Edinburgh Napier University

  Equal recognition before the law of persons with mental disabilities, as identified as a right in Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD), has the potential to reshape mental health and incapacity laws nationally and internationally. The adoption of the CRPD in 2006 signalled a ‘paradigm shift’ in, amongst other things, how we approach the recognition of legal capacity for persons with mental disabilities.

In April 2014 the UN Committee on the Rights of Persons with Disabilities published its General Comment on Article 12 which further emphasised this shift.(1) The General Comment seeks to transform how we approach the recognition of legal capacity and states that mental ‘incapacity’ can never justify the removal of legal capacity. Individuals must therefore be provided with the necessary support to exercise their legal capacity. Forms of substituted decision-making for those deemed to be lacking capacity are invalid under this approach. The United Kingdom is due to be considered by the UN Committee on the Rights of Persons with Disabilities in October 2015. Thus far the Committee has repeatedly called on states it has considered and for which it has published its concluding observations, to ‘take immediate steps to revise the relevant laws and replace substituted decision-making with supported decision-making.’(2)

Across Commonwealth countries, principally Australia and Canada, there has been significant developments in relation to Article 12 and supported decision-making. Law Commissions in various Australian and Canadian states and provinces, as well as the federal governments, have been proposing and trialling various supported decision-making models. Various forms of supported decision-making can also be identified in Scotland. The common legal traditions shared between Australia, Canada and the UK mean that there is much for Scotland to learn from and contribute to promoting a common understanding and consensus in this complex area. The issue of legal capacity and its exercise underpins many aspects of law taught within law schools.

In view of the approach taken by the Committee and Commonwealth developments, this paper evaluates the extent to which Scotland’s mental health and incapacity laws are compatible with its international obligations under Article 12 CRPD and explores the potential link between the UK’s CRPD and ECHR obligations in this area. It will also look to Commonwealth examples of supported decision-making in order to build upon current understandings of legal capacity and supported decision-making and to encourage cross-jurisdictional consensus through education of policy makers and practitioners.