The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges
2. United Nations Convention on the Rights of Persons with Disability
2.1. Article 12 CRPD—The Right to Equal Recognition before the Law
“the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.”
2.2. General Comment No. 1 (2014) Article 12: Equal Recognition before the Law
“The concept of mental capacity is highly controversial in and of itself. Mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.”(, para. 14)
“…where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based on the person’s own will and preferences”(, para. 27)
3. Supported Decision-Making: Within or without a Framework?
“Fundamentally, there are two choices before humankind. One recognizes that all persons have legal capacity and the other contends that legal capacity is not a universal human attribute.”(, p. 457)
A More Holistic Approach to the Exercise of Legal Capacity?
“A supported decision-making regime comprises various support options which give primacy to a person’s will and preferences and respect human rights norms. It should provide protection for all rights, including those related to autonomy (right to legal capacity, right to equal recognition before the law, right to choose where to live, etc.) and rights related to freedom from abuse and ill-treatment (right to life, right to physical integrity, etc.).”
4. Scotland: Policy, Legislation and Practice
4.1. Scotland’s Human Rights Framework
4.2. The European Convention on Human Rights and Respect for Legal Capacity
5. Scottish Mental Health and Incapacity Legislation
The Adults with Incapacity and Mental Health Acts and Underlying Principles
6. Supported Decision-Making in Scotland: If not Full Article 12 CRPD Compliance then Promoting Respect Will and Preferences and Human Rights?
6.1. Advance Planning: Powers of Attorney and Advance Statements
6.1.1. Powers of Attorney (AWIA)
6.1.2. Advance Statements (MHA)
6.2. Independent Advocacy
7. Conclusions: An Opportunity Presented
Conflicts of Interest
References and Notes
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- Bensaid v United Kingdom (44599/98) (2001) 33 EHRR 10.
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- 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”.
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- 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).
- 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.
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- 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).
- 1Human Rights Act 1998, s6.
- 2Human Rights Act 1998, s2.
- 3Scotland Act 1998, ss29(1)(d) and 57.
- 4Scotland Act 1998, ss35 and 58.
- 5AWIA, s1(6).
- 6MHA, ss36(4)(a), 44(4)(a) and 64(5)(a).
- 7AWIA, s1(3); MHA, s1(4)(c).
- 8AWIA, s1(2).
- 9AWIA, 1(4); MHA, ss1(3)(c)–(d).
- 10MHA, s64(5)(b).
- 11MHA, ss1(g)–(h).
- 12AWIA, ss15 and 16.
- 13AWIA, s47.
- 14MHA, s242.
- 15AWIA, s50.
- 16AWIA,ss15(3)(ba) and 16(3)(ba).
- 17AWIA, ss15(3)(c)(iii) and 16(3)(c)(iii).
- 18AWIA, s1.
- 19Mental Capacity Act 2005, ss24–26.
- 20MHA, ss275–276.
- 21MHA, s275(2)(a).
- 22MHA, s276.
- 23MHA, s275(1).
- 24MHA, ss276(1) and (3).
- 25MHA, s276.
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Stavert, J. The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges. Laws 2015, 4, 296-313. https://doi.org/10.3390/laws4020296
Stavert J. The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges. Laws. 2015; 4(2):296-313. https://doi.org/10.3390/laws4020296Chicago/Turabian Style
Stavert, Jill. 2015. "The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges" Laws 4, no. 2: 296-313. https://doi.org/10.3390/laws4020296