This very short blog is about a paper I presented back in November at IALS, where the Refugee Law Initiative held an international conference ‘On the Borders of Refugee Protection: The Impact of Human Rights Law on Refugee Law’. The report of the conference, summarising speakers’ papers is available here. My paper aimed to gauge the impact of the CRPD on Refugee Status Determination under the Refugee Convention. My argument was that we need to develop an enabling interpretation of all the necessary elements for Refugee Status Determination. Persecution in particular, has to be understood in the context of failing to provide adequate protection to the rights entrenched in the CRPD; this means that arguments of progressive realisation may not be conclusive about the non-existence of persecution.
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.
This short blog is intended as a handy summary of the points I raised in my presentation at HEAL at the University of Southampton. This roundtable discussion concerned the recent case of A NHS Trust v DE. Once again, I would like to thank Caroline Jones and Julie Wintrup for invited me over and their warm hospitality. Jess Connelly has provided a very good roundup of the overall discussion, here.
The powepoint for my presentation can be found here. My critique of the case rests on two basic claims. First, there is the issue of legal capacity, in relation to Art. 12 CRPD. My argument is that denial of capacity for DE is problematic: he was considered to lack capacity to consent to sex, was offered sexual education, and was subsequently assessed as having capacity to consent to sex.
Denial of legal capacity because of mental impairment is not permissible under the CRPD, according to the Draft General Comment on Art. 12, available here. I quote from the text of the Draft Comment:
“Normative Content of Article 12
Article 12 (1)
1. Article 12(1) reaffirms the right of individuals with disabilities to be persons before the law. This guarantees that every human being is respected as a person possessing legal personality, which is a prerequisite for the recognition of an individual’s legal capacity.
Article 12 (2)
2. Article 12(2)recognises that persons with disabilities enjoy legal capacity on an equal basis with others in all areas of life. Legal capacity includes both the capacity to be a holder of rights and an actor under the law. Legal capacity to be a holder of rights entitles the individual to the full protection of her rights by the legal system. Legal capacity to act under the law recognizes the individual as an agent who can perform acts with legal effect. The right to recognition as a legal agent is also reflected in Article 12(5) CRPD, which outlines the duty of states to “take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”
3. 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.
4. 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.
Article 12 (3)
5. Article 12(3) recognizes the right of persons with disabilities to support for the exercise of legal capacity. States must refrain from denying legal capacity, and instead must provide access to the support that may be necessary to make decisions that have legal effect.
Support for the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making. Article 12(3) does not specify the form of assistance that must be provided. ‘Support’ is a broad term capable of encompassing both informal and formal support arrangements, and arrangements of varying type and intensity. For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for various types of decisions, or may use other forms of support, such as peer support, advocacy (including self advocacy support), or assistance in communication.”
Even though this position runs contrary to the Mental Capacity Act, the approach taken by the CRPD Committee also means that DE should not have been denied legal capacity to consent to the medical procedure of the sterilisation. This would have rendered useless to decide whether the sterilisation should have been authorised, because undergoing the sterilisation would have reflected the wishes of DE, as having legal capacity consent to it.
My second critique of the case deals with the issue of best interests determination. I argue that best interests can never be the sole justification for an interference with the human rights of a person with intellectual disability. On the contrary, the human rights reasoning under the Human Rights and the ECHR is much more developed. Below is the relevant table from my presentation slides to illustrate this point.
Infringement in Art. 8 ECHR
Is justified when
Is justified because
It is prescribed by law
The MCA allows it in the best interests of the person
It serves a legitimate aim
So that the person can continue to have sexual contact without risk of pregnancy
It is necessary in a democratic society
The sterilisation is proportional to the aim to be achieved
Are the elements satisfied?
Sterilisation is disproportionate
My argument is that the best interests cannot trump this human rights reasoning. Any decision made on behalf of a person (deemed incapacitated) must be in his/her best interests, as well as satisfy the other requirements under European Human Rights Law. In the case of DE, the sterilisation is disproportionate, because it is an invasive, (very likely) irreversible medical procedure which is authorised so that DE can essentially have unprotected sex with his sexual partner, without the risk of pregnancy. No serious harm to both DE and his sexual partner may arise from this unwanted pregnancy. Can this be a legitimate aim and a proportionate interference, when the same result could perhaps be achieved through additional sexual training for DE?
One of the many insightful comments in the discussion was precisely the fact that DE had responded well to previous sexual training, so there was no reason not to continue to provide this educational support as the least restrictive alternative to DE’s bodily integrity.
