The Convention on the Rights of Persons with Disabilities-Be their Voice

idpd_poster_2015

Today, is United Nations Day for people with disabilities.

And a very sad one,  if you are disabled, in the UK.

As previously blogged, not only is the label ‘disabled’ increasing, as the need for more marketable commodities increases.

But to enable commodification, the disabled’s rights are decreasing now to the point of  none existence.

The old, deaf, slow, different, autistic, vulnerable are being processed by the Court of Protection into a life without freedom or choice for profit.

Well paid ‘experts’ are proclaiming them MCA ‘incapable’ of making any decision.

Removing not only their personal autonomy, but the  disabled’s legal capacity.

And with it, their rights to claim any property, social, care, welfare,  or human rights.

They become , on being assessed ‘incapable’, a non person.

So what do the United Nations say about the disabled rights?

The United Nations, created a ground-breaking Convention, which was drafted, not only, by government representatives, civil society organisations, but, more crucially, disabled people’s organisations.

Its  concept being, ‘nothing about us without us’.

It is the disabled’s voice.

The Convention, has a high number of signatures and ratifications – 145 and 158 respectively.

And, provides, a comprehensive reformulation of the disabled’s rights.

It is legally binding on all states, that have signed, and ratified it, including the UK.

Article 12(2) of the Convention, gives a disabled person, the right, to equal legal capacity with others.

This involves two distinct rights;

1.  to be a person before the law.

and,

2. to be a legal agent, whose decisions are respected, and, validated by the law.

The CRPD Committee has stated, that support systems for the exercise of legal capacity, must replace regimes of ‘substitute decision making’, that deny legal capacity.

The Committee states General Comment No. 1 – Article 12: Equal Recognition Before the Law, Paragraph 23, UN Doc. No. CRPD/C/GC/1, adopted at the 11th Session (April 2014).

Substitute decision-making regimes can take many different forms, including plenary guardianship, judicial interdiction and partial guardianship. However, these regimes have certain common characteristics: they can be defined as systems where (i) legal capacity is removed from a person, even if this is just in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will or (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences.’

It also states

the development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention.”

The Convention, also provides that systems, should not indirectly discriminate against the disabled.

And, the CRPD Committee Comment,  has stated this includes, ‘facially neutral’ assessments of mental capacity,

that are disproportionately applied, to people with disabilities.

How many deemed non disabled in UK are subjected to capacity assessments ?

And how many disabled assessed pass the test?

The Committee comment,

The functional approach attempts to assess mental capacity and deny legal capacity accordingly. (Often based on whether an individual can understand the nature and consequences of a decision and/or whether she/he can use or weigh the relevant information.) This functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these 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.”

Other rights as shown here also given by Convention.

https://lastquangoinhalifax.wordpress.com/2016/03/13/why-mca-because-crpd/comment-page-1/#comment-13

So  our present,and previous governments,have conspired to remove, all mentally ‘disabled’’s rights under the Mental Capacity Act 2005.

And, signed,the Convention on the Rights of Persons with Disabilities.

On this day of the disabled, be their voice, hear their misery, and suffering.

Link this post to your MP,  and, free the disabled.

And our country from illegality.

 

 

 

 

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13 Comments

  1. Well said, as always, Finola. from my vantage point in Canada, having brought up Charlie in England until he was eleven, it seems to me the governing bodies overseas have really crushed this human rights issue substantially.

    Reply

    1. Thanks Cynthia,

      Your comment is much appreciated.

      What do we do, about a government, and now two previous ones, who are bent on removing the disabled’s rights completely ???

      Hope you are looking forward to a good Christmas .

      Where you are, I assume, it will be very pretty and very white.

      I know Canada, do the decorations, big time, as I remember the shops, they were like fairy land.

      All the best, Have a good Christmas
      Finola

      Reply

  2. How do we all get to the UN? What are the processes to make an appeal to them? How do we get our sons and daughters heard? ? ?

    Reply

    1. We, will have to work on that one.

      Thank you for your comment.

      I am hoping that you and Martin are well, and can have, as good a Christmas, as possible under the circumstances, together.

