Scotland: CRPD and Mental Health Legislation

The Convention on the Rights of Persons with Disabilities (CRPD) challenges the foundations of mental health legislation. The Committee on the Rights of Persons with Disabilities has stated that non-consensual psychiatric measures reinforce inequalities in rights enjoyment for persons with mental disability by allowing the rights to liberty and autonomy to be disproportionately limited in a way that does not apply to those without mental disability. Additionally, such legislation has traditionally focused on the authorisation and regulation of compulsory psychiatric detention and treatment and little else but the CRPD highlights the fact that achieving mental wellbeing is more than simply delivering psychiatric care and treatment. It requires us to look beyond merely respecting the civil rights associated with the use of non-consensual interventions to the whole range of a person’s human rights including their economic, social, and cultural rights. Scotland’s existing mental health legislation was originally regarded as world-leading in its human rights-based approach to the care and treatment of persons with mental disabilities. It is not, however, currently aligned with the CRPD although aspects of the CRPD can be read into its provisions and their implementation. A recent review of the legislation has, however, made recommendations which should, if adopted, arguably bring about much greater alignment with the CRPD than other English-speaking jurisdictions.