Brief post with two pieces of news…
EHRC publish ‘list of issues’ for the Committee on the Rights of Persons with Disabilities
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) contains a monitoring framework. Under this framework, the CRPD Committee undertakes reviews of the compliance of states that have ratified the CRPD. Each state has to designate a ‘focal point’ within government for matters relating to implementation, and also an independent mechanism to ‘promote, protect and monitor’ the CRPD (Article 33). In the UK the Office for Disability Issues is the focal point and the equality and human rights commissions of the UK are the independent mechanism (Equality and Human Rights Commission (EHRC), the Equality Commission for Northern Ireland (ECNI), the Northern Ireland Human Rights Commission (NIHRC) and the Scottish Human Rights Commission (SHRC)).*
States parties must submit a report to the CRPD Committee about their implementation of the Convention. The independent mechanism and disabled people’s organisations can also submit reports, and these are used to produce a ‘list of issues’ which the State must respond to. The UK Independence Mechanism (UKIM) has recently published its report outlining areas of concern about the implementation of the CRPD. I won’t list all the areas of concern, but here’s what it had to say about the Mental Capacity Act 2005 and the deprivation of liberty safeguards:
Article 12: Equal recognition before the law
The law governing mental capacity is different across the three legal jurisdictions of the UK.
However, each of the legal frameworks provide that, in certain circumstances, where an individual is functionally incapable of making a decision, an authorised individual may intervene and make a decision on their behalf either in their ‘best interests’ (in England, Wales and Northern Ireland) or for their ‘benefit’ (in Scotland). Such an intervention can only be made once an attempt has been made to support the person to take the decision themselves.
A Parliamentary Committee considering the implementation of the law governing mental capacity in England and Wales found that ‘best interests’ decision-making is often not undertaken in the way set out in the Act: the wishes, thoughts and feelings (of the individual deemed to lack capacity) are not routinely prioritised. Evidence presented to the Committee highlights that paternalistic attitudes have persisted.
Each of the frameworks makes provision for an individual to appoint an attorney to make decisions on their behalf should they become mentally incapable. There are concerns that the current and proposed frameworks do not provide sufficient protection against abuse, and in particular, financial abuse.
UKIM recommends that the CRPD Committee ask the UK:
21. To explain how the effectiveness of the frameworks governing mental capacity in each nation is being monitored, what actions have been taken to improve the availability of support in decision-making and the outcome of such action.
22. To explain how the effectiveness of the safeguards, which are in place to protect disabled people from abuse, in particular financial abuse, are monitored, to detail the steps taken to eradicate such abuse and to evidence the effectiveness of such steps.
Article 14: Liberty and security of person
Until recently the established practice in psychiatric hospitals and other care settings across the UK has been to assume that patients who are deemed incapable of consent but compliant with their admission and/or treatment could be regarded as voluntary patients.
The European Court of Human Rights found in 2004 that this practice was not compliant with the ECHR, right to liberty and security of the person. In England and Wales to attempt to address this practice the Deprivation of Liberty Safeguards (DOLS) were introduced to protect people in hospitals or care homes who lack capacity to consent to their care or treatment. Legislative developments to address this practice have not yet been taken in Scotland (although a review is presently underway) or in Northern Ireland. Furthermore concerns have been raised regarding the effectiveness of DOLS in England and Wales.
UKIM recommends that the CRPD Committee ask the UK:
27. To detail the measures that have, or will be, put in place in each nation to ensure that those who are unable to consent to their placement or treatment in psychiatric hospitals and other care settings are protected in law and to explain the monitoring and review mechanisms that have been put in place.
The UKIM also raised concerns about deaths in mental health detention (Article 10), access to legal aid (Article 13 – access to justice), and the impact on rights to independent living (Article 19) of cuts in funding to local authorities social care budgets and also the new eligibility criteria under the Care Act 2014.
The next stage is for the CRPD Committee itself to formulate it’s list of issues (which could be different to the issues identified by the UKIM) and the government will produce its response to these. Then the Committee will examine representatives of the UK, and produce its final concluding observations on UK compliance with the CRPD. I am a bit confused about when this is meant to be happening; the CRPD Committee is very under-resourced and has fallen behind on monitoring state reports. I heard rumours that the UK’s examination had been postponed, but I can’t find any more information about this on the calender of country reviews.
Rights at the end of life
Compassion in Dying have published a comprehensive guide to rights at the end of life. This includes rights relating to advance planning instruments and Do Not Attempt Resuscitation decisions. It also includes information about where a person could be cared for at the end of life, financial support for end of life care, sources of support, information on how to make a complaint and guidance for people where somebody close to them has died. It looks like an extremely useful document.
*The Human Rights Implementation Centre at the University of Bristol has set up a handy Article 33 database so you can identify the focal point and independent mechanism for each country.