Scotland, the Convention on the Rights of Persons with Disabilities and repurposing of mental health and capacity law

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

1. INTRODUCTION

The UN Convention on the Rights of Persons with Disabilities (CRPD)¹ brought into sharp relief the fact that even so-called rights-based mental health and capacity legislation which authorizes and regulates the use of non-consensual interventions is problematic. By justifying such interventions on the basis of a diagnosis or related mental incapacity it may actually cause or perpetuate stigma and discrimination, and legitimize rights violations, against persons with mental disabilities (psychosocial, cognitive, and intellectual).² This represents a significant departure from previous international human rights treaties which, subject to safeguards, have accepted the existence of such laws.

The CRPD proposes that such discrimination and rights violations will be avoided through ensuring equality of rights enjoyment for persons with disabilities and that, again contrary to the traditional approaches of human rights treaties, the comparator must be all people, with or without disabilities. It accepts that equal enjoyment of rights may not automatically happen for persons with disabilities and may therefore require support to be achieved, such as supported decision-making, reasonable accommodation, and universal design. Moreover, the CRPD recognizes that equality spans across all categories of rights, providing a clear illustration of the interrelatedness and interdependence of civil, political, economic, social, and cultural rights and how a recognition of this is essential to the living of an autonomous and fulfilled life.

Ratification or accession to the CRPD requires state parties to give effect to the rights it identifies so that persons with mental disabilities are able to live life on an equal basis with others. However, despite initiatives such as the World Health Organisation’s 2023 Mental Health, Human Rights and Legislation guidance,³ implementing CRPD rights presents several challenges for state parties in terms of significant changes in approaches to persons with disabilities. A particular challenge is that of ensuring equal autonomy for persons with mental disabilities and bridging the gap between the CRPD itself and its realization in law and related practice. An important element of this is giving effect to equality in the exercise of legal capacity as required by Article 12. Indeed, the ability to exercise legal capacity and the right to liberty determine the extent to which an individual can fully exercise their other rights.⁴ The Committee on the Rights of Persons with Disabilities (CRPD Committee) in its General Comment No.1⁵ and 2014 Statement on Article 14⁶ interpret this as requiring the abolition of non-consensual interventions premised on a diagnosis of mental disability or mental incapacity assessment, and their replacement with supported decision-making. If this, or at the very least a significant reduction in coercive practices is to be achieved, access to suitable alternatives to non-consensual interventions is also required. This, in turn, is largely dependent on the whole range of a person’s rights, including economic, social, and cultural rights, being sufficiently realized.

Whilst the interdependence and indivisibility of civil, political, economic, social, and cultural rights have increasingly been accepted in human rights discourse,⁷ the CRPD has made it clear that this is an essential component of realization of rights for persons with disabilities.⁸ However, the actual realization of economic, social, and cultural rights, particularly in relation to their national legal enforceability and redress for violation, is problematic. An illustration of this can be seen in the Committee on Economic Social and Cultural Rights’ specific reference to the absence of justiciable economic, social, and cultural rights and avenues for redress within the UK both in its 2009 and 2016 Concluding Observations on the UK’s fifth and sixth periodic reports to the committee.⁹ These were all challenges faced by the recent Scottish Mental Health Law Review.¹⁰ This was a comprehensive human rights led review of mental health, capacity and adult support and protection law in Scotland between 2019 and 2022, making over 200 wide-ranging recommendations. Many of these were directed at greater CRPD alignment and went beyond regulating the use of non-consensual interventions for persons with mental disabilities.

In this article, we will focus on giving effect to the CRPD requirements relating to the exercise of legal capacity and elimination of non-consensual measures justified by diagnosis and/or mental incapacity, and to economic, social, and cultural rights. We will examine the relevant academic literature and CRPD Committee direction on these issues and how the Scott Review’s recommendations sit in relation to these and to other jurisdictions that have recently undergone human rights-led mental health and capacity law reviews. We suggest that the Scott Review’s recommendations offer an approach on how to address the more contentious elements of the CRPD, whilst still offering a means by which laws may be progressively developed with full CRPD implementation as the ultimate outcome.

To fully appreciate and give effect to the CRPD’s approach to rights enjoyment by people with mental disabilities it is essential, however, to first understand its equality and non-discrimination message¹¹ because this is its ‘central purpose’.¹²

2. THE CRPD

2.1. Equality and non-discrimination

The CRPD reconceptualises approaches to the enjoyment of human rights by persons with disabilities¹³ and requires this to be effected across law, policy, and practice.¹⁴ It recasts and extends existing rights in the context of persons with disabilities, its creation being motivated by the realization that traditional human rights approaches were not securing the equal and non-discriminatory enjoyment of rights for this group.¹⁵ Supporters of the CRPD have argued that traditional human rights approaches medicalise disability¹⁶ and mainly or only focus on civil rights governing the setting of parameters for protection and intervention. Article 5 therefore states that persons with disabilities are entitled to enjoy life, with all the underpinning rights, on an equal basis with others. Article 1 highlights the CRPD’s move away from diagnosis as a justification for rights limitations to overcoming barriers to equality of rights enjoyment in that it describes persons with disabilities as follows:

‘Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments that, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.’

This approach eschews the notion that limitation of the rights of individuals with certain characteristics is permitted, provided that objective and reasonable justification can be shown.¹⁷ By reinforcing its interpretation of equality and non-discrimination and integrating civil, political, social, and economic rights, the CRPD prohibits different levels of enjoyment of any and all rights based on disability.¹⁸ Barriers to equality are to be overcome by creating conducive environments and access to an appropriate support (eg supported decision-making, universal design, and reasonable accommodation¹⁹) allowing for an equal opportunity to participate in society on an equal basis with others. This significantly challenges entrenched attitudes and resourcing around mental health and capacity laws, which merely regulate non-consensual interventions and do little, or nothing, to support the avoidance of coercive practices and promote independent living.

