We cannot ignore questions warns David McClements
In Scotland we have been rightly proud of our good practice when dealing with legislation for incapacity and mental disorder from a person-centred and human rights aspect. Our Adults with Incapacity and Mental Health Acts are both good examples of this. They adopt principles which promote participation by ensuring that the person’s own wishes are taken into account wherever possible. They also require that an intervention is made as a last resort and the least restrictive option is taken ensuring that it always benefits the individual.
Alzheimer Scotland – Action on Dementia, Scotland’s leading charity for people with dementia and their carers has sought to ensure that all legislation, policy and strategies affecting people living with dementia are underpinned by human rights. Participation, accountability, non-discrimination and equality, empowerment and legality are the Panel principles which should underpin intervention and decision making.
It is well-recognised that our legislation should be compatible with our international obligations to the European Convention on Human Rights (ECHR) and also the UN Convention on the Rights of Persons with Disabilities (CRPD). However, it has become more interesting recently because although the ECHR has greater legal strength, the UK also has obligations in respect of the CRPD. In Article 12, the right to equal treatment before the law, it identifies the right to respect one’s legal capacity and the ability to make one’s own decisions. It states that persons with disabilities must be supported in decision-making and that legal capacity and the right to exercise it must be safeguarded.
Article 8 of the ECHR enables legal capacity to be removed provided that it is lawful, proportionate and in pursuit of a legitimate aim such as the protection of health or to protect others. This is essentially the basis for our Incapacity and Mental Health Legislation. The fly in the ointment, however, follows a meeting last year of the UN Committee of the Rights of Persons with Disabilities. They had consulted on a draft general comment that interprets Article 12. It is fair to say that it was a fairly radical interpretation. It states that everyone has legal capacity and should not be deprived of it due to an assessment of mental incapacity as this is discriminatory. No-one lacks capacity to make decisions as they only require to be supported to make decisions and therefore to substitute someone’s decisions by a process of guardianship or even Power of Attorney is discrimination. The question is of course what constitutes supported decision making and the comment is not entirely helpful although it does state that what and how much is adequate depends on individual circumstances. It states that individuals also have the right to refuse support in decision making.
Finally it concludes by stating that any laws that permit guardianship and involuntary treatment for mental disorder should be abolished. This is in contrast to previous directions from the European Court of Human Rights.
As for the implications for Scotland the UN CRPD is ultimately a UK matter although clearly the Scottish input is important in terms of our distinct Scottish legislation. The UK will come under scrutiny very soon by the UN in respect of its compliance with the CRPD and we may then perhaps get a clearer picture about how literally the UN Committee on the Rights of Persons with Disabilities will take the general comment interpretation of Article 12 and how far it expects individual States to go. The very important question is whether it will accept that we can retain our existing guardianship and compulsory treatment regime provided we can demonstrate that every effort is made to ensure respect for autonomy in law and in practice. For Scotland and the UK these matters are of fundamental importance as we face questions as to whether our legislation at present in respect of welfare guardianships or Power of Attorney provide the necessary lawful authority to agree to a person being deprived of their liberty and whether the necessary legal and procedural safeguards are in place. The answer is probably not. It will require to be addressed and we cannot continue to ignore it, least of all to ensure that the Charter of Rights for people with dementia and their carers in Scotland is to have real practical benefit for individuals in their everyday lives.
• David McClements is a partner in Russel + Aitken and vice-convener of the Board of Alzheimer Scotland www.russelaitken.com