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Jill Stavert (2015)
Publisher: MDPI
Journal: Laws
Types: Article
Subjects: Centre for Mental Health and Capacity Law, Mental health, human rights, Article 12 CRPD; exercise of legal capacity; supported decision-making; will and preferences; human rights; Scottish legislation, Article 12 CRPD, Wellbeing, K Law, Learning disabilities, will and preferences, Law, exercise of legal capacity, supported decision-making, K, supported decision-makingwill and preferences, KDC Scotland, Scottish legislation, 340 Law
jel: jel:F42, jel:E62, jel:K0, jel:E61, jel:K1, jel:K4, jel:K2, jel:K3, jel:F13, jel:D78
Article 12 of the UN Convention on the Rights of Persons with Disabilities, particularly as interpreted in the Committee on the Rights of Persons with Disabilities General Comment No. 1, presents a significant challenge to all jurisdictions that equate interventions permitted under their mental health and incapacity laws with mental capacity. This is most notable in terms of the General Comment’s requirement that substitute decision-making regimes must be abolished. Notwithstanding this, it also offers the opportunity to revisit conceptions about the exercise of legal capacity and how this might be better supported and extended through supported decision-making. This article will offer some preliminary observations on this using Scottish mental health and incapacity legislation as an illustration although this may also have relevance to other jurisdictions.
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    • World Health Organisation. Mental Health Action Plan 2013/2020. Geneva: World Health Organisation, 2013. See also preamble to Constitution of the World Health Organisation, 45th edition, 2006.
    • Committee on the Rights of Persons with Disabilities. General Comment No. 1(2014) Article 12: Equal Recognition before the Law, CRPD/C/GC/1. Geneva: Committee on the Rights of Persons with Disabilities, 2014.
    • Dawson, John, and Annegret Kämpf. “Incapacity Principles in Mental Health Laws in Europe.” Psychology, Public Policy and Law 12 (2006): 310-31.
    • For a Broad Summary of Some of these. See, for example, Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University). “Notes from Seminar General Comment on Article 12 CRPD1 (right to equal recognition before the law): Implications for Scotland?” 27 June 2014. Available online: http://www.napier.ac.uk/faculties/business/schools-centres/CMHILRP/ Documents/Article%2012%20General%20Comment%20seminar%20notes%20Final%20Version. pdf (accessed on 12 April 2015).
    • 5. Committee on the Rights of Persons with Disabilities. “Consideration of reports submitted by States Parties under article 35 of the Convention-Initial reports of States Parties due in 2011: United Kingdom of Great Britain and Northern Ireland, CRPD/C/GBR/1.” 3 July 2013. Available online: http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhspC UnZhK1jU66fLQJyHIkqO2dHKxwWVfH%2F3y8V1nzj9JfCdgSgoIKS9O9ficLcMs6d39OtMhp 2dqsqLC7y%2FlrDLKLewfLAVIFKpjypij%2BUFN (accessed on 16 June 2015).
    • 6. This article will focus on the Mental Health (Care and Treatment) (Scotland) Act 2003 and Adults with Incapacity (Scotland) Act 2000. Observations of a related nature can also potentially be made regarding the Adult Support and Protection (Scotland) Act 2007. However, to date, research conducted by the Centre for Mental Health and Incapacity Law, Rights and Policy (Edinburgh Napier University) has been predominantly concentrated on the former two pieces of legislation.
    • 7. Michael L. Perlin. International Human Rights and Mental Disability Law: When the Silenced Are Heard. Oxford: Oxford University Press, 2012.
    • 8. Peter Bartlett. “The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law.” The Modern Law Review 75 (2012): 752-78.
    • 9. Anna Kampf. “Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?” In Rethinking Rights-Based Mental Health Laws. Edited by Bernadette McSherry and Penelope Weller. Oxford: Hart Publishing, 2010, pp. 129-50.
    • 10. Robert Dinerstein. “Implementing Legal Capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making.” Human Rights Brief 19 (2012): 8-12. Available online: http://digitalcommons.wcl.american.edu/ cgi/viewcontent.cgi?article=1816&context=hrbrief (accessed on 16 June 2015).
    • 11. Amita Dhanda. “Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?” Syracuse Journal of International Law and Commerce 34 (2007): 429-62.
    • 12. World Health Organisation. Resource Book on Mental Health, Human Rights and Legislation. Geneva: World Health Organisation, 2005.
    • 13. Shtukaturov v Russia (44009/05) (2008) ECHR 223.
    • 14. Oliver Lewis. “Advancing Legal Capacity Jurisprudence.” European Human Rights Law Review 6 (2011): 700-14.
