Amid concerns that some care services are wrongly preventing residents from going on the electoral register, Lucy Series looks at the legal background to mental capacity and voting.
A discussion about care homes refusing to enter residents on the electoral register on grounds that they lack mental capacity to vote on the (brilliant) Mental Health Law Online discussion list prompted me to jot down a few reminders about mental capacity and voting rights.
Is mental incapacity a reason not to put a person on the electoral register?
No. And failure to provide information to registration officers about a person who is eligible to be on the electoral register may be an offence.
Certain groups of people are not entitled to be put on one or more electoral registers. These include members of the House of Lords, detained convicted criminals (on which topic see various interesting posts about prisoners' votes and human rights on the UK Human Rights blog under 'prisons'), offenders detained in mental hospitals and people who have been found guilty of various corrupt or illegal practices in the past few years.
People detained in a mental hospital who are not offenders may not be regarded as resident there unless "the length of the period which he is likely to spend at the hospital is sufficient for him to be regarded as being resident there for the purposes of electoral registration", but this does not preclude him registering at some other place of residence or by a local connection.
It is possible that the exemption on residence may also apply to people detained under the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS), but I have not seen this discussed anywhere. However, if there was difficulty registering a person detained under the DoLS from voting, they could still be registered at some other place of residence or via a local connection declaration.
The register of electors is compiled by registration officers appointed within "the council of every district and London borough". There are separate registers for different kinds of elections (e.g. local elections, parliamentary elections). The register consists of the names, addresses and electoral number of people in the area who appear to the registration officer "to be entitled to be registered". Every year the registration officer conducts an 'annual canvas' of the area to see who is entitled to be registered, and he can make house to house enquiries if he sees fit. It is an offence to supply false information in an application to the electoral register. The Electoral Commission says: "If you receive a request for your registration information from your local electoral registration office, then you are legally obliged to respond. If you do not respond, or if you provide false information, then you could receive a £1,000 fine."
I cannot find the relevant statute or regulation which requires a person to respond to the electoral register, however.
Is mental incapacity a reason to prevent a person from voting?
No. In fact s73 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". The Electoral Commission's guidance on entitlement to register states:
"People with learning difficulties or mental health conditions
5.3 A lack of mental capacity is not a legal incapacity to vote: persons who meet the other registration qualifications are eligible for registration regardless of their mental capacity or lack thereof. Electoral Registration Officers should therefore ensure that persons with learning difficulties or mental health conditions are included in the register of electors."
"5.10 While electors with any level or no level of mental capacity may be registered to vote, the decision as to whether and how to vote at an election must be made by the elector themselves and not by any other person on their behalf. Those who may be the carer of a person or who otherwise make decisions on behalf of a person may not make decisions on voting. The Commission considers that a person must have mental capacity to appoint or to continue to have a proxy, as that can be taken to be a decision on voting.''
To be clear, no person has a right to prevent a person from voting on capacity related grounds. Not a care home, not a deputy or donee of a Lasting Power of Attorney, not an election officer, nobody.
So, if a person who 'lacks capacity' to vote can register to vote, and can't be prevented from voting, why does the Mental Capacity Act 2005 talk about voting at all?
In a nutshell, to prevent proxy voting on capacity related grounds, s29 Mental Capacity Act 2005 simply states: "Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person."
This means that a person cannot vote on behalf of a person on the grounds that they lack capacity (through a proxy, or acting as a deputy or donee of a Lasting Power of Attorney). The question of capacity assessment in connection with voting is, therefore, only likely to come up in connection with a person's capacity to nominate a proxy voter. That's it, that's all it's about. It doesn't mean you can run around stopping people from voting on the basis they lack capacity, it just means that nobody can vote on their behalf unless they have the mental capacity to formally nominate a proxy vote.
Services that prevent people from voting on capacity related grounds
These services may be committing an offence if they fail to return accurate information regarding who is resident in that service for the electoral register. They are also interfering with a person's legal rights to vote, which may be a breach of Article 3 Protocol 1 of the European Convention on Human Rights.
Gratifyingly, in an audit of CQC reports I recently conducted I noticed that inspectors were looking at whether services had registered people to vote. If you come across a service that has not, or refuses to, it might be worth alerting CQC to this issue and the local authority's registration officer. The biggest obstacle to people living in care services voting is not mental incapacity, but a lack of support to exercise their suffrage rights as a citizen.