2.2. The exercise of legal capacity and eliminating non-consensual interventions (coercion)

The CRPD asserts that equality before the law is essential to the exercise of other rights and that the ability to exercise legal capacity is integral to this.²⁰ The fundamental importance of its equality message for the exercise of legal capacity is illustrated by the fact that Article 12 was the first to be interpreted by the CRPD Committee in its General Comment No. 1. The Committee was concerned about bias surrounding the diagnosis of mental disability and related incapacity assessments and the use of these to justify substitute decision-making, resulting in disproportionate restrictions on the exercise of legal capacity. In order to ensure that the will and preferences of persons with disabilities are respected on an equal basis with others, it, therefore, demands that laws authorizing non-consensual interventions be abolished and replaced by supported decision-making.²¹

The CRPD Committee sets out a broad framework in its General Comment No. 1 within which support for the exercise of legal capacity, or ‘supported decision-making’, must operate if it is to achieve its objective. This framework includes an absence of diagnosis, mental incapacity assessment, undue influence, and conflict of interest,²² as well as the absence of proxy, or substitute, decision-making regimes such as guardianship and laws permitting non-consensual psychiatric treatment.²³ The CRPD’s requirements regarding the exercise of legal capacity, liberty²⁴ and reducing coercive practices, particularly as interpreted by the CRPD Committee, have been met by mixed responses. Many find its provisions laudable and essential.²⁵ Others, however, have expressed disquiet over how these will ensure that individuals receive appropriate support and deal with risks of harm to the person and others.²⁶ Even the relevant UN treaty bodies, whilst all expressing concern over the inappropriate use of non-consensual measures, are not of one voice on the issue of the abolition of such measures.²⁷ Moreover, the European Court of Human Rights continues to accept coercive measures, subject to safeguards, as an acceptable limitation of Articles 3, 5, and 8 of ECHR rights.²⁸ This has arguably led to a distraction and thus a hindrance in progressing the implementation of the CRPD at the national level.²⁹

That being said, an emerging approach towards CRPD implementation is developing that recognizes the enormity of the task faced in bringing about the necessary reconceptualised structures and attitudes to give full effect to the treaty. This aspires to full CRPD implementation, including the ultimate abolition of coercion, over a period of time through a process of radically adapting existing structures as opposed to completely dismantling them immediately. The former UN Special Rapporteur on the Right to Health, Professor Dainius Puras, advocated this in his 2017 statement that there must be a clear ‘roadmap’ to eliminating coercive practices accompanied by measurable outcomes for its reduction along the way and the provision of alternatives.³⁰ The need to reduce coercion and provide alternatives has been echoed by the World Health Organization and the World Psychiatric Association.³¹ The Scott Review adopted a similar approach, as will be discussed later.

2.3. Economic, social, and cultural rights

It has been recognized for some years that the CRPD ‘opens mental disability law to a wide variety of new fields involving social inclusion, including rights relating to employment, housing, community inclusion, and education’.³² Yet law reform reflecting this has been slow to arrive. Reflecting the intention that the CRPD should articulate how existing universal rights should be secured for people with disabilities, the Convention sets out a set of civil and political rights deriving from the International Covenant on Civil and Political Rights³³ (such as life, liberty and freedom from torture) followed by economic, social and cultural rights drawn from the International Covenant on Economic Social and Cultural Rights (ICESCR)³⁴ (such as health, education, housing, and social protection) with Article 4(2) making it clear that economic, social and cultural rights are subject to progressive realization.

However, the CRPD is more radical than this might initially suggest. Its approach to substantive equality arguably makes some economic, social, and cultural rights subject to immediate realization, and creates positive state obligations for what were traditionally ‘negative’ or non-interference rights. Furthermore, the framing of some of the rights includes new, disability-specific provisions, and some articles combine civil and political and economic, social and cultural rights,³⁵ although some commentators have suggested that the CRPD Committee ‘sometimes oversteps the mark’ on progressive versus immediate implementation.³⁶

Article 19, on living independently and being included in the community has been described by the Committee as ‘one of the widest ranging and most intersectional articles of the Convention and … integral to the full implementation of the Convention.’³⁷ It is of particular importance in the context of capacity law (which is frequently invoked to authorize placements in residential care) and mental health law (authorizing detention), with the Committee making it clear that Article 19 is closely linked to Article 12 on legal capacity and the ‘absolute prohibition of detention on the basis of disability as enshrined in Article 14’.³⁸ The Committee has designated Article 19 (a) (the right to choose where you live) as a civil and political right subject to immediate realization, whereas Articles 19 (b) and (c) (the rights to support and facilities to support community living) are economic, social and cultural rights subject to progressive realization.³⁹ At the same time, however, it has also said that ‘support to enable living independently in the community shall be enforceable as a right and an entitlement.’⁴⁰

A challenge for law reform, then, is to untangle what has been brought together, so that law can set out immediately realizable rights and obligations alongside duties subject to more progressive realization, and to establish how far these obligations can be enforced through judicial processes.

2.4. Accountability

The CRPD contains important provisions regarding the accountability framework for human rights. Article 4(3) requires that people with disabilities should be actively involved, through their representative organizations, in the development and implementation of legislation and policies to implement the Convention. Article 16(3) obliges States Parties to ensure that facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. Article 33(2) obliges States Parties to maintain a framework to promote, protect, and monitor implementation of the Convention, with civil society, in particular persons with disabilities and their respective organizations, fully involved in the process. General Comment No. 7 sets out the CRPD Committee’s expectations regarding the participation of people with disabilities in the monitoring of the Convention.⁴¹

In relation to economic, social and cultural rights, the Committee on Economic, Social and Cultural Rights (CESCR) has stated that:

‘the Covenant norms must be recognised in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.’⁴²

3. THE CHALLENGES OF IMPLEMENTING THE CRPD AND THE RESPONSE OF OTHER JURISDICTIONS

3.1. Why is this so hard?

The difficulties of implementing the CRPD, particularly as interpreted by the CRPD Committee, should not be understood purely as a reactionary refusal to abandon an outdated paradigm or a technical exercise in replacing old laws with new better ones. There are profound challenges, reflecting the way the Convention developed and has been interpreted. The CRPD has been repeatedly referred to as a new paradigm.⁴³ However, it has been pointed out by critics that, in Kuhn’s concept of a paradigm shift, the final state of the new paradigm cannot be known until a new theory achieves legitimacy as an explanatory tool.⁴⁴ The fact that the Convention does not address in detail issues such as non-voluntary medical treatment, precisely because no consensus could be reached during drafting,⁴⁵ arguably suggests that the paradigm shift was not complete when the Convention was agreed, and may still be contested.

