Mental incapacity is not a legal incapacity to vote

This first appeared on The Small Places blog

It’s that time again…

…Yep, there’s a general election coming atcha!  Don’t know who to vote for? Don’t understand the options? Struggling to fathom the reasonably foreseeable consequences of your vote in this politically volatile time? Worried you can’t retain all the information about which party wants which shade of Brexit and what other policies they stand for?  Feel you can’t weigh up the options (because frankly they’re all pretty awful)? Well fear not, because (all together now) mental incapacity is not a legal incapacity to vote (thanks to s73 of the Electoral Administration Act 2006).

Yep, time for our regular reminder here at the Small Places that when it comes to voting (on paper or at the ballot) you don’t need to demonstrate to anybody that you have mental capacity.  Anybody who tries to stop you voting on the grounds that you lack mental capacity is unlawfully interfering with your democratic right to vote.  If you are a care provider, or doctor, or social worker or whatever, and you’re used to using the Mental Capacity Act 2005 to make decisions for other people, and you’re about to start assessing people’s mental capacity to vote, stop right there because it doesn’t apply to voting.  This isn’t about the ‘presumption of capacity’, this is about mental capacity having nothing to do with voting.  If a person is expressing a desire to vote, then let them vote, or better still, support them to.  If you care for people who might have difficulties voting, you don’t need to assess their mental capacity to vote, just ask them if they want to and (ideally) give them the help they need and want.  It’s very simple.

A few years ago I was banging on about this on Twitter and somebody asked me ‘but what happens if they eat the ballot paper?’  Someone else pointed out that you do need mental capacity to vote, because: coma. Well, apart from the former being a pretty offensive question that plays into stereotypes about disabled people, neither of these questions have anything to do with the integrity of our democratic systems when you think about them.  An eaten ballot slip isn’t a vote (although it is a health risk, that you should probably act upon) and people in comas rarely walk into polling stations and attempt to exercise the right to vote.  You don’t need a law saying  you need mental capacity to vote to ‘protect’ the vote against these risks, because they aren’t risks.  

The big risk you should be concerning yourself about is the huge number of disabled people who are prevented from voting because of the misconception that people need to have mental capacity to be allowed to vote.  Research from Mencap found this applied to 17% of people with learning disabilities in their survey, and a Scope report found that it even extended to people with physical disabilities whom others perceived as ‘incapable’.  This is precisely why Lord Rix proposed the amendment to the Electoral Administration Act removing mental capacity barriers to voting, because the bigger picture is that the bigger threat to our electoral system is the systematic disenfranchisement of people with mental disabilities (and other disabilities) from voting.

As for the supposed risk of people voting without truly understanding the consequences of their vote… I fear we may all be in that category this year.

Ps. There is a problem with registration to vote, due to a bit of a cockup by the Cabinet Office when developing the new individual voter registration system.  Basically anyone registering to vote now has to make a ‘declaration of truth’ about the information they’ve supplied in order to be able to register to vote (ie. their name, address, national insurance number etc).  People are allowed to be assisted to supply this information to register to vote, but according to the Electoral Commission they must still have the mental capacity to be able to make the declaration of truth (or have a deputy or Lasting Power of Attorney who can register them on their behalf).  Nobody thought about this at the time, it seems to be an unintentional consequence of the Coalition government not thinking about this group of people when they consulted on the proposals.  This is a bit of a cock-up and in my view it’s a clear violation of those individual’s human rights and some of us are trying to get this fixed (though not in time for this election).  However, it’s important to remember that the mental capacity to make a declaration of truth (i.e. to know that it is your name, address that you’re submitting etc) is not the same as the mental capacity to vote.  If you do get caught in this loophole, or know anybody who is, and especially if they want to vote or it’s led to other problems (like being chased for the offence of failure to register to vote, or not being able to get financial services as you’re not on the electoral register) then I’d be interested to hear from you.