On caesareans and sterilisations

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.

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Disability and Human Rights

One of the blessings of this year has been that I designed, and managed to get approved by my Law School, a postgraduate course on Disability and Human Rights. At the time of writing this, I have no idea if students will actually be interested in taking part in the course, so it may not run after all, due to lack of interest. But that is beside the point of this post.

The real challenge for legal academics who are interested in disability and human rights, like me, is to translate the claims of the disability rights movement in their best legal light. Of course there is now the Convention on the Rights of Persons with Disabilities. Yet, we should not forget that the CRPD is an international convention, which is the product of diplomatic debate and input from disability NGOs. The rights protected by the CRPD require interpretation and the work of the CRPD Committee will prove crucial to this effect.

The best example to illustrate my point is the theoretical cornerstone, upon which the disability rights movement has based its edifice of claims: the social model of disability, about which Jenny Morris has written an amazing blog. Reading this post, and reflecting on it from a legal perspective has been a long process for me, which is still ongoing, so I will incorporate it in the reading list for the first seminar of my Disability and Human Rights module and see what my students will say.

The common approach to the social model of disability in terms of human rights has been that it imposes obligations upon the state to bring down the barriers that exclude persons with disabilities from equal and full participation to society. This approach carries a fatal objection about the allocation of scarce resources: the state, in carrying out its policies, may give precedence to policies other than the social model of disability.

The CRPD has sought to rectify this by taking an integrated approach to the human rights of persons with disabilities: there is no clear distinction between negative rights and socio-economic rights. CRPD rights are a normative bundle of negative rights and positive obligations, which have to be realised progressively. The objection from the argument on the allocation of scarce resources is partly addressed in this way.

Notwithstanding the sheer awesomeness of the CRPD, I have a nagging suspicion that the way forward in human rights protection for persons with disabilities may lie in this direction: clearing the way for the ever greater justiciability of disability rights, by intensifying the review (e.g. the proportionality control) of the allocation of scarce resources.

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Slap on the wrist by the UN High Commissioner: Bedroom tax, disability, the social right to housing, the ECHR right to family life, judicial review

Now that the press release from the office of the UN High Commissioner on Human Rights has been released, it is perhaps a good time to fulfil my promise and develop my thoughts a bit more on the bedroom tax. For those of you interested in a wee bit more highbrow legal stuff, you can download my presentation at the SLS Conference here. However, this post will be like Emily Dickinson wrote, ‘tell all the truth but tell it slant’.

So I’ll start differently. The bedroom tax is an austerity measure, just like any other austerity measure adopted by countries in the Eurozone. The common feature of these measures is that they aim to reduce public spending by introducing cuts to social benefits. By introducing cuts to social benefits, the human rights which are connected to (and protected by) these benefits are infringed. When human rights are infringed, judicial (or constitutional, in other countries) review aims to examine how bad the infringement is, compared to the aim that the austerity measure serves. This is what proportionality is all about.

Judicial review in the UK is presented as this devilish, almost obscene judicial power, which does the unthinkable: it places government policy under scrutiny. However, judicial review under the HRA has to do precisely that: place government policy under scrutiny and examine whether the infringement to the human right in question is proportionate to the aim to be achieved by the government policy.

Robert Alexy has formulated two laws about how proportionality reasoning (balancing) works.

The first law of balancing states that the greater the degree of detriment to a right, the greater must be the importance of satisfying the public interest (or a competing right).

The second law of balancing states that the greater the degree of interference with a right, the greater must be the certainty of its underlying premises.

Let’s apply this reasoning to the bedroom tax. The estimated savings from the bedroom tax amount to roughly £500m for 2013-14, according to this. However, it is uncertain whether these savings will actually be achieved, according to press coverage, such as this. Given the uncertainty surrounding the underlying premises of the bedroom tax (i.e. the savings of £500m), grave interferences with human rights cannot be justified. It is simple as that.

Now, I have to turn to the issue of the grave interference with the human right. If the bedroom tax is simply seen as an interference with the human right to property (under Art. 1 Prot. 1), then the reduction in the housing benefit may not be easily regarded as grave. It will depend on the actual circumstances of each case.

