Grave discrimination against some of the most vulnerable people in society, and proposals which if implemented would severely violate their basic human rights and put any state which enacted them in breach of international human rights obligations, would appear to be found – astonishingly – in recent draft proposals by the United Nations Committee on the Rights of Persons with Disabilities (“UN Committee”).
The proposals are contained in an advance unedited version of the UN Committee’s proposed “Draft Comment on Article 12 of the Convention – Equal Recognition before the Law”, adopted by the UN Committee at its 10th session on 2-13 September 2013 (“Draft Comment”). The Draft Comment proposes worldwide law reform, but unfortunately discloses serious apparent confusion and misunderstanding as to the laws of modern legal systems in their relevant provisions, and the realities which those laws address.
The UN Committee was established in accordance with the United Nations Convention on the Rights of Persons with Disabilities (“UN Convention”). The UN Convention was adopted by the United Nations General Assembly on 13 December 2006. The Convention provides for the establishment, membership and procedures of the UN Committee. It does not state the UN Committee’s objects, but it is reasonable to imply that these are primarily to further the purposes of the Convention. It is unfortunate that the proposals in the Draft Comment, if implemented, would have the opposite effect for many most vulnerable people.
The UN Committee proposes to demand the abolition of all guardianship and mental health laws. That is not a requirement of the UN Convention. This paper does not discuss the constitutional novelty of such a self-appointed role of seeking to instruct democratically elected legislatures. That aspect is however likely to become prominent in due course with latest indications that the UN Committee remains disconnected from reality in its enthusiasm for what it sees as its own revolutionary ideas. One trusts that democratic accountability, including the requirements for open consultation and debate, will prevail. One fears that the aberrant conduct of this committee, pursuing its own line without obvious connection to the terms of the Convention under which it was established, and without any meaningful process of engagement and consultation such as would be normal at national level, will ultimately detract from the good which has been done, and the further potential to achieve more, of the human rights movement at international level (of which this author is a committed supporter).
This paper however concentrates on the guardianship proposal, which is stated to include all guardianship and similar measures, such as deputyship. However, guardianship as described in the Draft Comment is not recognisable in provisions bearing that or similar names in modern reformed regimes. Rather, it is the type produced by “old law” regimes which inhabited a black and white world in which people were sane or insane, capable or incapable, educable or ineducable, and guardianship was similarly total – a fixed provision applicable to all, resulting from diagnosis.
Human rights-based “new law” regimes provide a range of measures, of which guardianship is generally the last resort, all tailored to individual capabilities and needs, following upon assessment. For my own contemporary criticisms of old law, and my attempts to contribute to describing and encouraging the transition to new law, see The Power to Act (SSMH – now Enable, 1990) and A New View (International League of Societies for Persons with Mental Handicap, now Inclusion International, English language edition 1993, also published in Czech, Estonian, Lithuanian, Polish and Russian).
The Draft Comment goes further, concentrating on two-step procedures of “incapacitation” followed by guardianship. Where any regime still artificially disqualifies anyone, on the basis of diagnosis, from doing and deciding anything of which that person is in fact capable, that must be ended. That outrage was at the heart of all the battles fought decades ago. The UN Committee is absolutely right about that. It is also right to stress that the more disabled and vulnerable people are, the more important it becomes proactively to create individual environments maximising their capability to act and decide for themselves.
The counterpart, however, which is omitted from the Draft Comment, is the need for robust and human rights-compliant mechanisms to allow valid decisions to be constructed, and a person’s rights, welfare and interests effectively promoted or safeguarded, to the extent that a person is not in fact capable of doing so, even with any amount of support (that being the meaning of “incapable” in this paper). Failure to provide that, as any experienced practitioner in the field sees any number of times, can and often does result in deprivation, exploitation and abuse.
The same dangers exist, and materialise, under arrangements which amount to informal guardianship, under which others – usually under the guise of supporting and helping – act as quasi-guardians without any assessment of capability and need, of powers shown to be necessary, or suitability of the candidate(s); without monitoring, accountability or review; without protections from undue influence, or the elements required by article 12.4 of the UN Convention (see below); and so forth. That, sadly, is exactly what would result from the proposed extension of “supported decision-making” into areas where people, to a greater or lesser extent, are in fact incapable of acting and deciding, effectively and validly, for themselves. That is the very area, and the only area, to which modern guardianship (or equivalent by other names) may be applied if shown to be essential to protect and promote the rights, welfare and interests of the individual.
