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Committee on the Rights of Persons with Disabilities – Concluding Observations on the UK – Centre for Mental Health and Capacity Law Response


The Centre for Mental Health and Capacity Law welcomes the Committee on the Rights of Persons with Disabilities Concluding Observations on the initial report of the United Kingdom, published on 29th August 2017. [1]


While the Committee welcomed a number of Scottish initiatives including the introduction of the Convention on the Rights of Persons with Disabilities Delivery Plan in 2016 [2], it also raised a number of concerns in relation to people with intellectual and psychosocial disabilities which are applicable to all UK jurisdictions. In particular, the UK was criticised for its continued retention of legislation which restricts legal capacity through the implementation of substituted decision-making. [3]  It also highlighted ‘the lack of full recognition of the right to individualised supported decision-making that fully respects the autonomy, will and preferences of persons with disabilities.’ [4]  It is clear from the Committee’s recommendations that the replacement of substituted decision-making regimes and the introduction of supported decision-making is key to the realisation of the Convention.  Vital to this is the recommendation that the UK ‘step up efforts to foster research, data and good practice of, and speed up development of supported decision-making regimes.’ [5]  This reflects the recommendation recently made by the Centre and the Mental Welfare Commission in ‘Scotland’s Mental Health and Capacity Law: the Case for Reform’ that the law in Scotland is in need of significant reform and that any new regime must reflect the requirements of the CRPD and give effect to the rights, will and preferences of the individual. [6] 


The Centre reiterates its support for a programme of law reform in Scotland and urges the Scottish Government to fully engage with the recommendations of the UN Committee.  This not only requires an overhaul of the laws relating to the exercise of legal capacity but also includes greater focus on addressing how the new Scottish Social Security System will meet the needs of people with psychosocial and intellectual disabilities, consideration of how to challenge stereotypes and prejudice and the elimination of barriers to accessing health care.


[1] Committee on the Rights of Persons with Disabilities, ‘Concluding observation son the initial report of the United Kingdom of Great Britain and Northern Ireland’ (29 August 2017) CRPD/C/GBR/CO/1
[2] Scottish Government, ‘A Fairer Scotland for Disabled People – Our Delivery Plan to 2021 for the United Nations Convention on the Rights of Persons with Disabilities’ (December 2016)
[3] Concluding Observations para.30
[4] Ibid.
[5] Concluding Observations para.31
[6] Centre for Mental Health and Capacity Law and the Mental Welfare Commission, ‘Scotland’s Mental Health and Capacity Law: the Case for Reform’ (May 2017)



Scotland Mental Health and Capacity Law: the Case for Reform - Report Published


A new report published by the Mental Welfare Commission and Edinburgh Napier University calls for a long term reform programme for Scotland’s mental health and incapacity legislation.


The report is the conclusion of a series of in-depth discussions with specialists in the law, health care, social work and human rights from across Scotland and around the UK.


The report compares Scottish law in this area – which dates from 2000 (Adults with Incapacity) and 2003 (Mental Health Act) - with international human rights laws, and finds that what was once world-leading, is now increasingly in need of reform.


Colin McKay, chief executive, Mental Welfare Commission, said:


“In the 15 years since our legislation was developed, significant changes have taken place in the understanding of how best the law can respect the rights of people with mental ill health or incapacity.


“The numbers of people subject to detention and guardianship has risen substantially, putting the safeguards in the law under pressure.


“The Government has committed to reviewing aspects of incapacity law. We welcome this, but believe it needs to be part of a comprehensive reform programme, reflecting a principled and human rights based approach.”


Attendees at the sessions, which were chaired by Professor Genevra Richardson from King’s College, London, discussed current thinking about non-consensual care and treatment, and the legal basis for intervention.


They considered changes that have taken place in in the UK, notably in Northern Ireland, and internationally, since Scotland’s legislation was introduced over 15 years ago.


They sought the views of people with personal experience of being subject to these laws in Scotland, and of their families and carers.


Three specific areas for change are:

New forms of guardianship, which should provide a more flexible, proportionate and rights-respecting way to make decisions about money, care and welfare, for people who cannot take those decisions themselves. This suggestion is being considered by the Scottish Government. 

the possibility of unified legislation, replacing Scotland’s two, separate mental health and incapacity laws with completely new, non-discriminatory legislation for making decisions about welfare and treatment where an adult is unable to do so unaided; and 

The issue of compulsion in care and treatment – particularly how far decision making capacity should be central to decisions on compulsory treatment, whether or not the person has mental illness.


Professor Jill Stavert, Director of the Centre for Mental Health and Capacity Law and Business School Director of Research, Edinburgh Napier University, said:


“Creating this report involved a thorough comparison of Scotland’s mental health and incapacity legislation with current international human rights laws.


“Contributors agreed that while there is much to be proud of in our law and practice, it needs updating. The UN Convention in the Rights of Persons with Disabilities requires us to do more to support people to take decisions for themselves, even if they have a mental illness, dementia or intellectual disability, and to give effect to those decisions.


"Developing good quality legislation takes time, so we are calling on the government to commit to starting the process of replacing our mental health and incapacity legal framework with new legislation, that will ensure our approach to the care and treatment of people with mental health and capacity issues remains appropriate for the 21st century and current international human rights standards.”


The full report is available here.


Colin McKay, Jill Stavert

The Centre published its third newsletter in November 2016 which can be read here.

