Few people may be aware that the UK government ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) in June 2009, thereby committing all UK jurisdictions to ensuring that their legislation on Mental Health, Mental Capacity, Deprivation of Liberty and Disability Rights is fully compliant with the Convention. Where existing legislation is not compliant, it will have to be changed.
The Convention encapsulates an entirely revolutionary approach towards meeting the wants and needs of disabled people.
First, for the purposes of the Convention and access to legal rights, mental illness is not to be distinguished from mental disability, nor mental disability from physical.
Second, the Convention seeks to put an end to the practice of substitute decision-making as it regards this as a discriminatory means of removing a person’s legal rights. Instead, all possible attempts must be made to ascertain the actual wishes of the disabled person. There appears to be no provision in the Convention for the eventuality that the wishes of the disabled person are impossible to ascertain, nor that those wishes, if ascertainable, are very much against the disabled person’s best interests. In such circumstances it appears that even unsubstantiated assertions by family members as to wishes expressed by the disabled person before losing the ability to communicate effectively could be regarded as evidence.
Third, the Convention abolishes the “best interests” principle i.e. that a Court can make decisions on behalf of a disabled person based on what it believes to be their objective best interests.
Fourth, the Convention regards any process which seeks to determine, for the purpose of exercising legal rights, whether or not a person lacks mental capacity, as being essentially discriminatory.
A number of potentially disastrous consequences of these changes immediately spring to mind. For instance, it would be a breach of the Convention to detain for their own safety a mentally ill person who was trying to take their own life, as the “best interests” argument could no longer be applied and the person might express their wish to die very clearly. The fact that they were mentally ill would be irrelevant as the Convention does not allow for a person to be treated differently solely on the basis of their disability. Again, Statutory Wills could become a thing of the past as these amount to substitute decision-making. So anyone drafting a Will who doubted the mental capacity of the testator would be unable to ask them to take a test, as that would be discriminatory (unless all testators are to be required to take such a test) nor, if they were convinced of the absence of capacity, could a Statutory Will be applied for. Instead, such wishes as the testator may be able to express will be given effect by the Will, with the draftsman having no standing on which to query whether those wishes are the result of delusions or have been delivered during a ‘lucid interval.’ The distinction is rendered obsolete by the CRPD. A huge increase in the number of contested Wills seems the obvious consequence.
In principle, Powers of Attorney could also become redundant. It will not matter that the disabled person appointed the Attorney of their own free will at a point where they did have the capacity to do so; because at the point where the Attorney tries to exercise the Power it will amount to substitute decision-making and so will contravene the CRPD.
In August 2014 the news broke that the UN is already investigating the UK for alleged breaches of the Convention. The implication is clear: the UK must either comply or resile from the Convention.
For more information, please speak to Damon Holliday, Consultant in Druces LLP’s Private Client team.