Students Staff

20 April 2015

Senior Judge backs Essex Autonomy Project findings on Mental Capacity Act and UN Convention

Senior Judge of the Court of Protection Denzil Lush has expressed support for findings of the Essex Autonomy Project based at the University of Essex on the Mental Capacity Act’s compliance with the UN Convention on the Rights of Persons with Disabilities (CRPD).

In the latest issue of Elder Law Journal Judge Lush highlights the report completed by EAP for the Ministry of Justice published in autumn 2014 which looked at whether the Mental Capacity Act of England and Wales was compatible with CRPD.

In the article Judge Lush says he supports the EAP’s findings that substitute decision making and the best-interests decision-making framework set out by the Mental Capacity Act does not need to be abolished to comply with CRPD.

He also supports the EAP’s interpretation of the CRPD’s requirements for signatories ‘to respect’ the rights, will and preference of the person concerned. The EAP suggested that ‘to respect’ means “to refrain from interfering except when interference is properly justified.”

Based at the University of Essex the EAP completed a six month project providing technical research assistance to the Ministry of Justice on MCA compliance with the CRPD.

The issue is seen as vitally important, both within the UK, and in the many jurisdictions around the world where the MCA has been seen as a model piece of legislation for balancing the sometimes competing interests of protection of vulnerable persons and respect for autonomy.

Writing in Elder Law Journal, Judge Lush writes: “There are cases in which supported decision-making is clearly impossible and there is no alternative to substitute decision-making. I agree with the Essex Autonomy Project’s report that the UN Committee on the Rights of Persons with Disabilities is wrong in asserting that compliance with the UNCRPD requires the abolition of substitute decision making and the best-interests decision-making framework.”

Findings by the Essex Autonomy Project

The EAP report said: “The abolition of substitute decision-making regimes would mark a radical departure from all approaches to mental capacity legislation in existence at the time of the CRPD’s framing. If the CRPD was indeed intended as a call for such an abolition, then this requirement would presumably have been included explicitly in the text of the Convention itself. It was not.”

The EAP team argue there are two areas where the MCA is not compliant with CRPD. But, crucially they say this can be resolved and they reject the indication by the United Nations Committee on the Rights of Persons with Disabilities that the UK needs to abolish substitute decision making and the best-interests decision-making framework which underpins the MCA.

Professor Wayne Martin, who led the EAP team, said: “The legal issues we have been looking at have a direct and profound bearing on the lives of persons living with disability and/or diminished capacity. The UK should use the UN engagement process as an opportunity to reflect on ways in which the treatment of such persons can meet the highest ethical and legal standards. The question of whether the MCA is compliant with the CRPD is just one part – albeit an important part – of this larger challenge and opportunity.”

At the moment the EAP team have completed their review of MCA compliance with the CRPD. But the MCA only applies in England and Wales. Additional work needs to be undertaken to review the Adults with Incapacity Act in Scotland and the new legislation being introduced in the Northern Ireland Assembly, each of which take approaches that differ from that of the MCA.

The MCA provides a statutory framework for empowering and protecting adults who may have impaired decision-making capacity. But, critics argue the way the MCA is applied can mean the known wishes of a disabled person are not respected and are over-ridden by carers or professionals taking decisions on their behalf.

A particular focus for discussion is the way the MCA allows the use of “substitute decision-making”, which authorises the principal carer or a professional overseeing their care to “substitute” their judgement for that of the person who is lacking mental capacity on the basis of an assessment of their “best-interests”.

The key findings of the EAP team are:

  • The best-interests decision-making framework of Section 4 of the Mental Capacity Act fails to satisfy the requirements of Article 14 of the Convention. This requires safeguards to ensure respect for the rights, will and preference of disabled persons in matters relating to the exercise of legal capacity. The best-interests decision-making framework on which the Mental Capacity Act 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 makes the decision that accords with those wishes.
  • The definition of ‘mental incapacity’ in the Mental Capacity Act violates the anti-discrimination provisions of Article 5 of the Convention 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” and these words should be removed from the definition.

The Essex Autonomy Project team that worked on the report for the Ministry of Justice included Professor Wayne Martin, Dr Timo Jütten, Dr Matthew Burch and Rebecca Parsons from the School of Philosophy and Art History and Professor Sabine Michalowski from the School of Law and the Essex Human Rights Centre.

As part of their research the EAP team organised a series of public policy roundtables, hosted by the Ministry of Justice, bringing together leading experts to discuss and debate the issues. They also organised a public conference to share their findings.


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