The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges

Article, Other literature type OPEN
Jill Stavert (2015)
  • Publisher: Multidisciplinary Digital Publishing Institute
  • Journal: Laws (issn: 2075-471X, vol: 4, pp: 1-18)
  • Related identifiers: doi: 10.3390/laws4020296
  • Subject: Centre for Mental Health and Capacity Law | Mental health | human rights | Article 12 CRPD; exercise of legal capacity; supported decision-making; will and preferences; human rights; Scottish legislation | Article 12 CRPD | Wellbeing | K Law | Learning disabilities | will and preferences | Law | exercise of legal capacity | supported decision-making | supported decision-makingwill and preferences | KDC Scotland | Scottish legislation | 340 Law
    • jel: jel:F42 | jel:E62 | jel:K0 | jel:E61 | jel:K1 | jel:K4 | jel:K2 | jel:K3 | jel:F13 | jel:D78

Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their mental health and incapacity laws with mental capacity. This is most notable in terms of the General Comment’s requirement that substitute decision-making regimes must be abolished. Notwithstanding this, it also offers the opportunity to revisit conceptions about the exercise of legal capacity and how this might be better supported and extended through supported decision-making. This article will offer some preliminary observations on this using Scottish mental health and incapacity legislation as an illustration although this may also have relevance to other jurisdictions.(This article belongs to the Special Issue Competency and Capacity: Issues Affecting Health Law, Policy and Society)
  • References (61)
    61 references, page 1 of 7

    World Health Organisation. Mental Health Action Plan 2013/2020. Geneva: World Health Organisation, 2013. See also preamble to Constitution of the World Health Organisation, 45th edition, 2006.

    Committee on the Rights of Persons with Disabilities. General Comment No. 1(2014) Article 12: Equal Recognition before the Law, CRPD/C/GC/1. Geneva: Committee on the Rights of Persons with Disabilities, 2014.

    Dawson, John, and Annegret Kämpf. “Incapacity Principles in Mental Health Laws in Europe.” Psychology, Public Policy and Law 12 (2006): 310-31.

    For a Broad Summary of Some of these. See, for example, Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University). “Notes from Seminar General Comment on Article 12 CRPD1 (right to equal recognition before the law): Implications for Scotland?” 27 June 2014. Available online: Documents/Article%2012%20General%20Comment%20seminar%20notes%20Final%20Version. pdf (accessed on 12 April 2015).

    5. Committee on the Rights of Persons with Disabilities. “Consideration of reports submitted by States Parties under article 35 of the Convention-Initial reports of States Parties due in 2011: United Kingdom of Great Britain and Northern Ireland, CRPD/C/GBR/1.” 3 July 2013. Available online: UnZhK1jU66fLQJyHIkqO2dHKxwWVfH%2F3y8V1nzj9JfCdgSgoIKS9O9ficLcMs6d39OtMhp 2dqsqLC7y%2FlrDLKLewfLAVIFKpjypij%2BUFN (accessed on 16 June 2015).

    6. This article will focus on the Mental Health (Care and Treatment) (Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000. Observations of a related nature can also potentially be made regarding the Adult Support and Protection (Scotland) Act 2007. However, to date, research conducted by the Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University) has been predominantly concentrated on the former two pieces of legislation.

    7. Michael L. Perlin. International Human Rights and Mental Disability Law: When the Silenced Are Heard. Oxford: Oxford University Press, 2012.

    8. Peter Bartlett. “The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law.” The Modern Law Review 75 (2012): 752-78.

    9. Anna Kampf. “Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?” In Rethinking Rights-Based Mental Health Laws. Edited by Bernadette McSherry and Penelope Weller. Oxford: Hart Publishing, 2010, pp. 129-50.

    10. Robert Dinerstein. “Implementing Legal Capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making.” Human Rights Brief 19 (2012): 8-12. Available online: cgi/viewcontent.cgi?article=1816&context=hrbrief (accessed on 16 June 2015).

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