"A gilded cage is a cage no less.”
The Mental Capacity Act interfaced with the UN Convention on Human Rights of Disabled People and the EU Convention on Human Rights.
Senior Judge of the Court of Protection, London
THE MENTAL CAPACITY ACT 2005
AND THE UNITED NATIONS CONVENTION
ON THE RIGHTS OF PERSONS WITH DISABILITIES
Senior Judge of the Court of Protection, London
Seminar notes from 26th November 2015.
Roger Birch had asked me to speak about the interface between the Mental Capacity Act 2005 and the United Nations Convention on the Rights of Persons with Disabilities 2006. In particular, I propose to consider the provisions of Article 12 on “Equal recognition before the law”, but first I would like to set this interface in context by briefly describing the history of the Court of Protection.
History of mental capacity legislation in England and Wales
The mental capacity jurisdiction, now exercised by the Court of Protection, originated in the power struggle between the king and the barons, which led to two civil wars during the thirteenth century. The First Barons’ War took place between 1215 and 1217, and its most famous outcome was Magna Carta, which King John sealed under duress at Runnymede on 15 June 1215. The Second Barons’ War lasted from 1264 to 1267 and its most significant outcome was Parliament, which met at Westminster for the first time on 20 January 1265. This year we celebrated two major anniversaries: Parliament’s 750th and Magna Carta’s 800th.
In about the year 1270, shortly after the end of the Second Barons’ War, the king, as head of the feudal system, assumed control over the estates of people with mainstream psychosocial illnesses (who were known as ‘lunatics’) and people with intellectual impairment (who were referred to as ‘idiots’). These technical terms, which nowadays are regarded as deeply offensive, remained on the statute book until the Mental Health Act 1959 came into force.
In an article on the royal prerogative, published in the English Historical Review in April 1891, F.W. Maitland, the Downing Professor of the Laws of England at Cambridge, reckoned that the crown’s assumption of this jurisdiction was instigated by Sir Robert Walerand, the king’s justiciar. Walerand owned vast estates in many counties, but he had no children, and his heirs were his teenage nephews, Robert and John Walerand, both of whom were ‘idiots’. Walerand may deliberately have preferred that his land should fall into the hands of his good friend the king rather than that it should fall into the hands of his immediate feudal superiors, some of whom had been his mortal enemies.
We don’t know exactly when this happened, but it must have occurred either at the very end of the reign of King John’s son, Henry III, who died in 1272 or during the first year of the reign of his successor, Edward I, because Sir Robert Walerand died in 1273.
The Crown exercised its prerogative over lunatics and idiots through one of the high officers of the state, usually if not invariably the Lord Chancellor, until 1540, when the guardianship of lunatics and idiots was merged with the guardianship of minors, and the Court of the King’s Wards was created. A year later, it became known as the Court of Wards and Liveries. In 1646 this court lost its principal function when the Long Parliament abolished feudal tenure, and it was finally wound up by the Tenures Abolition Act 1660. Thereafter the lunacy jurisdiction was exercised primarily by the Lord Chancellors, some of whom had a very keen interest in these matters and really stamped their mark on this area of law.
The most notable was John Scott, 1st Earl of Eldon, who was Lord Chancellor in successive Tory administrations over twenty-five years from 1801 to 1806 and 1807 to 1827. He extended the jurisdiction to cover incapacity caused by problems other than lunacy or idiocy, such as age-related mental disorders, and he also invented the concept of ‘substituted judgment’, in other words the decision that the person would have made himself, if he had not been mentally incapacitated.
Until 1960 this jurisdiction covered both property and affairs and personal welfare matters, and the court could appoint a ‘committee of the person’ and a ‘committee of the estate’. A ‘committee’ was broadly similar to our modern ‘deputy’. I am currently dealing with the case of a baronet’s daughter, who was born in 1937 and whose sister was appointed as both committee of her person and committee of her estate in 1958. She is probably the last person in England to have been the subject of such an appointment. The court’s health and welfare jurisdiction was effectively abolished by the Mental Health Act 1959 and for the next thirty years there was a lacuna until the House of Lords recognised the existence of the inherent jurisdiction of the High Court in health and welfare matters affecting incapacitated adults in F v West Berkshire Health Authority  2 All ER 545.
This inherent jurisdiction was replaced by a statutory jurisdiction when the Mental Capacity Act 2005 came into force, though the High Court judges have identified a ‘residual inherent jurisdiction’, which applies to persons who are not mentally incapacitated but are, nevertheless, unable to make decisions for themselves because they are under constraint, subject to duress, subject to undue influence, or for some other reason unable to make a free choice or express a real and genuine consent.
