MDAC welcomes nudge toward supported decision-making in England and Wales

Yesterday the House of Lords – the upper chamber of the UK Parliament – published a report on implementation of the Mental Capacity Act 2005. MDAC submitted evidence to the committee in September 2013 and were represented by British barristers Jenni Richards QC and Victoria Butler-Cole. The report is also available in pdf and easy-to-read versions.


“The UK Government must, like all other governments, ensure that autonomy and liberty are not merely illusory for people with disabilities”, said Oliver Lewis, MDAC Executive Director, “and we are grateful to the House of Lords for so clearly outlining the areas of improvement.”


The UK House of Lords found that supported decision-making is "not well embedded", drawing on MDAC's submission on the Mental Capacity Act


MDAC welcomes the committee’s numerous recommendations, in particular on supported decision-making, which is a system where a people with disabilities are assisted to implement their own life plans. The legal basis for it is set out in Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD). The report states:


“A number of witnesses emphasised the importance of focusing more on supported decision-making in order to enhance compliance with the [CRPD]. The Mental Disability Advocacy Center (MDAC) argued that as an example of a ‘substituted decision-making regime,’ the Act is prima facie incompatible with the [CRPD], but the Act ‘could be applied in such a way as to reduce the extent of non-compliance’. They suggested placing considerably greater emphasis on supported decision-making, to the point that decision-making based on objective best interests rather than the views of [the person] becomes a last resort, limited to those individuals who cannot communicate their wishes and feelings at all. The Law Society concurred with MDAC that ‘a greater emphasis on supported as opposed to substitute decision making is needed in order to move towards greater compliance’ with the Convention.” (paragraph 83)


The committee found that supported decision-making is “not well embedded”. There is “institutional obstruction due to prevailing cultures of risk-aversion and paternalism” which prevent people with disabilities being allowed to take decisions which they want, and “the wishes, thoughts and feelings of [the person] are not routinely prioritised. Instead, clinical judgments or resource-led decision-making predominate. The least restrictive option is not routinely or adequately considered.” (paragraph 104)


Further, the House of Lords heavily criticised the ‘Deprivation of Liberty Safeguards’, which were introduced into law following the gap identified in the European Court of Human Rights case of HL v. the UK. As a result, tens of thousands of people are deprived of their liberty without the protection of the law. In many other parts of Europe, a substituted decision-maker (a guardian) takes the decision to detain someone, as in the case of Stanev v. Bulgaria, in which MDAC co-represented the applicant, where the European Court also found a violation of the right to liberty.


Other recommendations focused on training for professionals, standard-setting and inspections. The committee recommended that the government allocate more resources to the Court of Protection (which deals with cases under the Act) to speed up the handling of cases, and that the government should reconsider its decision to withdraw non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty. To further supplement safeguards against abuse, the use of “Independent Mental Capacity Advocates” should be increased by local governments.


The committee further recommended awareness-raising activities to boost understanding of lasting powers of attorney and advance decisions to refuse treatment among professionals in the health and social care sectors. Lastly, it recommended that the Government review the criminal law provision for ill-treatment or neglect of a person judged to lack mental capacity.

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