As we have set out, the CRPD Committee has interpreted the Convention to mean that traditional approaches to mental health and capacity law are non-compliant, on the basis that they discriminate on the basis of disability. It has not chosen to set out in any detail how new laws should operate, leaving that for states to determine. This is legitimate, but the task of practical law and policymaking may be seen as operating according to a different set of constraints than those inherent in setting out a desired theoretical end state. A comparison may be made with the Amartya Sen’s approach to a framework for justice⁴⁶ where, instead of a transcendental notion of a perfectly just society, he argues for a focus on the comparative question of how justice can be advanced, choosing between alternatives which are feasible in the time or place. In the context of CRPD realization, this means determining how, and how quickly, to transform traditional models of care that does not deliver on the Convention’s aspirations and also on what tactics to use.

One of the tactical choices is whether people with mental or intellectual disabilities need more law to protect them or less law to liberate them. Mental health law and policy have historically oscillated between ‘legalism’ and informality, each of which has strengths and weaknesses.⁴⁷ The CRPD has been seen as transcending this by its focus on substantive equality and call to remove discriminatory legislation.⁴⁸ But it is still necessary to establish ‘appropriate and effective safeguards’.⁴⁹ For example, as Lucy Series writes, there is a tension in ‘liberty tactics’ between reform and abolition of coercive practices.⁵⁰ The success of the former approach depends on there being meaningful and realizable economic, social, and cultural rights so that real alternatives exist to coercive institutions or practices. Otherwise, regulation of coercion may merely legitimize human rights abuses. The abolitionist approach also faces challenges. People with complex and severe impairments may sometimes need to be restricted for their and others safety, and the situations where that occurs are much wider than the classic ‘detention’ of a locked psychiatric ward. The UK Supreme Court Cheshire West⁵¹ ruling sought to provide stronger protection for disabled people by stating that apparent ‘happiness’ does not equate with consent, meaning that thousands of people are judged to have been deprived of their liberty, requiring a lawful process for this to be authorized.

The abolitionist approach would of course seek to incorporate the person’s subjective experience in considerations of whether their will and preference has been respected. This arguably would mean that some of the people caught by the ‘acid test’ of Cheshire West could be viewed as having lawfully assented to a deprivation of their liberty. But without a legal framework, the judgement as to whether the person has assented would fall to be interpreted by those who provide care, arguably leaving the disabled person without important safeguards.

As we set out above, another major challenge is the way in which the CRPD merges civil and political rights subject to immediate realization, and economic social, and cultural rights, which may not be immediately realizable. Similarly, the concept of ‘reasonable accommodation’ is an important aspect of substantive equality which is inevitably subject to constraints of what is practically feasible in a particular time and place. But the CRPD Committee arguably confuses this, in that it has stated that the right in Article 12 is subject to immediate realization and that progressive realization does not apply, but then refers to taking ‘deliberate and well planned’ steps towards its realization.⁵²

Finally, given the importance the Convention places on consultation with disabled people in the development and implementation of all laws and policies that affect them,⁵³ CRPD compliance can be complicated if disabled people themselves disagree over whether involuntary care and treatment should be abolished, or a majority agree that it may sometimes be necessary, including in their own case. This presents an implementation dilemma for legislators and policymakers.

3.2. How other jurisdictions have responded?

Law reform initiatives have responded in different ways to these challenges. Peru was one of the first countries to address CRPD alignment in its enactment of the General Law on Persons with Disability (No. 29973) in December 2012 with accompanying regulations being enacted in April 2014. In September 2018, its government published Legislative Decree No. 1384 which recognizes and regulates the exercise of legal capacity for persons with disabilities on an equal basis with others. Despite the CRPD Committee responding positively to the Peruvian initiatives towards CRPD alignment⁵⁴ its most recent concluding observations on period reports submitted by Peru notes with concern, in relation to Article 12, that Legislative Decree No. 1384 has not been enforced,⁵⁵ and, in relation to Article 14, that:

‘Persons with intellectual and psychosocial disabilities continue to be deprived of their liberty in public and private psychiatric institutions and that such institutions are not subject to sufficient oversight and monitoring;’⁵⁶

In England and Wales, the Independent Review of the Mental Health Act simply affirmed that it did not agree with the Committee’s interpretation of the Convention and would not follow it, whilst arguing that there was much common ground in seeking a cultural and legislative shift to reduce the need for coercion.⁵⁷

Northern Ireland brought together mental health and capacity law in a single legal framework, and sought to reduce the emphasis on medical diagnoses in determining outcomes.⁵⁸ However it focused on incapacity as a criterion for intervention, in a manner which is difficult to reconcile with the Committee’s approach. Ireland implemented legislation to give statutory recognition to support for decision-making,⁵⁹ but has entered reservations to Articles 12 and 14 of the CRPD in respect of compulsory care. Other jurisdictions have sought to read down the Convention in a way which did not require all forms of involuntary care and treatment to be ended. The German Federal Constitutional Court ‘has “not inferred from Article 12 of the CRPD a fundamental prohibition of measures which are carried out against the natural will of disabled persons and which are linked to a limited capacity for self-determination due to illness”’.⁶⁰

India has made one of the most comprehensive attempts to implement the CRPD in mental health law.⁶¹ The Mental Healthcare Act 2017 states in its preamble that it is necessary in order to harmonize and aligns India’s mental health laws with the Convention. It draws on the economic, social, and cultural rights enumerated in the Convention, setting out a right to access mental healthcare which reflects the availability, accessibility, acceptability, and quality (AAAQ) Framework⁶² in its drafting,⁶³ as well as a right of independent living.⁶⁴ It avoids using terms such as ‘detention’ or ‘compulsory treatment’, replacing these with the concept of ‘supported admission’, one of the criteria for which is that the person ‘cannot make mental healthcare and treatment decisions independently and needs very high support from his nominated representative, in making decisions.’⁶⁵