      Best wishes, Finola

      Reply

      1. Martin will be allowed home from Cardiff with a carer for approx 3 hours on 19th December. The carer is forbidden to talk to me about Martin.His LA Care Manager went on holiday 19th November and will be back after Christmas there is no one to take her place we have been told to waituntil she comes back from holiday. And so it goes on. Care home fees £2400 a week. Once a week Martin sent to local take away to buy his lunch, which he has to pay for himself. LA has over ruled my EPA and are making Martin contribute £80 to his residential care fees although he is under continuing health care for his epilepsy. He has litigation capacity but can only be represented in Court by the OS – Mr Justice Charles judgment Lawyers charging me for doing nothing. There was a film once about a deaf woman – title – CHILDREN OF A LESSER GOD –

  3. Dear Final

    Thankyou for this informative post. I love reading your posts. I have a 20 year old son and 22 year old daughter. My son is “severely mentally impaired” and has classical autism. Long story through the System. I am actively involved in promoting change to improve life for all those who are disabled and their families. There are many of us together in mind and spirit voicing our support for equal human rights for the disabled. We are not alone.

    Best wishes Danuta

    Reply

    1. Thank you Danuta for your comment.

      And hope the blog helps you.

      You appear to be in a similar position to me, but after reading my blog post ,about the apparent underestimation of the autistic’s intelligence, and the conflation of learning difficulty . which all autistic will have, with leaning disability, can you really be sure, your son, is now as they call it, ‘intellectually impaired’.

      We really haven’t a clue about autism per se, let alone, what will, or how an autistic person will develop, if not educated, and dealt with properly.

      Best wishes, and please feel free, if you ever get a chance, to comment on any posts, past or present,.
      Hopefully the blog can be used as a source of information.
      If you want a more private medium, as well, please feel free to contact me on finolamoss@gmail.com

      Best wishes to your family and you and hope you have good Christmas.

      Finola

      Reply

      1. God Bless You Finola. We are caught in this Shambolic System for doing right. Also have fallen into the abyss with those who are been financially abused for championing their childs corner. Whereas the Authorities have access to public money like there is no tomorrow! danutag57@gmail.com

  4. Ha ha. Pathetic isn’t it? 🙂 Before you know it, they’ll be trying to poke autistic/disabled people with sticks, and treating them like animals. Oh I forgot, we’re already halfway there. You know, you alway get those educated university snobs, trying to get you to join some sort of patronizing special needs class, and you just think “Bugger off!”. Look don’t get me wrong, maybe they’re just trying to help, but the more these corporate agencies try to bother you, the less of a human you feel. I have a life to live. And the fact that some special needs staff, aren’t even trained is daft. They should do some research, before knowing what they’re letting themselves in for.

    Reply

  5. Hi All,
    As you can see below, I got this e mail yesterday from the fabulous Law Commission who took on the difficult task alongside the MoJ which found that ”Hundreds of thousands of disabled people are being unlawfully Deprived of their Liberty in care homes etc”. Well, we have WON the first round as far as our loved one’s being unlawfully Deprived of the Liberty and the unworkable MCA 2005 {DOLs} being replaced by the “new” Liberty Protection Safeguards which is more “fair and compatible with Best Interests/Family/Human Rights”.

    I/we got the result needed by partaking in the Law Comm’s Consultation in 2016. I for one “left no stone unturned for Justice” since my LD/Autistic son was stolen 5 years ago by a “biased Judge” using the unworkable inhumane MCA 2005 {fake capacity} and we have NOT seen him since 2013. He is being unlawfully Deprived of his Liberty, as he lacks Capacity in all areas while, they used a ‘Blanket Assessment’ to state “He has Capacity”. It was to suit a fake-crying aunt but, it all backfired horribly. {No Injustice stays hidden forever}.

    Parliament has to enact the LPS now and let’s see if we can get our cases re-heard by a different Judge.

