Now that the brouhaha relating to the forced caesarean case has abated, it is time to step back a little and consider the wider picture on mental capacity in UK law. And yes, the wider picture is no Normal Rockwell painting.
A major criticism of the forced caesarean case is that the views and wishes of the mother are not discussed in the judgment. The second other major criticism is that the human rights of the mother are also not discussed in the judgment.
As a comparison, consider the incapacitated sterilisation case. The views and wishes of the adult male are discussed in great length in the judgment: the adult male, even though incapacitated, clearly wishes to undergo the sterilisation. The human rights of the incapacitated male are not discussed in the judgment.
In both cases, the fundamental legal issue is to consider the views, opinions and wishes of the person, in order to achieve the protection of his or her human rights. References to human rights have become trite. However, this point is crucial. What is meant by human rights? Does that reference cover bodily integrity (protected under Art. 8 ECHR), or the right to procreate (protected in conjunction with the right to marry under Art. 12 ECHR)?
The wider picture is wider. The wider picture deals with the right to recognition before the law under Art. 12 CRPD. The Draft General Comment on Art. 12 CRPD by the CRPD Committee states the following, in paras. 12 and 13:
12. Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of an individual, which naturally vary among individuals and may be different for a given individual depending on many factors, including environmental and social factors. Article 12 does not permit perceived or actual deficits in mental capacity to be used as justification for denying legal capacity.
13. In most of the state reports the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where an individual is thought to have impaired decision-making skills, often because of a cognitive or psychosocial disability, her legal capacity to make a particular decision is consequentially removed. This can be done simply based on the diagnosis of a disability (status approach), or where an individual makes a decision that is thought to have negative consequences (outcome approach), or where an individual’s decision-making skills are thought to be deficient (functional approach). In all these approaches, an individual’s disability and or decision-making skills are accepted as a legitimate basis for denying her legal capacity and lowering her status as a person before the law. Article 12 does not permit this discriminatory denial of legal capacity and instead requires that support be provided for the exercise of legal capacity.
In light of the above, rather than focusing on any particular criticisms of these cases, it is urgent to take issue with two things in the Mental Capacity Act:
1. That a person may be regarded as lacking decision-making capacity, which then is used to deny him or her legal capacity
2. That the consideration of best interests is carried out without any reference to human rights
The wider picture then is wider.
The first and obvious point is to introduce a Disability Rights Act, which will incorporate the CRPD in UK law.
The second point is to amend the Mental Capacity Act.