Spread the word: you DON’T need mental capacity to vote

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.

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15 thoughts on “Spread the word: you DON’T need mental capacity to vote

  1. An excellent argument for the rights of those with different capacities from the average but over simplifies the issue somewhat by referring to ‘mental capacity’ or not, as if this is an on-off switch. The MCA, besides common sense, makes clear that mental capacity is both scalar – we have the mental capacity to understand or perform tasks to a varying extent; and specific, so that our capacity to undertake one kind of task e.g. calculate mathematically may exceed our capacity in another e.g. write legal essays. I understand that voting is seen as a fundamental right for citizens and that it would be seen as both democratically offensive and practically impossible to screen citizens for their capacity to vote, even if we could agree what capacities were required to mark the piece of paper. Nonetheless, we do set bars, limit access to some roles in society which are set after an examination of mental capacity – driving a train, for example. The Court of Protection has gone further and authorised the sterilisation of people whose mental capacity is declared insufficient to manage the physical and psychological changes of pregnancy and childbirth. Is voting a more fundamental right than the right to reproduce? Is not permitting, encouraging, supporting (as the UNCRPD would require) people whose capacity is so impaired that the whole notion of a voting system is incomprehensible to them merely tokenistic, a mockery of democratic participation?

    • Could someone let me know if people who may not have mental capacity can vote in Scotland. I am a social worker with a second cousin who has ASD it would be helpful to know so I can inform his parents. He was allowed to vote in the recent Scottish referendum but not without a great deal of questioning. Thanks.

      • Great question! I’ve just looked up s73 Electoral Administration Act 2006 on Westlaw – a database used by lawyers to find out about laws – and it says that the ‘extent’ of this section is the UK, so I think it probably does apply in Scotland as well. However, I’m not a Scottish lawyer so I wouldn’t swear to it…

        The Electoral Commission has just published guidance on voting and capacity issues in England and Wales, and apparently is going to produce guidance on Scotland soon – so perhaps search their website in a few months’ time and see what you find (or, send them an email).

  2. Hi Lucy, thank you for the very helpful blog. What happens in a situation where a support worker feels that someone who is non-verbal and physically disabled is communicating that they would like to vote for a certain party? In a polling station would an electoral registration office ever stop the support worker from voting in the way they believe the person is communicating that they want them to? Who decides whether the person is, in fact, communicating how they want to vote?

    Sam

    • Hi Sam, in brief, EROs have no lawful grounds to turn away a person who is registered a vote and is indicating a desire to do so. Problems may arise about supporting them to vote and it’s worth checking the Electoral Commission’s website on this. It’s important to remember that ‘mental incapacity’ is not a bar to voting and that voting is a fundamental human right protected by the ECHR and Article 29 of the CRPD. However, (more due to cock up than conspiracy) there is currently a problem with individual voter registration and mental capacity, which I and others are badgering the government to address…

  3. Hi Sam,
    I suppose in theory there is a potential for political manipulation, i:e the helper who goes into the ballot box with them could persuade/coerce them one way or the other. Depends who goes with them whether it is an electoral officer or someone they know.

    I don’t think this is quite the same as being persuaded before they actually go to the ballot box, as this is how it works for all of us up to a point.

    • There’s definitely a potential issue here for coercion and undue influence. However, at the same time, there’s a risk that we let this danger override people’s rights to support in voting (Art 29 CRPD says ‘Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice’). I just had a look at the Electoral Commission’s advice (http://www.electoralcommission.org.uk/__data/assets/electoral_commission_pdf_file/0005/43961/Part-I-Accessibility-and-participation-final-print-ready.pdf) but it’s not clear to me that people can request assitance in the ballot (which is daft, of course, because they could just request a postal vote and have that assistance at home).

      • Yes, I agree, the coercion issue is less important than the right to vote for disabled people, and in any case some coercion is un likely to be of much significance to altering who succeeds in an election campaign (although it could do of course). It’s really part of a larger issue about power and disability. I was reminded of IS using disabled people for terrorist acts, but who is to say that the Learning disabled person used in this way is any more vulnerable than the emotionally vulnerable person who is radicalised for example.

      • Urgh, I hadn’t head about that IS thing, how horrible.

        On the risk issue, there’s a really good paper by Nina Kohn in this book about voting and disability: http://www.hartpub.co.uk/books/details.asp?isbn=9781849464178

        One of the points she makes is that if we are worried about irrational voting and undue influence etc, it’s just ‘noise’ in the system and will cancel itself out, so wouldn’t necessarily corrupt the political system overall. This means that preventing people from voting is a disproportionate response. It’s a great paper, I really recommend it!

      • I will have a look at it, I am sure that point must be right. Although one could I suppose argue that people of some particular political persuasions are more likely to use coercion than others (not that I am going to argue that). However I suppose in any case there are limitless ways of persuading people to do things many of which are quite dubious and which we all succumb too in varying degrees-advertising for example, distorting and misrepresenting facts etc.

  4. Hiya, annoyingly just seen this. Will share with colleagues although it’s potentially a little late now.

    However, you touched on something which I have been wondering for ages. If the United Nations Committee found that individual assessments of voting capacity are discriminatory because only disabled people were being asked to demonstrate they have capacity, couldn’t the same be said of the entire Mental Capacity Act 2005? You are only ever subject to the functional test if you meet the criterion in the diagnostic test, having an impairment or disturbance in the function of your brain or mind (i.e. have some sort of permanent or temporary cognitive disability).

    As a social worker, I have had managers ask me to conduct mental capacity assessments where I have wondered the request is discriminatory. For example with an older man who has been an alcoholic for decades and who has in the last few years acquired a progressive cognitive impairment (probably a dementia but OPCMHT have a several month waiting list for diagnosis), my manager asked me to establish whether he had capacity to make decisions about drinking alcohol.

    A compromise would have been to do the capacity assessment as asked, probably find he didn’t have capacity around drinking, but based on his present wishes and preferences, as well as his past actions when he did have capacity, find that it was in his best interests to continue drinking.

    However, my view was that we didn’t need a capacity assessment because there was no evidence at all that his decision to drink was “because of” his cognitive impairment as set out in S.2 (1) of the MCA.

    Given that the man was quite frequently drinking, falling and ending up in hospital, as you might imagine my view that we didn’t need to assess his capacity around his alcohol use got me some grief both from the hospital who felt we should do something (essentially put him in a care home and deny him access to alcohol) and my manager who was convinced that it was just a matter of time until he would fall and die and we would somehow be responsible, which put a lot of pressure on me.

    Sorry this is probably not the best example, sure there are lots of others like it, just one that sticks in my mind, partly because it was quite recently but mostly because of my own intransigence, even though I’m not totally sure I was right.

    But aside from this case, the theoretical question has bothered me for a while. Isn’t the MCA discriminatory according to the same logic applied by the UN Committee?

    • Hi there, you’ve hit the nail on the head! There is a growing school of thought that says that the MCA is discriminatory and violates the CRPD. It’s fair to say that this is causing some controversy but it’s a view that is being taken increasingly seriously and even some judges agree. The difficult question is what to do about it. I’m on the tube so can’t provide links but have a look on the CRPD resources on the blog and also the Essex Autonomy Project have written a report about this.

  5. I think the whole thing about assuming capacity is a bit dubious anyway. Because the moment you consider doing a capacity test you are allowing he possibility that the person has not got capacity. It only makes sense with a very technical/legal understanding of assume capacity (ie if a test has not been done the person has capacity).

  6. Pingback: Cognitive impairment and voting: the capacity to be heard | Discursive of Tunbridge Wells

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