    • 15. Gerard Quinn. “Concept Paper-Personhood and Legal Capacity-Perspectives on the Paradigm Shift of Article 12 CRPD.” Paper presented at HPOD Conference, Harvard Law School, Cambridge, MA, USA, 20 February 2010.
    • 16. Eilionóir Flynn, and Anna Arstein-Kerslake. “The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?” Berkeley Journal of International Law 32 (2014): 124-43.
    • 17. Piers Gooding. “Supported Decision-Making: A Rights-Based Disability Concept and Its Implications for Mental Health Law.” Psychiatry, Psychology and Law 20 (2013): 431-51.
    • 18. Eilionóir Flynn, and Anna Arstein-Kerslake. “Legislating personhood: Realising the right to support in exercising legal capacity.” International Journal of the Law in Context 10 (2014): 81-104.
    • 19. See Concluding Observations to Date of the Committee on the Rights of Persons with Disabilities. Available online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang= en&TreatyID=4&DocTypeID=5 (accessed on 16 June 2015).
    • 20. Piers Gooding. “Navigating the 'Flashing Amber Lights' of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns.” Human Rights Law Review 15 (2015): 45-71.
    • 21. Kristien Booth-Glen. “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond.” Columbia Human Rights Law Review 44 (2012): 93-169.
    • 22. Michelle Browning, Christine Bigby, and Jacinta Douglas. “Supported Decision Making: Understanding how Its Conceptual Link to Legal Capacity Is Influencing the Development of Practice.” Research and Practice in Intellectual and Developmental Disabilities 1 (2014): 34-45.
    • 23. Essex Autonomy Project. “Achieving CRPD Compliance.” 22 September 2014. Available online: http://autonomy.essex.ac.uk/uncrpd-report (accessed on 16 June 2015).
    • 24. For instance from the Court's first reference to the CRPD in Glor v Switzerland (13444/04), judgment (30 April 2009) through to, more recently, MS v Croatia (No.2) (75450/12) (2015) ECHR 196.
    • 25. Bensaid v United Kingdom (44599/98) (2001) 33 EHRR 10.
    • 26. Ivinovic v Croatia (13006/13) (2014) ECHR 964.
    • 27. Lashin v Russia (33117/02) (2013) ECHR 63.
    • 28. Salontaji-Drobnjak v Serbia (36500/05) (2009) ECHR 1526.
    • 29. X and Y v Croatia (5193/09) (2011) ECHR 1835.
    • 30. MS v Croatia (36337/10) (2013) ECHR 378.
    • 31. Stanev v Bulgaria (36760/06) (2012) ECHR 46.
    • 32. Kedzior v Poland (45026/07) (2012) ECHR 1809.
    • 33. Kiss v Hungary (38832/06) (2010) ECHR 692.
    • 34. Article 8(2): “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
    • 35. Jennifer Fischer. “A Comparative Look at the Right to Refuse Treatment for Involuntarily Hospitalised Persons with Mental Illness.” Hastings International and Comparative Law Review 89 (2006): 153-75.
    • 36. Scottish Law Commission. “Incapable Adults” Scot Law Com No.151. Edinburgh: Scottish Law Commission, 1995.
    • 37. Scottish Executive. New Directions: Review of the Mental Health (Scotland) Act 1984, SE/2001/56. Edinburgh: Scottish Executive, 2001.
    • 38. Margaret L. Ross. “The Adults with Incapacity (Scotland) Act 2000: A Long and Winding Road.” Edinburgh Law Review 7 (2003): 226-33.
    • 39. Where an individual is subject to compulsory measures ss250-258 of the Mental Health Act provide for a Named person to be nominated or appointed to represent the individual's interests in proceedings before the Mental Health Tribunal for Scotland. Whilst they may in practice provide a form of support for the individual crucially the Named Person acts independently from the individual and is not obliged to present the individual's wishes and preferences. See Scottish Government. “Mental Health (Care and Treatment) (Scotland) Act 2003: Code of Practice Vol 1.” Available online: http://www.gov.scot/Publications/2005/08/29100428/04289 (accessed on 17 June 2015).
    • 40. The General Comment notes the broad and varied nature of “support” which may be formal or informal and the type and degree required will depend on the circumstances at any given time. It may include, for instance, a trusted person or person, peer support, advocacy (including self-advocacy), assistance with communication, provision of clear and accessible information, and advance planning. But, in what ways can this assist in the exercise of legal capacity? (para. 17).