    PS: I note only yesterday, the same “biased Judge” in our case, did a “biased Judge” case and upheld it while, she did the very wrong things and recommends a rehearing in the High Court by a different Judge. She even quoted from Mc. Farlane’s J Judgement {2018 EVCOP 4. Cade No:COP1268512} “He submits the appellants ‘cannot be deprived of their right to a hearing before a judge who not only is unbiased but appears unbiased when some of the circumstances giving rise to the concern came about in their absence’. He submits McFarlane LJ in Re Q makes clear at para [15] that if there is unfairness it cuts ‘across the entirety of the process’.

    Charles J 10 Test Cases also reveals more tangible Proposals like: “Family Recognition”, Participation of P, Family as RPR {to save money and they know P best}, A Care Plan that is least restrictive and Regular Reviews.

    Your comments will be appreciated.
    Thanks
    Kind regards
    Danxx

    On 15 Mar 2018 14:26, “Justice.gov.uk” wrote:
    The government has said it will bring forward legislation to provide greater protection for some of the most vulnerable people in our society.
    In a Written Ministerial Statement Health Minister Caroline Dinenage said the government broadly agreed with the Liberty Protection Safeguards model proposed by the Law Commission in 2017 and would legislate “when parliamentary time allows”.
    This new model is a solution to the problems caused by the failing Deprivation of Liberty Safeguards. These are a set of rules designed to ensure that people that lack the capacity to consent, such as those with dementia or learning disabilities, are protected when deprived of their liberty in a hospital or care home.
    Law Commissioner Nicholas Paines QC said:
    “The Deprivation of Liberty Safeguards are failing those they were set up to protect – some of the most vulnerable people in our society.
    “Our Liberty Protections Safeguards would protect people’s basic human rights and help make sure that everyone gets the care they need.
    “We’re pleased the government agrees and we stand ready to work with them to implement these reforms as soon as possible.”
    Creating liberty protections for everyone
    The Deprivation of Liberty Safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home for care or treatment.
    For example, a dementia patient may be kept in their care home to prevent them from wandering off, which could put them in danger.
    The DoLS are also supposed to deliver safeguards to the person and provide a means to challenge any such deprivation. Challenges can be by the family or patient, for instance.
    In 2014 a Supreme Court decision, the Cheshire West decision, significantly widened the numbers of those vulnerable people considered to be deprived of their liberty.
    As a result, health and social care services have been unable to cope with the huge increase in cases and the added administrative burden. As a result thousands of vulnerable people are being deprived of liberty without any proper safeguards.
    In March 2017 the Law Commission recommended a new system, the Liberty Protections Safeguards. These safeguards would mean:
    enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
    greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
    extending protections to all care settings such as supported living and domestic settings –therefore removing the need for costly and impractical applications to the Court of Protection
    widening the scope to cover 16 and 17 year olds and planned moves between settings
    cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
    extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
    a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
    Alongside these added protections the Liberty Protections Safeguards could provide a saving to the taxpayer.
    The Law Commission estimates that the Liberty Protection Safeguards would cost £236 million a year in total – a saving of £10 million which could then to be reinvested into NHS health care and adult social care services.
    If the current system was working and every referral to DoLS was completed within the year they were referred, the Law Commission estimates this could cost up to £2.2 billion annually (approximately 2% of the entire NHS budget).
    Further information
    In 2014 the Department of Health asked the Law Commission to review the laws around the Deprivation of Liberty Safeguards.
    The final report with recommendations to government for reform is published here: https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/

    Reply

    1. Dandy, if you read my post on Liberty Safeguards below, you will see LS will make things much worse for the autistic /LD.
      https://finolamoss.wordpress.com/2018/03/20/liberty-safeguards-executive-usurps-court-of-protection-tail-wags-dog/

      As can only be expected, as social care is about harvesting as many as possible and keeping them and making as much profit as possible out of these commodities without the expensive rubber stamping of COP..

      It is frightening to think, in these times of ‘austerity’, that as you say 2.2 million would be wasted on a meaningless procedure called DOLs, which were created on very legally precarious grounds, as Bournewood Gap, was decided on an incompatibility with Common law and Art 5, not the MCA.

