12 – Equal recognition before the law


The Mental Capacity Act 2005 (MCA)[1] permits decisions to be made by third parties in the ‘best interests’[2] of people assessed to lack ‘mental capacity’[3]. The Mental Disability Advocacy Centre (MDAC) made a submission to a UK House of Lords Committee reviewing the Mental Capacity Act[4], specifically on the question of whether the Act is compliant with the CRPD and whether there are lessons that can be learnt from the CRPD for the successful implementation of the MCA. MDAC’s conclusion was that the ‘MCA 2005 is an example of a substituted decision-making regime, and is therefore prima facie incompatible with the CRPD’. The issue of ‘Best interests’ is also raised as is the relatively limited role that the MCA 2005 accords to the individual’s expressed wishes and feelings, or will and preferences.

Article 12(4) of the CRPD also provides that all measures that relate to the exercise of legal capacity shall “apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.” There is no such guarantee under the MCA 2005.

Disabled people are also concerned about the use of ‘Community Treatment Orders’ which are effectively a way of removing legal capacity without detention in hospital. Although claimed to be a ‘least restrictive alternative’ when introduced, they have not led to a reduction in compulsory admissions to hospitals and their use continues to increase. The Health and Social Care Information Centre has reported that on 31 March 2013 there were 5,218 people subject to a CTO, an increase of 454 (10 per cent) on the previous year.[5]

[1] Available at: http://www.legislation.gov.uk/ukpga/2005/9/contents

[2] Mental Capacity Act 2005 Section 4

[3] Mental Capacity Act 2005 Section 2

[4] The House of Lords Committee website is: http://www.parliament.uk/business/committees/committees-a-z/lords-select/mental-capacity-act-2005/

[5] Health and Social Care Information Centre, ‘Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment: Annual report, England, 2013’. http://www.hscic.gov.uk/catalogue/PUB12503/inp-det-m-h-a-1983-sup-com-eng-12-13-rep.pdf