UN Special Rapporteur calls for an end to involuntary treatment and detention justified by mental illness... or does he?

The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, issued a report and a statement* to the UN Human Rights Council on 4th March this year, in which he discusses medical interventions which override a person’s choices on disability related grounds – including involuntary treatment and detention.  He places them in the context of the UN Convention on the Rights of Persons with Disabilities and discusses their relationships with inhuman and degrading treatment and – in some cases – torture.

UN Convention on the Rights of Persons with Disabilities as the ‘new normative paradigm’ for interpreting norms around torture, inhuman and degrading treatment
The Special Rapporteur’s report and statement are firmly grounded in the normative ordering of the UN Convention on the Rights of Persons with Disabilities (CRPD). Contrary to some recent suggestions that treaties like the UN CRPD simply ‘replicate’ the rights contained in other treaties for people with disabilities, the UN CRPD contains some radical departures from other human rights norms, especially in the area of involuntary treatment and confinement of persons with mental disabilities. The Special Rapporteur stated that ‘the Convention on the Rights of Persons with Disabilities offers the most comprehensive set of standards on the rights of persons with disabilities, inter alia, in the context of health care’ [61]. As we shall shortly see, he is critical of other human rights standards which permit involuntary treatment and confinement of persons with disabilities.

Should we be using 'special' offences for crimes against disabled people?

Imagine a person came into your home uninvited, threw cold water over you to get you out of bed, forcibly gave you a cold shower, locked you in your room and tied your arms to a wheelchair so that you couldn’t move them, or out of the chair, for 16 hours. Would you consider that you had been the victim of a crime? Battery and false imprisonment, perhaps?  Imagine somebody removed you from your home without any lawful authority, and you were locked in another place away from those you loved, unable to escape. Have you been kidnapped? Should somebody call the police?

These things happen in care, they aren’t common – but they aren’t especially infrequent either. We know they happen because they are detailed in regulatory reports, in civil law proceedings. But what struck me recently was how rarely the police are involved in these types of situations, and how rarely criminal charges are brought. I began thinking about this because I’ve been looking into the background of the criminal offence of ill-treatment or wilful neglect of a person who lacks capacity, introduced by s44 Mental Capacity Act 2005 (MCA), itself modelled on the offence under s127 Mental Health Act 1983 (MHA). Section 44  MCA is not unproblematic from the perspective of the Convention on the Rights of Persons with Disabilities (CRPD), where there is a general preference for promoting and protecting disabled peoples’ rights through  making mainstream mechanisms more accessible and inclusive, rather than developing separate systems for rights protection (e.g. Inclusion Europe, European Disability Forum). Even setting aside the complex and contested questions as to whether the label ‘incapacity’ is even compatible with the CRPD, the question is: why is an additional offence of ill-treatment or neglect of a person who lacks capacity needed, rather than making mainstream criminal offences more ‘inclusive’ and ‘accessible’ to disabled victims? I’m no criminal lawyer, but the more I looked into this, the harder it seemed to be to explain from any legal perspective why mainstream offences could not be used, and are so rarely investigated, in the context of care.

Interesting articles on capacity and deprivation of liberty

There are several brilliant pieces of writing about mental capacity and deprivation of liberty readers might be interested in.

The first is a blog post by Mark Neary relating 'a complete work of fiction' which describes the difficulty a person may have in challenging a detention if it isn't authorised under the DoLS.  The problem is that often authorisation is never sought by managing authorities, or it might be sought but later on revoked because the supervisory body decide it's not actually a deprivation of liberty because the person has nowhere else to go, or their assessors hadn't heard the person object - even though everybody else has, or because the restrictions are 'necessary', or whatnot (assisted, no doubt, by the high level of uncertainty and contradiction in Article 5 case law).  Without a DoLS authorisation there's no more advocacy rights, no more legal aid, no more permission-free routes to the Court of Protection to challenge it.  So getting there requires a huge level of determination and awareness of the legal process, not to mention a hefty injection of your own cash - which you might never see again because of the general rule on costs in the Court of Protection.  Basically, there's a technical right to challenge this "non-detention", but it's pretty inaccessible and comes with a huge price tag.  Cynical supervisory bodies could revoke DoLS authorisations as a particularly sneaky chess move where litigation looks likely, and those deprived of the safeguards will struggle to have recourse against this.  And as Mark points out - and particularly for older people - sometimes by the time these cases actually get heard, a person may have been detained for so long that the odds are stacked against them being released from detention to return home due to skills lost to institutionalisation, declines in health or even homes sold to pay for care or lost tenancies.  Frankly some certainty as to the scope of Article 5, to help detainees and their supporters argue forcibly that the DoLS should apply, cannot come soon enough.  In the longer term, the whole approach will have to be rethought.

