The Committee on the Rights of Persons with Disabilities has published its Draft General Comment on Article 12 – the right to equal protection before the law.
This is a really important document for people with mental disorders. You should go and read it and ideally respond to it.
The first key points are that:
The Comment equates the loss of legal capacity with the loss of ‘personhood’ and makes the claim that: ‘there are no circumstances permissible under international human rights law where a person may be deprived of the right to recognition as a person before the law, or in which this right may be limited.’ (para 5)
‘The Committee reaffirms that an individual’s status as a person with a disability or the existence of an impairment (including a physical or sensory impairment) can never be the basis for a denial of legal capacity or of any of the rights in Article 12.’ (para 9)
‘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.’ (para 12)
This statement about the relationship between mental capacity and legal capacity is novel and highly significant. I think it is also correct. But it is not a statement which you will find coherently outlined in much mainstream literature on the philosophy of human rights. Philosophers as different as Joseph Raz and James Griffin have been happy to treat it as self-evident that when mental capacity and thus personal autonomy is compromised it may be appropriate for the state to compromise an individual’s political autonomy too. This has always been a serious structural barrier to the realisation of rights for disabled people who can be externally characterised as lacking mental capacity, and thus deprived of both personal and political autonomy.
Is the Committee right philosophically? Yes. Even when it is uncontroversial that an individual’s personal decision-making autonomy is compromised because, for example, they are in a vegetative state, if the state authorises others to make a decision on that individual’s behalf then the state is authorising an interference with political autonomy – because it is the state which is authorising the scope of the interference in the personal realm and not the individual. And even though the individual may not be capable at that time of authorising the interference and the interference may be one which stops her feeling pain, or helps to keep her alive it is, nevertheless, an interference with a realm of personal autonomy which is properly hers. We should be clear about this and always seek to justify these actions.
Nevertheless we can say, as the English legal system does, that autonomy (both personal and political) can be properly compromised in certain circumstances when mental capacity is compromised. But we should only do this by reference to a third value – for example a view that the comfort or safety of the individual are more important than her autonomy. Otherwise our argument is circular – autonomy must be compromised to protect autonomy.
Is the Committee right legally? Autonomy in human rights law is usually recognised as a good attained through the progressive realisation of rights. States can interfere with individual autonomy for all kinds of reasons whilst continuing to observe human rights – they impose sanctions on criminal behaviour, they make choices about the minimum level of welfare necessary to enjoy autonomy. Provided these decisions are made within democratic, accountable and non-discriminatory frameworks the fact that a specific state policy falls short of maximising autonomy for an individual is not a violation of her human rights. For example, although advocates for economic and social rights have made the case that states do have duties to secure welfare rights to promote personal autonomy such as state-funded childcare this has not been translated into a positive duty in any extant international human rights document.
But the goal of the General Comment is to eliminate discrimination on the basis of a disability status. Disabled people are specifically disadvantaged by laws which deprive them of legal capacity in ways which non-disabled people are not. In this respect their position can be distinguished from the position of parents wanting government support for childcare to facilitate their participation in the workplace. Both disabled and non-disabled parents may argue in favour of state-funded childcare. But only a disabled person can be found to lack mental capacity, with any loss of political autonomy that entails.
So the Committee has identified an insurmountable problem. If we want to eliminate discrimination against disabled people we must argue that autonomy, in these circumstances only, deserves absolute protection. But in doing so we have to eradicate all the forms of substitute decision-making which allow us to make decisions on behalf of people who currently appear unable to make decisions for themselves.
But this is terrible, what is the Committee suggesting we do instead?
‘Until now there has been a general failure to understand that the human rights-based model of disability implies the shift from a substitute decision-making paradigm to one that is based in supported decision-making.’ (para 3)
‘Policies and legislative provisions that allow or perpetrate forced treatment must be abolished. This is an on-going violation in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness as well as views of people using mental health systems who have expressed deep pain and trauma as a result of forced treatment.’ (para 38)
The Committee makes two clear recommendations. All forms of forced treatment based on the existence of mental disorder must be abolished. This is consistent with the Special Rapporteur on Torture’s report last year (warning pdf) which found that such forced treatment was also inconsistent with the Convention Against Torture (CAT) and that the CAT aimed to attain the standards for promotion of the rights of disabled people specified in the CRPD.
And whilst substitute decision-making mechanisms, even those based on an absence of mental capacity, must be abolished because they automatically interfere with disabled people’s rights to non-discrimination, supported decision-making may be supportable.
What implications does this have for the English legal system?
Well this is a Draft so the final version may look different. Even if it doesn’t we may not take it seriously. But assuming this was the final version and we took it seriously we would have to repeal virtually all the provisions of the Mental Health Act and Mental Capacity Act. We would also have to consider our current arrangements for safeguarding vulnerable adults. There is no statutory definition of vulnerable and the term in caselaw is broader than disability alone, so there may be some virtue in the current arrangements. Nevertheless, we have a few precedents for interfering with the personal autonomy of adults who retain mental capacity. If it can be argued that disability is essentially indispensable to the operation of the legal category of vulnerable adult then that jurisdiction also looks discriminatory.
Instead we can do a few things. We can introduce legislation creating a framework for supported decision-making (see for example the compelling proposals by Michael Bach and Lana Kerzner – warning pdf).
More cynically we could also review existing legislation concerning public safety and social harms to see if these can be strengthened to adequately control the socially disruptive behaviour of some people with mental disorders. So we might not be able to make a decision to treat an individual for psychosis against his or her wishes, but we could make greater use of public order offences to criminalise their conduct in order to exercise social control. This is a predictable effect of poorly planned de-institutionalisation – re-incarceration in prison.