Last week, the Senate Foreign Relations Committee held the second hearing this month on U.S. ratification of the Convention on the Right of Persons with Disabilities (CRPD). A year ago, when the Committee first scheduled hearings on the CRPD, a Senate vote that followed fell just a few yeas shy of the 2/3 majority needed to ratify the treaty. At the time, opponents asserted that ratifying the treaty would give UN experts unfettered authority to change U.S. law, particularly in relation to homeschooling and reproductive health. Similar arguments re-emerged in hearings on November 5th of this year, along with federalism concerns.
Yet, a number of rationales for ratification remain. As Senator Bob Dole, Representative Tammy Duckworth and former U.S. Attorney General Dick Thornburgh indicated two weeks ago, and as Secretary of State Kerry reinforced last week, ratification would allow the United States to act as a global leader…
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This week, HEAL is holding a roundtable discussion with one of our graduates, Jess Connelley, a solicitor specialising in Court of Protection issues, and Dr Andreas Dimopoulos, from Brunel Law School, on Wednesday 27 November 1-2.30pm, in building 4, room 4053.
The case of A NHS Trust v DE  EWHC 2562 (Fam) hit the headlines over the summer; see for example the BBC news coverage. Andreas was motivated to blog about the case, expressing concern with the reasoning adopted by the High Court judge in reaching her decision. In contrast, Jess blogged positively about the case, heralding it as ‘a success for the Mental Capacity Act and the Court of Protection’. The idea for a roundtable discussion emerged from Twitter exchanges thereafter, including with @juliewintrup, a member of the HEAL network at Southampton.
We hope you will join us for what promises to be an…
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A few days ago, I read this excellent blog by Ross Beaton on the case of R (Antoniou) v (1) Central and North West London NHS Foundation Trust; (2) Secretary of State for Health; (3) NHS England  EWHC 3055 (Admin), available here.
Antoniou was detained in hospital under Section 3 of the Mental Health Act 1983 as a suicide risk but took her own life because of inadequate supervision. Her death was investigated by the mental hospital she was detained and an inquest by jury subsequently took place.
This duty to investigate death under custody exists under the common law, but more interestingly, for the purposes of this analysis, under Art. 2 ECHR. Despite its title as ‘right to life’, Art. 2 protects a limited right not to be killed unlawfully. (This point is something that I first heard from Professor Ken Mason, who taught me medical law at Edinburgh. I thank him.)
So when an unlawful killing takes place, a positive obligation to investigate, effectively and independently into the circumstances of the death, kicks in. In Antoniou, the court held that an inquest satisfies these requirements. In stark contrast to what happens in cases of death under police custody there need not be any independent investigation system prior to the inquest stage. Art. 2 was not violated.
For the purposes of this analysis, I will not go into a deeper examination of this issue. I will only note that there is here much, much more than meets the eye. The Equality and Human Rights Commission has very persuasively highlighted the problems for investigating deaths of patients in mental health settings and claimed that current law may not meet Article 2 obligations. Read Chapter 2 of the Human Rights Review 2012 here.
Additionally, if we take an expansive view of what custody means, to cover essentially all situations where loss of liberty occurs (essential control of movement for patient in care settings), the issue becomes more serious still. The Confidential Inquiry into premature deaths of people with learning disabilities has highlighted the extent of Art. 2 issues that arise from death by indifference. Surprisingly, there is very little in that report as to how much it would improve healthcare standards if accountability measures were put in place, by ensuring an independent and effective inquiry in premature deaths for persons with learning disability.
The point I wish to make is rather simple and relates to the second blog that Ross Beaton wrote on Antoniou, on the discrimination aspect of the case. The court held that no issue of discrimination arose in relation to the differential investigation system for deaths occurring in mental health hospitals and deaths in police custody. I quote paragraphs 103-104 of the judgment
Superficially, it might seem as if there is a difference of treatment if the State’s investigative obligation into a suicide is more stringent in the case of a prisoner of sound mind than in the case of a detained mental patient. However, upon reflexion it will be clear that this difference does not arise from the mental patient’s disability; it arises from the circumstances in which each person is detained. In the case of the prisoner of sound mind, he will be detained within the prison estate for reasons of punishment, deterrence, protection of the public and rehabilitation. He will be under the supervision of a prison staff composed mainly of prison officers. In the case of the detained mental patient, he will be detained principally for his own health, well-being and protection in a hospital staffed mainly by clinicians, nurses and hospital assistants. If the requirement to investigate suicide in the former case is more stringent than in the latter, it arises because of the difference in the circumstances of the detention of the two individuals, which is reflected principally in the actual place and in the nature of the place in which they are detained. It does not arise from the fact that one does, and the other does not, suffer from a disability. So the more stringent obligation would continue to apply in the case of a prisoner detained, by reason of a psychiatric condition or physical disability, in the hospital wing of a prison. The reason why the more stringent obligation would continue to apply in those circumstances is because he was and remained a prisoner. There would be no difference in the obligation of the State to investigate his death by comparison with that of a prisoner of sound mind and body who was not in the hospital wing.