The Draft Comment proposes a “shift from a substitute decision-making paradigm to one that is based in supported decision-making”. These are not alternatives (if for the moment one uses the same label “substitute decision-making”). They represent the ends of a single spectrum. At one end are those who are capable (as defined above), if a sufficiently supportive environment is created. At the other are people such as those in a coma or persistent vegetative state.
Some people with intellectual disabilities are not on that spectrum at all. They are fully capable. Others are at some point along the spectrum, and often at different points for different purposes and at different times. Constructing decisions in such cases may require elements, in varying proportions, from both ends of the spectrum. The two extremes of incapacitation where there is in fact capability, and of fictional capability where there is none, are equally unacceptable, on basic human rights grounds, including those of non-discrimination.
The Draft Comment – procedural issues
The Draft Comment fails to address the incompatibility of its proposals with the UN Convention and other human rights conventions. It mentions neither the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) nor relevant subsequent Recommendations issued by the Council of Europe. Recommendation (99) 4, “On Principles concerning the legal protection of incapable adults”, provides a template for “new law” solutions, which – in the cautious but significant opinion of the European Court of Human Rights – “may define a common European standard in this area” (Shtukaturov v Russia, Application no 4409/05).
The proposals in the Draft Comment could not be competently enacted in jurisdictions such as Scotland, where legislation incompatible with ECHR would be ultra vires of the legislature. For example, sanctioning “informal guardianship” without due process would breach ECHR article 6.
Further, the Draft Comment does not mention the Hague Convention of 13 January 2000 on the International Protection of Adults (“Hague Convention”). Although the purpose of the Hague Convention was to avoid conflicts of law, it has had significant influence on principles and values of substantive laws worldwide, and towards convergence, as recently demonstrated in Long, “Rethinking Vulnerable Adults’ Protection in the Light of the 2000 Hague Convention”, Int J Law Policy Family (2013) 27(1): 51.
Perhaps most seriously, the Draft Comment mentions neither the major processes of law reform over several decades in relevant areas of law in many jurisdictions, nor the modern human rights-based systems which have resulted, nor that those modern systems comply with – and indeed go significantly further than – article 12 of the Convention. Such national law reform processes have been characterised by widespread consultation with those, including (among many others) legal and medical professionals, who have experience of practical engagement on a daily basis in promoting and safeguarding the rights and interests of people with intellectual disabilities, making existing laws serve those rights and interests better, and forming the principal driving force towards achieving improved legislation to serve and safeguard those rights and interests. There is no evidence of equivalent consultation and input by the UN Committee. In the case of Scotland, it can be asserted that there has been no relevant consultation – in any way equivalent to that which is standard for any such law reform process – at all.
The Draft Comment does not identify what harm could allegedly be remedied by abolition of modern guardianship regimes, nor how the significant resources required could be better applied to that end rather than by seeking to fulfil the requirements of the UN Convention itself in other ways, such as carrying further the improvement of existing modern regimes, or creating more supportive environments to fulfil obligations under article 12.3 of the UN Convention.
Article 12 in context
Article 12 can be viewed here. It is all the more unfortunate that the UN Committee has produced the Draft Comment in its present form because, although article 12 gives rise to the points noted below, it is worthy of wholehearted support. It merely restates in relatively brief, and unfortunately incomplete, form the guiding principles which have shaped modern regimes. Nevertheless – in relation to the actual operation of those regimes, the realities of lives of people with disabilities, and public perceptions – it gives powerful re-emphasis to messages which require to be constantly stated and restated.
The difficulties arise from the language adopted at least in the English language version of the UN Convention. These difficulties may have led to confusion and misunderstanding, which may have influenced the approach adopted by the UN Committee.
The definition of “capacity” in the Oxford Companion to Law (OUP, 1980) commences: “One of the attributes of a person or entity having legal personality, denoting legal ability to bear and exercise rights or to be affected by legal duties or liabilities”. In this definition “bear” and “exercise” reflect two meanings which can be attached to “capacity”. The first meaning covers all the rights and status attaching to the legal personality of an adult individual. Developed legal systems have for several decades taken it for granted that all adults, including those with intellectual disabilities, have the same rights and status. The second meaning covers the actual ability to exercise rights.