The court has had a venerable history, but it has never been the quiet backwater that most people imagine it is. It has always been at the cutting-edge of social policy. Since the Reform Act 1832, which is often regarded as the point at which Britain became a modern parliamentary democracy, we have changed our mental capacity legislation at least once in a generation. Relevant statutes were passed in 1833, 1862, 1890, 1913, 1934, 1959, 1983 and 2005.
We are currently operating under the Mental Capacity 2005, but the date on the label is misleading. The Mental Incapacity Bill, as it was originally known, was drafted in 1995 and was then shelved for ten years. It reflects the thinking of the mid 1990s and is incompatible with the United Nations Convention on the Rights of Persons with Disabilities, which was ratified by the United Kingdom in 2009.
During the next five or ten years we will need to review this legislation, and the outcome will probably be a statute which deals which is based on the UN Convention and deals with decision-making in a more holistic manner, including supported decision-making and decisions that are free from conflicts of interest and undue influence.
The United Nations Convention
On 13 December 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities and its Optional Protocol, and these two documents were opened for signature at a solemn ceremony in the United Nations General Assembly Hall in New York City on 30 March 2007.
Following ratification by twenty States Parties, the Convention came into force on 3 May 2008. As at 5 November 2015, the Convention had 160 signatories and ratifications, and the Optional Protocol had 92 signatories and 88 ratifications.
The purpose of the Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Article 1).
The Convention does not specifically define “disability”. However, paragraph (e) of the Preamble states that:
“Disability is an evolving concept, and results from the interaction between persons with impairments with attitudinal and environmental barriers that hinder full and effective participation in society on an equal basis with others.”
So, for example, someone who needs to use a wheelchair might experience difficulties gaining employment, not because of the wheelchair, but because of environmental barriers, such as inaccessible transport systems, or staircases which impede access.
Similarly, someone with extreme near-sightedness (myopia), who does not have access to corrective lenses, may not be able to perform various everyday tasks. However, if the same person had a pair of prescription spectacles they would be able to perform those tasks without any difficulty.
Article 1 of the Convention states that:
“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
The general principles
Article 3 sets out the following “general principles” of the Convention:
- Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
- Full and effective participation and inclusion in society;
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- Equality of opportunity;
- Equality between men and women;
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
A paradigm shift
The Convention represents what disability rights activists have described as a “paradigm shift”  in attitudes and approaches towards persons with disabilities. They hail it as the turning point at which we ceased to regard people with disabilities as “objects” of charity, medical treatment and social protection, and viewed them instead as “subjects” with rights, who are capable of asserting those rights and making decisions for their lives based on their free and informed consent, as well as being active members of society.
Structure of the Convention
The Convention starts with a lengthy Preamble, which is worth reading for the underlying philosophical content, and consists of fifty Articles.
Article 40 says that “The States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the present Convention.”
So far there have been eight sessions of the Conference of State Parties, each of which has taken place at the UN headquarters in New York. The ninth session will be held on 14 to 16 June 2016.
Committee on the Rights of Persons with Disabilities
The implementation of the Convention by the States Parties is monitored by the Committee on the Rights of Persons with Disabilities, which meets twice a year in Geneva. It consists of eighteen members, all of whom have a disability of some kind.
All States Parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years. The Committee examines each report, makes such suggestions and general recommendations as it considers appropriate, and forwards these to the State Party concerned.
The Optional Protocol establishes an individual complaints mechanism for the Convention similar to those of the International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination against Women and Convention on the Elimination of All Forms of Racial Discrimination.
States Parties agree to recognise the competence of the Committee on the Rights of Persons with Disabilities to consider complaints from individuals or groups who claim their rights under the Convention have been violated. The Committee can request information from and make recommendations to a party.
Ratification of the Convention by the United Kingdom
The United Kingdom signed the Convention on 30 March 2007 and the Optional Protocol on 26 February 2009 and ratified the Convention and Optional Protocol on 8 June 2009 subject to four reservations and a declaration, including the following reservation relating appointeeship:
“The United Kingdom’s arrangements, whereby the Secretary of State may appoint a person to exercise rights in relation to social security claims and payments on behalf of an individual who is for the time being unable to act, are not at present subject to the safeguard of regular review, as required by Article 12.4 of the Convention and the UK reserves the right to apply those arrangements. The UK is therefore working towards a proportionate system of review.”
The Supreme Court of the United Kingdom referred to the Convention for the first time, I believe, on 19 March 2014 in its judgment in P v Cheshire West and Chester Council  UKSC 19. At paragraph 36 Lady Hale said:
“The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to ‘everyone’ (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted.”
