Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotland

Jill Stavert

doi:10.3390/laws7030026

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) highlights the need to actively remove obstacles to, and promote, the full and equal enjoyment of human rights by persons with disabilities. This is challenging us to revisit existing conceptions about what is genuine equal and non-discriminatory enjoyment of human rights by persons with cognitive, intellectual and psychosocial disabilities and to accept that a real and fundamental culture change is required in order to achieve this. Whilst many states are seeking to address CRPD requirements in law and policy, including those identified in its Article 12, it is arguable that these do not go far enough in order to secure this culture change. This article considers three issues that need to be resolved as part of the process of achieving this paradigm shift, namely capacity assessments as thresholds for involuntary interventions, authorising involuntary interventions and support for the exercise of legal capacity, both generally and in the particular context of Scotland’s mental health and capacity laws. In doing so, it argues that it is debatable whether the CRPD paradigm shift can be realistically achieved by simply adapted or supplementing current legal and policy models.

Highlights

The overarching message of the United Nations Convention on the Rights of Persons withDisabilities (CRPD) is that persons with physical and mental disabilities are entitled to enjoy all human rights on an equal basis with others
The CRPD Committee recognises that the inability to exercise one’s legal capacity is an impediment to the equal enjoyment of all human rights (UN CRPD Committee 2014a) and one’s ability to exercise legal capacity can be denied by involuntary interventions taking place both within institutions and in community settings (UN CRPD Committee 2014a, 2015, 2017a)
As far as Article 12 CRPD is concerned, if environments are to be created that are conducive to the equal enjoyment of rights by persons with mental disabilities, it is necessary to address the use of capacity assessments to justify non-consensual interventions, the authorisation of involuntary interventions themselves and support for the exercise of legal capacity

Summary

Introduction

The overarching message of the United Nations Convention on the Rights of Persons with. What is becoming increasingly clear is that achievement of this requires more than persons with disabilities being provided with assistance, such as reasonable accommodation and support for the exercise of legal capacity (Articles 5(3) and 12(3) CRPD), where this is needed. Whilst several states, including Scotland, are attempting to address CRPD requirements in national law and policy it is not altogether clear whether its fundamental message about equal rights enjoyment is as yet being fully embraced. This is arguably notable in relation to the realisation of Article 12 (the right to equal recognition before the law). The following will consider some of the conceptual issues that need to be overcome in law and policy for CRPD compliance to be achieved and contextualise this by reference to Scotland’s mental health and capacity law

Background

Mental Capacity Assessments as the Threshold to Interventions

Authorising Involuntary Interventions

Addressing the Paradigm Shift in Scotland

Capacity Thresholds and Support for the Exercise of Legal Capacity

Embracing the CRPD Paradigm Shift in Scotland

Conclusions

Findings

Edinburgh