Support for the Exercise of Legal Capacity in Scotland
Wednesday 25th January 2017, 1pm-3pm
Speakers: Adrian Ward (TC Young Solicitors), Shaben Begum (Scottish Independent Advocacy Alliance), Jan Killeen (Churchill Fellow, Winston Churchill Memorial Trust)
Implementation of the Mental Health (Scotland) Act 2015
Thursday 9th March 2017, 12.30pm-3pm
Speakers: Mental Health Tribunal for Scotland, Ronnie Franks (Legal Services Agency), Carolyn Lochhead (SAMH)
Dementia in the Workplace
Thursday 4th May, 12pm-2pm
(RESCHEDULED - this seminar will now take place on Wednesday 21st June, 12pm-2pm)
Speakers: Dr Valerie Egdell (Employment Research Institute, Edinburgh Napier University), Professor Jill Stavert (Centre for Mental Health and Incapacity Law, Rights and Policy, Edinburgh Napier University), Professor Debbie Tolson (University of the West of Scotland), Dr Louise Ritchie (University of the West of Scotland), Professor Michael Danson (Heriot Watt University)
Learning Disability and Mental Health Legislation
Thursday 1st June, 5pm-7pm
Speakers: Dr Ailsa Stewart (University of Strathclyde), Dr Gillian MacIntyre (University of Strathclyde), Dr Fergus Douds (State Hospital), Kate Fearnley (Mental Welfare Commission)
Further details about the above seminars will be circulated closer to their respective dates.

Essex Autonomy Project Three Jurisdictions Project - Final Project Report published
The Centre's Professor Jill Stavert and Research Assistant Rebecca McGregor have been involved with the AHRC and ESRC funded Three Jurisdictions Project (Essex Autonomy Project). The project's objective was to assess the compatibility of UK-wide capacity and incapacity laws with Article 12 UN Convention on the Rights of Persons with Disabilities (the right to equal recognition before the law). On 6 June 2016, we published our final project report.
Members of the core research team were  Professor Wayne Martin (principal investigator) and Professor Sabine Michalowski (both of University of Essex), Professor Jill Stavert (Centre for Mental Health and Incapacity Law, Rights and Policy, Edinburgh Napier University), Colin Caughey (Northern Ireland Human Rights Commission), Adrian Ward (Consultant TC Young Solicitors, Law Society of Scotland and also a member of the Centre's Expert Advisory Group), Alex Ruck Keene (Barrister, 39 Essex Chambers (London), Honorary Research Lecturer (University of Manchester) and Visiting Research Fellow (Dickson Poon School of Law, Kings College London)) and Alison Hempsey (Partner, TC Young Solicitors).   
The project final report can be accessed here.
Cross-Border Issues
Monday 20th June, 1pm-3pm
Speakers: Adrian Ward (Partner TC Young Solicitors), Alex Ruck-Keene (Barrister 39 Essex Chambers, Honorary Research Lecturer University of Manchester)​
Mentally Disordered Offenders
Wednesday 20th April 2016, 5pm-7pm
Speakers: Dr John Crichton (Consultant Forensic Psychiatrist, Honorary Fellow University of Edinburgh), Russell Hunter (Solicitor, Legal Secretary to the Mental Health Tribunal for Scotland), David Leighton (Advocate Hastie Stable)​
Deprivation of Liberty
Wednesday 23rd March, 12pm-3pm
Speakers: Colin McKay (Chief Executive Mental Welfare Commission), Michelle Pratley (Advocate 39 Essex Chambers), Laura Dunlop QC (Advocate Hastie Stable)
Fatal Accidents Inquiries and Psychiatric Patients
Wednesday 27th January 2016, 5pm-7pm
Speakers: Dr John Crichton (Consultant Forensic Psychiatrist, Honorary Fellow University of Edinburgh), Professor Jill Stavert (Professor of Law Edinburgh Napier University)
Mental Health from a Global Perspective: How experiences from other jurisdictions can inform national policy, law and practice
Monday 9th November 2015, 1pm-3pm
Speakers: Professor Peter Bartlett (University of Nottingham), Dr Ross White (University of Glasgow)



Capacity and Consent: Complex Issues Workshop
11th February 2015
Speakers - Adrian Ward MBE, Partner TC Young Solicitors; Rev. Dr. Graham Blount, Acting Secretary Church and Society Council, The Church of Scotland
Supported Decision-Making Seminar
13th November 2014
Speakers – Shaben Begum MBE, Scottish Independent Advocacy Alliance; Dr Paul Hutton, University of  Edinburgh
The Mental Health (Scotland) Bill: Issues and Implications
10th September 2014
Speakers: May Dunsmuir, Solicitor and In-house Convenor, Mental Health Tribunal for Scotland, and President, Additional Support Needs Tribunal for Scotland; Amanda Millar, Associate and Accredited by The Law Society of Scotland as a Specialist in Mental Health Law and in Incapacity and Mental Disability Law, McCash & Hunter Solicitors; Carolyn Roberts, Head of Policy and Campaigning, Scottish Association for Mental Health.
General Comment on Article 12 CRPD (right to equal recognition before the law): Implications for Scotland?, 27th June 2014
Speakers: Colin McKay, Mental Welfare Commission for Scotland; Lynn Welsh, Equality and Human Rights Commission; Dr Jill Stavert, Centre for Mental Health and Incapacity Law, Rights and Policy 


Guest Expert Lectures for the LLB Honours Year Students

In November and December of 2014 Honours students on the LLB Essential Health Law Issues for Practice, Management and Policy module were given the opportunity to hear from Dr Joe Morrow, President of the Mental Health Tribunal for Scotland, and Sandra McDonald, Public Guardian, who gave very interesting insights into the law in practice. The University is very grateful to them both for giving up their time to come and speak to the students. The links with practiced law is important to Edinburgh Napier University and for law students hoping to progress to the trainee solicitor stage or other careers using law.


Expert Advisory Group

An Expert Advisory Group has now been appointed to assist in formulating the Centre’s strategic direction and priorities.