Is the Draft Comment good?
There isn’t a term for the kind of thing it is. It isn’t a curate’s egg because it isn’t good in parts. It demonstrates an inexorable logic which followed to its conclusions might have hugely beneficial consequences for many disabled people whilst having unintended consequences for others.
If taken seriously by states it would benefit adults with learning disabilities and adults with any form of progressive disorder who wish to exercise their ‘will and preferences’ over their affairs in the future. Even if exercising that simply means nominating another to make decisions they would have made. Many adults with learning disabilities are disadvantaged by models of capacity which place a high value on cognitive understanding, but a low value on the person’s enduring sense of self and ability to express her coherent wishes and preferences within long-term relationships. I began my career working in residential care with adults with profound and multiple learning disabilities and although none of the clients I worked with could speak or sign they could all clearly communicate strong views about where they lived, which carers worked with them, what they ate and which activities they participated in. At that point, many years before there was even a MCA, those views had no legal status (or perhaps they did – I have never quite worked out if everything we did to our clients was ultra vires and obviously much of it was assault, but I’m well outside the statute of limitations now). Now they have to be taken into account as part of a wider assessment of what is in the client’s best interests. But we could also argue that they should be definitive of the client’s decision, and only where there is evidence either that the client has been misinterpreted, or that the decision might cause harm to others or an unlawful harm to the individual should we intervene.
Older adults may also benefit from this approach, particularly where they are aware as they get older that they may want other family members to support them to make decisions in the near future. Many jurisdictions already facilitate nominating substitute decision-making in case one loses decision-making capacity. A move to supported decision-making would change the manner in which family members or other nominated supporters assist decision-making, but not fundamentally alter a widespread cultural expectation that when choosing care, or assistance with finances in older age we may want close family members to have legal authorisation to act in accordance with our wishes.
Supported decision-making is problematic for adults with acute mental disorders (who may also be older adults or adults with learning disabilities). In this category we could include conditions such as psychoses, affective disorders, borderline personality disorder and also organic brain disorders which cause transient loss of consciousness such as epilepsy. What is key to these disorders is that they fluctuate over time and interfere with an individual’s narrative sense of self – a key component of the minimum threshold of human agency defined by Bach and Kerzner. Mental disorders also disrupt relationships so that even those close to the individual may struggle to ascribe ‘will or intentions’ to actions. When people are acutely ill in a manner which they did not anticipate, and which does not correspond to an intention or will which is understood by those close to them it is difficult to see how their decisions can be supported.
But if this is the case the Draft Comment is defective because it offers no alternative mechanism for making decisions on behalf of disabled adults with certain mental disorders with acute onset (para 25).
At the same time substitute judgements are frequently made on behalf of people with acute mental disorders. In English law the threshold for substituting a judgment must be that the individual has a mental disorder and her behaviour poses a risk to herself or to the health and safety of others. And judgments made on this basis have a narrow compass – the substitute can only choose whether or not the person should be admitted to hospital against her wishes and treated for her mental disorder against her wishes. Wider decisions regarding the management of property and affairs can only be based on the absence of mental capacity (with the exception of the small number of people subject to s.7 guardianship arrangements under the Mental Health Act).
The argument has been made that substitute judgments should be based on evidence of absence of mental capacity to make a decision, and in some jurisdictions substitute judgments concerning treatment for mental disorders are made on this basis.
So we know three things:
1) Most existing jurisdictions allow substitute judgments to be made on behalf of people with transient mental disorders, either on the basis of mental disorder + risk, or on the basis of absence of mental capacity.
2) That the use of force to administer treatment without consent on the basis of mental disorder is deemed incompatible with the CAT by the Special Rapporteur on Torture and Art 12 CRPD by this Committee.
3) And that the mechanism of supported decision-making defined in the General Comment does not provide clear answers to how we support decisions in many situations involving people with acute mental disorders.
There is a small literature on the use of supported decision-making with adults with acute mental disorders. But much of the work that has been done here has looked at the role of supporters within existing statutory frameworks, for example the benefits of asking carers or nearest relatives for their views prior to admission and treatment decisions. No jurisdiction that I am aware of has contemplated abolishing any form of statutory regime allowing substitute clinical decision-making on behalf of seriously mentally ill patients.
So we are left with a space in English law that is currently over-regulated – if we cannot make a decision on someone’s behalf under the Mental Health Act, we can try the Mental Capacity Act instead, and if that doesn’t work we may try and describe them as a vulnerable adult to ensure their safety. If we took the Draft Comment literally (we won’t) it could become under-regulated, because the proposals made for supporting decision-making simply cannot be applied to people with volatile and unstable desires over time (and whilst I dislike emphasising my disability politics I have personal experience of epilepsy and psychosis and am genuinely confused as to how the Committee thinks anyone could support my decisions at times when my own will was unknowable to me). And an under-regulated space might be nominally non-discriminatory but the people who would be most structurally disadvantaged by it would be adults with psychosis, adults with borderline personality disorder, adults with PTSD, survivors of traumatic brain injury etc. People who often have personal histories of serious trauma and major difficulties building sustained relationships with caregivers who can support their recovery.
That does not mean we should not do a better job at reducing coercion in mental health services and promoting recovery through other means. But I am completely unconvinced that the effects of the General Comment will benefit people with mental health needs. Or that this is a defensible cost of their proposals.