A tale of four cities - Considering mental capacity and active ageing

Thursday, 22 November 2012

Some of us are not as young as we were, so there are a number of European initiatives relevant to us all in 2012: it’s the European Year for Active Ageing and Solidarity between Generations. Brussels cheerily tells us this is ‘a chance for all of us to reflect on how Europeans are living longer and staying healthier than ever before – and to realise the opportunities that represents’.

The initiative aims to raise awareness of the issues and the best ways of dealing with them. But most of all it’s about encouraging all policymakers and stakeholders to set themselves goals and take action to meet them. This year should go beyond debating: it should start bringing tangible results.

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) and Optional Protocol were adopted in 2006 and came into force on 3 May 2008. UNCRPD attempts to change attitudes and approaches to persons with disabilities so they are not seen as ‘objects’ of charity, medical treatment and social protection. Instead they should be seen as ‘subjects’ who are capable of claiming their rights and making decisions for their lives based on their free and informed consent, as well as being active members of society.

UNCRPD has been ratified by more than 100 states, 17 of them EU member states. The UK ratified on 8 June 2009 and the EU on 23 December 2010. The Committee on the Rights of Persons with Disabilities is the Geneva-based UN body of independent experts. It monitors implementation of the Convention and usually meets twice a year. The Optional Protocol to the Convention gives the Committee competence to examine individual complaints alleging violations of the Convention by states party to the Protocol.

The EU Agency for Fundamental Rights is a Vienna-based advisory body of the EU established by the EU Council Regulation (EC) No 168/2007 of 15 February 2007. In June 2009, FRA launched a research project into the human rights guarantees available to persons with intellectual disabilities and mental health problems. The legal study covers all relevant aspects of the anti-discrimination and equality framework. In particular, it focuses on the incorporation of the UNCRPD into national law in EU member states. It looks at issues of involuntary placement and involuntary treatment, as well as competence, capacity and guardianship, and is due to be completed in December 2012.

‘This year should go beyond debating: it should start bringing tangible results’

In the UK, there have been concerns as to whether the powers of the Court of Protection and the implementation of the Mental Capacity Act 2005 are compliant with the UNCRPD.

The Hague Convention on the International Protection of Adults (13 January 2000) has now been ratified by Estonia, Finland, France, Germany, Scotland and Switzerland. The rest of the UK, plus Cyprus, the Czech Republic, Greece, Ireland, Italy, Luxembourg, the Netherlands and Poland have all signed but not yet ratified. The Czech Republic may ratify this year. Some of us have been encouraging England and Wales to ratify and the Crown Dependencies to consider doing so. The EU Stockholm Programme refers to the desirability of EU member states acceding to the Hague Convention, and in 2014 the Commission is to report on the need for additional proposals.

In this year of ‘active ageing’, how can practitioners help persons with disabilities claim those rights, make decisions for their lives based on their free and informed consent, and be active members of society, when member states such as the UK (with the honourable exception of Scotland) have not ratified the Hague Convention to enable them easily to do so? Emails and postcards demanding tangible results to your Minister of Justice, please.

For more on mental capacity, see the article Best Interests by Carol McBride in this issue.

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Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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