Victoria in Australia has reformed its mental health legislation twice since Australia ratified the CRPD in 2008, the most recent reform being the enactment of its Mental Health and Wellbeing Act 2022 (Vic) following the 2021 recommendation of the Royal Commission into Victoria’s Mental Health System.⁶⁶ The Act came into force on 1 September 2023 replacing Victoria’s Mental Health Act 2014 with strengthened legislative principles to promote and better protect human rights, in particular in relation to supporting the dignity, autonomy and care, treatment and support choices of people with mental illness or psychological distress, inclusion and decision-making. It does not introduce decision-making capacity as a criterion for non-consensual interventions—and it should be noted that the Australian Government has interpreted the CRPD as allowing such measures irrespective of a person’s capacity⁶⁷—and does not abolish coercion, meaning that people with capacity may be treated against their will. It remains to be seen whether or not this achieves more effective CRPD realization⁶⁸ although initial responses have not been entirely positive concerning this,⁶⁹ and much will lie with how the operation of the legislation is monitored and regulated.⁷⁰

The Scottish Mental Health Law Review sought to respond positively to the CRPD. It drew on some of the approaches adopted in other jurisdictions, but was distinctive in its breadth and scope. Like India, it adopted a broad approach towards seeking to implement the full range of rights set out in the CRPD, but went further in its proposals for accountability and redress. Like Northern Ireland, it incorporated both capacity law and mental health law in its reform framework, but it went beyond traditional concepts of (in)capacity. It straddled (not always comfortably) the reform/revolution divide, recommending short-term pragmatic reforms whilst articulating a journey towards a long-term vision of comprehensive transformation. It proposed retaining principles of least restrictive intervention and that legal orders should not be imposed unless shown to be necessary, but maintained a significant degree of legal oversight of interventions.

4. THE SCOTTISH MENTAL HEALTH LAW REVIEW: CRPD REMIT AND CHALLENGES

In May 2019, the Scottish Government established a comprehensive review of Scottish mental health, incapacity, and adult support and protection legislation, the Adults with Incapacity (Scotland) Act 2000, Mental Health (Care and Treatment) (Scotland) Act 2003, and Adult Support and Protection (Scotland) Act 2007. Its Terms of Reference⁷¹ reflected a focus on human rights, including stating that the review should:

‘make recommendations that give effect to the rights, will and preferences of the individual, [a phrase lifted from Article 12 of the CRPD] ensuring that … legislation reflects people’s social, economic and cultural rights, including the requirements of the UNCRPD and the European Convention on Human Rights.’

The Review adopted a human rights-based approach to its work. It drew on the PANEL principles (Participation, Accountability, Non-discrimination, Empowerment, and Legality).⁷² It was also mindful of the requirement of Article 4(3) of the CRPD and General Comment No. 7,⁷³ that, in developing legislation to implement the Convention it must actively involve people with lived experience of mental disability and representative organizations. Half of the executive team overseeing the Review had lived experience, and it engaged widely with individuals with lived experience and their organizations.

The inclusion of the CRPD was a recognition of the growing influence of this treaty in Scotland. Indeed, during the course of the review, the Scottish Government committed⁷⁴ to the incorporation of a range of international human rights instruments into its devolved domestic law, including the CRPD and the ICESCR. A consultation on the nature and content of the resultant legislation took place in 2023⁷⁵ and the introduction of a Bill into the Scottish Parliament is currently awaited, although it was omitted from the Government’s 2024–25 legislative programme.⁷⁶

4.1. Scottish legislation and CRPD challenges

4.1.1. The focus and extent of mental health and capacity law

Whilst Scottish mental health and capacity legislation both contain ECHR-informed principles and criteria governing non-consensual interventions, reflecting the UK and Scottish human rights landscape at the time of enactment,⁷⁷ this legislation is problematic in CRPD terms. This is particularly evident in its focus on authorizing and regulating non-consensual interventions, and doing so on the basis of diagnosis and mental incapacity assessments, thus singling out people with mental disabilities for unequal treatment relative to others. The Mental Health (Care and Treatment) (Scotland) Act 2003, which authorizes and regulates the use of psychiatric care and treatment, includes in its criteria for compulsory treatment that a person has a ‘mental disorder’⁷⁸ and ‘significantly impaired decision-making ability’ because of that mental disorder about their care and treatment.⁷⁹ The Adults with Incapacity (Scotland) Act 2000, which authorizes and regulates health, welfare, financial and property interventions, applies where a person aged 16 years of age or older is deemed to be an ‘incapable adult’ by reason of ‘mental disorder’ or an inability to communicate because of physical disability which cannot be made good by human or mechanical aid.⁸⁰

The principles that underpin each piece of legislation set out an expectation that formal measures should only be used where necessary, individual autonomy protected, and the least restrictive alternative is to be preferred. However, the growth in the use of the legislation has raised questions about whether it was succeeding in its objectives. In March 2023, there were 17,849 extant welfare guardianships—twice the number from a decade before.⁸¹ The use of mental health orders has risen consistently over the last 18 years. At the commencement of the Mental Health (Care and Treatment) (Scotland) Act in 2005, the number of Compulsory Treatment Orders (CTOs) in the first full year was 4379.⁸² 6713 detentions under the Act began in 2022–23.⁸³ Furthermore, the rise in the use of community-based CTOs does not appear to have reduced the use of hospital detention.⁸⁴ The legislation also fails to reinforce economic, social, and cultural rights which are vital to ensuring that persons with mental disabilities can live on equal terms with others.

4.1.2. The exercise of legal capacity

Moreover, safeguards for autonomy are limited. Legislative principles require that the person’s wishes and feelings must be taken into account.⁸⁵ Support for the exercise of legal capacity is also recognized. The Adults with Incapacity Act also requires that those responsible for the implementation of measures should encourage the development of the adult’s ability to exercise and develop whatever skills they have concerning their property, financial affairs, or personal welfare.⁸⁶ The Mental Health (Care and Treatment) Act requires patient participation support and information to enable this in decisions made concerning them under the Act.⁸⁷ The same Act recognizes support for the exercise of legal capacity in the form of advance statements and independent advocacy.⁸⁸ This requirement to take account of the person’s views does not, however, take priority and must compete with the other legislative principles. The references to supporting the exercise of legal capacity are also vague in terms of the nature and objective of such support and these only operate within the confines of legislation that authorizes measures based on diagnosis and/or mental incapacity assessment.

