At the Interface Between Paradigms: English Mental Capacity Law and the CRPD.

Peter Bartlett

doi:10.3389/fpsyt.2020.570735

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is rightly seen as a break from the past in mental capacity law. At the same time, implementation will occur in the specific existing legal and administrative contexts of each State. This article uses English mental capacity law to explore these issues. The English Mental Capacity Act 2005 (MCA) can be considered the best of the “old” paradigm. The article argues that there are continuities between it and a CRPD-compliant approach. These continuities should be built upon. Further, the implementation of the MCA is still in recent memory. The lessons of that implementation will have considerable application to moves toward CRPD compliance. CRPD compliance is not just about specialist stator guardianship régimes. It is also about a myriad of law, currently capacity based, located in specific legal areas such as contract, wills and succession, and criminal law. Reform in these areas will involve not just disability law, but successful integration into those other legal areas, a matter requiring the involvement of those knowledgeable in those other areas. Since change in these areas will involve the removal of disability as a gateway criterion, they will affect the public as a whole, and the thus, determination of the degree and sort of intervention that the broader public will consider appropriate.

Highlights

The approach of the CRPD Committee to the right to equality before the law, contained in Article 12 of the CRPD [1], has certainly been controversial
The focus on family and dependents includes considerable ideological social content. While this may be viewed as acceptable in the context of testamentary dispositions, it serves as a reminder if this form of response is used elsewhere to make systems CRPD compliant: it is likely that even if development and reliance of laws as applying to the population as a whole do not discriminate on the basis of disability, they will contain other values, which may, in turn, create new real or perceived injustices
While the challenges are not to be underestimated, it may well be the case that elements of existing domestic law have elements that can be effectively integrated into CRPD-compliant systems of law and practice

Summary

INTRODUCTION

The approach of the CRPD Committee to the right to equality before the law, contained in Article 12 of the CRPD [1], has certainly been controversial. The CRPD was developed out of a consensus that the -current systems of law were not delivering rights to people with disabilities, and a perusal of the reports of the European Committee for the Prevention of Torture, the United Nations Subcommittee for the. Prevention of Torture, the shadow reports to the CRPD Committee, and the case law of the European Court of Human Rights make it clear that guardianship systems are often experienced as extraordinarily oppressive. The present paper explores what current English law brings to those legal questions. Implementation will be key to any new system, raising questions of how the transition will be made from existing systems of law and professional cultures to the new systems, how legal structures will ensure state accountability for implementation, and how new laws will ensure that implementation is measurable in practice. The experience of MCA implementation has much to bring to this discussion, and will be considered in Implementation and the Problem of Safeguards

Key points in this section:

CONCLUSIONS

Findings

DATA AVAILABILITY STATEMENT