Abstract
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.
Highlights
One of the World Health Organisation’s (WHO) Mental Health Action Plan 2013/2020 GlobalTargets is that by 2020 fifty per cent of states will have developed or updated their mental health laws in line with international and regional human rights instruments ([1], pp. 8, 12, 20)
A particular challenge that arguably affects all jurisdictions is that presented by recent interpretation by the Committee on the Rights of Persons with Disabilities of the right to equal recognition before the law identified in Article 12 UN Convention on the Rights of Persons with Disabilities (CRPD) in its General Comment No.1 [2]
To provide a comprehensive critique of this. Nor is it to second guess the outcome of the Committee’s review of the United Kingdom’s compliance with the CRPD, following submission in 2013 of its first periodic report under the treaty [5]. It will instead proceed from the position that, whatever opinion one may hold on Article 12 and the General Comment, they offer the opportunity to revisit existing conceptions of legal capacity and to consider how it might be more extensively exercised by persons with mental health issues
Summary
One of the World Health Organisation’s (WHO) Mental Health Action Plan 2013/2020 Global. Nor is it to second guess the outcome of the Committee’s review of the United Kingdom’s (including Scotland’s) compliance with the CRPD, following submission in 2013 of its first periodic report under the treaty [5] It will instead proceed from the position that, whatever opinion one may hold on Article 12 and the General Comment, they offer the opportunity to revisit existing conceptions of legal capacity and to consider how it might be more extensively exercised by persons with mental health issues. Using the broad framework of Article 12 and the General Comment it will make some preliminary observations about the extent to which it may be possible to maximise primacy for the will and preferences and respect for all the human rights of persons with mental health issues even within situations that are possibly more restricted than the General Comment advocates To this end it will concentrate on Scottish mental health and incapacity legislation [6] some elements of this may have relevance for other jurisdictions. A consideration of Scottish mental health and incapacity legislation and any support they identify to assist the exercise of legal capacity
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