4.1.3. The European Convention on human rights (ECHR)

Compliance with CRPD requirements is also challenged by the apparent dichotomy between ECHR and CRPD approaches. The UK as an ECHR state party is obliged to give national effect to its rights across the UK. This is facilitated via the Human Rights Act 1998.⁸⁹ The obligation to give effect to ECHR rights is in fact stronger in Scotland where devolved legislative provisions and policy can be declared invalid, or proposed legislative and policy prevented, for lack of ECHR compliance.⁹⁰

In contrast to the CRPD’s enabling persons with mental disabilities through dismantling barriers to equal rights enjoyment, ECHR rights and jurisprudence have traditionally focused on safeguarding against unwarranted intrusions of their autonomy. Articles 5 and 8 of ECHR jurisprudence have shown an increasing willingness on the part of the European Court of Human Rights to recognize that restriction of a person’s right to liberty and to respect for private and family life must not be taken lightly or exercised disproportionately.⁹¹ However, Article 8(2) ECHR does allow for proxy decision-making and restrictions of autonomy where a person is deemed to lack the mental capacity to prevent crime and to protect health and morals and the rights of freedoms of others. Article 5 allows, subject to safeguards, detention on the basis of a diagnosis of mental disorder. It appears clear that the European Court of Human Rights, whilst arguably engaging with disability issues⁹² is reluctant to actively engage with the CRPD or move away from a medical model of disability.⁹³

The Scottish Mental Health Law Review was thus required to recommend changes to mental health and capacity law which both addressed the tensions around fully eliminating coercive practices and the apparently competing ECHR and CRPD approaches to the rights of persons with mental disabilities.

5. THE SCOTTISH MENTAL HEALTH LAW REVIEW: RECOMMENDATIONS

5.1. Repurposing mental health and capacity law

In its final report the Review proposed a suite of major reforms which were intended to:

• Strengthen the voice of people who use services and those who care for them

• Reduce the need for and use of coercion in the mental health system, and

• Secure rights to the help and support needed to live a good life.

The approach might be characterized as ‘radical incrementalism’ in that it seeks to build on existing law and practice whilst shifting substantially to a wider conception of human rights. It recommended a new purpose for mental health and capacity law, arguing that the current scope of such law was too narrow. It noted that human rights discourse had evolved to a position that human rights were indivisible⁹⁴ and that the notion of indivisibility of rights is important in practical as well as conceptual terms. The Review noted that a failure to provide an appropriate service reflecting economic, social, and cultural rights could affect a person’s Article 3 or Article 5 civil and political rights, eg where a person is only detained because of a lack of suitable community accommodation.⁹⁵ It is therefore recommended that the purpose of mental health and capacity law should be ‘to ensure that all the human rights of people with mental and intellectual disabilities … are respected, protected, and fulfilled’.⁹⁶ In short, there would be a move away from mental health and capacity law simply authorizing and regulating non-consensual interventions to ensure that the needs of persons with mental disability are met appropriately and timeously.

5.2. Reducing coercion

The Review acknowledged that the abolition of coercion is a complex and multifaceted issue, with even the definition of ‘coercion’ being contested. Indeed, its Final Report included a 15-page Annex on the definition of the term.⁹⁷ It noted that the approach advocated by the CRPD Committee had not yet been given full effect by any country in the world. It further noted many studies suggesting that efforts to prevent and reduce coercion appear to be effective, but that ‘no jurisdiction appears to have combined the full suite of laws, policies, and practices that are available, and which taken together might further the goal of eliminating coercion.’⁹⁸ Scotland was therefore seen as ‘part of an international community that is trying, learning, succeeding, and failing, all in the pursuit of something better’,⁹⁹ and the Review was conscious of the need for a non-discriminatory approach. It was, however, ultimately not persuaded that the complete abolition of coercion in the mental health system was achievable, at least in the short term. Some (although not all) people with lived experience who gave evidence to the Review stated that in some situations of extreme distress, they were not adverse to the principle of non-consensual interventions, but objected to its use where this was experienced as traumatic and lacking in dignity. That being said, it was also stated that even if non-consensual intervention is required on occasion, there may be situations where the need for this could have been avoided if better support had been available earlier.

The Review’s ultimate approach was strongly influenced by the aforementioned recommendations of the former UN Special Rapporteur on the Right to Health, Professor Dainius Puras, in his 2017 Report.¹⁰⁰ It is therefore recommended that there should be an initiative across law, policy, and practice to significantly reduce the use of compulsory psychiatric measures and seek viable alternatives. This was supported by specific recommendations for improved safeguards against coercion, including stronger regulation of practices such as restraint and seclusion, a right of appeal to the tribunal against unnecessary levels of restriction, and stronger requirements to record, monitor, and strive to reduce coercive interventions.¹⁰¹

However, it is important to see these as only part of the answer. The more fundamental change envisaged by the Review is the move away from regulating possible harms to overall rights enjoyment and equality, including the systematic development of alternatives to non-consensual interventions and enforceable economic, social, and cultural rights.¹⁰² It recommended that these initiatives would be supported by a framework encompassing Human Rights Enablement, Supported Decision-Making, and Autonomous Decision-Making. It provided the theoretical framework for these approaches, leaving the operational practicalities to be clarified and co-produced in due course by persons with lived experience and professionals.

5.3. Human rights enablement, supported decision-making, and autonomous decision-making

The objective of the recommended Human Rights Enablement approach¹⁰³ is to ensure that the whole range of an individual’s civil and socio-economic rights are identified, balanced, and enabled in any decisions affecting their care, treatment, support, or legal status. It would aim to:

• maximize a person’s ability to make autonomous decisions, thus ensuring that priority is given to their will and preferences,

• identify what rights, if any, need to be protected (including those of others),

• balance the advantages and disadvantages of limiting certain human rights in order to protect the person’s rights overall, and

• put in place an action plan to achieve this.

