A missed opportunity: the European Court of Human Rights considers best interests decision making in the context of Article 8 and the United Nations Convention on the Rights of Persons with Disability.
Article 12 of the UNCRPD requires that ratifying states (of which the UK is one) recognise that those with disabilities have equal legal capacity with those who do not, and further must take steps to allow them to exercise it.
This is fleshed out in the Committee’s general note, which stresses the need to avoid “substitute decision-making”, for example where a decision is made on behalf of someone in the name of their best interests, such as in the Court of Protection in the UK, and to move to “supported decision-making”.
Substitute decision-making, it says, is not compliant with Article 12:
"In all of those approaches, a person’s disability and/or decision making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity."
In January this year Mental Health Europe published a report advising members states to "move away from substitute decision-making on the basis of "best interest" assessments, to supported decision-making which respects the "will and preferences" of the person needing support."
In this context, AMV brought his claim to the European Court of Human Rights. AMV had learning disabilities and wished to live in a remote northern part of Finland with his foster family. A “mentor” appointed on behalf of AMV did not consider this to be in his best interests and the Finnish courts refused AMV permission to replace them. In the context of the above the ECHR therefore had to consider whether the Finnish model of substitute decision-making was compliant with AMV’s Article 8 rights to a family and private life.
The court held that while there was an interference with AMV’s Article 8 rights, the government’s action had been a proportionate means to a legitimate aim and therefore did not constitute a breach: "The interference was proportional and tailored to the applicant’s circumstances, and was subject to review by competent, independent and impartial domestic courts. The measure taken was also consonant with the legitimate aim of protecting the applicant’s health, in a broader sense of his well-being."
It is disappointing to see this decision fly in the face of clear expositions of the UNCRPD and it appears a touch regressive given current thinking around the interplay between mental and legal capacity. While the decision refers to Article 12 and suggests that AMV’s legal capacity is not being denied it is hard to square this with the Committee’s clear separation of these two issues. A different decision here could have had a significant impact on the government’s thinking following the Law Commission’s report on deprivation of liberty, one proposal from which was to elevate the position of ‘wishes and feelings’ when making best interests decisions.