We live in interesting times: changing models, mental health and (in)capacity law in Scotland

When enacted at the start of this century, Scotland’s mental health and capacity legislation was regarded as world leading in its principled and rights-based approach to interventions concerning persons with a mental disorder. Such laws reinforced respect for an individual’s autonomy in requiring that non-consensual interventions only occur as a last resort (providing a benefit that is not otherwise achievable) and that capacity be understood as being decision-specific and not as an ‘all or nothing’ concept. Moreover, the ascertainable wishes and feelings of the person must be included in all decisions concerning them.

Fast forward to 2017 and the Mental Welfare Commission for Scotland and Centre for Mental Health and Capacity Law (Edinburgh Napier University) report Scotland’s Mental Health and Capacity Law: the Case for Reform. This notes continuing widespread support for the principles of the Adults with Incapacity (Scotland) Act 2000 and Mental Health (Care and Treatment) (Scotland) Act 2003 Act. However, it also notes that individuals may still remain disempowered and unable effectively to assert their rights, and that the objectives of the principles may have been undermined by resourcing constraints. Moreover, amongst others, the report recommends that:

‘There should be a long-term programme of law reform, covering all forms of non-consensual decision making affecting people with mental disorders. This should work towards a coherent and non-discriminatory legislative framework which reflects [United Nations Convention on the Rights of Persons with Disabilities] UNCRPD and [European Convention on Human Rights] ECHR requirements and gives effect to the rights, will and preferences of the individual. Further, in accordance with Article 4(3) UNCRPD, persons with lived experience of mental disorder must be actively consulted in any reform process.’

So, how did we get here? Well, there were the inevitable operational issues that only become apparent once there has been an opportunity to implement the legislation over a period of time. However, what we are also seeing is an increasing shift – a paradigm shift – in the approach to human rights enjoyment of persons with mental disabilities. This is being largely driven by the UNCRPD.

ECHR case law has continued to reinforce the fact that the rights and autonomy of persons with cognitive, intellectual and psychosocial disabilities must be strenuously respected. This relates to involuntary limitations of their private and family life through, for example, psychiatric treatment and guardianship. It is also reflected in the 2004 Bournewood and 2014 Cheshire West rulings which make it very clear that persons without capacity to consent to a deprivation of their liberty are entitled to the same legal and procedural safeguards as anyone who faces, or is in, detention. However, we need to be clear that ECHR jurisprudence accepts that, subject to strict safeguards, non-consensual actions relating to persons with mental disorder are inevitable and can be justified on the basis of a diagnosis of mental disorder and assessment of mental incapacity.

The UNCRPD, on the other hand, does not accept such inevitability and requires that this does not continue. The impetus for the treaty was that previous human rights models were not working for persons with disabilities, including those with mental disabilities, in that they perpetuate inequality and discrimination. Such models have tended to merely set out the limits of non-consensual intervention reflecting the need to ‘treat’ rather than empower persons with disabilities. They have allowed different levels of human rights enjoyment provided this can be objectively and reasonably justified. Such justification has been all too easy to achieve in the case of persons with mental disabilities where misconceptions about decision-making ability, risk and individual capabilities may prevail.

The UNCRPD therefore requires that states actively remove obstacles to equal rights enjoyment. Essentially, it requires that the focus is primarily on providing the necessary support (including support for decision-making) so that persons with mental disabilities can achieve their full potential, including genuinely reflecting their wishes in all decisions concerning them. Non-consensual interventions will very much take a back seat. Moreover, whether in relation to providing this support or deciding whether interventions are required, the UNCRPD challenges us to ask ourselves some uncomfortable questions about what we really mean by equal and non-discriminatory enjoyment of human rights. In particular, we need to seriously consider whether we would suggest or take the same action if the same facts existed where the person concerned did not have a diagnosis of mental disorder!

UNCRPD rights are not legally enforceable in the same way as ECHR rights are within Scotland. The latter (and their related case law) is still probably likely to have greater purchase given the requirements in the Scotland Act 1998 and Human Rights Act 1998 to give effect to them. However, the UNCRPD is highly influential. Proposed devolved legislation and policy in Scotland can be prevented for non-compliance with the UK’s obligations under international law which includes those, as a state party, to give effect to UNCRPD rights. This – and arguably because it is also the right thing to do – is recognised in the Scottish Government’s 2016 UNCRPD Delivery Plan in which it gives a commitment to give effect to the rights identified in the treaty. It is also recognised amongst its current proposals for reform of the Adults with Incapacity (Scotland) Act in terms of clarifying and reinforcing support for the exercise of legal capacity and, alongside this, revisiting how mental capacity assessments are made and working on a supported decision-making strategy.

How this pans out, whether there will also be significant changes to Scottish mental health legislation or whether better and more equal human rights enjoyment can be achieved by legislation which unifies mental health and capacity law, similar to that recently enacted in Northern Ireland, remains to be seen. Moreover, the culture shift which the UNCRPD requires cannot be achieved by legislative change alone or overnight. It requires an accompanying widescale alteration in policy, practice, societal attitudes and resource allocation. However, a fundamental change to mental health and capacity law, policy and practice will ultimately be inescapable. We live in very interesting times.

Professor Jill Stavert
Law Professor and Director of the Centre for Mental Health and Capacity Law
Edinburgh Napier University

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