The assessment and operational elements of this approach would be applied (and revisited where circumstances change) to discrete and more general situations to ensure a person’s needs and wishes are met without their rights being limited, where this would not occur for people without mental or intellectual disabilities. To align as closely as possible with CRPD requirements, this would work in conjunction with a Supported Decision-Making and Autonomous Decision-Making framework. Moreover, and importantly, Human Rights Enablement and Supported Decision-Making would operate to transcend diagnosis and incapacity (or the inability to make autonomous decisions) and apply at all times to ensure the consideration of the person’s rights and that their legal capacity is exercised on an equal basis with others. The Supported Decision-Making element of the framework would ensure that the individual’s will and preferences lead to decisions that are made about them, recognizing that everyone has the right to make decisions for themselves and, where required, may seek support to make and give effect to such decisions.¹⁰⁴

The Review was cognisant of a certain lack of clarity around the concept of ‘supported decision-making’. Article 12(3) CRPD refers to ‘support for the exercise of legal capacity’, but General Comment No. 1 only provides broad examples of what such support might be, thus creating some debate over, and the requirement for further investigation into, what is and what is not effective or acceptable.¹⁰⁵ Moreover, General Comment No. 1 also refers to support for ‘legal capacity’ and ‘supported decision-making’, arguably creating some terminological confusion as to whether these amount to the same thing: the former arguably only applying to will and preferences relating to matters that are legally enforceable.¹⁰⁶ However, the Review settled on an interpretation that the overall objective of support required in Article 12(3) CRPD was in terms of supporting a person to make a decision and ensuring that steps are taken for that decision to be respected in the same way as it would for persons not experiencing decision-making challenges.¹⁰⁷

Evidence obtained during the Review identified considerable issues around the capacity tests in the Adults with Incapacity (Scotland) Act and Mental Health (Care and Treatment) (Scotland) Act.¹⁰⁸ Some consultees viewed the existing capacity tests as providing, if applied properly, a level of objectivity and focus, although greater clarity around their application to ensure consistency of use was required. Other consultees raised a number of concerns about such, tests such as their inconsistent use and being misunderstood, their subjective nature, being discriminatory, their blanket use irrespective of a person’s ability to make specific decisions, and being susceptible to manipulation to provide a desired outcome.

It was also commented that such tests are often applied too early with the objective of facilitating treatment and resource allocation decisions rather than considering alternative options. This reinforced the CRPD Committee’s concerns in its General Comment No. 1 over the use of capacity tests as a gateway to non-consensual care and treatment. Ultimately, it became clear to the Review Team that an alternative test was required to address these deficiencies, and a new Autonomous Decision-Making approach was recommended.

Autonomous Decision-Making¹⁰⁹ recognizes that there are many reasons why a person may be unable to make, communicate and/or put into effect their autonomous will and preferences, referred to as ‘controlling influences’. This might be undue influence by another person or persons, the impact of any illness, disability or health condition (including a health care crisis) and the impact of any situational or environmental factors.¹¹⁰ In such cases, Human Rights Enablement accompanied by, where required, supported decision-making would determine any support and measures to be adopted, prioritizing the persons rights and freedoms on an equal basis with others.

Such measures may be provided under mental health and/or capacity law or under other laws or policies, if appropriate. Crucially, non-consensual measures, including detention, could only be used where they are necessary to protect the person’s rights, and their needs cannot be met by other measures. The Review considered this would allow for a predominantly CRPD approach to rights enjoyment for persons with mental disabilities, whilst also being compatible with Articles 5 and 8 ECHR. Crucially, though, ensuring the equal exercise of the legal capacity of persons with mental disabilities and reduction of the coercion must be accompanied by legally enforceable economic, social, and cultural rights. This would allow for the equitable allocation of resources for support and services and viable alternatives to non-consensual measures to be identified and developed, thus minimizing the need to use such measures.¹¹¹

5.4. Economic social and cultural rights

The idea that mental health law should ensure people are properly supported is not wholly new. The Mental Health (Care and Treatment (Scotland) Act 2003 sets out (particularly at sections 25–27) a number of duties on local authorities to provide services to people who have, or have had, a mental disorder to maximize their chances of living ‘lives which are as normal as possible’, including accommodation, care, and services ‘designed to support well-being and social development.’ However, the Review found that these duties lacked any clear mechanisms for accountability or redress, leaving them effectively toothless.

The Review sought to anchor the duties of public bodies in specific human rights and consulted on which were most salient. Respondents’ emphasized the following issues in particular:

• CRPD Article 8 on fostering respect for the rights and dignity of people with disabilities was seen as crucial to challenging the prevalence of stigma and negative attitudes to mental ill health and mental diversity.

• ICESCR Article 12 and CRPD Article 25 on the right to the highest attainable standard of physical and mental health. This goes wider than the requirement for good support for people with mental illness and includes better prevention and early intervention, addressing the social determinants of mental health, and tackling the huge inequalities in physical health outcomes for people with intellectual disabilities or experience of mental illness.

• ICESCR Article 9 and CRPD Article 19 on the rights to adequate housing and independent living. Article 19 in particular sets out a clear right of disabled people to ‘live in the community with choices equal to others’, which is simply not being met for many people required (by law or by lack of an alternative) to live in hospitals or institutional accommodation.

Other important rights include the right to an adequate income (ICESCR Articles 9 and 11, CRPD Article 28); the right to inclusion in society (ICESCR Article 15, CRPD Articles 19 and 30); and the right to accessible information (CRPD Article 9).