Article 12.2 uses “capacity” in the first sense, and “the exercise of legal capacity” in article 12.4 for actions requiring capacity in the second sense. In that sense, “incapacity” equates to “being incapable” (as above defined). More authoritatively, Recommendation (99) 4 states that the principles there set out “apply to the protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are incapable of making, in an autonomous way, decisions concerning any or all of their personal or economic affairs, or understanding, expressing or acting upon such decisions, and who consequently cannot protect their interests”. That excludes those who can make a capable decision if assisted to do so. It focuses on the actual incapability, recognising that it may be partial and limited. It avoids the back-to-front errors of seeing measures responsive to actual incapacity as being the cause of incapacity, and that recognition of the fact of incapacity equates to imposing “incapacitation”.
Apart from its use of language, the only other possible deficiency of article 12 is that while modern principles relating to measures responsive to intellectual disabilities are summarised in article 12.4, the right of some people with intellectual disabilities to the protections of appropriate responsive measures is not stated. That right is however inherent in many other provisions of the UN Convention. For people who are not capable (as defined), that right is essential “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms” (article 1, and elsewhere), and to guarantee “effective legal protection against discrimination” (article 5). Appropriate responsive measures represent “reasonable accommodation” (article 2), which must be provided (article 5), and which to the extent necessary to achieve de facto equality are declared not to be discriminatory (article 5.4).
Responsive measures, including where appropriate guardianship powers, are in some cases necessary to achieve many of the requirements of the UN Convention, such as accessibility (particularly to services) under article 9, access to justice (article 13), freedom from exploitation, violence and abuse (article 16) and independent living (article 19). Banks, landlords and others will not be persuaded to transact or contract without reasonable assurance that such dealings are not at risk of being void or voidable on grounds of undue influence or lack of capacity.
Autonomy and protection
As soon as special measures to support autonomy are employed, there may be a need for some degree of protection. The whole challenge of relevant areas of law could be summarised as the need to balance autonomy against protection. As soon as others play a supportive role for a person with some degree of intellectual disability, questions may arise in some cases as to whether to some extent we are hearing the voice of the supporter rather than that of the disabled person, whether undue influence is being exercised, or whether what is in fact occurring is unregulated substitute decision-making (to use the terminology of the Draft Comment).
The twin issues of autonomy and protection are particularly relevant to anticipatory measures such as powers of attorney, consideration of which demonstrates the fallacy of treating autonomy and protection as alternatives rather than as considerations to be balanced in each individual case. Powers of attorney are rightly regarded as the preferred mechanism for people with deteriorating intellectual abilities or who wish to provide for possible future intellectual disabilities. They are described, provided for and encouraged in Council of Europe Recommendation 2009 (11), “On Principles concerning Continuing Powers of Attorney and Advance Directives for Incapacity”, and accompanying explanatory memorandum, which remain the most modern international instrument on the topic.
Such powers of attorney are the ultimate expression of autonomy, in that they allow granters to determine the regimes to apply to themselves, the circumstances in which they should be operable, and the persons to operate them, and are always the result of unsupported, or supported but competent decision-making; but which in exercise of that autonomy create for the future a regime of “substitute decision-making” (in the words of the Draft Comment). This exercise of autonomy therefore requires protections at the point of granting to ensure that this is indeed an exercise of true autonomy; and it requires protections at least in the form of being available to be triggered, once the personalised regime created by the granter is in operation and the granter may not be able to monitor and supervise.
Discrimination within anti-discrimination
There is, and one fears may always be, a tendency towards a hierarchy of discrimination producing repetitive circles of discrimination even within anti-discrimination. The UN Convention addresses the tendency towards discrimination, albeit often unthinking and unintended, towards people with disabilities, but many of its provisions could be read as applying only to physical and sensory disabilities, and not equally to intellectual disabilities (for example, the particular measures suggested in article 23.3 include none relevant to intellectual disabilities).
Within intellectual disabilities, there is a tendency to discriminate against those with the greater and more disabling forms of intellectual disability. At that level the Draft Comment fails. One of the worst forms of discrimination against anyone with a disability is to fail to recognise and provide for the extent and consequences of their disabilities, and to pretend that these do not exist. If the most disabled do not fit a beautiful new theory, they should not be disadvantaged. That theory should be discarded.
