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

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. Keywords: Convention on the Rights of Persons with Disabilities; equal recognition before the law; equal and non-discriminatory enjoyment of human rights; persons with cognitive, intellectual and psychosocial disabilities; involuntary interventions; CRPD paradigm shift realisation; National CRPD implementation; Scotland

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

“…The right to autonomy identified in Article 8 ECHR can be limited for the prevention of disorder and to promote health or morals and public safety [Article 8 (2)]. While the CRPD requirement of equal and non‐discriminatory rights enjoyment by all is, as already indicated, calling this approach into question (Stavert, ) the proportionality of any rights limitation is an essential principle of the traditional human rights approach. However, assumptions about the risk posed by individuals who experience mental distress are central to tribunal decision‐making.…”

“…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.…”

Supported Decision-Making and Paradigm Shifts: Word Play or Real Change?

“…This requires a serious reconsideration of existing legal, policy and practice frameworks if there is to be parity of rights enjoyment between persons with mental disabilities and others in respect of enjoyment of all rights and aspects of life ( 13 , 14 ). However, a full understanding of this approach to equality and non-discrimination is required if states are to successfully navigate the challenges presented by the CRPD Committee's radical assertion that supported decision-making must replace substitute decision-making ( 15 ).…”

“…However, the best approach to navigating the impasse undoubtedly lies in locating supported decision-making within fundamental CRPD message of equal and non-discriminatory enjoyment of rights. In the context of persons with mental disabilities this requires looking beyond human rights simply in terms of limiting unwarranted interventions to the proactive removal of obstacles to full rights enjoyment and the creation of environments that respect and support such enjoyment ( 13 – 15 ). With this in mind this article will therefore now consider the role of supported decision-making in the context of Scotland which is currently undergoing a review of its mental health and capacity laws with consideration of CRPD compliance within its Terms of Reference.…”

Who controls your future: The convention on the rights of persons with disabilities from a service user focused perspective

“…In the face of risk, for example, of suicide, the failure to agree with an assessing doctor’s recommended plan (such as being admitted to hospital) can be seen as a lack of capacity, leading to a decision being made directly against the patients stated wills and preferences. In this sort of case, capacity assessment can degenerate into a risk based, non-supported approach to care (Newton-Howes, 2019) and supplementing legislation, as opposed to rewriting it, has been questioned as a reasonable approach (Stavert, 2018).…”