The challenge was to articulate these rights in domestic law in a way that was meaningful and effective. The Review drew on the approach of the Scottish Human Rights Taskforce¹¹² and particularly on the established rights framework of combining Minimum Core Obligations (which must be achieved for everyone)¹¹³ with a duty of Progressive Realization¹¹⁴ (to ensure that steps are taken progressively to improve the fulfilment of economic, social, and cultural rights). The Review therefore recommended that there should be a legal requirement for the Scottish Government to establish minimum core obligations to people with mental or intellectual disabilities to secure their human rights, alongside a framework for progressive realization of those rights (Recommendation 6.2); and that the National Health Service, local authorities, and other relevant public bodies be placed under clear and attributable duties to provide sp ecific supports to address the most salient of these rights (Recommendations 6.3 and 6.4). These duties should be framed in terms of human rights standards, including the availability, accessibility, acceptability, and quality (AAAQ) framework set out by the ICESCR Committee.^115,116

Some argued¹¹⁷ that economic, social, and cultural rights applied to everyone, and it was not clear what would be added by making specific provisions for people with mental or intellectual disabilities. The Review, however, concluded that a general requirement to fulfil economic, social, and cultural rights for everyone, without being tied to specific obligations in respect of this group, was unlikely to achieve the level of change that was necessary. At the same time, it recognized that mental health law on its own could not address the wider determinants of ill health, including poverty and inequality. Responding to these requires a wider societal response—but one that is sensitive to the particular issues affecting mental health. The Review therefore recommended that the Government’s wider mental health strategy¹¹⁸ be recast around a human rights framework, which should address other relevant policies and strategies, including housing, poverty, social security, employment, and community support.¹¹⁹ There were concerns about the practicability of minimum core obligations, with some arguing that these may not be flexible enough to support dynamic service development, alongside fears that, instead of being a minimum baseline, they became a universal standard—a ceiling and not a floor. Recognizing the danger of a lack of ambition and reflecting the requirements of Article 4(3) of the CRPD, the Review recommended that the development of minimum core obligations and the framework for progressive realization ‘should be carried out with the full participation of people with mental or intellectual disabilities and their representative organisations.’¹²⁰

5.5. Accountability

The Review was also clear that where the obligations of government and public bodies were not fully met, there should be ‘accessible, affordable, timely, and effective remedies’, including the ability to raise a legal action in the civil courts.¹²¹ This language draws on the requirements for administrative remedies in the UN CESCR’ General Comment No. 9.¹²² In pursuance of this, the Review sought to go beyond the traditional public law remedy of judicial review. In Scotland this requires raising an action in the highest domestic civil court, the Court of Session, which is a cumbersome and expensive process. It envisaged a more radical approach that would give greater powers to judicial bodies at a lower level, including the Mental Health Tribunal for Scotland which deals with applications for compulsory treatment or detention under the Mental Health (Care and Treatment) (Scotland) Act. For example, the Review noted that the Tribunal can make a ‘recorded matter’ specifying services it believes the patient should receive and sought to strengthen this by recommending that the Tribunal be given powers to direct services to provide within a specified time such care and support as may be required to ensure that any compulsion respects the human rights of the patient.¹²³

A possible alternative approach had been briefly discussed in the Review’s December 2020 Interim Report.¹²⁴ This was that the Mental Health Tribunal could have power to refer an apparent failure to meet human rights to a higher court, which could consider whether the decisions of the public body were compatible with their obligations, and identify an appropriate remedy, eg requiring the public body to remedy their failure within a reasonable period. This would be adopted not only for breaches of minimum core obligations but also to give additional weight to progressive realization, recognizing that even where a right cannot be immediately realized, there is an obligation on the state to make tangible and measurable progress.

Although these were significant and innovative proposals, it is difficult to overcome the limitations of individual legal action as a means to secure economic and social rights. Legal remedies may privilege those who have the resources and capacity to pursue them, but it can also be difficult for courts to address wider systemic issues which may be the underlying causes of service failures. The constitutional principle of separation of powers eg means that the judiciary is often reluctant to stray into areas traditionally within the executive domain, such as the responsibility for deciding on the allocation of scarce public resources.

The Review therefore proposed a wider and systemic approach to using human rights as a lens for accountability. Scotland has a complex network of scrutiny bodies overseeing health and care services, including mental health services which have been criticized as fragmented, with overlaps and gaps in responsibility.¹²⁵ The Review recommended that this network develop a framework for monitoring outcomes in mental health with the promotion, protection, and realization of people’s human rights as a common aim; and with capacity building within organizations to ensure sufficient human rights expertise.¹²⁶ It also proposed that the Mental Welfare Commission for Scotland (a statutory organization that visits services, investigates concerns, and promotes best practice¹²⁷) should play a central role in advancing human rights for people with mental and intellectual disabilities. This would be achieved by the Commission being given a statutory remit to protect and promote the human rights of people with mental and intellectual disabilities, it leading and coordinating the scrutiny network, and having the power to initiate legal proceedings to protect the human rights of any person affected by mental health law.¹²⁸

Alongside scrutiny and inspection, there is an important role for data collection in monitoring compliance with human rights obligations. Current data collection in Scotland was insufficient for the task, even though it was apparent that there were issues of concern, eg a disproportionate number of Black and minority ethnic people were made subject to community-based CTOs.¹²⁹ Public Health Scotland is the agency charged with bringing together data and intelligence to respond to Scotland’s public health challenges. The Review thus recommended that it should be subject to a duty to lead work, alongside others including organisations representing lived experience, to determine what needs to be monitored to ensure human rights obligations are met.¹³⁰

Moreover, to reflect the CRPD, accountability frameworks must fully involve people with disabilities and their representative organizations. Scotland has organizations that meet the CRPD criteria¹³¹ for ‘organisations of people with disabilities’ who can legitimately represent their community.¹³² However, these organizations are few and do not have the resources or capacity to play the role envisaged by the CRPD. The Review therefore recommended that there should be a legal duty on the Scottish Government to secure and support effective collective advocacy organizations for people with a mental or intellectual disability at a local and national level.¹³³ It also recommended that individual and collective advocacy groups should have a right to raise a court action for human rights breaches affecting those they represent and should have access to legal advice and support to do this.¹³⁴

6. CONCLUSION: LESSONS IN TAKING REFORM FORWARD

In its final report, the Scott Review stated:

‘Some of the changes we have in mind, which can be achieved without changes in the law, should start now or soon. To be effective, changes in the law often need to be accompanied by changes in culture. That is a process in which we all have a part to play. It will take some time but can start now […] When law and culture shift together, the end result can be inspirational and lasting.’¹³⁵

In June 2023, the Scottish Government published its official response to the Review’s recommendations.¹³⁶ Whilst it left open the extent to which these recommendations will be fully reflected in legislation and practice, it did broadly support them and announced a programme of reform for mental health and capacity law. It also provided some initial but non-specific timescales for reform running to 2029 and beyond. This was followed by a delivery plan covering the period from October 2023 to April 2025, which was published in June 2024.¹³⁷ The delivery plan set out a relatively modest set of planned outputs over this period, the most significant of which was a consultation on interim reforms to incapacity legislation published in July 2024.¹³⁸ It is too early to tell how successful the Review will be in achieving its vision of repurposing mental health legislation to reflect a human rights-based approach, based on the full suite of international human rights obligations. Reflecting on progress to date, and the experience of reform in the neighbouring jurisdictions of Northern Ireland and England and Wales, it is clear that sustained political commitment over many years is necessary for success.

