Edinburgh Napier University

  ‘Learning disability’ is currently included in the statutory definition of ‘mental disorder’ used by Scottish capacity and mental health legislation, along with mental illness and personality disorder. This raises the general Convention on the Rights of Persons with Disabilities (CRPD) issue of the legitimacy of non-consensual interventions based on diagnosis (Committee on the Rights of Persons with Disabilities 2014, 2015). It also begs the question of whether learning disability, a condition which is not capable of cure or management through medical treatment, ought to fall within the remit of legislation that authorises non-consensual psychiatric treatment.

Drawing on two recent reviews of mental health law in Scotland, this chapter will consider its existing mental health and capacity law and human rights frameworks impacting on the rights of persons with learning disabilities and their ability to achieve rights equality and provide for the needs of persons with learning disabilities. How Scotland proceeds after such reviews will have implications for other jurisdictions which are attempting to locate support for persons with learning disabilities within legal and human rights structures.