    • 41. For a detailed discussion of this issue see (1) Scottish Law Commission (A) Discussion Paper on Adults with Incapacity, Discussion Paper No. 156, Edinburgh: The Stationery Office (2012); and (B) Report on Adults with Incapacity, Report No. 240, Edinburgh: The Stationery Office (2014). See also Jill Stavert. “Deprivation of liberty (Article 5 ECHR) update: Stankov v Bulgaria (Application no. 25820/07) judgment of 17 March 2015, European Court of Human Rights, and implications for Scotland.” Mental Capacity Law Newsletter 55 (2015): 2-4.
    • 42. Scottish Government. “Adults with Incapacity (Scotland) Act 2000. Code of Practice for Continuing and Welfare Attorneys.” 2011. Available online: http://www.gov.scot/Resource/Doc/347702/ 0115819.pdf (accessed on 16 June 2015).
    • 43. Law Society of Scotland. Vulnerable Client Guidance. Edinburgh: Law Society of Scotland, 2013.
    • 44. Anthony Wrigley. “Personal Identity, Autonomy and Advance Statements.” Journal of Applied Philosophy 24 (2007): 381-96.
    • 45. Jill Stavert. “Added Value: Using Human Rights to Support Psychiatric Advance Statements.” Edinburgh Law Review 17 (2013): 210-223.
    • 46. Fiona Morrissey. “Advance directives in mental health care: Hearing the voice of the mentally ill.” Medico-Legal Journal of Ireland 16 (2010): 21-33.
    • 47. Jacqueline M. Atkinson. Advance Directives in Mental Health: Theory, Practice and Ethics. London: Jessica King, 2007.
    • 48. Re T (Adult: Refusal of Treatment) [1993] Fam 95 at para 103 per Lord Donaldson MR; Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290; Airedale NHS Trust v Bland [1993] AC 789.
    • 49. Re T at para 116 per Lord Donaldson MR; Case of Jehovah's Witnesses of Moscow and others v Russia (2010) 53 EHRR 141 at paras. 136-37.
    • 50. Mental Welfare Commission for Scotland. Short-Term Detention. Edinburgh: Mental Welfare Commission for Scotland, 2010.
    • 51. Julie Ridley, Ann Rosengard, Susan Hunter, and Simon Little. Experiences of the Early Implementation of the Mental Health (Care and Treatment) (Scotland) Act 2003: A Cohort Study. Edinburgh: Scottish Government, 2009. Available online: http://www.gov.scot/Resource/Doc/271836/0081033.pdf (Accessed on 16 June 2015)/
    • 52. For the most recent statistics on advance statements overridden under the 2003 Act see Mental Welfare Commission for Scotland. “Mental Health Act Monitoring 2013/2014.” 2014. Available online: http://www.mwcscot.org.uk/media/203499/mha_monitoring_2013_2014__3__final.pdf (accessed on 16 June 2015).
    • 53. Shih-Ning Then, Hilary Patrick, and Nicola Smith. “Reinforcing guardianship regimes through assisted decision making-A Scottish perspective.” Juridical Review 4 (2014): 263-76.
    • 54. Scottish Government. Mental Health (Care and Treatment) (Scotland) Act 2003; Act Code of Practice. Edinburgh: Scottish Government, 2005, vol. 1.
    • 55. Scottish Independent Advocacy Alliance. Principles and Standards for Independent Advocacy. Edinburgh: Scottish Independent Advocacy Alliance, 2008.
    • 56. Mental Welfare Commission for Scotland. Working with Independent Advocates-Good Practice Guidance for Working with Independent Advocates. Edinburgh: Mental Welfare Commission for Scotland, 2009.
    • 57. Scottish Government. Independent Advocacy-Guide for Commissioners. Edinburgh: Scottish Government, 2013.
    • 58. Scottish Independent Advocacy Alliance. Response to Call for Evidence on Mental Health (Scotland) Bill to Scottish Parliament Health and Sport Committee, MHB030. Edinburgh: Scottish Independent Advocacy Alliance, 2014.
    • 59. Mental Welfare Commission for Scotland. Response to Call for Evidence on Mental Health (Scotland) Bill to Scottish Parliament Health and Sport Committee, MHB048. Edinburgh: Mental Welfare Commission for Scotland, 2014.
    • 60. Committee on the Rights of Persons with Disabilities. Statement on Article 14 of the Convention on the Rights of Persons with Disabilities. Geneva: United Nations, 2014. Available online: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E (accessed on 16 June 2015).
    • 61. This is despite the fact that there may not be agreement on the issue between United Nations human rights committees themselves. See Human Rights Committee. “General Comment No. 35: Article 9 (Liberty and Security of Person) International Covenant on Civil and Political Rights, CCPR/C/GC/35.” 16 December 2014. Available online: http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/G14/244/51/PDF/G1424451.pdf?OpenElement (accessed on 16 June 2015).
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