Scotland, the Convention on the Rights of Persons with Disabilities and repurposing of mental health and capacity law

Stavert, Jill; McKay, Colin

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

Citation

Stavert, J., & McKay, C. (2025). Scotland, the Convention on the Rights of Persons with Disabilities and repurposing of mental health and capacity law. Human Rights Law Review, 25(2), Article ngaf008. https://doi.org/10.1093/hrlr/ngaf008

• Journal Article Type: Article
• Acceptance Date: Feb 9, 2025
• Online Publication Date: Apr 15, 2025
• Publication Date: 2025-06
• Deposit Date: Mar 25, 2025
• Publicly Available Date: Apr 16, 2025
• Print ISSN: 1461-7781
• Electronic ISSN: 1744-1021
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 25
• Issue: 2
• Article Number: ngaf008
• DOI: https://doi.org/10.1093/hrlr/ngaf008
• Keywords: Convention on the Rights of Persons with Disabilities, maximizing autonomy, economic, social and cultural rights, law reform, Scotland, comparative jurisdictions, World Health Organization
• Public URL: http://researchrepository.napier.ac.uk/Output/4169933