The timescale set out by the Scottish Government for implementing reform goes well beyond the next Scottish Parliament elections in 2026. The Mental Capacity Act (Northern Ireland) 2016 came 14 years after the Northern Irish Government established the Bamford Review, and much of it has yet to be implemented. In England and Wales, the Law Commission proposed reforms to the Mental Capacity Act in 2017. Changes were legislated for in the Mental Capacity (Amendment) Act in 2019, but have not been implemented. Following the 2018 Wessely Report, a Mental Health Bill was published in 2022. This was not taken forward before the 2024 UK General Election, although the King’s Speech to the UK Parliament in 2024 included a commitment to modernize the Mental Health Act.¹³⁹ Since then, media reports have suggested that reform may be ‘slowed down’ following a tragic multiple homicide, highlighting the contested space within which attempts to improve the rights of people with mental disabilities operate.¹⁴⁰ There are some urgent drivers for reform, particularly the challenge of Cheshire West, but there is a risk that the Scottish Government focuses on the urgent or easy reforms, and once they are done, never gets round to the more substantial change which would make the real difference to people’s lives.

The Review provided only a theoretical framework for its recommended Human Rights Enablement, Supported Decision-Making, and Autonomous Decision-Making framework. It acknowledged that how these will be represented in legislation and implemented in practice requires further development and that achieving full CRPD compliance is an ongoing process. However, whether this framework is primarily situated in mental health and capacity law or wider human rights legislation, the success of this model and the Review’s pathway to reduce coercion through the provision of appropriate alternatives is to a large extent dependent on wider developments in mental health and human rights policy.

Legal reforms need to be combined with changes to the culture of services, and a systemic commitment to the empowerment of people with mental and intellectual disabilities. Full implementation requires a multi-institutional approach with reform of the justice system as well as health, social care, and other public services. Moreover, the fact that notions of risk and sensitivity around claims of professional negligence and misconduct, and interpretations of what constitutes autonomy and the importance placed on individual autonomy, may differ between cultural and ethnic groups and between states adds to the complications of CRPD implementation within Scotland and beyond. The Review was cognisant of this and to this extent, its approach is not dissimilar to the recently published World Health Organization (WHO) mental health, human rights, and legislation guidance.¹⁴¹ Admittedly, the guidance encourages States to integrate mental health into general human rights-based legislation rather than there being mental health specific legislation,¹⁴² as the Review proposes. That said, the Review very much saw its recommendations for mental health and capacity law change in the context of wider human rights-based legislation. Moreover, the WHO guidance acknowledges that ‘countries with existing standalone legislation may need assistance in the progressive transition to a human rights-based approach’¹⁴³ which the Scott Review also recognized in its final report. The WHO guidance thus appears to be supportive of the Review’s approach.

Nevertheless, a challenge for Scotland, as for any jurisdiction, is how far there is a unified consensus amongst local stakeholders about how to understand and apply the CRPD. Without this, there may be little incentive for politicians to invest resources and political capital in reform. The Review had some success in securing support from professional bodies such as the Royal College of Psychiatrists as well as human rights bodies such as the Scottish Human Rights Commission, but it is a narrow path to walk.

Perhaps the biggest challenge is that committing to a human rights-based approach requires an acknowledgment of how far we are from this at the moment. In the wake of a decade or more of austerity and the havoc wrought by the COVID pandemic, Scottish public services face huge pressures. Several respondents including COSLA, the body representing local authorities, highlighted to the Review their concern about the resource implications of the Review.¹⁴⁴ The fact that the Review took place alongside a wider set of proposals to incorporate human rights instruments into domestic law was fortuitous. However, there is anxiety from some stakeholders that the expansive vision set out by the Human Rights Taskforce may be diluted in the Government’s proposals for implementation.¹⁴⁵ This appears partly to be a result of the decision of the UK Supreme Court that a previous Act of the Scottish Parliament to incorporate the UN Convention on the Rights of the Child into domestic law was ultra vires, insofar as it sought to affect legislation passed by the UK Parliament.¹⁴⁶

Paradoxically, this may make the proposals of the Review more attractive. The key mental health and capacity legislation was all passed by the Scottish Parliament, so would not be affected by the constraints of the Supreme Court judgment. It is possible to imagine that the approach recommended by the Review could be a pathfinder for a comprehensive human rights-based approach which could in time be extended to other fields. That being said, there appears to currently be a hiatus in terms of progress towards incorporating international human rights obligations into the Scottish legal framework. Whilst the Scottish Government’s Programme for Government 2024–25, published in September 2024, includes a commitment to introducing legislation to amend the Adults with Incapacity (Scotland) Act 2000, there is no mention of mental health legislation and the promised Human Rights Bill has been delayed.¹⁴⁷

In the meantime, the Adults with Incapacity (Scotland) Act 2000 and Mental Health (Care and Treatment) (Scotland) Act 2003 principles, whilst not fully CRPD compliant, do seek to respect a person’s autonomy when facing non-consensual measures. Given the UK’s international law obligation to give effect to CRPD rights and the Scotland Act 1998 requirement that devolved Scottish law and policy must not thwart this¹⁴⁸ there is arguably no reason why CRPD principles cannot be read into the interpretation and implementation of such principles to the extent the legislation allows. Whilst it might be argued that compliance with ECHR standards—and these are incorporated into Scotland’s legal structure—does not require this, it must be borne in mind that the ECHR sets out minimum standards for rights observance. It does not preclude observance which exceeds this. This may afford some opportunity to progress the ambitions of the CRPD, as a small step on the longer journey to full rights realization.

Footnotes

Author notes