The right to vote doesn’t depend on mental capacity

23 April 2015

Lucy Series, research associate at the School of Law and Politics at Cardiff University.Lucy Series is a research associate at the School of Law and Politics at Cardiff University. Her research focuses on disability rights, legal capacity and community care law. Lucy is also a RiPfA Associate and has worked on projects relating to the Mental Capacity Act 2005, the deprivation of liberty safeguards, critical reflection and resource allocation systems in community care. Here, she writes about mental capacity and the right to vote.

The right to vote is one of the fundamental rights in our democracy. It is a right that has historically been denied to many oppressed groups in society, and even today more marginalised populations are less likely to vote. Research has found, for example, that certain groups – including disabled people, people living in socially deprived areas and residents of communal establishments such as care homes – are more at risk of being under-represented on electoral registers.

Shockingly, a recent survey by Mencap found that whilst people with learning disabilities were more likely to want to vote than the general population, 17% of those responding to the survey had been turned away from a polling station because they had a learning disability and 60% found the registration process difficult. Recently a political campaigner told me that they had been turned away from care services because the staff said that their residents didn’t vote.

We urgently need to address the disenfranchisement of people with disabilities, especially those with learning disabilities and cognitive disabilities such as dementia and those living in care homes and supported accommodation.

One of the main barriers to the right to vote for people with learning disabilities is prejudice and misunderstanding. If you remember nothing else from reading this article today, remember this: nobody should be required to undergo a mental capacity assessment before they can vote.  Section 73 of the Electoral Administration Act 2006 explicitly abolished ‘Any rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state’. This was introduced into Parliament by Lord Rix, who was chairperson of Mencap at the time, who said:

‘The changes I propose are of great symbolic and practical importance to people with a learning disability and to other disabled people, who are still subjected to abuse and discrimination—which should be challenged by the law, not enshrined within it.’

Lord Rix felt it was ‘best to avoid suggestions that disabled people have any kind of incapacity’ in the context of voting.

This progressive legal change anticipated Article 29 of the UN Convention on the Rights of Persons with Disabilities – which upholds the rights of disabled people to participate in political and public life on an equal basis with others. A recent complaint submitted to the UN Committee on the Rights of Persons with Disabilities involved three people with intellectual disabilities who lived in Hungary who were required to undergo individual assessments of their ability to vote. The Committee found that since other people without disabilities did not have to undergo such assessments in order to exercise their rights to vote, this was discriminatory and violated their human rights.

Some people find it very surprising to discover that a person does not legally need to have mental capacity in order to be allowed to vote.

The Mental Capacity Act 2005 has permeated so many aspects of the lives of people with cognitive and learning disabilities that many care providers seem to believe that it obviously follows that it applies to voting too. Only last year, some campaigns to encourage people with learning disabilities to vote by leading care providers perpetuated the myth that people need to have mental capacity to be allowed to vote. This week, the Guardian newspaper ran an otherwise great article about a care provider supporting people to vote, which said that it had been ‘informing staff and volunteers of GPs’ roles in establishing clients’ mental “capacity” to vote.’ 

We urgently need to spread the word: nobody should have to undergo a mental capacity assessment in order to be permitted to vote. Care providers that prevent people who want to vote from voting, because they believe that people lack the mental capacity to do so, may be violating their human rights.

This doesn’t mean that everybody has to vote, of course. I was asked on Twitter whether saying that people don’t need mental capacity to vote meant that we should be supporting people in a permanent vegetative state to vote. It’s important to distinguish between the abilities a person might need in practical terms in order to vote – the ability to express a choice – and a legal requirement that the person has mental capacity in relation to that choice. Saying that mental incapacity is not a legal incapacity to vote is not the same as saying that everyone must be supported to vote, even if they express no desire to do so. It is simply saying that anybody who would like to vote should not have to demonstrate their mental capacity in order to be able to do so.

In the context of care providers failing to help residents to register to vote, and people with learning disabilities being turned away from the ballot, our number one priority has to be to remove any barriers that prevent people from voting and to tackle the prejudice that perpetuates this. Part of the purpose of removing the mental capacity barrier to voting was to help to tackle these problems. The very last thing we need to do is place another barrier in people’s path in the form of a mental capacity assessment.

The voter registration problem

Despite the very progressive legal changes introduced by Lord Rix, there is one significant spanner in the works for the voting rights of disabled people: voter registration. The government has recently reformed the way we register to vote. In order to combat fraud, people are no longer registered on a household basis but must register to vote individually.

Part of this registration process involves making a ‘declaration of truth’ about one’s identity, where one lives, and the proof of identity that is supplied. When the government consulted upon this, they did not consider what would happen if people were unable to do this, so there is no provision for situations where a person is literally unable to make such a declaration – even with support. Formally appointed deputies of the Court of Protection or attorneys under a Lasting Power of Attorney can register on a person’s behalf, but many people do not have these and will be unable to register at all.

To make matters worse, failure to register to vote when asked to do so by an Electoral Registration Officer may be an offence. The Electoral Commission guidance says that Officers must send out reminders, or even pay a personal visit, telling people to register to vote. Although they can exercise discretion not to fine people for failure to register, the guidance acknowledges that ‘the reminder letters with the threat of a fine and a personal visit to encourage registration could be distressing for the individual and those caring for them’. Failure to register to vote may also have implications for people’s access to credit and other financial services. This appears to be a genuine oversight, but the present government has not taken any steps to put this right, and it will be too late for those affected for the current election as the window for registration has now closed.

As a result of this mistake, the message about voting and mental capacity is now more complex. In 2006 Parliament passed legislation which made a point of principle: nobody should have to demonstrate their mental capacity in order to be able to vote. Yet more recently, we seem to have accidentally introduced a new barrier to voting in the form of carelessly drafter voter registration reforms. The worst of it is that it’s potentially possible that some people who may want to vote – for example, older people who are lifelong supporters of a particular political party – may be unable to complete a declaration of truth because they might have impairments in other areas of understanding such as their current address. But it also dilutes and complicates the very important message we need care providers to understand: nobody should have to demonstrate their mental capacity in order to vote.

We need to do two things: spread the word that those who are registered to vote and wish to do so should not be required to undergo any mental capacity assessment, and ask the government to fix the flawed voter registration process to take account of people who are at present unable to register to vote. 

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