Solicitors, healthcare and social work professionals, and others need to be aware of the major changes in practice required to ensure compliance with the UN Convention on the Rights of Persons with Disabilities. They must apply these changes now, within the framework of existing legislation, pending upgrading of the UK's adult incapacity and mental capacity legislation. The UK ratified the Convention without reservation in 2009. The UK also ratified the Optional Protocol to the Convention, allowing citizens who claim to be victims of breach of the Convention to bring complaints to the UN Committee on the Rights of Persons with Disabilities.
A major report published on 6th June 2016 is designed principally to provide technical research support to UK government bodies ahead of the forthcoming review of UK compliance by the UN Committee. For practitioners "in the field", it indicates not only what legislative change may lie ahead, but also what is required in day-to-day practice to ensure compliance now. Alison Hempsey, lead partner of our adult incapacity team, and Adrian Ward, consultant to TC Young, were two of the authors of the report, which may be accessed at Three Jurisdictions Report.
The report describes in detail practical steps to operationalise the requirements of Article 12 of the Convention on "Equal Recognition before the Law". Topics include the requirement to maximise support to enable people to act and decide for themselves, or, where they cannot do so even with maximum support, to give expression to their will and preferences in relevant matters. The lead recommendation highlights the requirement to achieve respect for the full range of the rights, will and preferences of everyone, regardless of any disabilities. Anyone making decisions or exercising any role in relation to people with intellectual disabilities must operate with the rebuttable presumption that they must give effect to the person's reasonably ascertainable will and preferences, subject to the constraints of possibility and non-criminality. That presumption should be rebuttable only if stringent criteria are satisfied, requiring particular expressions of will and preferences to be overridden in order effectively to protect the full range of the person's rights, freedoms and interests.
The report examines how necessary support can be provided, and how necessary safeguards in relation to matters such as undue influence and conflict of interest can be achieved. It is essential reading for everyone working in this field.
For more information or advice, get in touch with our experienced adult incapacity team.