The European Union itself is a party to the Convention as a Regional Integration Organisation.
In the lead-up to ratification by the United Kingdom, the Secretary of State for Work and Pensions had the primary responsibility for policy. The Secretary of State for Foreign and Commonwealth Affairs had overall responsibility for the conclusion and implementation of treaty obligations and responsibility for their application in Overseas Territories.
The Office for Disability Issues (ODI) – based at Caxton House, 7-12 Tothill Street, London SW1H 9NA - has been designated as the focal point for matters relating to implementation of the Convention, including monitoring and reporting. It is part of the Department for Work and Pensions.
Practical implications for our own organisations
On a practical level, almost every aspect of an organisation and its activities needs to be examined to ensure that it complies with the requirements of accessibility and inclusion. For example:
- Are your human resources policies and practices accessible?
- Do you have policies ensuring that the recruitment process is accessible to persons with different disabilities?
- Do you have policies and resources which ensure the provision of reasonable accommodation, allowing persons with disabilities to work in your organisation?
- Are your information and communication systems accessible?
- Is your website accessible?
- Is sign language and interpretation available?
- Are documents available in Braille?
- Are our buildings, office spaces, and facilities accessible?
- Do you require our stakeholder partners to have policies in place which ensure inclusion of persons with disabilities?
- Do you design development projects and programmes to ensure that persons with disabilities can participate and benefit?
- Do you collect data on the number of people with disabilities who benefit from your developmental activities?
Article 12: Equal recognition before the law
Article 12 of the CRPD, on ‘Equal recognition before the law’, profoundly affects mental incapacity legislation in every state that has ratified this convention and is worth quoting in full:
- States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
- States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
- States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
- Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
Article 12 has been described as marking a ‘paradigm shift’ in attitudes and approaches towards persons with disabilities. Activists hail it as the turning point at which we ceased to regard people with disabilities as ‘objects’ of charity, medical treatment and social protection, and began to view them instead as ‘subjects’ with rights, who are capable of asserting those rights and making decisions for their lives based on their free and informed consent, as well as being active members of society.
General comment No 1 (2014)
The Committee on the Rights of Persons with Disabilities considers that “there is a general misunderstanding of the exact scope of the obligations of States parties under article 12” and “a general failure to understand that the human-rights model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.” To remedy this, 25 November 2013, the Committee published a draft general comment on article 12, in which it explored the general obligations deriving from the different components of the article. The Committee’s final version of the general comment was published on 11 April 2014.
Our Mental Capacity Act defines capacity in terms of a diagnostic threshold and a functional test.
The diagnostic threshold is contained in section 2(1) of the Act, which states that:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
The functional test is contained in section 3, which states that:
- For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
- to understand the information relevant to the decision,
- to retain that information,
- to use or weigh that information as part of the process of making the decision, or
- to communicate his decision (whether by talking, using sign language or any other means).
- A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
- The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
- The information relevant to a decision includes information about the reasonably foreseeable consequences of—
- deciding one way or another, or
- failing to make the decision.
The Committee said as follows about the diagnostic threshold and the functional test of capacity:
12. Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. In the past, legal instruments such as the UDHR (Article 6), the ICCPR (Article 16), and CEDAW (Article 15) did not specify the distinction between mental and legal capacity. The CRPD (Article 12) now makes it clear that ‘unsoundness of mind’ and other discriminatory labels are not legitimate reasons for the denial of legal capacity (legal standing and legal agency). Under article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.
13. In most of the State party reports that the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed. This is decided simply on the basis of the diagnosis of an impairment (status approach), or where a person makes a decision that is considered to have negative consequences (outcome approach), or where a person’s decision-making skills are considered to be deficient (functional approach). The functional approach attempts to assess mental capacity and deny legal capacity accordingly. (Often based on whether an individual can understand the nature and consequences of a decision and/or whether she/he can use or weigh the relevant information.) This functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity.
With regard to substituted decision-making and supported decision-making, the Committee said as follows:
22. In its concluding observations relating to article 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that the States parties concerned must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences.”
23. Substitute decision-making regimes can take many different forms, including plenary guardianship, judicial interdiction and partial guardianship. However, these regimes have certain common characteristics: they can be defined as systems where (i) legal capacity is removed from a person, even if this is just in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based on the person’s own will and preferences.
24. States’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention.
The Ministry of Justice’s investigation
No sooner had the Committee issued its General Comment on 11 April 2014 than our Ministry of Justice (‘MoJ’) commissioned the Essex Autonomy Project to prepare a report on the question of whether the Mental Capacity Act 2005 is compliant with the United Nations Convention on the Rights of Persons with Disabilities.