If all acts and decisions having purported legal effect were treated as having actual legal effect, regardless of capability, there would be unfortunate consequences. Seriously disadvantageous, or even unlawful, acts or transactions would presumably be valid. Deprivation of liberty (for example, in terms of ECHR article 5), or engagement in sexual activity, with compliance but no capable consent, would presumably no longer be deemed breaches of human rights. As noted above, banks, landlords and others would refuse to transact through lack of certainty. And so on.
Mental health law
This article addresses issues in relation to incapacity legislation. The Draft Comment deals similarly with mental health legislation, and recommends its abolition. The same range of fundamental criticisms apply to those aspects of the Draft Comment. If implemented, they would deprive people whose judgment and decision-making is severely distorted by mental illness of their right to treatment when proposed treatment is demonstrably beneficial, even in cases where treatment is successful to the extent that the patient – with and insight restored – welcomes the fact that such treatment was given and in effect retrospectively consents to it.
I am a practising Scottish solicitor. I have specialised in this field for almost 40 years. In 1984 plenary welfare guardianship was abolished in Scotland. The response was swift and people-driven. By 1986 I had been instructed by the parents of Simon Morris, a young adult with learning disabilities, to seek revival of the old Roman law of tutors-dative to adults, adapted to modern circumstances and perceptions. They did not want to continue acting as if guardians, now that he was an adult, without lawful authority. They sought powers which were time-limited and tailored to Simon’s needs, principally – and expressly – to provide support, but if necessary to act and decide, with authority which others would have to accept.
Rapid development of this jurisdiction followed the Morris case. It led to demands for similar reform to existing provision in the property and financial sphere. A growing people-driven campaign for justice for people with intellectual disabilities, structured into an alliance of over 70 voluntary, professional and other organisations (including 30 national organisations) drove the new Scottish Parliament to enact, as its first substantial piece of legislation, the Adults with Incapacity (Scotland) Act 2000 (“2000 Act”). Scotland then became the first jurisdiction in the world to ratify the Hague Convention.
Contrary to assertions in the Draft Comment that all “substitute decision-making” systems employ a “best interests” test, that test was expressly rejected for the 2000 Act. Principles-based tests were adopted, producing the “constructing decisions” approach which I described in chapter 15 of Adult Incapacity (W Green, 2003). The principles reflect the “new law” approach and include the obligation to encourage the adult to exercise and develop skills. They have proved to be valuable and non-controversial.
Even under tutor-dative procedure, a sophisticated balance between autonomy and protection was developed where appropriate. In some cases it was ascertained that an adult could make valid choices if appropriate alternatives were presented to them, but they lacked full capacity to “set the agenda” of such choices. The guardians were therefore appointed to represent the adult in the investigation, consideration and negotiation of the choices to be put to them for their own decision in relation to various specified matters (I described an example of such a case in Adult Incapacity at para 10-22).
The UN Committee chose not to tap into this 30 years’ experience of having done what it now proposes to recommend. It would be ironic if the UN Committee’s proposals were to render necessary a similar campaign to preserve the positive features of what has been achieved over those 30 years.
My personal view is that it would be beneficial to review the principles and provisions of the 2000 Act in the light of the UN Convention. The principles could be supplemented with explicit requirements to provide, so far as reasonable and practicable, supportive environments to facilitate exercise of true capability (on the one hand), and to ensure provision of responsive measures generally where required to protect and promote people’s welfare, rights or interests, not limited to the existing requirement on local authorities to seek guardianship or intervention orders where needed (on the other hand). The 2000 Act principles should be extended to all situations, not just those under the Act, where someone is authorised to act for another adult – thus including, for example, DWP appointees. That and other arrangements outside the 2000 Act should be reviewed and where necessary amended to comply with article 12.4. These however would all be responses to article 12.4, not to the proposals of the UN Committee which this paper addresses.
My recent caseload includes A, whose claim for criminal injuries compensation for injuries 34 years ago was about to be struck out because she was unable to progress it. I was appointed under an intervention order, had remaining records released, and instructed enquiries. Complex legal issues arose. I rejected an initial offer, then accepted one 50% higher. A had a very supportive adoptive family but was not capable of any of these things.
