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.