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

Centre for Mental Health and Capacity Law, School of Health and Social Care, Edinburgh Napier University, Edinburgh EH11 4BN, UK
Received: 4 April 2018 / Revised: 15 June 2018 / Accepted: 18 June 2018 / Published: 29 June 2018
(This article belongs to the Special Issue Concerns, Contradictions and Reality of Mental Health Law)
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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. View Full-Text
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 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
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. (CC BY 4.0).
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Stavert, J. Paradigm Shift or Paradigm Paralysis? National Mental Health and Capacity Law and Implementing the CRPD in Scotland. Laws 2018, 7, 26.

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