The Essex Autonomy Project (‘EAP’) is a research and knowledge-exchange initiative based in the School of Philosophy and Art History at the University of Essex. Its fundamental aim is to clarify the ideal of self-determination in history, theory and practice, both for its own sake, and in order to provide guidance to those who must apply this notion - whether as care workers, as medical practitioners, as legal professionals, or simply as citizens. The project was initially funded by two major grants from the Arts and Humanities Research Council to support work on the themes of ‘Deciding for Oneself’ and ‘Contested Autonomy in Public Policy and Professional Practice.’
EAP held a series of public policy roundtables in order to address the question of compliance in detail. The roundtables were organised by the EAP research team, were held at the headquarters of the Ministry of Justice in Westminster. Participation was limited to 20 people; including judges, MoJ civil servants, representatives from third sector organisations, and researchers from a variety of disciplines.
- Roundtable 1 (Friday, 2 May 2014): Does the use of the diagnostic threshold in MCA §2(1) violate UNCRPD Art. 5, which bans discrimination on the basis of disability?
- Roundtable 2 (Friday, 23 May 2014): Does the best-interests decision-procedure in MCA §4 violate the provisions of UNCRPD Art. 12(4), which requires respect for the will and preferences of disabled persons?
- Roundtable 3 (Monday, 9 June 2014): Does the MCA violate the UNCRPD guarantee of legal capacity to all persons on an equal basis?
- Friday, 11 July, all day conference at Institute for Government, London SW1Y: Is the MCA Compliant with the UNCRPD? And if not, what next?
Essex Autonomy Project’s report
The Essex Autonomy Project published its report, Achieving CRPD Compliance, on 22 September 2014. The main findings are as follows:
- The Mental Capacity Act 2005 is not fully compliant with the United Nations Convention on the Rights of Persons with Disabilities, to which the UK is a signatory.
- The definition of ‘mental incapacity’ in section 2(1) of the MCA violates the anti-discrimination provisions of CRPD Article 5, specifically in its restriction of mental incapacity to those who suffer from ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’
- The best-interests decision-making framework of section 4 of the MCA fails to satisfy the requirements of CRPD Article 12 (4), which requires safeguards to ensure respect for the rights, will and preference of disabled persons in matters pertaining to the exercise of legal capacity.
- MCA section 2(1) should be amended to remove the following words: “because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
- The best-interests decision-making framework on which the MCA relies should be amended to establish a rebuttable presumption that, when a decision must be made on behalf of a person lacking in mental capacity, and the wishes of that person can be reasonably ascertained, the best-interests decision-maker shall make the decision that accords with those wishes.
- The United Nations Committee on the Rights of Persons with Disabilities is not correct in its claim that compliance with the CRPD requires the abolition of substitute decision making and the best-interests decision-making framework.
In respect of the finding on the ‘best interests test’, the EAP considered applying the principles discussed by Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons), C v V  COPLR Con Vol 1074;  WTLR 315;  LS Law Med 97 for overriding a persons rights, will and preferences.
In that case, Judge Marshall considered the weight to be given to P’s own wishes and feelings in relation to any application made to the Court of Protection and held that, where P can and does express a wish or a view, which is not irrational, impracticable and irresponsible, then it should carry great weight and give rise effectively to a presumption in favour of implementing those wishes as being in P’s best interests, unless there is some potential sufficiently detrimental effect for P of not doing so. At paragraphs 55 to 58 she said as follows:
“55. In my judgment it is the inescapable conclusion from the stress laid on these matters in the Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P’s views, and to encourage P to be involved in the decision making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself.”
“56. The Act does not, of course say that P’s wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P’s best interests. However, by giving such prominence to the above matters, the Act does, in my judgment, recognise that having his views and wishes taken into account is a very significant aspect of P’s best interests. Due regard should therefore be paid to this recognition when doing the weighing exercise of determining what is in P’s best interests in all the relevant circumstances, including those wishes.”
“57. As to how this will work in practice, in my judgment, where P can and does express a wish or view which is not irrational (in the sense of being a wish which a person with full capacity might reasonable have), is not impracticable as far as its physical implementation is concerned, and is not irresponsible having regard to the extent of P’s resources (i.e. whether a responsible person of full capacity who had such resources might reasonably consider it worth using the necessary resources to implement his wish) then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.”
