The “capacity” dichotomy for Mental Health Tribunals Scotland

Sir Crispin Agnew of Lochnaw (Lead / Corresponding author)

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The article examines the very low threshold test for capacity to instruct a solicitor, applied by the Mental Health Tribunal Scotland (MHTS) against the stricter statutory and common law capacity test in Scotland and the other jurisdictions of the UK for instructing a solicitor. This is in the context that the medical evidence is that the patient does not have the mental capacity, because of his mental disorder, to understand either that he has a mental disorder or to make decisions about their medical treatment, which therefore has to be given under compulsion. If the normal capacity test applied then the patient would always require a curator ad litem. The author concludes that this approach does not comply with the UN Convention on the Rights of Persons with Disabilities (CRPD) as it leads to discrimination between a person who can instruct a solicitor under the low threshold test and those to whom a curator ad litem is appointed. Further, it does not assist with supported decision-making as envisaged by the CRPD.
Original languageEnglish
Pages (from-to)125-147
Number of pages23
JournalJuridical Review
Issue number3
Publication statusPublished - 23 Sept 2022


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