What the Bedroom Tax judgment did not do however (available here) was to consider the potential risk of infringement to other human rights, such as the right to private and family life. The link between the social right to housing and the right to private and family life has been highlighted in the Yordanova v Bulgaria case of the ECtHR (see an excellent comment here). Although Yordanova is about forced evictions of Roma, some parts of the judicial reasoning are highly relevant to persons with disability affected by the bedroom tax. The threat of homelessness and the background of social deprivation constitute a grave interference with the right to private and family life.

So, the bottom line is: Why do Parliament and judiciary have to wait for an international slap on the wrist to acknowledge that current policy is simply not designed well? Why do we have to wait for the UN High Commissioner to give us a nudge in the right direction? And more importantly, will we actually listen? 

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Some Contrarian Thoughts on Re DE [2013] EWHC 2562 (Fam)

This is my first blog post and I have been moved to write it by an issue I deeply care about: non-consensual sterilisation for persons with intellectual disability.

Re De is a judgment I do not agree with. I will not punch about whether DE had capacity or not. The crux of the case relates to best interests.

Under English law, non-consensual sterilisation, of either male, or female incapacitated person, has to be in the person’s best interests.  

The analysis of best interests in Re De is problematic.

From a human rights perspective, the judgment mentions Art. 8 of the ECHR and Arts. 23 and 26 of the CRPD. Sterilisation is seen as an infringement of the right to respect of private and family life under Art. 8 of the ECHR. The mention of the CRPD rights, not having been incorporated in English Law, is of no binding force. 

However, an analysis of non-consensual sterilisation only on the basis of Art. 8, or the extensive case law cited and followed in Re DE, does not give the full picture of what is at stake here, in human rights law.

In Issues in the Human Rights Protection of Intellectually Disabled Persons (Ashgate: 2010, 184-191) I have argued that non-consensual sterilisation undercuts a very different, and often very neglected right under the ECHR. Art. 12 of the ECHR protects the right to marry and found a family.  Insofar as sterilisation is concerned, Art. 12 has to be regarded as lex specialis in relation to any other interferences with bodily integrity, which are caught by Art. 8. When a non-consensual sterilisation is authorised, Art. 12, in the part that relates to founding a family, is annihilated. It is for this reason, under human rights law, that non-consensual sterilisation is inherently problematic.

The problem with non-consensual sterilisation has to do with proportionality of interference. Art. 12 of the ECHR is a qualified right, which can be exercised according to the national laws governing the exercise of this right. This means that the right of Art. 12 can be interfered with, in accordance with the law, for a legitimate aim and if the intensity of the interference is proportionate to the legitimate aim to be achieved.

All things being equal therefore, if the intensity of the interference is so high as to extinguish the right, then the legitimate aim to be achieved has to be very high indeed. (My personal view is that the interference can never abolish a human right). Since non-consensual sterilisation extinguishes the right to marry and found a family, then the reasons for authorising it have to be grave and serious. This is were the distinction between therapeutic and non-therapeutic, non-consensual sterilisation becomes crucial. Non-therapeutic, non-consensual sterilisation can never be justified under human rights law.

Ultimately, Re De is disappointing because it does not offer a convincing analysis of the distress that becoming a father would cause DE. Short of jumping off a cliff or developing serious mental illness, I cannot subscribe to an inflation of psychological distress which may justify non-consensual sterilisation in the best interests of DE.

But, I can hear you argue, DE actually does not want to become a father again. He has no wish to found a family. Aren’t you being paternalistic?

I can understand this argument, in human rights terms, as a conflict of rights. Authorising the non-consensual sterilisation for DE will satisfy his right to respect for his private and family life under Art. 8 of the ECHR (continuing his sexual relationship without the fear of becoming a father again) to the detriment of his right to marry and found a family under Art. 12.

My position, when faced with competing rights, is to strike a balance between the two, in a way which affords as much protection as possible to both. For me, it is clear that DE’s fertility should be safeguarded, even if this may cause him distress in his private life.

Persons with intellectual disability are not immutable or static. Like any person, their wishes and personality change and grow. DE does not want to be a father again, now. What about the future? Ask yourselves then, what safeguards DE’s best interests: authorising a non-consensual sterilisation in the absence of grave and imminent medical harm for his convenience and the convenience of others around him, or preserving his fertility in order to safeguard his right to marry and found a family, should DE form such a wish in the future?

 

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