“58. That might be some extraneous consequence, or some other unforeseen, unknown or unappreciated factor. Whether this further consideration actually should justify overriding P’s wishes might then be tested by asking whether, had he known of this further consideration, it appears (from what is known of P) that he would have changed his wishes. It might be further tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P. Given the policy of the Act to empower people to make their own decisions wherever possible, justification for overruling P and “saving him from himself” must, in my judgment, be strong and cogent. Otherwise, taking a different course from that which P wishes would be likely to infringe the statutory direction in s 1(6) of the Act, that one must achieve any desired objective by the route which least restricts P’s own rights and freedom of action.”
My personal view
To some extent the Mental Capacity Act 2005 already envisages supported decision-making. For example:
- Section 1(3) says that “A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.”
- Section 3(2) says, “A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means.”
- Once it has been established that P lacks the capacity to make a particular decision, section 4(4) requires that the person who is determining what is in P’s best interests must consider all the relevant circumstances and “must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.”
- Chapter 3 of the Mental Capacity Act 2005 Code of Practice, “How should people be helped to make their own decisions?” provides practical guidance on how to support people to make decisions for themselves or play as big a role as possible in decision-making.
What the UN Committee envisages, however, is something much more robust than the system we currently have in place.
The idea that supported decision-making should be “free of conflict of interest and undue influence” is, I believe, one of the most important provisions of the UNCRPD and is a fertile area for juristic development, though so far it seems to have attracted very little attention from disability rights activists or academic lawyers.
Essentially, we are talking about autonomy, a facet of which is an individual’s ability to make an informed, un-coerced decision. In this respect, capacity and undue influence are inextricably linked.
Before the MCA was enacted, the judges in the Family Division of our High Court exercised what was described as an ‘inherent jurisdiction’ over incapacitated adults in the context of health and welfare decision-making. This has been replaced by a statutory jurisdiction in the form of the MCA, but the Family Division judges have identified a lacuna, which is sometimes referred to as ‘the residual inherent jurisdiction’ and was considered by the Court of Appeal in DL v A Local Authority and Others  COPLR 504;  EWCA Civ 253.
Although it was not a Court of Protection case, it involved issues relating to the protection of vulnerable adults. At the time of the trial at first instance Mr L was 85 and Mrs L was 90 and neither of them lacked capacity to make their own decisions. They lived with their son, DL, who was in his 50s. There had been documented incidents of DL abusing his parents since 2005, and consistent reports that he was seeking to coerce his father into transferring ownership of the house into his name, and to have his mother placed in a care home against her wishes.
The judge held that the court’s inherent jurisdiction in respect of vulnerable adults still existed, notwithstanding the enactment of the MCA, and granted injunctions restraining DL’s behaviour. DL appealed and the Court of Appeal dismissed the appeal and held that:
- The inherent jurisdiction had survived the coming into force of the MCA.
- The inherent jurisdiction may be invoked in respect of individuals who do not lack capacity but who are:
- under constraint;
- subject to coercion or undue influence; or
- for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice or incapacitated or disabled from giving or expressing a real and genuine consent.
- The aim of the inherent jurisdiction is to enhance or liberate the autonomy of the vulnerable adult. Its use is compatible with Article 8 of the European Convention on Human Rights and any orders made must be both necessary and proportionate.
- The court’s powers extend beyond simply giving vulnerable individuals the ‘space’ to make decisions for themselves, but should be exercised in a facilitative, rather than dictatorial, manner.
I hope that, when we review the Mental Capacity Act, as we surely must do soon, we take into account undue influence, which is currently outside the scope of the Act, and include it with capacity in a more holistic piece of legislation on decision-making.
 “Paradigm shift” (or revolutionary science) is the term first coined by Thomas Kuhn in The Structure of Scientific Revolutions (1962) to describe a change in basic assumptions within the ruling theory of science. The term “paradigm shift” has found uses in other contexts, representing the notion of a major change in a certain thought-pattern - a radical change in personal beliefs, complex systems or organizations, replacing the former way of thinking or organizing with a radically different way of thinking or organizing. In the later part of the 1990s, “paradigm shift” emerged as a buzzword, popularized as marketing speak and appearing more frequently in print and publication. In his book, Mind The Gaffe, author Larry Trask advised readers to refrain from using it, and to use caution when reading anything that contains the phrase. It is referred to in several articles and books as abused and overused to the point of becoming meaningless.
 See the Foreign & Commonwealth Office, Explanatory Memorandum on the United Nations Convention on the Rights of Persons with Disabilities (Command Paper Number CM 7564)
 Universal Declaration of Human Rights (1948)
 International Covenant on Civil and Political Rights (1966)
 Convention to Eliminate All Forms of Discrimination Against Women (1979)