The claimant himself does not suffer from any disability. Article 14 is irrelevant so far as his rights are concerned.
My view is very different. Let us assume, as the court asserts, that the difference in treatment between the prisoner of sound mind and the mental health patient arises from the circumstances in which each person is detained. This does not change the fact that the different regimes of detention are, ultimately and usually, dictated by whether the person to be detained has mental health issues: the vast majority of mental health patients are detained in mental health hospitals, because of their mental illness, because of their disability.
Article 14 is therefore very relevant for the rights of the claimant, even though the claimant did not have a disability (you don’t necessarily suffer from disability, but I guess I’m being pedantic). Let us assume that the claimant will take his case to the ECtHR. In the case of an Article 2 application, when the victim has died (direct victim), family and close relatives are treated as indirect victims, who can bring the application on behalf of the direct victim. (See the admissibility decision in Velikova v Bulgaria available here). Of course, in Antoniou the claimant was divorced from his wife and this might just make his chances of locus standi more difficult.
But let’s cut to the chase: Under European Human Rights law, nothing bars a claimant, as indirect victim without disability to bring a discrimination claim, under Art 14 read together with Art 2, on behalf of a deceased direct victim with disability with regards to the investigation in the circumstances of her death.
How best to translate this claim under English law? If we must accept that the dead cannot be discriminated against under English law, then it is the claimant in Antoniou who is discriminated against by association to the deceased person with disability: he does not enjoy equal protection as indirect victim, by the fact that the indirect victims of non-disabled deaths in custody receive an unjustified differential treatment in how their deaths are investigated.
When I read the case of Finnigan v Northumbria Police  EWCA Civ 1191, available here I was really not sure what to think of it. The case concerns a deaf person, whose house was searched three times by the police. The police knew Finnigan was deaf, but did not bring a British Sign Language Interpreter with them, when conducting the searches.
The legal issue before the Court of Appeal was whether Finnigan was the victim of unlawful discrimination in the conduct of the three searches in that (in breach of section 21B of the Disability Discrimination Act) the Chief Constable failed to comply with the duty imposed on her by section 21E to make reasonable adjustments to her practice, policy or procedure.
Finiggan claimed that the relevant practice, policy or procedure (PPP) of the police is for officers to communicate in spoken English when they conduct searches of premises. This PPP made it unreasonably adverse for a deaf person when subjected to the detriment of a police search. The Chief Constable failed to take such steps as were reasonable to change the PPP so that it no longer had that effect.
The Court of Appeal held that in the present case, it was clear that the policy, procedure of practice of the police was to communicate in spoken English. It followed therefore that the Chief Constable was obliged to make reasonable adjustments to that PPP, so that conducting searches would not have a detrimental effect on deaf persons.
So, how can the duty to make reasonable adjustments be met in these cases? I quote para. 36 of the judgment:
Like any other public authority, the Chief Constable is under a duty to take such steps as are reasonable to change her PPPs so as to eliminate or reduce their detrimental effect on deaf persons. One way of doing this in relation to her PPP of officers’ communicating in spoken English would be for a BSL interpreter to be in attendance or on standby every time there is a search of premises occupied by a person known or believed to be deaf. But there may be other reasonable steps that could be taken to achieve that result: see Roads at para 13. Effective communication may be possible with some classes of deaf persons by other means, for example, with the assistance of officers skilled in lip-reading and sign language. That this is a realistic possibility is strongly suggested by the judge’s findings on the facts of the present case. It is important, however, to keep in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a PPP is to be judged by reference to the former, and not the latter.
In the present appeal, even though the Chief Constable did breach her duty to offer reasonable adjustment (by providing a BSL interpreter, or having an officer who could lip read etc.), the Court of Appeal held that no detriment was suffered by Finnigan in his ability to communicate with the police during the searches.
In my previous post on this issue, here, I was considering that the policy issues of the case. I consider that best practice in the police should be to train some, if not all, police officers in British Sign Language. If you do know of such practices, such as the Plymouth police learning Makaton, please contact me.
However, I did some research, and there seems to be an issue which has slipped through the cracks in the judgment before the Court of Appeal, precisely because the case involved house searches. Imagine a scenario whereby there is an arrest warrant for a person, that the police know is deaf. The police apprehend the suspect without effectively communicating with him, the suspect is brought to the police station and a BSL interpreter is brought in with some delay. This deprivation of liberty, without promptly informing the suspect in a language she understands, would be a violation of Art. 5(2) of the ECHR:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
I think I have not fully exhausted the legal and policy issues that this case touches upon. If you have any research pointers about BSL, similar cases, due process in criminal law, best practices of the police, please get in touch!