Domestic legislation and international human rights standards: the case of mental health and incapacity

Are mental health tribunals operating in accordance with international human rights standards? A systematic review of the international literature

“…The CRPD is radical in that it requires significant rights protections surpassing those offered by preceding treaties, such as the ECHR and for this to be effective there has to be meaningful engagement with its message by state parties (Stavert, ; Stavert & McGregor, ) even where substitute decision‐making arrangements for persons with mental disorder remain.…”

“…While it increasingly emphasises the need to respect individual autonomy it accepts that, subject to safeguards, non‐consensual treatment may be justified on the basis of a diagnosis of mental disorder and related mental incapacity assessments (Flynn & Arstein‐Kerslade, ). On the other hand, the CRPD represents a radical departure from this approach, moving away from the limitation of rights predicated on diagnosis and incapacity assessments, as such denial does not allow for the equal enjoyment of rights by all (Stavert & McGregor, ). Instead, it requires the provision of support to enable substantive rights to be claimed (Bartlett, ).…”

“…Instead, it requires the provision of support to enable substantive rights to be claimed (Bartlett, ). Article 12 of the CRPD (Equal Recognition Before the Law) is particularly pertinent as it identifies the universal right to exercise legal capacity and access to appropriate support to achieve this (Stavert & McGregor, ; UN Committee on the Rights of Persons with Disabilities, ). This is based upon the premise that by providing a range of person‐centred supports, all individuals, including those with mental distress, can exercise legal capacity (Flynn & Arstein‐Kerslake, ; UN Committee on the Rights of Persons with Disabilities, ).…”

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

“…10 Several law reform models have been suggested (Victoria Law Reform Commission 2012; Australian Law Reform Commission 2014; Martin et al 2016; Law Commission of Ontario 2017) and some legislative and non-legislative arrangements or changes arguably come close to Article 12 CRPD compliance. 11 However, there is no evidence yet that any jurisdiction has fully achieved such compliance (Kohn and Blumenthal 2014;Carney 2014Carney , 2015Carney , 2017Davidson et al 2015;Stavert and McGregor 2018). Indeed, even where the Committee acknowledged that Sweden had abolished declarations of incapacity it also noted its concern that the appointment of administrators is a form of substitute decision-making and recommended that Sweden take immediate steps to replace this with supported decision-making (UN CRPD Committee 2014b).…”

“…As already mentioned, traditional understandings of what constitutes the equal and non-discriminatory enjoyment of rights by persons with disabilities have tended to allow for differential treatment provided there is objective and reasonable justification for this (Nilsson 2014;UN Human Rights Committee 2003; UN Committee on Economic, Social and Cultural Rights 2009). 7 However, the CRPD's bringing together and effectively integrating civil, political, social and economic rights and its principles of active inclusion, participation and autonomy arguably no longer allows for such differentiation (UN CRPD Committee 2018a; Goldsmidt 2017; Stavert and McGregor 2018). In short, the CRPD challenges us to engage with what this really means in the context of persons with mental disabilities and how such equality can genuinely be achieved so that its required paradigm shift becomes a reality (UN CRPD Committee 2018a).…”