B has Asperger’s syndrome. Following episodes of severe challenging behaviour, during which his multiple sclerosis also deteriorated significantly, his lifestyle had been stabilised, with a stable pattern of provision, and his quality of life had improved markedly in consequence. His parents, who had been appointed guardians, were suddenly confronted with a proposal radically to change his package of provision, and immediately to commence transition to the new package. If B had even become aware of the prospect of such change, his carefully achieved stability would have broken down. His guardians forbade any communication to him of the proposal. Exercising their powers as guardians, they achieved a resolution under which the proposed changes – arising from contractual and funding issues rather than re-assessment of need – were abandoned and stability was maintained. It would obviously have been impossible for B, with or without support, to have dealt with this issue without becoming aware of it. Such awareness would have been gravely prejudicial to his stability and wellbeing.
C had considerable abilities in some areas of his life, but a mental disorder significantly impaired his judgment of other people and their motives, so that there was a history of him impetuously entering seriously disadvantageous commitments, including as to both the terms and the persons with whom he entered them. He asked me to prepare a power of attorney. After discussion, he opted instead to seek appointment of guardians to himself, so that purported acts and transactions without the guardians’ approval would be automatically invalid. His own decision, within his competence, was to opt for the help and protection of guardianship in matters in which his mental disorder made him incapable of protecting his own rights and interests.
D suffered from a mental disorder which did not prevent him from understanding matters and options put to him and expressing clear views as to what he did not want, but did consistently prevent him from actually committing to decisions as to what he did want. Certain actions, including execution of a document, were required to avoid the occurrence of what he did not want and to achieve appropriate alternative outcomes. That would never have been accomplished but for my appointment under the Incapacity Act with necessary powers.
These examples are simply taken randomly from current workload, and are in addition to the more straightforward situations of dealing with matters for people with advanced and deteriorating dementia, with severe or profound learning disabilities, and so forth. At the other end of the scale, there are of course cases where provision of sufficient support has achieved outcomes demonstrating that imposition of guardianship or other similar measures would have been wrong. I assisted a man with Down’s syndrome to purchase his own house. In one conversation, he was able to say that he found some concepts particularly difficult because “that’s probably due to the Down’s bit in me”. In another current case, a person clearly not capable of managing many aspects of her affairs with any amount of support was nevertheless shown to have assented to a change of residence with sufficient competence to establish her new abode as her habitual and ordinary residence for legal purposes.
A way forward
The commendable aspirations in the Draft Comment to end differentiation in the law specifically attributable to intellectual disabilities can be achieved. That would, however, require a greatly more extensive process of change, inevitably over a much longer timescale, than the simplistic repeal of some legislation without anything to replace its role as an essential safeguard to human rights. It would require progressive application of the “reversed jurisprudence” already advocated by me under which all legislation, instead of treating people with various vulnerabilities as exceptions, would be framed to be applicable to all people, however vulnerable, incorporating protections which some people might not require. See Kindesrecht und Elternkonflikt (Gieseking, 2013), especially pp 263-265; also A New View – postscript, p 198.
Legal systems must be structured to match reality so as to provide both support and protection, or make no intervention at all, depending on the needs and circumstances of individuals, recognising the possibility of change over time. The proposed shift towards a fiction that everyone is capable of acting and deciding validly, and so as to promote and safeguard their own rights, interests and welfare, when this simply does not accord with reality in many cases, is to revert to a world in which the disabilities of some people are disregarded, with the consequence that their rights, interests and welfare will not be adequately promoted and safeguarded. The proposals in the Draft Comment will inevitably result in breaches of human rights. They are regressive.
In this issue
- Scottish banknotes: an uncertain future
- Abolition of all guardianship and mental health laws?
- Attack vectors into the law: phishing
- End of the loan?
- Estate handling, Irish style
- Reading for pleasure
- Opinion: Fiona Woolf
- Book reviews
- President's column
- User feedback sees results
- Court reform: does it add up?
- Diverse perspectives
- Countdown to the devolved taxes
- Rewards for the virtuous
- Moving times
- Profitability north and south of the border
- Silence is golden
- Risk assessments and OLRs
- One for the board
- Reshaping history
- Good linking
- Scottish Solicitors' Discipline Tribunal
- People on the move
- A happy marriage?
- Fair Exchange?
- Premium result
- Clients: on good terms?
- Teasing out Taylor
- The law - it's just mental
- Gold dust data
- Ask Ash
- Pritchard Trust applications invited
- From the Brussels office
- Law reform roundup
- SYLA does EYBA - proud