriminatory and contrary to the purpose of the recent reforms to voting rights. When you appoint a proxy, you are not necessarily giving the proxy a free reign to decide on your behalf, you are simply trusting them to carry out your own voting intentions. I suspect what s29 MCA is trying to do is to prevent voting ‘in best interests’, which is somewhat different to asking somebody to go to the polling station for you and to vote a particular way on your behalf.
If that weren’t enough to convince you that people without mental capacity can vote, then take a look at this recent complaint to the United Nations Committee on the Rights of Persons with Disabilities (which I wrote about here). Some adults with learning disabilities complained to the Committee that they had been prevented from voting because they were subject to guardianship. The European Court had already ruled that this blanket disqualification was unlawful (Kiss v Hungary), so Hungary had instituted individual assessments of voting capacity, but it only applied to people under guardianship. The United Nations Committee found that even these individual assessments were an unlawful and discriminatory bar on voting for people with disabilities, as nobody without a mental disability would ever have to demonstrate that they had the mental capacity to vote. Now, the UK has ratified the United Nations Convention on the Rights of Persons with Disabilities, although it is not directly binding in the domestic courts (because it doesn’t have a mechanism like the Human Rights Act 1998 to incorporate it into UK law). However, domestic laws should be interpreted in accordance with international law wherever there is ambiguity. And so if there is any residual ambiguity in your mind about this, hopefully this decision clears this up.
People with learning disabilities are already marginalised from the political process. There are already numerous practical hurdles to exercising their right to vote. Let’s not let misconceptions about the law be another hurdle they have to clear to have their voice heard.