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Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?
Open AccessArticle

The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation: Working with CRPD Challenges

Centre for Mental Health and Incapacity Law, Rights and Policy, The Business School, Edinburgh Napier University, Edinburgh EH14 1DJ, Scotland
Academic Editors: Kelly Purser and Shih-Ning Then
Laws 2015, 4(2), 296-313; https://doi.org/10.3390/laws4020296
Received: 29 April 2015 / Revised: 2 June 2015 / Accepted: 9 June 2015 / Published: 18 June 2015
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. View Full-Text
Keywords: Article 12 CRPD; exercise of legal capacity; supported decision-making; will and preferences; human rights; Scottish legislation Article 12 CRPD; exercise of legal capacity; supported decision-making; will and preferences; human rights; Scottish legislation
MDPI and ACS Style

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.

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