A challenge: Re-imagining capacity

Here’s a challenge for you. Is it possible to re-imagine the way we ‘do’ capacity under the Mental Capacity Act 2005 (MCA)? In the years to come, as we confront the challenges posed by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), we will surely have to undertake this task as it casts doubt on many current practices under the MCA (amongst other legislation). One of the most fundamental challenges posed by the CRPD is whether or not imposing ‘substituted decisions’ on disability related grounds is ever permissible; it is this challenge that potentially sets the MCA on its head. I have to confess that I am deeply torn over this. I am not sure the MCA is as bad as some of the caricatures of it that I have read, particularly when one takes into account some of its more enlightened case law, but neither do I think it is as progressive – or indeed safe – as many of its users and supporters would claim. 

But here is the challenge: how else would you do it? A couple of weeks ago I was chatting about the CRPD at the Essex Autonomy Project event on Capacity Assessments: Ethical, Political and Metaphysical Issues. Frustratingly I couldn’t attend Peter Bartlett’s talk on the CRPD, but even before the second day the CRPD crackled in the air. It came up in Tom O’Shea’s talk on the Metaphysics of Mental Capacity (which was great - blog version of it here) and there were discussions over lunch. Chatting about it with people more closely involved in implementing the CRPD than I am I came to feel that one of the key problems with the debate so far is that it is still in such esoteric and abstract realms. There is still very little written about what implementing the CPRD would mean in practice, in detail, particularly in the context of the MCA. So this post is a appeal for an informal, imaginative, but grounded way to explore the 'paradigm shift' of the CRPD.

The legal establishment and the "right" to Independent Living

[Update 01/08/2012: Neil Crowther drew to my attention that a subsequent case relating to housing benefit, Burnip v Birmingham City Council & Anor (Rev 1), rejected the approach of the court in NM v Islington towards the CRPD, discussed below.  In Burnip the court held that the CRPD was a legally binding treaty, and if there was any uncertainty in how domestic anti-discrimination laws should be interpreted, he would use the CRPD as an aid to interpretation.  The ruling in Burnip is reassuring for supporters of the CRPD, but less reassuring are the efforts of the government's own counsel to attempt to marginalise the CRPD's relevance by reference to its maturity and chronology (see paragraphs 19-22).  It seems extraordinary, and rather depressing, that a government should seek to distance itself in this way from a treaty that it has itself ratified!]

It's sad but ironic that the day before the Joint Committee on Human Rights (JCHR) launched its report on the rights of disabled people to independent living under Article 19 of the Convention of the Rights of Disabled Persons, the legal establishment confirmed that it was going to ignore the most important treaty on human rights for disabled people for a bit longer.  In R (NM) v London Borough of Islington & Ors [2012] the claimant was in prison and had "significant learning disabilities" [2], and two councils were squabbling over who would have to assess and meet his community care needs when he came up for parole.  NM had sought judicial review of Islington's refusal to conduct a community care assessment under s47 NHS and Community Care Act 1990, and they were refusing on grounds that he was not 'ordinarily resident' in Islington.  He failed in his claim, and I won't discuss the detail of the court's analysis of domestic community care law here (although Allan Norman of Celtic Knot has done a great job of that here and pointed out the flaws and worrying consequences of the ruling).  What is interesting is that the claimant had hoped to rely in part on Articles 19 and 26 CRPD - the right to independent living (19) and the right to habilitation and rehabilitation (26).  From paragraphs 98-107 the court considers whether the CRPD can be relied upon in domestic courts and concludes it cannot because:

Is the Mental Capacity Act 2005 too paternalistic?

The concept of mental capacity sits at the junction of two of the most powerful discourses in our society today: autonomy, and paternalism.  The Mental Capacity Act 2005 (MCA) is concerned with autonomy in two interlinked senses:

• Autonomy meant as the right to determine one's own course, free from external interference (closely linked to the concept of negative liberty and Liberalism in political philosophy);
• Autonomy meant as the capacity for self-governance of one's actions (often called 'personal autonomy' in Philosophy).

At base, the MCA serves a gatekeeping function between actions (or inaction) predicated upon discourses of autonomy or paternalism.  (Very) roughly put: if you have the capacity for autonomous (self-governing) decision making, you should enjoy the right to autonomous (free from interference) decision making.  If you don't have the capacity for autonomous decision making, then paternalistic interferences with your affairs are permitted.  In theory, under the MCA a person should not be denied the right to make decisions they are capable of making; but equally they should not suffer the consequences of decisions they are incapable of making.