      Dols do not exist in Scotland, and now as my post discusses are being used, together with the creation of Approved Mental Capacity Assessor Roles, to effectively circumvent COP, and allow corporate care providers complete control of harvesting and servicing via their LA/NHSCCG commissioners.

      Reply

      1. You seem to have had a very bad experience {which eludes me} with the system Finola and no matter what happens {break trough cases, accurate findings/ unlawfulness exposed and new legislations to remedy/replace the WRONG, you still believe the system will be WORSE.
        May I ask you, is the Law Commission’s Findings wrong and is their approach wrong? Is Lade Hale’s findings in Cheshire West wrong and recommendations wrong? Is the Care Act 2014/16 wrong? Is Charles J’s recommendations in his 10 Test Cases wrong too?
        Do you oppose or have doubts that these new Legislations {if enacted by Parliament} will transform a new beginning for Justice as far as the disabled is concerned?
        From what I have seen forth coming are these:
        1- The LPS replacing the unworkable MCA 2005 {DOLS} You got a misconception of the LPS, Mr. Paine QC did not state negatives as you state}
        2. The mandatory Participation of P in Proceedings {ECHR}.
        3. A Care Plan that is least restrictive to P’s Best Interests.
        4. Family to represent P {as they know him best and to save costs}
        5. Truly Independent Capacity Assessments.
        6.Regular Reviews {encouragement to go home/see family}.

        Why are you saying the LPS would be worse than the MCA 2005? What the Law Commission proposes are more Humane, Workable and Just. Have you closely listened to Mr Paines’s speech or read the Law Comm’s Proposals {which is with Parliament now to enact now or during the spring}.

        Do you communicate with Parliament, the Law Commission, MoJ and other Bodies responsible to see that Justice is delivered?
        I am in constant touch with al the above and they do respond positively to me.
        Here is my Submission {which was just last week published} to Parliament on Adult Social Care etc..
        Written evidence submitted by Kelvin Debideen [FSC 001]
        My Submission is why does Taxpayers money is being unnecessarily being spent on disabled people
        when their Families can provide better care in a more profound humane way? We have Local
        Authorities, the Official Solicitor, the Court of Protection and other so called professionals all hellbent
        on “removing” these people from their Families and they “never” see them again under very
        shambolic circumstances.
        Everything is fabricated whereby using bureaucratic statements which the higher courts accepts and
        not the dedicated family’s.
        I cared for my disabled son very well for many years and it only cost the DWP £60 per week while, it
        costs the imperious Council perhaps £3000 per week because, it has to pay uncaring support
        workers who helps prevent family contact and Deprives my son of his Liberty. At Court, the
        prejudicial female Judge, OS and LA sided with a dishonest aunt and removed him, fabricated his
        capacity and as a result, we have not seen nor heard from him for 5 years and we never will again
        while, he has become obese, a thief, a sexual predator to women and has contact with this
        destructive aunt who continues to breach court order, abuse him make his life a misery and the CoP
        approves of it.
        The Legislation allowing the disabled to live in the Community close to Family is nothing but a sham
        even though the public is fooled by it. If it is ‘Living in the community’ is made law, then it would
        certainly save Social Care many many hundreds of thousands of pounds and on top of it all, the
        disabled lives will be more happy and fulfilling since “Family is the bedrock of Society” but, the
        Family Court and others “Abuses their Powers” on us all.
        January 2018.

        Just last week. the Telegraph quoted Sir Munby as stating “Judges do “Make Mistakes and Wrong Decisions in the Secret Courts as they escape Scrutiny”.

        Are you saying, all the other distressed families that wrote in “are wrong” as well and nothing will come out of it? Then you have no hope and you should not be discouraging distressed Families from seeking “change within the Family Justice System” and the resumption of contact with their long lost loved one’s.

      2. Dandy, this, nor my blog post on Liberty Safeguards is personal. It is just stating the effect of the changes and the legality of the creation of DOLS and the dangers of have the executive in control when they also commission the services of a monopoly with an overriding duty to make profit service. These are facts they are not saying anyone is wrong and are not personal.

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