MDAC Asks UK House of Lords to Amend Legal Capacity Law
MDAC has today made a submission to the UK House of Lords which is in the process of scrutinising the Mental Capacity Act (MCA). This legislation, which applies to England and Wales, regulates the way in which people with disabilities can make decisions in their lives when they have been deemed ‘incompetent’ by the courts.
Jenni Richards QC and Victoria Butler-Cole, barristers at 39 Essex Street, London, acted pro bono for MDAC for this submission. The submission addresses the question asked by the House of Lords committee whether the MCA is compliant with the UN Convention on the Rights of Persons with Disabilities (CRPD), and whether there are there lessons that can be learnt from the CRPD for the successful implementation of the MCA.
The Mental Capacity Act allows a court to make a finding of “incapacity” and in this case the decision-making is handed over to someone else. As such, the Mental Capacity Act is an example of a substituted decision-making regime, and is therefore prima facie incompatible with the CRPD.
"...the Mental Capacity Act is an example of a substituted decision-making regime, and is therefore prima facie incompatible with the CRPD"
MDAC notes the relatively limited role that the MCA accords to the individual’s “will and preferences” as required by Article 12(4) of the CRPD. The MCA merely identifies the individual’s past and present wishes and feelings as a relevant circumstance, along with a number of other relevant circumstances. It lays down no hierarchy or ranking as between the various factors. This has led to differing approaches in the courts, with some judges attributing considerable weight to the individual’s wishes and feelings and others suggesting that the decision maker must form a value judgment of his own when determining best interests, with the individual’s own wishes and feelings being merely one factor to be taken into account.
MDAC’s full submission can be downloaded here.