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

Stavert, Jill



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.

(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)

Journal Article Type Article
Acceptance Date Jun 18, 2018
Online Publication Date Jun 29, 2018
Publication Date Jun 29, 2018
Deposit Date Jul 9, 2018
Publicly Available Date Jul 9, 2018
Journal Laws
Electronic ISSN 2075-471X
Publisher MDPI
Peer Reviewed Peer Reviewed
Volume 7
Issue 3
Article Number 26
Keywords Convention on the Rights of Persons with Disabilities; equal recognition before the law;
Public URL
Publisher URL
Contract Date Jul 9, 2018


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